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EXHIBIT 10.13
Lease between Xxxxx de Oro Bank, N.A. and Reseda Investors dated November 15,
1987
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SHOPPING CENTER LEASE
1. PARTIES.
This Lease, dated as of this 15th day of November, 1987, is made by
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and between RESEDA INVESTORS a California General Partnership (herein called
"Landlord") and Xxxxx de Oro Bank (herein called "Tenant").
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2. PREMISES.
Landlord does hereby lease to Tenant and Tenant hereby leases from Landlord
that certain space (herein called "Premises"), having dimensions of
approximately 64 feet in frontage by 64 feet in depth and containing
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approximately 4,000 square feet of floor area in a building (herein called
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"Building") in the Rancho San Diego Shopping Center (herein called "Shopping
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Center"). Subject to Articles 3.B. and 3.C. below, the location and dimensions
of said Premises are delineated on Exhibit "A" attached hereto and incorporated
by reference herein. Said Premises are located in the City of San Diego, County
of San Diego, State of California.
This Lease is subject to the terms, covenants and conditions herein set
forth and the Tenant covenants as a material part of the consideration for this
Lease to keep and perform each and all of said terms, covenants and conditions
by it to be kept and performed.
3. CONSTRUCTION OF BUILDING AND LEASED PREMISES.
3.A. Construction of Building.
Subject to Article 3.C., Landlord agrees, on or before 12 months from
execution of this Lease, to substantially complete the construction of the
Building, including the Common Area landscaping and improvements designated in
yellow on Exhibit "A." The time during which Landlord is delayed in construction
of the Premises by (a) the acts of God, (b) stormy or inclimate weather which
delays the work, (c) any strikes, boycotts or like obstructive actions by
employees or labor organizations which are beyond the control of Landlord and
which it cannot reasonably overcome,
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(d) action or inaction of governmental agencies, or (e) delays caused by Tenant
shall be added to the time for completion by a fair and reasonable allowance.
This lease is subject to approval of plans and specifications approved by
tenant and the completion of improvements according to approved plans.
3.B. Landlord's Work.
Landlord shall at its cost and expense construct the Premises for
Tenant's use and occupancy in accordance with plans and specifications prepared
by Landlord or Landlord's architect, incorporating in such construction all
items of work described as Landlord's Work in Exhibit "B."
3.C. Building Alterations and Additions.
Landlord also reserves the right to construct other buildings or
improvements in the Shopping Center from time to time and to make alterations
thereof or additions thereto. Landlord further reserves the right to repair the
roof of the building in which the Premises are located.
3.D. Location of Premises.
The purpose of the site plan attached hereto as Exhibit "A" is to
show the approximate location of the Premises. Landlord reserves the right at
any time to relocate, and adjust the size of the various buildings, contents,
automobile parking areas, and other common areas as shown on said site plan,
provided, however, that Landlord shall not materially relocated Tenant's
Premises within the Shopping Center without Tenant's consent.
4. USE AND COMPETITION.
4.A. Use.
Tenant shall use the Premises for Banking and related financial
services or services permitted to banks and shall not use or permit the
Premises to be used for any other purpose.
4.B. Competition.
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5. MINIMUM RENT.
5.A. Payment.
Tenant agrees to pay to Landlord as Minimum Rent, without notice or
demand, the monthly sum of six thousand three hundred twenty-one and 85/100
($6,321.85. (The minimum rent) Dollars, in advance, on or before the first day
of each and every successive calendar month during the term hereof, except the
first month's rent shall be paid upon the execution hereof. The rental shall
commence (check applicable box):
90 days after substantial completion of Landlord's Work as set forth in
Exhibit "B" attached hereto and incorporated herein by reference, or when
the Tenant opens for business, whichever is sooner. Landlord agrees that
it will, at its sole cost and expense as soon as is reasonably possible
after the execution of this Lease, commence and pursue to completion the
improvements to be erected by Landlord to the extent shown on the
attached Exhibit "B" labeled "Description of Landlord's Work and Tenant's
Work." The term "substantial completion of the Premises" is defined as
the date on which Landlord or its architect notifies Tenant in writing
that the Premises are substantially complete to the extent of Landlord's
Work specified in Exhibit "B" hereof, with the exception of such work as
Landlord cannot complete until Tenant performs necessary portions of its
work. Tenant shall commence the installation of fixtures, equipment, and
any of Tenant's Work as set forth in said Exhibit "B", promptly upon
substantial completion of Landlord's Work in the Premises and shall
diligently prosecute such installation to completion, and shall open the
Premises for business not later than the expiration of said 90 day period.
Rent for any period which is for less than one (1) month shall be a prorated
portion of the monthly installment herein based upon a thirty (30) day month.
Said rental shall be paid to Landlord, without deduction or offset, in lawful
money of the United States of America, and at such place as Landlord may from
time to time designate in writing.
In the event that Tenant shall fail to pay the minimum monthly rent, or
any additional rent within five (5) days after the same has become due,
Landlord shall be entitled to recover from Tenant five (5) percent of the
amount due as a late charge.
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5.B. Minimum Rental.
The minimum rental as set forth in 5.A. above shall be increased if
the Consumer Price Index -- Los Angeles/Long Beach All Urban Wage Earners
(herein called "Index") as published by the United States Department of Labor's
Bureau of Labor Statistics, increases over the base period Index. The base
period Index shall be the Index for the calendar month which is four (4) months
prior to the month in which rentals commence. The base period Index shall be
compared with the Index for the same calendar month for each subsequent year
(comparison month). If the Index for any comparison month is higher than the
base period Index, then the minimum rental for the next year shall be increased
by the identical percentage commencing with the next rental commencement month.
In no event shall the minimum rental be less than that set forth in 5.A. above.
(By way of illustration only, if Tenant commenced paying rent in June of 1977,
then the base period Index is that for February 1977 (assume 176.3 and that
Index shall be compared to the Index for February 1978 (assume 185.8), and
because the Index for February 1978 is 5.39% higher, the minimum rental
commencing June, 1978, shall be 5.39% higher; likewise the Index for February
1979 shall be compared with the Index for February 1977.)
Should the Bureau discontinue the publication of the above Index, or
publish same less frequently, or alter same in some other manner, then Landlord
shall adopt a substitute index or substitute procedure which reasonably
reflects and monitors consumer prices.
Notwithstanding anything contained in this Article 5.B. to the contrary,
the annual cost of living adjustments shall not be less than 3% nor more than
5%. Cost of living adjustments to be calculated and compounded on an annual
basis, but adjusted every three (3) years.
6. TERM.
The lease term shall be 15 full years commencing on the date the rental
commences. The parties shall enter into the agreement attached as Exhibit "C"
when the actual commencement date (herein "Commencement Date") becomes known.
The parties hereto acknowledge that certain obligations under various articles
hereof may commence prior to the lease term, i.e., construction, hold harmless,
liability insurance, etc.; and the parties agree to be bound by these articles
prior to commencement of the lease term.
7. SECURITY DEPOSIT.
Concurrently with the Tenant's execution of this Lease, Tenant has
deposited with Landlord a sum equivalent to the first two months rent in the
total sum of $6,321.85. Said sum shall be held by Landlord as security for the
faithful performance by Tenant of all the terms, covenants, and conditions of
this Lease to be kept and performed by Tenant during the term hereof. If Tenant
defaults with respect to any provision of this Lease, including, but not
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limited to the provisions relating to the payment of rent, Landlord may (but
shall not be required to) use, apply or retain all or any part of this security
deposit for the payment of any rent or any other sum in default, or for the
payment of any amount which Landlord may spend or become obligated to spend by
reason of Tenant's default, or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If any portion
of said deposit is so used or applied Tenant shall, within five (5) days after
written demand therefor, deposit cash with Landlord in an amount sufficient to
restore the security deposit to its original amount and Tenant's failure to do
so shall be a default under this Lease. Landlord shall not be required to keep
this security deposit separate from its general funds, and Tenant shall not be
entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the security
deposit or any balance thereof shall be returned to Tenant (or, at Landlord's
option, to the last assignee of Tenant's interest hereunder) within ten (10)
days following expiration of the Lease term. In the event of termination of
Landlord's interest in this Lease, Landlord shall transfer said deposit to
Landlord's successor in interest. Tenant shall be notified of said transfer and
receive a receipt from the successor in interest with respect to the transfer
and the amount of security deposit funds received from Landlord.
8. ADDITIONAL CHARGES.
8.A. Percentage Rent.
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8.B. Adjustments.
I. In addition to the Minimum Rent provided in Article 5
hereinabove, and commencing at the same time as any possession commences under
this Lease, Tenant shall pay to Landlord as additional rent the following items,
herein called Adjustments:
(a) All real estate taxes and insurance premiums on the
Premises, including land, building, and improvements thereon.
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Said real estate taxes shall include all real estate taxes and assessments that
are levied upon and/or assessed against the Premises, including any taxes which
may be levied on rents.* Said insurance shall include all insurance premiums for
fire, extended coverage, liability, rental loss and any other insurance that
Landlord deems necessary on the Premise. Said taxes and insurance premiums for
the purpose of this provision shall be reasonably apportioned in accordance with
the total floor area of the Premises as it relates to the total rentable floor
area of the Shopping Center which is from time to time completed as of the first
day of each calendar quarter (provided, however, that if any tenants in said
Building or buildings pay taxes directly to any taxing authority or carry their
own insurance, as may be provided in their leases, their square footage shall
not be deemed a part of the floor area). Tenant shall pay taxes upon its leased
premises and provide its own insurance subject to approval of Landlord and
Landlord's lender.
(b) That percent of the total cost of the following items as Tenant's
total floor area bears to the total rentable floor area of the Shopping Center
which is from time to time completed as of the first day of each calendar
quarter (provided, however, that if any tenants in the shopping center do not
pay the cost of some or all of the items, as may be provided in their leases,
their square footage shall not be deemed a part of the floor area for those
items).
(i) All real estate taxes, including assessments, repair, and
replace common areas, parking lots, sidewalks, driveways, and other areas used
in common by the tenants of the Shopping Center.
(ii) All costs to supervise, police and administer said common
areas, parking lots, sidewalks, driveways, and other areas used in common by the
tenants or occupants of the Shopping Center, specifically including without
limitation, gardening and landscaping, the cost of public liability and property
damage insurance, fire and extended coverage insurance, rental loss insurance,
roof and building repairs, line painting, lighting, sanitary control, removal of
trash, rubbish, garbage and other refuse, reasonable reserves for replacements
and repairs, bookkeeping, real estate property taxes and assessments thereon,
governmental or other surcharges, if any, the cost of personnel to implement
such services, to direct parking, and to police the Shopping Center. Said costs
shall include a fee to Landlord to supervise and administer same in an amount
equal to fifteen (15) percent of the total costs of (i) above.
(iii) Any parking charges, utilities surcharges, or any other
costs levied, assessed or imposed by, or at the direction of, or resulting from
statutes or regulations, or interpretations thereof, promulgated by any
governmental authority in connection with the use or occupancy of the Premises
or the parking facilities serving the Premises.
* Tenant shall not pay any increases in real property taxes during the first two
(2) years of the lease due to a transfer, exchange or sale of the property.
Thereafter, Tenant to pay its full pro-rata share of said taxes.
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(c) If, at any time during the term of this Lease, the State of
California or any political subdivision of the State including any
county, city, city and county, public corporation, district, or any other
political entity or public corporation of this State, levies or assesses
against Landlord a tax, fee or excise on rents, on the square footage of the
Premises, on that act of entering into the Lease, or the occupancy of Tenant,
or levies or assesses against Landlord any other tax, fee or excise, however
described, including without limitation a so-called value added tax, as a
direct substitution in whole or in part for, or in addition to any real
property taxes, Tenant shall pay before delinquency that tax, fee or excise.
Tenant's share of any such tax, fee or excise shall be substantially the same as
Tenant's proportionate share of real property taxes as provided in this lease.
In addition, Tenant shall pay its proportionate share of the cost (amortized
over a reasonable period) of any capital improvements (i) to the Shopping
Center to reduce the Shopping Center costs and expenses or (ii) that are
required by any governmental law or regulation that was not applicable to the
Shopping Center at the time it was constructed, for which tenant is otherwise
required to contribute.
II. Upon commencement of rental Landlord shall submit to Tenant a
statement of the anticipated monthly Adjustments for the period between such
commencement and the following January and Tenant shall pay these Adjustments on
a monthly basis concurrently with the payment of the Rent. Tenant shall continue
to make said monthly payments until notified by Landlord of a change thereof. By
March 1 of each year Landlord shall give Tenant a statement showing the total
Adjustments for the Shopping Center for the prior calendar year and Tenant's
allocable share thereof, prorated from the commencement of rental. In the event
the total of the monthly payments which Tenant has made for the prior calendar
year be less than the Tenant's actual share of such Adjustments then Tenant
shall pay the difference in a lump sum within ten (10) days after the receipt of
such statement from Landlord and shall concurrently pay the difference in
monthly payments made in the then calendar year and the amount of monthly
payments which are then calculated as monthly Adjustments based on the prior
year's experience. Any overpayment by Tenant shall be credited towards the
monthly Adjustments next coming due. The actual Adjustments for the prior year
shall be used for purposes of estimating the anticipated monthly Adjustments for
the then current year with actual determination of such Adjustments after each
calendar year as above provided; excepting that in any year in which
resurfacing, or any other major operating expense is contemplated Landlord shall
be permitted to include the anticipated cost of same as part of the estimated
monthly Adjustments. Even though the term has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's share of said
Adjustments for the year in which this Lease terminates, Tenant shall
immediately pay any increase due over the estimated Adjustments previously paid
and, conversely, any overpayment made shall be immediately rebated by Landlord
to Tenant. Failure of Landlord to submit statements as called for herein shall
not be deemed to be a waiver of Tenant's requirement to pay sums as herein
provided.
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9. USES PROHIBITED.
Tenant shall not do or permit anything to be done in or about the Premises
nor bring or keep anything therein which is not within the permitted use of the
Premises which will in any way increase the existing rate of or affect any fire
or other insurance upon the Building or any of its contents, or cause a
cancellation of any insurance policy covering said Building or any part thereof
or any of its contents. Tenant shall not do or permit anything to be done in or
about the Premises which will in any way obstruct or interfere with the rights
of other tenants or occupants of the Building or injure or annoy them or use or
allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose; nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises. Tenant shall not commit or allow to be committed
any waste in or upon the Premises.
10. COMPLIANCE WITH LAW.
Tenant shall not use the Premises, or permit anything to be done in or
about the Premises, which will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated. Tenant shall, at its sole cost and expense, promptly
comply with all laws, statutes, ordinances and governmental rules, regulations
or requirements now in force or which may hereafter be in force and with the
requirements of any board of fire underwriters or other similar bodies now or
hereafter constituted relating to or affecting the condition, use or occupancy
of the Premises, excluding structural changes not related to or affected by
Tenant's improvements or acts. The judgment of any court of competent
jurisdiction or the admission of Tenant in any action against Tenant, whether
Landlord be a party thereto or not, that Tenant has violated any law, statute,
ordinance or governmental rule, regulation or requirement shall be conclusive of
that fact as between the Landlord and Tenant.
11. ALTERATIONS AND ADDITIONS.
11.A. Consent of Landlord Required.
Tenant shall not make or allow to be made any substantial
alterations, additions or improvements to or of the Premises or any part
thereof without first obtaining the written consent of Landlord.* Tenant shall
not perform or permit to be performed any work which requires penetration of
the roof without the express written consent and under the supervision of the
Landlord. Tenant acknowledges that Tenant's breach of this provision shall
subject it to payment of damages to Landlord for replacement of all or a
portion of the roof. Any alterations, additions or improvements to or of said
Premises, including, but not limited to, wall covering, paneling and built-in
cabinet work, but excepting movable furniture
* Said consent shall not be unreasonably withheld.
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and trade fixtures, shall at once become a part of the realty and belong to the
Landlord and shall be surrendered with the Premises. In the event Landlord
consents to the making of any alterations, additions or improvements to the
Premises by Tenant, the same shall be made by Tenant at Tenant's sole cost and
expense. Upon the expiration or sooner termination of the term hereof, Tenant
shall, upon written demand by Landlord, given at least thirty (30) days prior to
the end of the term, at Tenant's sole cost and expense, forthwith and with all
due diligence, remove any alterations, additions, or improvements made by
Tenant, designated by Landlord to be removed, and Tenant shall, forthwith and
with all due diligence at its sole cost and expense, repair any damage to the
Premises caused by such removal.
11.B. Improvement Plan.
In connection with any such alterations, additions or improvements and as a
condition to obtaining the consent of Landlord thereto, Tenant shall deliver to
Landlord (such delivery to occur within thirty (30) days of this Lease as to any
such improvements proposed to be made by Tenant upon commencement of this Lease)
a drawing setting forth those improvements proposed to be made by Tenant. If
Landlord approves Tenant's drawing, Tenant shall prepare Improvement Plans
consisting of reasonably detailed plans and specifications incorporating the
improvements as shown on the drawing and an itemized cost breakdown for those
improvements. The Improvement Plans shall be submitted to Landlord for its
approval which Landlord shall give if the Improvement Plans conform to the
improvements shown on the drawing.
11.C. Free of Liens.
Tenant shall promptly pay all contractors and materialmen, so as to
minimize the possibility of a lien attaching to the Premises, and should any
such lien be made or filed, Tenant shall bond against or discharge the same
within ten (10) days after written request by Landlord.
11.D. Hold Harmless.
Tenant shall hold the Landlord, the Premises and the Shopping Center and
every party thereof free and harmless from and against any and all liability,
damage, claims, demands, suits, actions or expense (including attorney's fees)
arising out of any work done on or about the Premises by Tenant, its employees,
representative, successors and assigns at or on behalf of Tenant. Landlord
shall hold the Tenant free and harmless from and against any and all liability,
damage, claims, demands, suits, actions or expense (including attorney's fees)
arising out of any work done on or about the Premises by Landlord, its
employees, representatives, successors and assigns at or on behalf of Landlord.
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12. MAINTENANCE OF PREMISES.
12.A. Maintenance by Tenant.
Tenant shall at all times keep the Premises (including maintenance of
exterior entrances, all glass and show windows and their mouldings) and all
partitions, doors, door jambs, doors closers, door hardware, fixtures, equipment
and appurtenances thereof (including electrical, lighting, heating and plumbing,
and plumbing fixtures, and any air conditioning system, including leaks around
ducts, pipes, vents, or other parts of the air conditioning, heating or plumbing
systems which protrude through the roof) and any replacements thereof, in good
order, condition and repair. Such maintenance shall include reasonable periodic
painting and preventative maintenance as determined by Landlord.
Tenant shall also repair any damage to the structural portions of the
roof and Premises including structural portions thereof resulting from Tenant's
negligent acts or omissions or anyone acting or claiming under Tenant as a
result of the failure of Tenant or anyone claiming under Tenant, to perform or
observe the covenants or conditions in this Lease contained or resulting from
alterations, additions or improvements to the Premises made by Tenant or anyone
claiming under or acting through Tenant. If required by Landlord, Tenant shall
contract with a service company for the maintenance of heating, ventilating and
air-conditioning equipment, with a copy of the service contract to be furnished
to the Landlord within ten (10) days after opening for business, and a copy of
any subsequent contracts to be furnished from time to time during the term.
12.B. Maintenance by Landlord.
If Tenant refuses or neglects to properly maintain or repair the
Premises as required hereunder and to the reasonable satisfaction of the
Landlord as soon as reasonably possible after written demand, Landlord may make
such repairs without liability to the Tenant or any loss or damage that may
accrue to Tenant's merchandise, fixtures or other property or to Tenant's
business thereof, and upon completion thereof. Tenant shall pay Landlord's cost
for making such repairs plus twenty (20) percent thereof for overhead, upon
representation of a xxxx therefor, as additional rent. Landlord shall maintain
at Tenant's expense the structural portions of the roof and the roof membrane,
exterior walls and replacement thereof. Tenant shall reimburse Landlord for
these maintenance and replacement costs within five (5) days after billing
Tenant. Landlord shall be responsible for all improvements constructed under
"Landlord's work" for a period of one (1) year from completion and shall
promptly repair or replace defects caused by Landlord's negligence or
intentional acts. If work is not performed satisfactorily in thirty (30) days,
Tenant may perform work at Landlord's expense.
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12.C. Surrender of Premises.
At the expiration of the tenancy hereby created, Tenant shall
surrender the Premises in the same condition as the Premises were in upon
delivery of possession thereto under this Lease, reasonable wear and tear
excepted, and damage by unavoidable casualty excepted to the extent that the
same is covered by Landlord's fire insurance policy with extended coverage
endorsement, and shall surrender all keys for the Premises to Landlord at the
place then fixed for the payment of rent and shall inform Landlord of all
combinations on locks, safes and vaults, if any, in the Premises. Tenant shall
remove all its trade fixtures, and if requested by Landlord, any alterations,
additions or improvements, before surrendering the Premises as aforesaid and
shall repair any damage to the Premises caused thereby. Tenant's obligation to
observe or perform the covenant shall survive the expiration or other
termination of the term of the Lease.
13. LIENS.
Tenant shall keep the premises and the property in which the
premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by or on behalf of Tenant.
14. ASSIGNMENT, SUBLETTING AND OTHER TRANSFERS.
A. Tenant shall not, without Landlord's prior written consent, do
any of the following (collectively, "Transfer"):
1. Assign, hypothecate, mortgage, encumber or convey this
Lease;
2. Allow any transfer thereof or any lien upon Tenant's
interest by operation of law;
3. Sublet the Premises or any part thereof;
4. Permit the use or occupancy of the Premises or any part
thereof by anyone other than Tenant;
5. If Tenant is a partnership, permit a withdrawal or
change, voluntary or by operation of law, of any partner or the dissolution of
the partnership; or
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B. If Tenant desires the consent of Landlord to a Transfer, Tenant
shall submit to Landlord:
1. The proposed sublease or assignment or other transfer
agreement or instrument evidencing the Transfer, together with a full written
disclosure of all consideration given or to be given to Tenant in connection
with such Transfer; and
2. Any other item or information Landlord may reasonably
request, sufficient to permit Landlord to determine the acceptability of the
financial responsibility, experience, character and merchandising ability of
transferee.
C. Landlord shall not unreasonably withhold its consent except that
such consent need not be granted if:
1. In the reasonable judgment of Landlord the transferee is of a
character or is engaged in a business which is not in keeping with the
standards of Landlord for the Shopping Center or may adversely affect the
business of the other tenants in the Shopping Center;
2. In the reasonable judgment of Landlord the financial
responsibility of the transferee is not acceptable;
3. In the reasonable judgment of Landlord any purpose for which
the transferee intends to use the Premises is not in keeping with the standards
of Landlord for the Shopping Center; provided in no event may any purpose for
which transferee intends to use the Premises by in violation of this Lease;
4. In the reasonable judgment of Landlord the volume of business
to be conducted by the transferee will be less than that conducted by Tenant; or
5. Tenant is in default under this Lease.
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E. Any consent to any Transfer which may be given by Landlord, or the
acceptance of any rent, charges or other consideration by Landlord from Tenant
or any third party, shall not constitute a waiver by Landlord of the provisions
of this Lease or a release of Tenant from the full performance by it of the
covenants on the part of Tenant herein contained; and any consent given by
Landlord to any Transfer shall not relieve Tenant (or any transferee of Tenant)
from the above requirements for obtaining the written consent of Landlord to
any subsequent Transfer.
F. Tenant shall pay Landlord the greater of Five Hundred Dollars and
No Cents ($500.00) or one-half (1/2) of the then monthly rent for each sublease
or assignment submitted as reimbursement to Landlord for expenses incurred. In
the event of any requested Transfer other than an assignment of sublease,
Tenant shall pay to Landlord all out-of-pocket expenses incurred by Landlord in
connection therewith, including attorneys' fees.
G. If a default under this Lease should occur while the Premises or
any part thereof are then assigned, sublet or otherwise transferred, Landlord,
in addition to any other remedies provided herein or by law, may at its option
collect directly from such transferee all rent or other consideration becoming
due to Tenant under such Transfer and apply such rent or other consideration
against any sums due to Landlord; by Tenant hereunder; and Tenant hereby
authorizes and directs any such transferee to make such payments of rent or
other consideration direct to Landlord upon receipt of notice from Landlord. No
direct collection by Landlord from any such transferee shall be construed to
constitute a novation or a release of Tenant or any guarantor of Tenant from
the further performance of its obligations in connection with this Lease.
H. Any sublease shall provide by its terms that at Landlord's election
the subtenant shall attorn to Landlord and the sublease shall become a direct
lease between Landlord and the subtenant, if Landlord so chooses, at the
termination of the Lease. All subrents are hereby assigned as security for the
payment of Tenant's obligations hereunder and Tenant agrees to execute such
additional documentation as may be necessary to perfect Landlord's security in
such subrents.
15. HOLD HARMLESS.
Tenant shall indemnify and hold harmless Landlord against and from any
and all claims arising from Tenant's use of the Premises or from the conduct of
its business or from any activity, work, or other things done, permitted or
suffered by the Tenant in or about
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the Premises, and shall further indemnify and hold harmless Landlord against and
from any and all claims arising from any breach or default in the performance of
any obligation on Tenant's part to be performed under the terms of this Lease,
or arising from any act or negligence of the Tenant, or any officer, agent,
employee, guest, or invitee of Tenant, and from all costs, attorneys' fees, and
liabilities incurred in or about the defense of any such claim or any action or
proceeding brought thereon and in case any action or proceeding be brought
against Landlord by reason of such claim, Tenant upon notice from Landlord shall
defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons in, upon or about
the Premises, from any cause other than Landlord's negligence; and Tenant hereby
waives all claims in respect thereof against Landlord. Tenant shall give prompt
notice to Landlord in case of casualty or accidents in the Premises.
Landlord or its agents shall not be liable for any loss or damage to
persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water or rain which may leak from any part of the Building or
from the pipes, appliances or plumbing works therein or from the roof, street
or subsurface or from any other place resulting from dampness or any other
cause whatsoever, unless caused by or due to the negligence of Landlord, its
agents, servants or employees. Landlord or its agents shall not be liable for
interference with the light, air, or for any latent defect in the Premises.
16. SUBROGATION.
As long as their respective insurers so permit, Landlord and Tenant
hereby mutually waive their respective rights of recovery against each other
for any loss insured by fire, extended coverage and other property insurance
policies existing for the benefit of the respective parties. Each party shall
apply to their insurers to obtain said waivers. Each party shall obtain any
special endorsements, if required by their insurer to evidence compliance with
the aforementioned waiver.
17. INSURANCE.
17.A. Liability Insurance.
Tenant shall, at Tenant's expense, obtain and keep in force during
the term of this Lease a policy of comprehensive public liability insurance
insuring Landlord and Tenant against any liability arising out of the
ownership, use occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be in the amount of not less than One
Million Dollars and No Cents ($1,000,000.00) for injury or death of one person
in any one accident or occurrence and in the amount of not less than Three
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Million Dollars and No Cents ($3,000,000.00) for injury or death of more than
one person in any one accident or occurrence. Such insurance shall further
insure Landlord and Tenant against liability for property damage of at least
Five Hundred Thousand Dollars and No Cents ($500,000.00). The limit of any such
insurance shall not, however, limit the liability of the Tenant hereunder.
Tenant may provide this insurance under a blanket policy, provided that said
insurance shall have a Landlord's protective liability endorsement attached
thereto. If Tenant shall fail to procure and maintain said insurance, Landlord
may, but shall not be required to, procure and maintain same, but at the
expense of the Tenant. Insurance required hereunder shall be in companies rated
A:XII or better in "Best's Key Rating Guide." Tenant shall deliver to Landlord,
prior to right of entry, copies of policies of liability insurance required
herein or certificates evidencing the existence and amounts of such insurance
with loss payable clauses satisfactory to Landlord. No policy shall be
cancellable or subject to reduction of coverage. All such policies shall be
written as primary policies not contributing with and not in excess of coverage
which Landlord may carry. Tenant's indemnification obligations under this Lease
shall extend to damage resulting from risks insurable by products liability
insurance and dram shop liability insurance. The public liability insurance
required in this Paragraph 17 shall include products liability insurance and
(if Tenant serves or sells alcoholic beverages on the Premises) dram shop
liability insurance.
17.B. Fire Insurance Premium.
Landlord shall maintain fire and extended coverage insurance or any
other insurance coverage deemed necessary by Landlord or Landlord's lender
throughout the term of this Lease in an amount equal to at least ninety (90)
percent of the replacement value (exclusive of foundation and excavation costs)
of the Premises and/or Building of which Premises are a part. Tenant agrees to
pay Landlord a pro rata share of the cost of said fire and extended coverage
insurance that may be charged during the terms of this Lease. This pro rata
share will be paid monthly in advance as specified in Article 8.B. In
determining the Tenant's pro rata share of the premium for said insurance for
the Premises a schedule issued by the organization making the insurance rate on
the Premises, showing the various components of such rates, shall be conclusive
evidence of the charges which make up the fire insurance rate on the Premises.
Tenant shall, at its own expense, comply with all the requirements of the
insurance underwriters and any governmental authority having jurisdiction
thereover, necessary for the maintenance of reasonable fire and extended
coverage insurance for the Premises including the installation of fire
extinguishers or an automatic dry chemical extinguishing system.
17.C. Landlord's Right to Obtain Insurance on Behalf of Tenant.
If Tenant should fail to procure and maintain any of the
above-referenced insurance required to be obtained by Tenant,
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Landlord, at its option, may obtain said insurance and charge Tenant as
Additional Rent the insurance premium cost.
18. UTILITIES.
Tenant shall pay for all water, gas, heat, light, power, sewer
charges, telephone service and all other services and utilities supplied to the
Premises, together with any taxes thereon. If any such services are not
separately metered to Tenant, Tenant shall pay their pro rata share to be
determined by Landlord of all charges jointly metered with other premises.
19. PERSONAL PROPERTY TAXES.
Tenant shall pay, or cause to be paid, before delinquency any and
all taxes levied or assessed and which become payable during the term hereof
upon all Tenant's leasehold improvements, equipment, furniture, fixtures, and
any other personal property located in the Premises. In the event any or all of
the Tenant's leasehold improvements, equipment, furniture, fixtures and other
personal property shall be assessed and taxed with the real property, Tenant
shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes applicable to Tenant's property.
20. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with the rules and
regulations that Landlord shall from time to time promulgate and/or modify. The
rules and regulations shall be binding upon the Tenant upon delivery of a copy
of them to Tenant. Landlord shall not be responsible to Tenant for the
nonperformance of any said rules and regulations by any other tenants or
occupants.
21. HOLDING OVER.
If Tenant remains in possession of the Premises or any part thereof
after the expiration of the term hereof with the express written consent of
Landlord, such occupancy shall be a tenancy from month to month at a rental in
the amount of one hundred twenty (120) percent of the last Monthly Minimum Rent,
plus all other charges payable hereunder, and upon all the terms hereof
applicable to a month-to-month tenancy.
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22. ENTRY BY LANDLORD.
Landlord reserves, and shall at any and all times have, the right to
enter the Premises to inspect the same, to submit said Premises to prospective
purchasers or tenants, to post notices of non-responsibility, to repair the
Premises and any portion of the Building of which the Premises are a part that
Landlord may deem necessary or desirable, without abatement of rent, and may for
that purpose erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, always providing that the
entrance to the Premises shall not be unreasonably blocked thereby, and further
providing that the business of the Tenant shall not be interfered with
unreasonably. Tenant hereby waives any claim for damages or for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, an any other loss occasioned thereby.
Landlord may enter premises only with the prior consent of tenant, during
regular banking hours and with reasonable notice.
23. TENANT'S DEFAULT.
The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant.
23.A.
The vacating or abandonment of the Premises by Tenant.
23.B.
The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of three (3) days after written notice
thereof by Landlord to Tenant.
23.C.
The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
the Tenant, other than described in Article 23.B, above, where such failure
shall continue for a period of five (5) days after written notice thereof by
Landlord to Tenant; provided, however, that if the nature of Tenant's default is
such that more than five (5) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure
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within said five-(5) day period and thereafter diligently prosecutes such cure
to completion.
23.D.
The making by Tenant of any general assignment or general arrangement for
the benefit of creditors; or the filing by or against Tenant of a petition to
have Tenant adjudged a bankrupt, or a petition filed against Tenant, the same is
dismissed within sixty (60) days); or the appointment of a trustee or a receiver
to take possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where possession is not restored
to Tenant within thirty (30) days; or the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at the Premises
or of Tenant's interest in this Lease, where such seizure is not discharged
within thirty (30) days.
24. REMEDIES IN TENANT'S DEFAULT.
Landlord shall have the following remedies if Tenant commits a default or
breach of the Lease. These remedies are not exclusive; they are cumulative in
addition to any remedies now or later allowed by law:
24.A.
Landlord can continue this Lease in full force and effect, and the Lease
will continue in effect as long as Landlord does not terminate Tenant's right to
possession, and Landlord shall have the right to collect rent when due. During
the period Tenant is in default, Landlord can enter the Premises and relet them,
or any part of them, to third parties for Tenant's account. Tenant shall be
liable immediately to Landlord for all cost Landlord incurs in reletting the
Premises, including, without limitation, brokers' commission, expenses of
remodeling the Premises required by the reletting, and like cost. Reletting can
be for a shorter or longer than the remaining term of this Lease. Tenant shall
pay to Landlord the rent due under this Lease on the dates the rent is due, less
the rent Landlord receives from reletting. No act by Landlord allowed by this
paragraph shall terminate this Lease unless Landlord notifies Tenant that
Landlord elects to terminate this Lease. After Tenant's default, and for as long
as Landlord does not terminate Tenant's right to possession of the Premises. If
Tenant obtains Landlord's consent, Tenant shall have the right to assign or
sublet its interest in this Lease, but Tenant shall not be released from
liability. Landlord's consent to a proposed assignment or subletting shall not
be unreasonably withheld.
If Landlord elects to relet the Premises as provided in this paragraph,
rent that Landlord receives from reletting shall be applied to the payment of:
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First, any indebtedness from Tenant to Landlord other than rent due from
Tenant;
Second, all cost, including for maintenance, incurred by Landlord in
reletting;
Third, rent due and unpaid under this Lease. After deducting the payments
referred to in this paragraph, any sum remaining from the rent Landlord
receives from reletting shall be held by Landlord and applied in payment of
future rent as rent becomes due under this Lease. In no event shall Tenant be
entitled to any excess rent received by Landlord. If, on the date rent is due
under this Lease, the rent received from the reletting is less than the rent
due on that date, Tenant shall pay to Landlord, in addition to the remaining
rent due, all cost, including cost for maintenance, Landlord incurred in
reletting that remain after applying the rent received from the reletting as
provided in this paragraph.
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24.D.
Landlord, at any time after Tenant commits a default, can cure the default
at Tenant's cost. If landlord, at any time, by reason of Tenant's default, pays
any sum or does any act that requires the payment of any sum, the sum paid by
Landlord shall be due immediately from the Tenant to Landlord at the time the
sum is paid, and if paid at a later date, shall bear interest at the maximum
rate an individual is permitted by law to charge from the date the sum is paid
by landlord until Landlord is reimbursed by Tenant. The sum, together with the
interest on it, shall be additional rent.
24.E.
Rent not paid when due shall bear interest as additional rent at the
maximum rate an individual is permitted by law to charge from the date due
until paid.
25. LANDLORD'S DEFAULT.
Landlord shall not be in default unless Landlord fails to perform
obligations required of Landlord within a reasonable time, but in no event
later than thirty (30) days after written notice by Tenant to Landlord and to
the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have theretofore been furnished to Tenant in writing,
specifying wherein Landlord has failed to perform such obligation; provided,
however, that if the nature of Landlord's obligation is such that more than
(30) days are required for performance then Landlord shall not be in default if
Landlord commences performance within such (30) day period and thereafter
diligently prosecutes the same to completion. In no event shall Tenant have the
right to terminate this Lease as a result of Landlord's default and Tenant's
remedies shall be limited to damages and/or an injunction.
Anything in this Lease to the contrary notwithstanding, providing such
cause is not due to the willful act or neglect of the Landlord, the Landlord
shall not be deemed in default with respect to the performance of any such
terms, covenants and conditions of this Lease if any failure of performance
shall be due to any strike, lockout, civil commotion, war-like operation,
invasion, rebellion, hostilities, military or usurped power, sabotage,
government regulation or controls, inability to obtain any material, service or
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financing, rain or muddy condition, or other Act of God or any other cause
beyond the control of the Landlord.
26. RECONSTRUCTION.
In the event the Premises are damaged by fire or other perils covered by
extended coverage insurance, Landlord agrees to forthwith repair same, and this
Lease shall remain in full force and effect, except that Tenant shall be
entitled to a proportionate reduction of the Minimum Rent from the date of
damage and while such repairs are being made, such proportionate reductions to
be based upon the extent to which the damages and making of such repairs shall
reasonably interfere with the business carried on by the Tenant in the
Premises. If the damage is due to the fault or neglect of Tenant or its
employees, there shall be no abatement of rent.
In the event the Premises are damaged as a result of any cause other than
the perils covered by fire and extended coverage insurance, then Landlord shall
forthwith repair the same, provided the extent of the destruction be less than
ten (10%) percent of the then full replacement cost of the Premises. In the
event the destruction of the Premises is to an extent of ten (10%) percent or
more of the full replacement cost then Landlord shall have the option; (1) to
repair or restore such damage, this Lease continuing in full force and effect,
but the Minimum Rent to be proportionately reduced as hereinabove in this
Article provided; or (2) give notice to Tenant at any time within sixty (60)
days after such damage, terminating this Lease as of the date specified in such
notice, which date shall be no more than thirty (30) days after the giving of
such notice. In the event of giving such notice, this Lease shall expire and
all interest of the Tenant in the Premises shall terminate on the date so
specified in such notice and the Minimum Rent, reduced by a proportionate
reduction, based upon the extent, if any to which such damage interfered with
the business carried on by the Tenant in the Premises shall be paid up to date
of said such termination.
Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when the damage resulting from any casualty covered under
this Article occurs during the last twenty-four months of the term of this
Lease or any extension thereof.
Landlord shall not be required to repair any injury or damage by fire or
other cause, or to make any repairs or replacements of any leasehold
improvements, fixtures, or other personal property of Tenant.
In the event that fifty (50) percent or more of the rentable area of the
Shopping Center shall be damaged or destroyed by fire or other cause,
notwithstanding that the Premises may be unaffected by such fire and other
cause, Landlord shall have the right, to be
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exercised by notice in writing delivered to Tenant within sixty (60) days from
and after said occurrence, to elect to cancel and terminate this Lease. Upon
the giving of such notice to Tenant, the term of this Lease shall expire by
lapse of time upon the third day after such notice is given, and Tenant shall
vacate the Premises and surrender the same to Landlord.
27. EMINENT DOMAIN.
27.A. Total Condemnation.
If the whole of the Premises shall be acquired or condemned by eminent
domain for any public or quasi-public use or purpose, then the term of this
Lease shall cease and terminate as of the date of title vesting in such
proceeding and all rentals shall be paid up to that date.
27.B. Partial Condemnation.
If any part of the Premises shall be acquired or condemned by eminent
domain for any public or quasi-public use or purpose, and in the event that
such partial taking or condemnation shall render the Premises unsuitable for
the business of the Tenant, than the term of this Lease shall cease and
terminate as of the date of title vesting in such proceeding. In the event of
partial taking or condemnation which is not extensive enough to render the
Premises unsuitable for the business of the Tenant, the Landlord shall promptly
restore the Premises to a condition comparable to its condition at the time of
such condemnation less the portion lost in the taking, and this Lease shall
continue in full force and effect.
27.C. Partial Condemnation of Parking Area.
If any part of the parking area in the Shipping Center shall be acquired
or condemned by eminent domain for any public or quasi-public use or purpose
and if, as the result of such partial taking the ratio of square feet of
parking area to square feet of the sales area of the entire Shopping Center
buildings is reduced to an area insufficient to serve the Shopping Center, then
the term of this Lease shall cease and terminate from the date of title vesting
in such proceeding, unless the Landlord shall within a reasonable time, not to
exceed 90 days after possession by the condemning authority, increase the
parking to an area substantially equal to the original area, in which event
this Lease shall be unaffected and remain in full force and effect as between
the parties.
27.D. Landlord's Damages.
In the event of any condemnation or taking as hereinabove provided,
whether whole or partial, the Tenant shall not be entitled to any part of the
award, as damages or otherwise, for such condemnation and Landlord is to receive
the full amount of such award, the Tenant hereby expressly waiving any right or
claim to any
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part thereof, including right or claim for the value of any unexpired term of
this Lease or diminution in value of Tenant's leasehold interest, or for the
value of any option to extend the term hereof or renew this Lease.
27.E. Tenant's Damages.
Although all damages in the event of any condemnation are to belong to the
Landlord whether such damages are awarded as compensation for diminution in
value of the leasehold or to the fee of the Premises, Tenant shall have the
right to claim and recover from the condemning authority, but not from
Landlord, such compensation as may be separately awarded or recoverable by
Tenant in Tenant's own right on account of any and all damage to Tenant's
business by reason of the condemnation or for or on account of any cost or loss
to which Tenant might incur or be put in removing Tenant's merchandise,
furniture, fixtures, leasehold improvements and equipment. In no event shall
the award thereof reduce the amount otherwise recoverable by Landlord for the
land and buildings and severance damages.
28. PARKING AND COMMON AREAS.
Landlord covenants that upon completion of the Shopping Center an area
approximately equal to the common and parking areas as shown on the attached
Exhibit A shall be at all times available for the non-exclusive use of Tenant
during the full term of this Lease or any extension of the term hereof,
provided that the condemnation or other taking by any public authority, or sale
in lieu of condemnation, of any or all of such common and parking areas shall
not constitute a violation of this covenant. Landlord reserves the right to
change the entrances, exits, traffic lanes and the boundaries and locations of
such parking area or areas. All automobile parking areas, driveways, entrances
and exits thereto, and other facilities furnished by Landlord in or near the
Shopping Center, including employee parking areas, the truck way or ways,
loading docks, temporary sewer facilities, package pick up sections, pedestrian
sidewalks and ramps, landscaped areas, exterior stairways, first-aid station,
comfort stations and other areas and improvements provided by Landlord for the
general use, in common with tenants, their officers, agents, employees and
customers, shall at all times be subject to the exclusive control and
management of Landlord and Landlord shall have the right, from time to time to
establish, modify and enforce reasonable rules and regulations with respect to
all facilities and areas mentioned in this article. Landlord shall also have
the right to alter or modify the Shopping Center and all improvements located
therein, including the traffic flow and parking, without the consent of Tenant;
provided no change, alteration or modification will be made with respect to the
Premises which substantially adversely affects Tenant's use and enjoyment of
the Premises without the consent of Tenant, which shall not be unreasonably
withheld.
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28.A.
Prior to the date of Tenant's opening for business in the Premises,
Landlord shall cause said common and parking area or areas to be graded,
surfaced, marked and landscaped at no expense to Tenant.
28.B.
The Landlord shall keep said automobile parking and common areas in a
neat, clean and orderly condition and shall repair any damage to the facilities
thereof, but all expenses in connection with said automobile parking and
common areas shall be charged and prorated in the manner as set forth in
Article 8.B hereof.
28.C.
Tenant, for the use and benefit of Tenant, its agents, employees,
customers, licensees and sub-tenants, shall have the non-exclusive right in
common with Landlord, and other present and future owners, tenants and their
agents, employees, customers, licensees and sub-tenants, to use said common and
parking areas during the entire term of this Lease, or any extension thereof,
for ingress and egress, and automobile parking.
28.D.
Tenant, in the use of said common and parking areas, agrees to comply with
such reasonable rules, regulations and charges for parking as the Landlord may
adopt from time to time for the orderly and proper operation of said common and
parking areas. Such rules may include but shall not be limited to the following:
(1)The restricting of employee parking to a limited, designated area or areas:*
(2)The regulation of the removal, storage and disposal of Tenant's refuse and
other rubbish at the sole cost and expense of Tenant.
* Tenant and its employees shall park in the designated "Employee Parking
Area" as shown on the attached Exhibit "A".
29. SIGNS.
The Tenant may not affix and maintain upon the glass panes and supports of
the shop windows or within twelve (12) inches of any window and upon the
exterior wall of the Premises any signs, advertising placards, names, insignia,
trademarks and descriptive material without the prior written consent of the
Landlord. Anything to the contrary in this Lease notwithstanding, Tenant shall
not affix any sign to the roof. Tenant, shall, however, erect one sign on the
front of the Premises not later than the date Tenant opens for business, in
accordance with a design to be prepared by Tenant and approved in writing by
Landlord in accordance with the Shopping Center sign criteria, which criteria
is attached as Exhibit D.
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30. ADVERTISING, MERCHANTS ASSOCIATION.
30.A. Change of Name.
Tenant agrees not to change the advertised name of the business operated
in the Premises without written permission of the Landlord.
30.B. Solicitation of Business.
Tenant and Tenant's employees and agents shall not solicit business in the
parking or other common areas, nor shall Tenant distribute any handbills or
other advertising matter in automobiles parked in the parking areas or in other
common areas.
30.C. Merchant's Association.
31. DISPLAYS.
The Tenant may not display or sell merchandise or allow grocery carts or
other similar devices within the control of Tenant to be stored or to remain
outside the defined exterior walls and permanent doorways of the Premises.
Tenant further agrees not to install any exterior lighting, amplifiers or
similar devices or use in or about the Premises any advertising medium which may
be heard or seen outside the Premises, such as flashing lights, searchlights,
loudspeakers, phonographs or radio broadcasts and will not interfere with the
conduct of business of other tenants in the Shopping Center.
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32. AUCTIONS.
Tenant shall not conduct or permit to be conducted any sale by auction
in, upon or from the Premises whether said auction be voluntary, involuntary,
pursuant to any assignment for the benefit of creditors or pursuant to any
bankruptcy or other insolvency proceeding.
33. HOURS OF BUSINESS.
Subject to the provisions of Article 27 hereof, Tenant shall continuously
during the entire term hereof conduct and carry on Tenant's business in the
Premises and shall keep the Premises open for business and cause Tenant's
business to be conducted therein during the usual business hours of each and
every business day as is customary for businesses of like character in the
county in which the Premises are located to be open for business; provided,
however, that this provision shall not apply if the Premises should be closed
and the business of Tenant temporarily discontinued therein on account of
strikes, lockouts or similar causes beyond the reasonable control of Tenant.
In the event of breach by the Tenant of any of the conditions contained
in this Article, the Landlord shall have, in addition to any and all remedies
herein provided, the right at its option to collect not only the Minimum Rent
herein provided for each and every day that the Tenant shall fail to conduct
its business as herein provided; said additional rent shall be deemed to be in
lieu of any percentage rent that might have been earned during such period of
the Tenant's failure to conduct its business as herein provided.
34. GENERAL PROVISIONS.
(i) Plats and Riders.
Clauses, plats, riders exhibits and addendums, if any affixed to
this Lease are a part hereof.
(ii) Waiver.
The waiver by Landlord of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or condition
or any subsequent breach of the same or any other term, covenant or condition
herein contained. The subsequent acceptance of rent hereunder by Landlord shall
not be deemed to be a waiver or any preceding default by Tenant of any term,
covenant or condition of this Lease, other than the failure of the Tenant to pay
the particular rental so accepted, regardless of
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Landlord's knowledge of such preceding default at the time of acceptance of
such rent.
(iii) Joint Obligation.
If there be more than one Tenant the obligations hereunder imposed
shall be joint and several.
(iv) Marginal Headings.
The marginal headings and article titles to the articles of this
Lease are not a part of the Lease and shall have no effect upon the construction
or interpretation of any part hereof.
(v) Time.
Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
(vi) Successors and Assigns.
The covenants and conditions herein contained, subject to the
provisions as to assignment, apply to and bind the heirs, successors, executors,
administrators and assigns of the parties hereto.
(vii) Recordation.
Neither Landlord or Tenant shall record this Lease, but a short
form memorandum hereof may be recorded at the request of the Landlord.
(viii) Quiet Possession.
Upon Tenant paying the rent reserved hereunder and observing and
performing all of the covenants, conditions and provisions on Tenant's part to
be observed and performed hereunder, Tenant shall have quiet possession of the
Premises for the entire term hereof, subject to all the provisions of this
Lease.
(ix) Accord and Satisfaction.
No payment by tenant or receipt by Landlord of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as 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 rent or
pursue any other remedy in this lease provided.
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(x) Prior Agreements.
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior
agreements or understanding pertaining to any such matters shall be effective
for any purpose. No provision of this lease may be amended or added to except by
an agreement in writing signed by the parties hereto or their respective
successors in interest. This Lease shall not be effective or binding on any
party until fully executed by both parties hereto.
(xi) Inability to Perform.
This lease and the obligations of the Tenant hereunder shall not be
affected or impaired because the Landlord is unable to fulfill any of its
obligations hereunder or is delayed in doing so, if such inability or delay is
caused by reason of strike, labor troubles, act of God, or any other cause
beyond the reasonable control of the Landlord.
(xii) Partial Invalidity.
Any provision of this Lease which shall prove to be invalid, void, or
illegal shall in no way affect, impair or invalidate any other provision hereof
and such other provision shall remain in full force and effect.
(xiii) Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive but shall,
whenever possible, be cumulative with all other remedies at law or in equity.
(xiv) Choice of Law.
This Lease shall be governed by the laws of the State in which the
Premises are located.
(xv) Attorney's Fees.
In the event of any action or proceeding brought by either party
against the other under this Lease the prevailing party shall be entitled to
recover for the fees of its attorneys in such action or proceeding, including
cost of appeal, if any, in such amount as the court may adjudge reasonable as
attorney' fees. In addition, should it be necessary for Landlord or Tenant to
employ legal counsel to enforce any of the provisions herein contained, Tenant
and Landlord agree to pay all attorneys' fees and court costs reasonably
incurred by the prevailing party.
(xvi) Sale of Premises by Landlord.
In the event of any sale of the Premises by Landlord, Landlord shall
be and is hereby entirely freed and relieved of all
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liability under any and all of its covenants and obligations contained in or
derived from this Lease arising out of any act, occurrence or omission
occurring after the consummation of such sale; and the purchaser, at such sale
or any subsequent sale of the Premises shall be deemed, without any further
agreement between the parties or their successors in interest or between the
parties and any such purchaser, to have assumed and agreed to carry out any and
all of the covenants and obligations of the Landlord under the Lease.
(xvii) Subordination, Attornment.
Upon request of the Landlord, Tenant will in writing
subordinate its rights hereunder to the lien of any mortgage or deed or trust,
to any bank, insurance company or other lending institution, now or hereafter
in force against the Premises, and to all advances made or hereafter to be made
upon the security thereof.
In the event any proceedings are brought for foreclosure, or
in the event of the exercise of power of sale under any mortgage or deed of
trust made by the Landlord covering the Premises, the Tenant shall attorn to
the purchaser upon any such foreclosure or sale and recognize such purchaser as
the Landlord under the Lease.
The provisions of this Article to the contrary
notwithstanding, and so long as Tenant is not in default hereunder, this Lease
shall remain in full force and effect for the full term hereof.
(xviii) Notices.
All notices and demands which may or are to be required or
permitted to be given by either party on the other hereunder shall be in
writing. All notices and demands by the Landlord to the Tenant shall be sent by
United States Mail, postage prepaid, addressed to the Tenant at the Premises,
and to the address hereinbelow, or to such other place as Tenant may from time
to time designate in a notice to the Landlord at the address set forth herein,
and to such other persons or place as the Landlord may from time to time
designate in a notice to the Tenant.
To Landlord at: Reseda Investors
0000 Xxxxxxxxx Xxxx., Xx Xxxx, XX 00000
To Tenant at: Xxxxx de Oro Bank
X.X. Xxx 0000, Xxxxxx Xxxxxx, XX 00000
(xix) Tenant's Statement.
Tenant shall at any time and from time to time, upon not less
than three days prior written notice from Landlord, execute, acknowledge and
deliver to Landlord a statement in writing (a) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such notification and
- 30 -
32
certifying that this Lease as so modified is in full force and effect), and the
date to which the rental and other charges are paid in advance, if any, and (b)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults
on the part of the Landlord hereunder, or specifying such defaults if any are
claimed, and (c) setting forth the date of commencement of rents and expiration
of the term hereof. Any such statement may be relied upon by the prospective
purchaser or encumbrancer of all or any portion of the real property of which
the Premises are a part.
(xxi) No Option.
The submission of this Lease for examination does not
constitute a reservation of or option for the Premises and this Lease becomes
effective as a lease only upon execution and delivery thereof by Landlord to
Tenant and by Tenant to Landlord.
35. BLANKET ENCUMBRANCE.
Tenant acknowledges applicability of the following provisions of
California Civil Code Section 1133:
"Buyer/Lessee is aware of the fact that the lot, parcel, or unit which he
or she is proposing to purchase or lease is subject to a deed of trust,
mortgage, or other lien known as a 'Blanket Encumbrance'.
If buyer/Lessee purchased or leases this lot, parcel, or unit, her or she
could lose that interest through foreclosure of the blanket encumbrance or
other legal process even though Buyer/Lessee is not delinquent in his or her
payments or other obligations under mortgage, deed of trust, or lease."
36. BROKERS.
Tenant warrants that it has had no dealings with any real estate broker
or agents in connection with the negotiation of this Lease excepting only Xxxxx
& Xxxxx Company and it knows of no other real estate broker or agent who is
entitled to a commission in connection with the Lease.
Check if
Applicable
[ ]
37. DUAL REPRESENTATION.
Landlord and Tenant hereby acknowledge that Xxxx Xxxxx and Xxxx Xxxxxxx
of Xxxxx & Xxxxx Company represents Reseda Investors and Xxxxx Xxxx of Xxxxx &
Xxxxx Company represents Xxxxx de Oro Bank, and Landlord and Tenant consent
thereto.
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33
CONSENT YOUR ATTORNEY:
If this lease has been filled in it has been prepared for submission to your
attorney for his approval. No representation or recommendation is made by the
broker, if any, or its agents or employees as to the legal sufficiency, legal
effect, or tax consequences of this Lease.
RESEDA INVESTORS XXXXX DO ORO BANK
By: /s/ XXXXXXX XXXXXXX By: /s/ XXXXXXX X. XXXXX
-------------------------------- -------------------------------------
Xxxxxxx Xxxxxxx Xxxxxxx X. Xxxxx
Its General Partner Its President
----------------------------- ----------------------------------
By: By:
-------------------------------- -------------------------------------
Its Its
----------------------------- ----------------------------------
HCC #7
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34
ADDENDUM TO SHOPPING CENTER LEASE
---------------------------------
OPTION TO EXTEND TERM
Tenant shall have the option to extend the Term for two (2) periods of five
(5) years subject to the following:
(a) Tenant's option to extend the Term shall be subject to the
following conditions precedent:
(i) Not more than nine (9) months and not less than six (6) months
before the last day of the term, Tenant shall notify Landlord in writing
of Tenant's intention to extend the Term.
(ii) The Lease shall be in effect and Tenant shall not be in default
of any material provision thereof both on the day such notice is given and
on the last day of the Term.
(b) In the event the foregoing conditions are timely satisfied, the
Terms shall be extended for the period specified above subject to all the
provisions of the Lease.
Landlord Tenant
---------------------------- -------------------------------
RESEDA INVESTORS XXXXX DE ORO BANK
BY: /s/ XXXXXXX XXXXXXX BY: /s/ XXXXXXX X. XXXXX
-------------------------------- -------------------------------------
Xxxxxxx Xxxxxxx Xxxxxxx X. Xxxxx
BY:
-------------------------------------
35
EXHIBIT "A"
[MAP]
36
EXHIBIT "B"
SCOPE OF WORK
DESCRIPTION OF LANDLORD'S WORK
I. Construction of Improvements
Landlord shall perform at its expense Landlord's Work set forth
below. Except for Landlord's Work, all other work required to complete the
Premises to a finished condition ready for the conduct of Tenant's business
shall be deemed Tenant's Work and shall be performed at Tenant's sole cost and
expense. All improvements to the Premises, whether Landlord's Work or Tenant's
Work, shall be constructed in accordance with plans and specifications prepared
by Landlord's architect, as approved by Tenant and Landlord. Landlord and
Tenant agree to pursue construction of the improvements diligently to
completion and both Landlord and Tenant agree to comply with all city, county,
state and federal ordinances, rules and regulations in performing their
respective work. Landlord agrees that improvements shall consist of a 4,000
square foot building.
II. Plans, Specifications, and Permits
A. Landlord shall, as soon as practicable, at its own expense,
provide a Tenant Improvement Package, including a plan of the premises, showing
column spacing and overall dimensions, and Landlord's criteria, if any,
pertinent to Tenant's work as indicated below. Landlord shall provide plans and
architectural rendering including site plan and working drawings. Cost of plans
and rendering shall be Landlord's.
B. After receipt by Tenant of the Tenant Improvement Package, the
following procedure shall be followed:
1. Within fourteen (14) days after it has received and
receipted for the floor plan, Tenant shall return the completed Tenant
Improvement Package questionnaire and shall submit to Landlord's architect
preliminary plans and information setting forth the basic requirements for
Tenant's improvements, including Landlord's Work and Tenant's work;
2. Within thirty (30) days after receipt by Landlord's
architect of Tenant's preliminary plans, engineering, and information,
Landlord's architect shall submit completed plans, engineering, and
specifications for work to be performed under Landlord's Work to Tenant for
approval, which approval shall not be unreasonably withheld or delayed. The
plans, engineering, and specifications shall also include Tenant's Work, which
shall be approved by Landlord;
3. DELETED.
4. DELETED.
5. If the final plans and specifications necessary for the
completion of the Premises are not approved by Tenant within sixty (60) days
after the receipt date established in paragraph B.2. above,
37
Landlord shall have the option to terminate this Lease by written notice to
Tenant.
III. Landlord's Work
Landlord shall provide the following to each Tenant as "Standard
Tenant Improvements". Any deviations or changes shall be agreed to prior to
commencement of work.
A. Shell: The shell shall include exterior walls, canopy, roofing,
flashing, and roof drains. The roof/ceiling shall be insulated and consist of
built-up roofing.
B. Floor: The floor shall be exposed concrete: steel trowel finish.
C. Store Front: The store front shall be bronzed, anodized aluminum and
smoked glass, tempered as required by code. All store fronts and interiors
shall be in accordance with architectural standards established for the
shopping center by Landlord and shall be subject to review and approval by
Landlord or its architect, as provided above. Landlord to provide up to three
(3) sets of double exterior front doors per Tenant's needs.
D. Demising Walls: Demising walls shall be drywall construction on wood
or metal studs. Drywall shall be taped and sanded ready for Tenant finish.
E. Ceiling: Landlord shall provide a suspended "T" bar acoustical
ceiling. The ceiling shall not be in more than two (2) planes and conform to
plans approved by Tenant.
F. Lighting Fixtures: Landlord shall provide ceiling mounted fluorescent
fixtures as provided by plan and other fixture boxes where required by plans
approved by Tenant.
-- Lighting lamps are not included.
G. Telephone: Landlord shall provide two (2) conduits for telephone
service into the Premises to a point determined by Landlord or its architect
and approved by Tenant.
H. Heating and Air Conditioning: Tenant's area, except toilet, shall be
provided with an individually controlled, refrigerated air conditioning and
heating system, sufficient to maintain an inside temperature of 70 degrees in
heating season and 78 degrees in cooling season in accordance with design
criteria established by ASHRAE for the local area to meet the need for a
typical bank. supervision of the Landlord or his architect. System to be
completely installed with ducting and separate thermostats.
I. Toilet Room: Landlord shall furnish, at a location in the Premises
determined by Landlord, three standard type lavatory and water closets, exhaust
per code, finish on enclosing walls as required by building code, on the
interior walls. One hollow core wood door with privacy latch set and hinges
will be provided. Toilet shall be designed to meet handicap requirements.
Restrooms to be rough plumbed for hot water heater.
38
J. ELECTRICAL: Landlord shall provide:
-- 120/208 single phase service to a
-- 300 amp panel board for power and lighting (location to
be determined by Landlord)
-- All required convenience outlets for floors and walls and once
convenience outlet in the restroom will also be provided by the Landlord. Size
and capacity of all the aforementioned electrical services shall be in
accordance with Tenant's requirements up to a maximum of 300 ampere service.
Landlord's electrical service shall include meter socket only. Landlord shall
provide electrical service to each sign location.
K. PLUMBING:
WATER SERVICE: If the demised space includes a toilet room, the suite
will be served by one 3/4" minimum domestic water service with shut-off valve
to Tenant's ceiling. Such water service will be used to supply the toilet room.
Tenant may tap such water service for his required uses, subject to all
applicable codes.
SEWER SERVICE: All laterals, hook-up charges, and capacity fees shall
be paid by Landlord on an unimproved shell. All additional fees and costs due
to Tenant's specific use will be paid by Tenant. If the demised space includes
a toilet room, the Landlord will provide a 4" domestic waste pipe to the
demised space with which to serve such toilet room. The Tenant may use such
domestic waste pipes for his specific requirements up to a maximum of 20
additional fixture units, subject to all applicable codes.
NATURAL GAS: Natural gas service will be provided by the Landlord to
the building. The cost of that service will be shared by those Tenants who are
served by it on a pro-rata basis. Secondary gas piping will be the specific
responsibility of the Tenant.
Plans and engineering for such water, sewer, and natural gas piping
will be prepared by the Landlord's consultant at the expense of the Tenant per
paragraph II.B.4. of this Exhibit "B".
Installation shall be per paragraph IV.T. of this Exhibit "B".
IV. TENANT'S WORK:
The work to be performed by Landlord in satisfying its obligation to
construct Tenant's store on the Premises shall be limited to that which is
described under section III. All items of work not set forth under section III
shall be provided by Tenant at Tenant's expense, and are called "Tenant's Work".
Tenant's Work shall include, but not be limited to, the purchase and/or
installation and/or performance of any and all of the following items, including
all applicable permits, licenses, architectural and engineering fees therefor:
A. All interior partitions and curtain wall within the Premises, except as
provided in paragraph III.D.
39
B. All electrical work, except as provided in paragraphs III.H., III.I.,
and III.J., shall be provided by Tenant, including installation of electrical
meter and arrangements for same with local utility company.
C. Light coves and special hung or furred ceilings.
D. Internal communication systems and alarm systems.
E. Store fixtures and furnishings.
F. Plumbing and plumbing fixtures, except as provided in paragraphs
III.I. and III.K.
G. Show window display platforms, window backs.
H. Special heating, cooling, or ventilating, except as provided in
paragraph III.H..
I. Special lighting fixtures.
J. All interior finish in show window.
K. Special finish of walls and ceilings on the inside of the glass line
shall be paid for by Tenant beyond that described in paragraphs III.D. and
III.E.
L. All finish painting, floor coverings, and base.
M. Hot water heater.
N. All work, other than the Landlord's construction as set forth in
section III.
O. Any and all other items required by Tenant.
P. All interior and exterior signing in accordance with Landlord's sign
criteria, Exhibit "C" to this Lease.
Q. Comply with all building codes, regulations, and ordinances; and
provide all required bonds and insurance.
R. Permission for Landlord to provide plumbing, electrical, and telephone
runs from other stores in building to pass through the Premises in concealed
areas.
S. Payment for roofing repairs required as a result of penetrating the
existing roof, which repairs shall be performed solely by Landlord's roofing
contractor.
T. Use of only Landlord's designated contractor for any changes in,
alterations to, or additions to the fire protection, heating and air
conditioning, plumbing, or electrical systems serving the Premises.
U. Permission for the Landlord to install a water meter within the
Tenant's ceiling and to occasionally and regularly read such meter for the
purpose of billing Tenant for his water use.
40
ADDENDUM TO LEASE BY AND BETWEEN RESEDA INVESTORS
(LANDLORD) AND XXXXX DE ORO BANK (TENANT)
1. Landlord's Work EXHIBIT 'B' (Page #3 continued)
K. Canopy: Landlord to construct an approximately 20 foot by 20 foot
canopy over the two (2) drive through lanes adjacent to Tenant's space, per
Tenant's specifications.
L. Drive-Up Islands: Landlord to provide cement islands, trenching, paving
and stripping for (2) drive through lanes.
2. Landlord to provide Tenant with a $10.00 per square foot allowance on
building (4,000 square feet) for tenant's use in additional improvements.
3. Landlord to provide Tenant with a minimum of twenty (20) parking spaces
marked "thirty (30) minute parking," adjacent to subject building.
5. In case of insolvency, the F.D.I.C. has the right to step in and assume full
responsibility and maintain lease.
6. Lease is subject to approval by Board of Directors of Xxxxx de Oro Bank by
November 30, 1987.
7. Tenant to be allowed to place exterior signage on four (4) sides building
per Landlord's sign criteria. Tenant also to have exclusive right to monument
sign along Jamacha Road in front of subject building. Signage to be approved by
Landlord and Home Capital.
8. Providing the Tenant is not in default of any of the terms or conditions of
this lease, Tenant shall have the right to extend this Lease for two (2)
additional terms of five (5) years each under the same terms and conditions as
the initial lease term.
9. Tenant shall have the right to place a double faced movable temporary sign
in the vicinity of the premises indicating the future location of its business
and its quarters. Construction Landlord shall cooperate in maintaining the
temporary sign until construction is complete. Sign to be approved by Landlord
and Home Capital.
41
EXHIBIT C
SIGN CRITERIA
-------------
These criteria have been established for the purpose of assuring an outstanding
shopping center, and for the mutual benefit of all tenants. Conformance will be
strictly enforced; and any installed non-conforming or unapproved signs must be
brought into conformance at the expense of the tenant.
A. GENERAL REQUIREMENTS
1. Each tenant shall submit or cause to be submitted to the Project
Architect for approval before fabrication at least four copies of
detailed drawings indicating the location, size, layout, design and
color of the proposed signs, including all lettering and/or graphics.
2. All permits for signs and their installation shall be obtained by the
tenant or tenant's representative prior to installation.
3. Tenant shall be responsible for the fulfillment of all requirements and
specifications.
4. All signs shall be constructed and installed at tenant's expense.
5. All signs shall be reviewed by the Owner and his designated Project
Architect for conformance with this criteria and overall design
quality. Approval or disapproval of sign submittal based on aesthetics
of design shall remain the sole right of the Owner.
6. Tenant sign contractor to be responsible to obtain all required City
Approvals.
B. GENERAL SPECIFICATIONS
1. Tenant signs will be internally illuminated channel letters - minimum
24 GA. G.I. metal with 1/8" plastic face (no cross over neon or wiring
permitted). Refer to detail sheets attached.
42
2. No audible, flashing or animated signs will be permitted.
3. No projections above or below the sign panel will be permitted. Sign
must be within dimensional limits as indicated on the attached
drawings.
4. No script or other style of letter than that detailed will be permitted
on sign panels unless it is part of any established trademark of the
tenant, used on other locations.
5. Under-canopy signs shall be restricted to a maximum of 4 square feet of
sign area, maximum height of 12 inches and a maximum width of 48".
6. Tenant shall be responsible for the installation and maintenance of all
signs.
7. Wording of signs shall not include the product sold except as part of
the tenant trade name or insignia.
8. Each tenant shall have a maximum 1.4 square feet of signing for each 1
foot of building frontage. Letters shall be a maximum of 24 inches in
height. Sign shall center on store unless prior approvals are obtained
from the Owner.
9. Tenant's sign contractor shall repair any damage to any work caused by
his work.
10. Tenant shall be fully responsible for the operations of the tenant's
sign contractors.
11. Electrical service to all signs will be connected to tenant's meter.
C. CONSTRUCTION REQUIREMENTS
1. Letter fastening and clips are to be concealed and be of galvanized,
stainless aluminum, brass or bronze metals. Letters may be attached
with approved adhesives.
2. No labels will be permitted on the exposed surface of signs, except
those required by local ordinance which shall be placed in an
inconspicuous location.
43
3. Tenants shall have identification signs designed in a manner
compatible with and complimentary to adjacent and facing storefronts
and the overall design concept of the center.
4. Design, layout and materials for tenants signs shall conform in all
respects with the sign design drawings included with this criteria.
The maximum height for letters in the body of the sign shall be as
indicated in these documents.
5. All penetrations of the building structure required for sign
installation shall be sealed in a water-tight condition and shall be
patched to match adjacent finish.
D. MISCELLANEOUS REQUIREMENTS
1. Each tenant shall be permitted to place upon each entrance of its
demised premises not more than 144 square inches of gold leaf or decal
application lettering not to exceed two inches in height, indicating
hours of business, emergency telephone numbers, etc.
2. Except as provided herein, no advertising placards, banners, pennants,
names, insignia, trademarks, or other descriptive material, shall be
affixed or maintained upon the glass panes and supports of the show
windows and doors, or upon the exterior walls of buildings without the
written previous approval of the landlord.
3. Each tenant who has a non-customer door for receiving merchandise may
have uniformly applied on said door in location, as directed by the
Project Architect, in three (3) inch high block letters, the tenant's
name and address. Where more than one tenant uses the same door, each
name and address shall be applied. Colors of letters shall match
Ameritone #189A Dark Xxxxx.
4. Contractors installing signs are to be State registered contractors
and are to have a current city business license.
E. MAJOR TENANTS
The provisions of the Exhibit, except as otherwise expressly
SIGN CRITERIA-Page 3
44
provided in this Exhibit, shall not be applicable to the identification
signs of markets, drug stores or other occupancy designated by the
landlord as a "Major Tenant" that may be located in the shopping center,
it being understood and agreed that these occupants may have their usual
identification signs on their buildings, as the same exist from time to
time of similar buildings operated by them in California; provided,
however, there shall be no roof-top signs which are flashing, moving or
audible and provided said sign is architecturally compatible and has
been approved by the Project Architect.
F. UNDER CANOPY SIGNS
Certain tenants, as negotiated, shall have under Canopy signs. These
signs will be constructed of 2" thick cedar or redwood, stained to
conform to Rustic 1 Antique Finish. Sign background to have sandblasted
finish and smooth wood trim all around with smooth graphics. Letter
style is to be designed by each tenant individually. Size and shape of
sign is to be as illustrated on Drawing No. 6 of this criteria. Each
tenant shall submit sign design to Owner and or Architect for approval
prior to fabrication and/or installation.
45
NOTES:
1. INTERNALLY ILLUMINATED INDIVIDUAL LETTERS
+ 5' DEEP X 24' HIGH MAX.
2. SIGN WIDTH SHALL NOT EXCEED 70% OF STORE FRONT WIDTH.
3. INDIVIDUAL COLORED PLASTIC LETTER WITH A GOLD TRIM AND DARK XXXXX RETURN
4. 24' LETTER, MAXIMUM HEIGHT.
5. COLOR OF LETTERING AND LOGO SHALL BE SUBJECT TO APPROVAL. REFER TO LIST OF
APPROVED COLORS, (NOTE #6)
6. COLORS SHOULD BE BASIC EARTH TONES, RECOMMEND:
YELLOW # 2465 # 2016
GREEN # 2030 # 2108
ORANGE # 2564 # 2119
RCO # 2283 # 2662 #2157
XXXXX ALL SHADES
BLUE # 2648 # 2051
TURQUOISE # 2308
RUST ALL SHADES
WHITE # 7328 #7420
IVORY # 2146
46
[SECTION THRU TYP. TENANT SIGN BLUEPRINT]
