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Exhibit 10.19
484 Lighthouse
LEASE
▇. ▇. ▇▇▇▇, Ltd.
Post Office Box 2350
Monterey, CA 93942-2350
▇▇▇-▇▇▇-▇▇▇▇
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INDEX
Paragraph
1. Definition
2. Premises 1
3. Term of Lease 1
4. Rental 1
5. Adjustment of Fixed Rent 2
6. Security Deposit 2
7. Governmental Intervention 2
8. Designation of Maintenance, Repair of Common Area 2
9. Purpose 4
10. Compliance with Law 4
11. Use and Cleanliness and quiet Enjoyment 4
12. Assignment and Sub-Letting 4
13. Acceptance of Premises 5
14. Liens 5
15. Accession 6
16. Waste 6
17. Holdover Tenancy 6
18. Fire and Glass Insurance 6
19. Liability Insurance 7
20. Personal Property Taxes 7
21. Damage and or Destruction of Demised Premises 7
22. Prohibitive Acts 7
23. Inspection 8
24. Bankruptcy or Insolvency 8
25. Default and Reentry 8
26. Lessor and Lessee Liability 9
27. Late Payment Charges and Interest on Delinquencies 9
28. Attorney's Fees 9
29. Non-Waiver or Breach 9
30. Condemnation 10
31. Utilities 10
32. Heirs and Assigns 10
33. Notices 10
34. Construction 11
35. Layout of Demised Premises and Surrounding
Area Owned by Lessor 11
36. Number and Gender 11
37. Marginal Titles 11
38. Modification and Voidance of Prior Agreements 11
39. Time of Essence 11
40. Payments not in Substitution 11
41. Conveyance by Lessor 11
42. Signs and Advertising 12
43. Statement of Lessee 12
44. Cleaning, Janitorial, Garbage and
Refuse Collection 12
45. Alterations/Improvements 12
46. Subordination 12
47. Hazardous Material 13
Exhibit A Lease Particulars 15
Exhibit B Schematic Diagram 16
Addendum No. 1 17
Option to extend Term 18
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LEASE
This Lease, made and entered into on the date appearing in the signature block
hereof, by and between ▇.▇. ▇▇▇▇▇. (hereinafter referred to as Lessor), and
Cypress Bank a California Corporation hereinafter referred to as Lessee).
WITNESSES:
1. DEFINITIONS:
1) Lease Year. For the purpose of this Lease, a "lease year" is a
period during the lease term commencing on the first day of the
lease term (except that if the lease term commences on a day other
than the first day of a calendar month, then the "lease year" shall
commence on the first day of the next succeeding calendar month) and
ending at midnight twelve (12) full calendar months thereafter;
provided, however that the last lease year shall end at the end of
the lease term, except that if such period includes less than the
whole of a calendar month, that portion of the calendar month
included within the period is a month.
2) Common Area. As used in this Lease, the term "common area" shall
include all areas and facilities in, upon or about the Center, by
Lessor for the non-exclusive use of Lessee in common with other
authorized users. It is understood and agreed that the common area
is not a portion of the premises demised to Lessee hereunder.
3) Floor Area. The term "floor area" means that actual number of square
feet of floor space within the exterior faces of the exterior walls
(except party and interior walls. In which case the center thereof
instead of the exterior faces shall be used) of the buildings,
including vacant space therein. The term "floor area" refers to
gross floor area, and no deductions shall be made from the "floor
area" by reason of columns, stairs, or other interior construction
or equipment. The total "floor area" of the demised premises and the
total "floor area" of the buildings, including the "floor area" of
the demised premises is hereby defined, fixed, determined and agreed
by Lessee and Lessor as set forth above and shown on Exhibit "A"
attached hereto and shall be conclusive upon the parties hereto.
4) MRWPCA. The term "MRWPCA" shall mean Monterey Regional Water
Pollution Control Agency.
5) CENTER. The term "Center" shall include: shopping center,
professional office building, mixed-use properties, single and
multi-tenant properties, industrial, retail, warehouse, and other
general commercial properties, all of which may be improved or
unimproved, owned by Lessor.
2. PREMISES: In consideration of the terms, covenants, conditions and
obligations herein contained, to be kept, performed and complied with by
▇▇▇▇▇▇, and upon the condition that ▇▇▇▇▇▇ keeps, performs and complies
with said terms, covenants, conditions and obligations, Lessor does hereby
demise to Lessee, and Lessee does hereby rent from Lessor those certain
premises described in Exhibit "A" attached hereto (hereinafter demised
premises), located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇,▇▇▇, ▇▇▇▇▇, (hereinafter
Center). This Lease is of real property in a Multi-Use Shopping Center
within the meaning of the Bankruptcy Code. 11 U.S.C. Section 365(b)(3).
3. TERM OF LEASE: The term of this Lease shall be for the approximate number
of years appearing as the Approximate Term on Exhibit "A" attached hereto
and shall commence on the Commencement Date as it appears in said Exhibit
"A" and shall terminate on the Expiration Date as it appears on said
Exhibit "A", unless earlier terminated. If Lessor, for any reason
whatsoever, cannot deliver possession of the said premises to Lessee at
the commencement of the term hereof, this Lease shall not be void or
voidable, nor shall Lessor be liable to Lessee for any loss or damage
resulting therefrom, but in that event there shall be a proportionate
reduction of rent covering the period between the commencement of the said
term and the time when Lessor can deliver possession.
4. RENTAL: Lessee hereby covenants to pay to Lessor, at the time and place
and computed in the manner hereinafter set forth, as rental for the
demised premises for each month. As hereinafter defined, during the term
of this Lease, no less than the Initial Fixed Rent appearing in Exhibit
"A" as adjusted from time to time in accordance with the provisions of
paragraph 5, below. Initial Fixed Rent as so adjusted shall be called the
Then Fixed Rent and shall be paid, and MRWPCA charges, monthly, in
advance, on the first day of each month during the lease term. Rental
payments and charges shall not be reduced by any claims, demands, or
off-sets against ▇▇▇▇▇▇ of any kind whatsoever. Notwithstanding anything
in this Lease to the contrary, all amounts payable by Lessee to or on
behalf of Lessor under this Lease, whether or not expressly denominated as
rent, shall constitute rent for the purposes of the Bankruptcy Code, 11
U.S.C. Section 502(b)(6).
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5. ADJUSTMENT OF FIXED RENT: Notwithstanding the provisions of paragraph 4,
the fixed rent shall be adjusted on the first day of the second lease year
and thereafter at twelve-month intervals for so long as this Lease or any
extension thereof shall be in effect, unless otherwise agreed in writing
by Lessor and Lessee as follows: on the first day of the second lease year
and on the first day of each lease year thereafter (the adjustment dates),
the Then Fixed Rent shall become the product of multiplying the Then Fixed
Rent attached hereto, by the annual percentage increase as reflected in
the Consumer Price Index for All Urban Consumers in the San Francisco -
Oakland area as published by the Bureau of Labor Statistics, United States
Department of Labor or any successor index, for the calendar month
preceding the adjustment dates.
6. SECURITY DEPOSIT: On or before the date of execution of this Lease, ▇▇▇▇▇▇
has delivered to Lessor, receipt of which is hereby acknowledged by
Lessor, the following payments, as they appear on Exhibit "A" attached
hereto:
1) the Initial Monthly Payment consisting of the Initial Fixed Rent plus
the first month's common-area, MRWPCA and other charges or reimbursements,
as applicable, and
2) the Security Deposit, for the full and faithful performance by ▇▇▇▇▇▇
of all of the covenants, conditions, terms and obligations of this Lease
to be performed and kept by ▇▇▇▇▇▇. If Lessee shall have fully and
faithfully complied with all of the terms, covenants, conditions and
obligations of this Lease, the security deposit shall be returned to
Lessee within fifteen days after ▇▇▇▇▇▇ has vacated the demised premises.
If Lessee defaults in respect to any of the terms, covenants, conditions
and obligations of this Lease, including but not limited to nonpayment of
rent, Lessor may use, apply or retain the whole or any part of the
security deposit for the payment of any rent in default or for
reimbursement of Lessor for any sums which Lessor may spend or be required
to spend by reason of ▇▇▇▇▇▇'s default. The application by Lessor of all
or any part of said security deposit shall not preclude Lessor from
thereafter exercising each and all of ▇▇▇▇▇▇'s other rights and remedies
upon such default of Lessee. Should Lessor resort to any portion or all of
the security deposit then, and in that event, ▇▇▇▇▇▇ agrees to pay to
Lessor the amount for which resort to the security deposit was had and
necessary to restore the security deposit to the original sum required
hereunder. Lessee will receive no interest on any portion of the security
deposit.
7. GOVERNMENTAL INTERVENTION: In the event that ▇▇▇▇▇▇'s occupancy of the
demised premises shall be prohibited, restricted, modified or interfered
with in any respect by or as a result of any action of any governmental
authority or agency then Lessee shall comply with any and all lawful
orders made by any such governmental agency having jurisdiction in the
premises and in the event that ▇▇▇▇▇▇'s occupancy shall be prohibited by
reason of the intervention of such governmental agency then ▇▇▇▇▇▇'s sole
remedy hereunder shall be an option to cancel this Lease and from and
after the giving of written notice of the exercise of such option to
cancel this Lease neither party hereto shall thereafter have any further
obligations whatsoever by reason of this Lease. Lessee shall obtain any
and all governmental approvals, authorizations, and permits necessary to
enable Lessee to operate ▇▇▇▇▇▇'s business or practice in the premises and
shall comply with any and all conditions and requirements imposed thereon,
all at ▇▇▇▇▇▇'s sole cost and expense. Lessor shall have no obligation for
obtaining any such approvals, authorizations or permits nor shall Lessor
have any obligations or responsibility by reason of any governmental
intervention, prohibition, condition or qualification with respect to
▇▇▇▇▇▇'s occupancy of the demised premises or ▇▇▇▇▇▇'s business or
practice conducted therein regardless of whether any such governmental
action be based upon any action or inaction of Lessor or action or
inaction of Lessee. Lessor makes no warranties or representations with
respect to the status or need for any governmental approvals,
authorizations or permits by either Lessor or Lessee, and Lessee assumes
full and complete responsibility for determining what permits, approvals
and authorizations, if any are required, necessary or desirable.
8. DESIGNATION. MAINTENANCE, REPAIR OF COMMON AREAS:
1) Within and about the Center Lessor will from time to time provide
and designate for the general use and convenience (among others) of
Lessee and other lessees of all or any part of the Center and their
respective employees, clients, customers and guests, certain common
areas.
2) These shall include, but are not limited to sidewalks, landscaped
areas, driveways, entrances, exits, lighting standards, lighting
fixtures, exterior stairways, corridors, interior stairs, balconies
and similar areas and improvements, loading and delivery areas,
refuse disposal areas, and other areas and facilities that may be
provided and designated by Lessor from time to time for the general
use and convenience.
3) If Lessee defaults in making any payments required by this
Subparagraph 3) Lessor may, in addition to other remedies under this
Lease or provided by law, deny Lessee and its employees, patients,
clients, sub-tenants, licensees, agents, service suppliers,
customers
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and patrons, the right to use any part of the common area, and may
withhold all privileges herein granted so long as Lessee remains in such
default.
4) In addition to the other rights herein reserved. Lessor shall have
the right, in its sole discretion:
a) To determine the nature and extent of the common area,
whether the same shall contain surface, underground or
multi-decked parking, and at any time to make such
changes in the physical character, size, location,
number, layout and operation of the common area as
Lessor may deem advisable, including, but not limited
to, the locating and relocating of driveways, entrances,
exits, the direction and flow of traffic, vehicle
parking spaces, the installation of restricted use areas
and other changes to the common area in general :
b) To establish and at any time to change, alter, amend and
to enforce against Lessee and other users of the common
area such reasonable rules and regulations, of which
Lessor shall give Lessee written notice, as may be
deemed necessary and advisable for the proper and
efficient operation and maintenance of the common area
and the Center. ▇▇▇▇▇▇ agrees to conform to and abide by
all such rules and regulations in its use of the common
area;
c) To designate or prescribe upon written notice to Lessee,
certain parts or sections within the common area in
close proximity to the buildings, in which Lessee's
employees, agents, sub-tenants, and concessionaires
shall be forbidden to park their automobiles and, in the
event that Lessor makes such a designation. Lessor may
require such persons to use only such space in the
common area or available public space outside thereof as
is not so restricted. Upon written request of Lessor,
Lessee shall, within seven days thereafter, furnish to
Lessor the automobile license numbers of the automobiles
customarily used by the above-specified persons.
9. PURPOSE: Lessee covenants that during ▇▇▇▇▇▇'s occupancy of the demised
premises, ▇▇▇▇▇▇ will use the demised premises solely for the purpose of
operating the practice or business appearing as Business Purpose in
Exhibit "A" attached hereto. Lessee further covenants that Lessee will not
at any time during ▇▇▇▇▇▇'s occupancy, use the premises for any other
purpose without the written consent of Lessor first had and obtained.
10. COMPLIANCE WIM LAW: Lessee covenants that during ▇▇▇▇▇▇'s occupancy of the
demised premises Lessee shall at Lessee's own cost and expense, promptly
and properly observe, comply with and execute, all present and future
orders, regulations, directions, rules, laws, ordinances and requirements
of governmental authorities, including, but not limited to, state,
municipal, county and federal governments and their departments, bureaus,
boards and officials and the Board of Fire Underwriters and any other
board or organization exercising similar functions arising from the use or
occupancy of, or applicable in any manner to the demised premises or
privileges appurtenant to or connected with the enjoyment of the demised
premises.
11. USE AND CLEANLINESS AND OUIET ENJOYMENT: Lessee covenants that during
▇▇▇▇▇▇'s occupancy of the demised premises. Lessee will not permit said
premises to be used for any improper, illegal or immoral purposes or
permit ▇▇▇▇▇▇'s business to be carried on in such a manner, or Lessee's
employees, clients, patients or customers to behave in such a manner as to
be noisy, offensive or bothersome to other tenants or to others in the
vicinity of the demised premises. Lessee further covenants to keep said
premises and all windows therein clean at all times and free from dust,
dirt or other unsightly substances and to deposit ▇▇▇▇▇▇'s refuse only in
those areas designated by Lessor in writing from time to time.
12. ASSIGNMENT AND SUB-LETTING:
1) Lessee shall not sell, transfer, assign, mortgage or hypothecate
this Lease or any interest in this Lease nor permit the use of the
demised premises by any person or persons other than Lessee, nor
sublet the premises or any part thereof without the written consent
of Lessor first had and obtained, which consent shall not
unreasonably be withheld. Consent to any of the aforementioned acts
shall not operate as a waiver of the necessity of first obtaining
the written consent of Lessor to any such subsequent act and the
terms of any such consent shall be binding upon any person holding
by, under or through any such written consent. ▇▇▇▇▇▇ agrees that
the consent of Lessor shall not be deemed or considered withheld by
reason of the fact that in the event of the sale of the business
operated by ▇▇▇▇▇▇ on the demised premises, Lessor requires as a
condition of the assignment of the Lease that the terms and
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conditions of this Lease be modified, including but not limited to
those terms and conditions concerning the security deposit or rent,
or that a new lease be entered into. ▇▇▇▇▇▇ agrees that the consent
of Lessor shall not be deemed or considered unreasonably withheld if
▇▇▇▇▇▇ refuses to consent to the assignment of this Lease to any
person, firm or corporation other than an entity similar to that
operated by ▇▇▇▇▇▇ with a financial statement and condition
satisfactory to Lessor. In any event, if Lessor shall consent to any
sublease, sale, transfer, assignment, mortgage or hypothecation of
this Lease or any interest in this Lease, or if Lessee shall without
such consent have sub leased, sold, transferred assigned, mortgaged
or hypothecated this Lease or any or all of Lessee's interest
therein then, without otherwise limiting any other remedies Lessor
may have by law or under the provisions of this Lease, Lessor shall
be entitled to receive and Lessee shall assign to and promptly pay
to Lessor, any and all consideration that exceeds the monies owed by
Lessee to Lessor under the terms of this Lease which are received by
Lessee for or in connection with any such sublease, sale, transfer,
assignment, mortgage or hypothecation of this Lease, including but
not limited to all rent received by any sublessee that exceeds the
amount of the Then Fixed Rent owed or paid by Lessee to Lessor and
all transfer fees and the like, but excluding the sale price in the
case of a sale of the business.
2) If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 V.S.C. Section 101 et seq.,
any and all monies or other considerations payable or otherwise to
be delivered in connection with such assignment shall be paid or
delivered to Lessor, shall be and remain the exclusive property of
Lessor and shall not constitute property of Lessee or of the estate
of Lessee within the meaning of said Bankruptcy Code. Any and all
monies and or other considerations constituting Lessor's property
under the preceding sentence not paid or delivered to Lessor shall
be held in trust for the benefit of Lessor and be promptly paid or
delivered to Lessor.
3) Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, aa U.S.C. Section 101 et seq.,
shall be deemed without further act or deed to have assumed all of
the obligations arising under this Lease on and after the date of
such assignment. Any such assignee shall, upon demand, execute and
deliver to Lessor an instrument confirming such assumption.
13. ACCEPTANCE OF PREMISES: The entry by Lessee upon the demised premises
shall be conclusive evidence against Lessee as an admission that every
part of the demised premises is accepted "as is", and Lessee hereby agrees
that Lessor has no responsibility for any cleaning, maintenance or repair
of any part of said premises including but not limited to the plumbing,
heating equipment, electrical wiring, fixtures, floors, ceilings, walls
and their coverings and any contents situate therein; provided, however,
that Lessor shall maintain the roof and exterior walls of the demised
premises. Lessor shall have no responsibility in any respect for damages
to property of Lessee caused by, water, flooding, waves or fluids of any
nature or origin whatsoever. As part of the consideration for the rental,
▇▇▇▇▇▇ agrees to maintain the demised premises in a good, tenantable
condition at all times during the term hereof, without cost to Lessor and
further covenants that said premises shall not be altered, improved, or
changed in any respect without the written consent of Lessor first had and
obtained. Lessee hereby waives any and all benefits and rights to which
Lessee might become entitled by reasons of Sections 1941 and 1942 of the
Civil Code of California and any and all other provisions of any law that
permit a Lessee to make repairs at the expense of a Lessor or to terminate
a Lease by reason of the condition of the premises.
14. LIENS: Lessee covenants to keep the demised premises and any alterations,
improvements and changes thereof, free and clear of liens of every kind
and character whatsoever during ▇▇▇▇▇▇'s occupancy thereof, no matter what
the source thereof, or the reason therefor, which may arise from the use
or occupancy of said premises by ▇▇▇▇▇▇, or from any work, labor or
materials furnished to or performed upon said premises. Lessee further
covenants to indemnify and hold Lessor free and harmless of and from any
and all loss or damage howsoever arising by virtue of any such liens or
claims of lien including any expense reasonably incurred by ▇▇▇▇▇▇ in
defense against such claims. Lessor shall have the right to post and
maintain on the demised premises such notices of non-responsibility or
non-liability, as Lessor may deem appropriate to avoid any liability for
liens.
15. ACCESSION: All alterations, improvements, additions or fixtures, including
cabinets, shelves, panels, counters, built-in desks or other furniture,
other than trade or professional equipment, fixtures and furniture not
affixed to realty, that may be made, constructed or installed upon the
demised premises by either Lessee or Lessor and that in any manner are
attached to the floors, walls or ceilings, shall become and be the
property of Lessor without cost and, at the
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termination of this Lease, shall remain upon and be surrendered with the
premises as a part thereof without disturbance, molestation or damage
thereto. Any floor covering that may be cemented, nailed, tacked or
otherwise affixed to the floor of the demised premises shall become and be
the property of Lessor. Any light fixture that may be installed by Lessee
in, upon or about the demised premises shall become and be the property of
Lessor whether such fixture be affixed by screws, bolts, nails, glue or
otherwise.
16. WASTE: Lessee shall not commit nor suffer to be committed any waste,
legal, equitable or otherwise, to or upon the demised premises or any part
thereof and covenants that at the expiration of the term hereof or any
sooner termination thereof, ▇▇▇▇▇▇ will quit and surrender up said
premises to Lessor peaceably and quietly and in as clean and good
condition as said premises now are or may be put into, reasonable use and
wear excepted.
17. HOLD-OVER TENANCY: Lessor and ▇▇▇▇▇▇ agree that there shall be no renewal
of this Lease, except upon execution of a written agreement, and that the
fact that the Lessee may continue in possession of the premises without
the written consent of Lessor shall not operate to renew this Lease. If
▇▇▇▇▇▇ should continue to occupy the demised premises after the expiration
of the term hereof without the written consent of Lessor, ▇▇▇▇▇▇ shall be
deemed a tenant at sufferance and hereby explicitly agrees to continue to
be bound, at ▇▇▇▇▇▇'s discretion, by the terms and conditions of this
Lease. This provision for holdover tenancy is not to be construed as
limiting the rights or remedies otherwise available to Lessor to remove
Lessee, or, to limit the rights of Lessor or Lessee to resolve any dispute
relating to rental for any option period.
18. FIRE AND GLASS INSURANCE: During the term hereof Lessee shall maintain in
full force and effect upon all of Lessee's trade fixtures, "tenants"
betterments and improvements, equipment, inventory and stock in trade in
the demised premises a policy or policies of fire insurance issued by an
approved California insurance company rated A+ XIV with all risk coverage
endorsement to the extent of at least ninety percent of the replacement
cost of such items. As long as this Lease is in effect, the proceeds of
any such policy shall be used for the repair or replacement of the
fixtures and equipment so insured. Lessor shall have no interest in the
insurance upon ▇▇▇▇▇▇'s fixtures and equipment and Lessor will cooperate
with Lessee in the settlement of any claim or loss by ▇▇▇▇▇▇, provided
that Lessee gives to Lessor satisfactory assurance that the proceeds of
such insurance will be used in compliance with the requirement hereinabove
contained respecting repair or replacement of said fixtures and equipment.
During the term hereof Lessee shall also maintain in full force and effect
at ▇▇▇▇▇▇'s expense a policy or policies of plate glass insurance,
insuring Lessor's and ▇▇▇▇▇▇'s interests, as they may appear, covering all
glass situate in the demised premises. Lessee shall also maintain at
Lessee's cost fire legal liability equal to the value of the space rented
by ▇▇▇▇▇▇ on a replacement cost basis. Lessor is to be named as its
interest may appear as regards ▇▇▇▇▇▇'s tenants' betterments and
improvements on the fire insurance policy of the Lessee, and Lessee is to
provide sufficient amount of coverage to at least ninety percent
coinsurance with a replacement cost endorsement and inflation guard
endorsement of not less that a ten percent annual increase or
cost-of-construction average increase as published by ▇. ▇. ▇▇▇▇▇ Systems,
▇▇▇▇▇▇-▇▇▇▇, in the Daily Pacific Builder, or other index agreed upon by
the Lessor and Lessee, whichever is higher. Lessee covenants during the
term of this Lease to reimburse Lessor for ▇▇▇▇▇▇'s share of any and all
increases beyond the initial lease year for Fire Insurance premiums paid
by Lessor for coverage of the real property of the Center. ▇▇▇▇▇▇'s share
shall be calculated by prorating among Lessee and other lessees of the
Center and vacant but leasable space of the Center, based upon square
footage of floor space, any and all such premium costs paid by Lessor
during each Lease Year. Each such reimbursement shall be paid by Lessee to
Lessor within fifteen (15) days after ▇▇▇▇▇▇ has first billed Lessee or,
at ▇▇▇▇▇▇'s discretion, shall be paid in monthly increments, on the first
day of each month, together with such other monthly payments as are
provided for herein.
19. LIABILITY INSURANCE: Lessee shall procure, at ▇▇▇▇▇▇'s own expense, on or
before the date of the commencement of the term of this Lease and shall
maintain continuously during the entire term hereof, public liability
insurance in the amount of 5,500,000.00 or more for the injury or death of
any one person and 5,000,000.00 or more for the injury or death of any
number of persons in any one accident and property damage liability
insurance in the amount of 5,500,000.00 or more. All of said policies of
insurance shall provide that among the insured thereunder shall be
included Lessor herein and all other persons whom Lessor may be required
to keep insured. All of said policies of insurance shall be obtained from
companies satisfactory to Lessor and shall contain an endorsement that
such insurance shall not be canceled except after ten days written
notification to Lessor. Lessee shall deliver to Lessor certificates
evidencing the insurance
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coverage herein provided for. Lessee shall pay the insurance premiums on
all insurance coverage herein provided for when due.
20. PERSONAL PROPERTY TAXES AND REIMBURSEMENT FOR REAL PROPERTY TAXES: Lessee
shall pay before delinquency any and all taxes, assessments, license fees
and public charges levied, assessed, or imposed upon ▇▇▇▇▇▇'s fixtures,
furniture, appliances, or personal property located in, upon, or about the
demised premises, or on account of or by reason of any business or other
activity conducted by Lessee in, upon or about the demised premises.
Lessee further covenants during the term of this Lease to reimburse Lessor
for increases beyond the initial lease year for Lessee's share of any and
all property taxes and assessments levied upon the land and improvements
of the Center, which such share shall be calculated by prorating among
Lessee, other lessees of the Center and vacant but leasable space of the
buildings of the Center, based upon square footage of floor space, all
those real property taxes and assessments which may from time to time be
levied upon the Center by the County and/or of Monterey, or by any other
competent government body. Any such taxes and assessments which are
payable by Lessee shall be paid by Lessee to Lessor within fifteen days
after Lessor has first billed Lessee for such payments or, at the
discretion of Lessor, shall be paid in monthly increments, on the first
day of each month, together with such other monthly payments as are
provided for herein.
21. DAMAGE OR DESTRUCTION OF DEMISED PREMISES: If the demised premises or the
building in which they are situate are totally destroyed or damaged more
than thirty percent in value by fire or the elements during the term of
this Lease, Lessor shall thereupon have an election to terminate this
Lease. If Lessor should exercise such election to terminate this Lease,
all rights and obligations herein shall cease and terminate, except for
rent and other sums accrued and unpaid to date of such destruction or
damage. Written notice terminating this Lease pursuant to ▇▇▇▇▇▇'s
aforesaid election shall be given to Lessee not later than sixty days
after any such damage or destruction. If the demised premises or the
building in which they are situate be so damaged by fire or the elements
and Lessor does not exercise Lessor's election to terminate said Lease as
hereinabove provided, and ▇▇▇▇▇▇ restores said demised premises at its own
expense, then this Lease shall remain in full force and effect. In the
event that repairs are to be made pursuant to this paragraph. Lessor shall
be entitled to and shall have possession of the necessary parts of said
premises for such purpose, and if there is any substantial interference
with ▇▇▇▇▇▇'s, business on account of such repairs. Lessee shall be
entitled to a proportionate reduction of rent during the time that said
repairs are being made. If Lessor should elect to repair or rebuild
because of any damage or destruction, as hereinabove provided. Lessor's
obligation shall be limited to restoration of the demised premises or the
building in which they are situate to a condition similar to that provided
by Lessor at the commencement of the term hereof, or to any reasonable
substitute therefor so long as such substitute meets applicable Code
requirements, and Lessee shall fully repair or replace all exterior signs,
trade fixtures, equipment, display cases, and other installations
originally installed by Lessee at its own expense including but not
limited to all of Lessee's betterments and leasehold improvements.
22. PROHIBITED ACTS: Lessee covenants not to do and not permit to be done,
anything in, on or about the premises, and not to bring, nor keep anything
therein which will in any way affect fire or other insurance upon the
entire property, building, or any of its contents other than as shall be
specifically allowed elsewhere in this Lease, nor which will violate any
law or regulation which now may be or which in any way may obstruct or
interfere with the rights of others, or injure, or annoy them. Lessee and
Lessor further covenant that should there be an increase in fire or other
insurance rates on any insurance held by Lessor on the demised premises
which increase is caused by or is attributable to the equipment,
installations, alterations, or the business conducted by Lessee, the
monthly rental to be paid by Lessee shall be raised correspondingly to
cover the increase in such insurance rates.
23. INSPECTION: Lessor and Lessor's agents shall have the right to enter into
and upon the demised premises at all reasonable times, and in emergencies
at all times, for the purposes of inspecting the same, protecting ▇▇▇▇▇▇'s
reversion, making repairs, additions, or alterations to the premises or to
any property owned or controlled by Lessor, or, for any lawful purposes.
At any time within ninety days prior to the expiration of the term hereof,
Lessor shall have access to the premises for the purpose of exhibiting
them to prospective tenants for their inspection and for posting for lease
or for rent signs upon the premises.
24. BANKRUPTCY OR INSOLVENCY:
1) If ▇▇▇▇▇▇ should execute a voluntary assignment hereof without the
written consent of ▇▇▇▇▇▇ first had and obtained, or, if there
should occur any assignment hereof by operation of law
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on account of any act of Lessee, or, if Lessee, or any member of
Lessee if Lessee be a partnership or joint venture, should file any
petition in bankruptcy or any petition for extension or composition
of creditors, or become insolvent, or make any assignment of any of
Lessee's property for the benefit of ▇▇▇▇▇▇'s creditors, or, if any
involuntary bankruptcy proceedings should be initiated against
Lessee and Lessee fails to obtain the dismissal of such proceedings
within ninety days after same are filed or, if any receiver be
appointed of the business or of the assets of Lessee, this Lease, at
the election of Lessor, shall thereupon immediately terminate, and
said lease or any interest in said leasehold shall not be assignable
by any process of law, or be treated as an asset of Lessee
thereafter, nor shall it pass under the control of any trustee or
assignee of Lessee by virtue of any such proceeding or act of
Lessee. If any such act or proceeding shall occur, Lessor may
terminate this Lease by the mailing of written notice to the
Lessee's Address For Notice as shown in Exhibit A attached hereto,
stating Lessor's election to so terminate, and all rights of Lessee
hereunder shall thereupon terminate, and Lessor may promptly
re-enter upon said premises.
2) Lessee shall not at any time during the term hereof permit its net
worth, determined in accordance with generally accepted accounting
principles consistently applied, to fall below 550,000. If Lessee
defaults in the payment of any installment of rent or of any other
monies due to Lessor under the terms of this Lease, Lessee shall
deliver to Lessor, within five calendar days after demand by Lessor,
a balance sheet of Lessee as of a date not more than thirty days
prior to the first day of the month during which said installment of
rent or other payment was due hereunder, certified by Lessee to
present fairly the financial position of Lessee as of the date of
such balance sheet. If Lessee fails to deliver its balance sheet in
accordance with the provisions of the preceding sentence, Lessee
shall conclusively be deemed to be in default of this Lease under
the first sentence of this paragraph and, since the obligations of
Lessee under this paragraph are a material obligation of Lessee's
tenancy under this Lease, Lessor shall, upon such default, have the
right to terminate this Lease immediately by written notice of
termination handed or mailed to Lessee. ▇▇▇▇▇▇ expressly agrees that
upon receipt of such notice of termination of Lease under the
provisions of this paragraph, Lessee will peaceably and quietly
vacate the premises no later than thirty days after the dispatch by
▇▇▇▇▇▇ of such notice to ▇▇▇▇▇▇.
25. DEFAULT AND RE-ENTRY: If Lessee defaults in the payment of any rent as
required hereby to be paid or, if Lessee defaults in the performance of
any term, covenant, condition, or obligation required hereby to be
performed by Lessee and such default continues for a period of ten days
after written notice is mailed to Lessee of such default, then, in
addition to any other remedy Lessor may have by operation of law. Lessor
shall have the right, without any other or further notice or demand, to
enter upon the premises, and eject all persons from the premises and
remove all property therefrom, using such lawful force as may be necessary
to so do, in which case Lessor shall not be responsible for the care or
safety of persons or property so removed and Lessee hereby waives any and
all claim for loss or damage to property or persons so removed from the
demised premises by Lessor pursuant hereto, and Lessor, in the case of any
such default by Lessee in the payment of rent or in the performance of any
one of the terms, covenants, conditions, or obligations herein contained,
may declare this Lease terminated, take possession as above provided, and
retain all prepaid rentals and other prepaid expenses or deposits as
Lessor's damages or Lessor may, without terminating this Lease or
declaring a forfeiture of Lessee's rights hereunder, retain all prepaid
rentals and other prepaid expenses or deposits, re-let the premises or any
part thereof, as the agent and for the account of Lessee upon such terms
and conditions as Lessor may deem advisable, either with or without any
unattached equipment or fixtures left remaining in the demised premises by
Lessee, in which event the rents received on such re-letting and retained
prepayments or deposits shall be applied first to the expenses of such
re-letting and collection of rent, including any necessary renovation and
alteration of the premises, and reasonable attorney's fees, and any actual
real estate commissions paid, and thereafter the balance of any such
rents, retained pre-payments or deposits shall be applied to the payment
of all sums due or to become due to Lessor hereunder and, if a sufficient
sum shall not be thus realized to pay such sums and other charges. Lessee
shall pay to Lessor any deficiency monthly, notwithstanding Lessor may
have received rental in excess of the rental stipulated in this Lease in
previous or subsequent months, and Lessor may bring an action therefor as
such monthly deficiency shall arise, in which event Lessor shall be
entitled to recover reasonable attorney's fees for commencing and
prosecuting such suit. Lessor shall be entitled to each and all of
▇▇▇▇▇▇'s remedies, and the election to proceed with one may not be
construed as excluding the subsequent use of any other. The remedies
herein granted to Lessor shall not be construed to be any limitation of
any rights, or remedies otherwise available to Lessor, but shall be
construed to be in addition thereto. Any reentry by Lessor as aforesaid
shall be allowed by Lessee without hindrance and Lessor shall not be
liable in damages
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for any such reentry, or be guilty of trespass or forcible entry. In the
event Lessee breaches this Lease, whether or not he abandons the demised
premises, this Lease shall continue in effect for so long as Lessor does
not terminate ▇▇▇▇▇▇'s right to possession, and Lessor may enforce all of
its rights and remedies under said Lease, including the right to the
rental provided for herein as it becomes due under this Lease. In the
event Lessor terminates ▇▇▇▇▇▇'s right to possession of the demised
premises, any damages Lessor may recover for ▇▇▇▇▇▇'s default of rent or
other agreement contained herein shall include the worth at the time of
the award of such damages of the amount by which the unpaid rent for the
balance of the term after the time of the award of such damages exceeds
the amount of such rental loss for the balance of the term of which ▇▇▇▇▇▇
proves could be reasonably avoided.
26. LESSOR-LESSEE LIABILITY: Lessor shall not be liable for any loss or damage
that may result to any property belonging to Lessee, located in, on, or
about said demised premises from any cause whatsoever, nor shall Lessor be
liable for any damage or injury to any person or property occurring or
arising in, on, or about the demised premises from any cause whatever.
Lessee hereby covenants to save and hold ▇▇▇▇▇▇, his agent or manager
harmless from and to defend ▇▇▇▇▇▇ against any suit or claim or demand for
damage or injury to any person or properties sustained in, on, or about
the demised premises from any cause whatever during the term hereof.
27. LATE PAYMENT CHARGES AND INTEREST ON DELINOUENCIES: Time is of the essence
of each and every obligation, covenant and condition of this Lease. In
addition to any other remedies of which Lessor may avail itself. Lessor
shall be entitled to the following late payment penalties: If Lessee fails
to pay to Lessor any payment or any portion thereof that becomes due under
the terms and conditions of this Lease by 5:00 PM on the fifth day after
such payment has become so due, then ▇▇▇▇▇▇ agrees to pay to Lessor a
one-time late payment fee of the greater of 10X of the overdue amount or
5,100.00. In addition to the aforesaid late payment fee, ▇▇▇▇▇▇ also
agrees to pay to Lessor on the first day of each month during and after
the term of this Lease, on any amounts then still overdue, interest at the
rate of the lesser of one percent per month (12X per annum) or the maximum
rate permitted by law. The forgoing shall apply to any and all payments
that Lessor may from time to time be entitled to receive from Lessee under
the various provisions of this Lease and which are not received by Lessor
within five days of their respective due dates as specified herein. Lessor
may bill Lessee from time to time for any such late payment fees or
interest then owing and Lessee shall pay to Lessor the full amount of such
billed fees or interest within five days of receipt of such bill. Failure
of Lessor to so bill Lessee shall not relieve Lessee of ▇▇▇▇▇▇'s
obligation to pay such fees and interest to Lessor.
28. ATTORNEYS' FEES: If either party hereto should bring suit against the
other party hereto for the breach of any term, covenant, condition or
obligation herein contained to be kept, by such other party, for the
recovery of any sum due hereunder, or to recover possession of the
premises, or for any summary action for forfeiture of this Lease, or to
prevent further violations of any of the terms, covenants, conditions or
obligations, or, for any other relief, then the prevailing party in such
suit for summary action shall be entitled to a reasonable attorney's fee
to be fixed by the court.
29. NON-WAIVER OF BREACH: Lessor's failure to take advantage of any default or
breach of covenant on the part of Lessee shall not be construed to be a
waiver thereof: nor shall any custom or practice which may grow up between
the parties hereto in the course of administering this Lease be construed
to waive or to lesson the right of Lessor to insist upon the performance
of any and all terms, covenants, conditions, and obligations hereof, or to
exercise any right given Lessor on account of any default. A waiver of a
particular breach or default shall not be deemed to be a waiver of the
same or any other subsequent breach or default. Lessor's consent to or the
approval of any act by Lessee requiring ▇▇▇▇▇▇'s consent or approval shall
not be deemed to waive or render unnecessary Lessor's consent to or
approval of any subsequent or similar act by ▇▇▇▇▇▇.
30. CONDEMNATION:
1) If title to all of the premises is taken for any public or quasi
public use under any statute, or by right of eminent domain, or by
private purchase in lieu of eminent domain, or if title to so much
of the premises is so taken that, in the sole opinion of Lessor, a
reasonable amount of reconstruction of the premises will not result
in the premises being a practical improvement, or reasonably
suitable for Lessee's continued occupancy for the uses and purposes
for which the premises are leased, then, in either event, this Lease
shall terminate on the date that possession of the premises, or part
of the premises, is taken, unless Lessor elects that said lease
continue.
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2) If this Lease continues under provisions of paragraph A. above, the
Then-Fixed Rent shall be reduced in the same proportion that the
floor area of the portion of the premises so taken (less any
additions to the premises by reconstruction) bears to the original
floor area of the premises. Lessor shall, at Lessor's own cost and
expense, make all necessary repairs or alterations to the building
in which the premises are located so as to constitute the portion of
the building not taken as a useable unit. There shall be an
equitable abatement of rent during such restoration period.
3) All compensation awarded or paid upon a total or partial taking of
the fee title of the premises shall belong to Lessor, whether such
compensation be awarded or paid as compensation for diminution in
value of the leasehold or of the fee provided, however, that Lessor
shall not be entitled to any award made to Lessee for depreciation
or damage to, or cost of removal of stock and fixtures, if any.
4) Each party agrees to execute and deliver to the other all
instruments that may be required to carry out the provisions of this
paragraph, and ▇▇▇▇▇▇ shall assign to Lessor and appoint Lessor to
act for Lessee in all matters of condemnation except for ▇▇▇▇▇▇'s
specific rights to damages as set forth in C. above.
31. UTILITIES: Lessee will, during the term of this Lease or any extensions or
holdover periods thereof, pay for all charges for utilities and sanitary
services furnished to or performed upon the demised premises including but
not limited to electricity, gas, telephone, water, sewer, including MRWPCA
charges and city surcharges, garbage, trash, insect and rodent control.
Lessee shall, if feasible, pay for the above services directly to the
public utility or other supplier. In the case of MRWPCA charges which are
attributable to the demised premises but are billed to ▇▇▇▇▇▇, ▇▇▇▇▇▇
agrees to reimburse ▇▇▇▇▇▇ as provided for herein. Lessor makes no
representation or warranty whatsoever as to the availability of water,
gas, electricity, or any other utility service for ▇▇▇▇▇▇'s intended use
and Lessee acknowledges that Lessee has made ▇▇▇▇▇▇'s own investigation
with respect to the availability of any and all utility services required
by Lessee and that Lessee is satisfied with respect to such availability
and that Lessor has no obligation whatsoever with respect thereto. To the
extent that such is permissible or can be accomplished, from time to time,
in accordance with applicable rules and regulations, and in ▇▇▇▇▇▇'s sole
opinion at reasonable cost. Lessor shall use Lessor's best efforts to
obtain, install and pay for an individual meter for each of the utility
services required by Lessee upon Lessee's demised premises. If, for any
reason, Lessor cannot obtain an individual or separate meter for Lessee's
demised premises, then Lessor shall utilize Lessor's best efforts to make
any such required utility services available to Lessee through Lessor's
existing meters and Lessor shall bill to Lessee and Lessee shall pay to
Lessor within ten days of a statement therefor such amount as lessor shall
determine to be Lessee's fair and equitable share of any such utilities
and Lessor's determination in this regard shall be final, binding and
conclusive upon Lessee.
32. HEIRS AND ASSIGNS: Except as herein otherwise provided, all terms,
conditions, covenants and obligations contained in this Lease shall be
binding upon and inure to the benefit of the heirs, successors, legal
representatives and assigns of the parties hereto.
33. NOTICES: All notices, statements, demands, requests, approvals,
authorizations, offers, agreements, appointments or designations under
this Lease by either party to the other shall be in writing and shall be
served personally upon the other party or deposited in the United States
mail, certified mail, return receipt requested, postage prepaid, and
addressed to Lessee at Lessee's Address For Notice as it appears on
Exhibit A attached hereto, or to such other address as Lessee may from
time to time designate to Lessor in writing, and addressed to Lessor at ▇.
▇. ▇▇▇▇, Ltd., Post Office Box 2350, Monterey, California, 93942-2350, or
at such other address as Lessor may from time to time designate to Lessee
in writing.
34. CONSTRUCTION: Each term, covenant, condition and obligation of this Lease
to be performed by Lessee shall be construed to be both a covenant and a
condition.
35. LAYOUT OF ME DEMISED PREMISES AND SURROUNDING AREA OWNED BY LESSOR: Lessor
does not guarantee a continuance of the passage of light and air over the
demised premises or over any of the real property adjoining the demised
premises and Lessor expressly reserves all air space over the demised
premises. Any reference in this Lease with respect to the location of
buildings, open, controlled or other parking areas, and other improvements
shall not be deemed to be a warranty or representation. Lessor hereby
reserves the right at any time to make any alterations or additions to or
to build additional stories on any presently existing buildings owned by
Lessor. Lessor also reserves the right to construct other buildings or
improvements upon the surrounding real property which may be owned by
Lessor from time to time, and to make alterations or additions thereto and
to build additional stories on any such buildings and to modify and
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reallocate space within the center. Lessor further reserves rights-of-way
and easements in, over, under, and through Lessee's demised premises for
sprinkler and fire-detection system purposes, power and telephone lines,
plumbing lines and conduits for all utilities, together with the right to
locate, relocate, and maintain the same at any and all times and from time
to time in, upon, over, or under Lessee's demised premises without any
rebate of rent or liability for any interruption or disturbance caused by
Lessor, its agents, servants or employees, or by any utility company
employee or representative: provided, however, that Lessor shall use
reasonable discretion in exercising its rights pursuant to this sentence.
36. NUMBER AND GENDER: When required by the context, whenever the singular
number is used in this Lease, it shall include the plural, the masculine
gender shall include the feminine and neuter genders, and the word
"person" shall include corporation, firm, partnership, or association. If
there be more than one Lessee, the obligations imposed herein upon Lessee
shall be joint and several.
37. MARGINAL TITLES: The marginal headings or titles to the paragraphs of this
Lease are not a part of this Lease and shall have no effect upon the
construction and interpretation of any part of this Lease.
38. MODIFICATION AND VOIDANCE OF PRIOR AGREEMENTS: This instrument contains
all the agreements and conditions made between the parties to this lease
and may not be modified orally or in any other manner than by an agreement
in writing signed by all of the parties to this Lease or other respective
successor or successors in interest. This Lease supersedes any and all
prior written and oral agreements between Lessor and Lessee, which such
agreements, if any, are void and of no further effect.
39. TIME OF ESSENCE: Time is of the essence of each term, covenant, condition
and obligation of this Lease.
40. PAYMENTS NOT IN SUBSTITUTION: Except as otherwise expressly stated, each
payment required to be made by Lessee shall be in addition to and not in
substitution for other payments to be made by Lessee.
41. CONVEYANCE BY ▇▇▇▇▇▇: If, during the term of this Lease, Lessor shall sell
Lessor's interest in the demised premises, then from and after the
effective date of such sale Lessor shall be released and discharged from
any and all obligations and responsibilities under this Lease except those
already accrued; provided, however, that any such purchaser shall assume
all of Lessor's obligations to be performed hereunder, including the
obligation to refund the security deposit at the expiration of this term.
42. SIGNS AND ADVERTISING: Except as herein provided, no sign, advertisement,
or notice or other thing shall be inscribed, painted or otherwise
displayed, or screens, awnings, shades, decorations, symbols, fixtures or
any other thing affixed or placed on or about any part of the outside of
the demised premises (or inside of the demised premises where such may be
seen through windows or otherwise by passers-by) except of such color,
size, or style, and in such place on or in said premises as shall first be
fixed, designated and approved by ▇▇▇▇▇▇ in writing and ▇▇▇▇▇▇ hereby
agrees that Lessor may at ▇▇▇▇▇▇'s discretion, at any time enter the
demised premises and remove such thing that has not been so approved
without the need to first consult with ▇▇▇▇▇▇.
43. STATEMENT OF LESSEE: Lessee shall at any time and from time to time upon
not less than fifteen days prior written request by Lessor, execute,
acknowledge and deliver to Lessor a statement in writing certifying that
this Lease is unmodified and in full force and effect if such is the fact
(or if there has been any modification thereof that the same is in full
force and effect as modified and stating the modifications) and the dates
to which rentals and other charges have been paid in advance, if any. It
is expressly understood and agreed that any such statement delivered
pursuant to this paragraph may be relied upon by any prospective purchaser
of the complex or estate of Lessor or by the mortgagee or assignee of any
mortgagee of any mortgage or the trustee or beneficiary of any deed of
trust constituting a lien upon the leased premises or upon property
including the leased premises or any part thereof.
44. CLEANING, JANITORIAL SERVICE, GARBAGE AND REFUSE COLLECTION AND
REIMBURSEMENT: Lessor shall have no responsibility for the furnishing of
any janitorial or cleaning service, to the demised premises. Janitorial
and cleaning service within the demised premises and refuse collection
shall be the sole responsibility and at the sole cost of Lessee. Lessee
covenants and agrees to
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obtain sufficient janitorial and cleaning service, and refuse collection,
to maintain the demised premises in a neat and orderly condition at all
times. ▇▇▇▇▇▇ further agrees to deposit ▇▇▇▇▇▇'s refuse and garbage only
in those areas designated in writing by ▇▇▇▇▇▇ from time to time. Lessor
shall arrange for the collection and removal of ▇▇▇▇▇▇'s and other
lessees' garbage and refuse which is so deposited, and shall advance on
behalf of ▇▇▇▇▇▇ and other lessees the cost of such service. Lessor may
▇▇▇▇ ▇▇▇▇▇▇ and other lessees for their respective prorata shares of such
costs, in which case ▇▇▇▇▇▇ agrees to reimburse Lessor for such advances
within fifteen days of receipt of said ▇▇▇▇. At Lessor's discretion such
advances shall be paid by ▇▇▇▇▇▇ to Lessor in monthly increments on the
first day of each month, together with such other monthly payments as are
provided for herein.
45. ALTERATIONS/IMPROVEMENTS: Lessee shall not make any improvements on the
property without Lessor's consent. In making any alterations that ▇▇▇▇▇▇
has a right to make. Lessee shall comply with the following:
1) Lessee shall submit reasonably detailed plans and specifications of
the proposed alterations before the commencement of such Lessor
approved alterations.
2) The alterations shall not commence until five (5) days after ▇▇▇▇▇▇
has received notice from ▇▇▇▇▇▇ stating the date the construction is
to commence so that Lessor can post and record an appropriate notice
of non-responsibility.
3) The proposed improvements shall be approved by all the appropriate
government agencies, and all applicable permits and authorizations
shall be obtained before commencement of the alterations. All
approved improvements shall be completed in the standard workmanship
quality.
4) The proposed improvements shall be approved by all the appropriate
government agencies, and all applicable laws.
5) Before commencing the alterations and at all times during
construction, Lessee shall maintain insurance as provided for in
paragraphs 18 and 19. In addition, contractor shall be licensed and
insured and a Certificate of Insurance with liability insurance in
the amount of 51,000,000.00 and Worker's Compensation Insurance
shall be provided by ▇▇▇▇▇▇'s contractor to Lessor within 10 days
prior to commencement of any work and said certificate shall name
Lessor as additionally insured.
6) Lessee shall pay all costs for construction done by it or caused to
be done by it on the premises as permitted by this Lease. Lessee
shall keep the improvements and land free and clear of all
mechanics' liens resulting from construction done by or for Lessee.
46. SUBORDINATION: This Lease is and shall be subordinate to any encumbrance
now of record or recorded after the date of this Lease affecting the
building, other improvement, and land of which the premises are a part.
Such subordination is effective without any further act of Lessee. Lessee
shall from time to time upon request from Lessor execute and deliver any
documents or instruments that may be required by a lender to effect any
subordination. If ▇▇▇▇▇▇ fails to execute and deliver any such documents
or instruments. Lessee irrevocably constitutes and appoints Lessor as
▇▇▇▇▇▇'s special attorney in fact to execute and deliver any such
documents or instrument.
47. HAZARDOUS MATERIALS:
1) Hazardous Materials. Tenant shall not at any time during the term of
this Lease use, generate, store, or dispose of, on, under or about
the Premises any hazardous substance, hazardous waste, toxic
substance, pollutants, contaminants, or related materials,
("Hazardous Materials"), except those, if any, listed in Exhibit
"A", attached hereto and made a part hereof. For the purpose of this
covenant, Hazardous Materials shall include, but shall not be
limited to, substances defined as "hazardous substances" or
"pollutants or contaminants" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 etseq., those substances defined as "hazardous
waste" by the Resource Conservation and Recovery Act, as amended, 42
U.S.C.Section 6901 et seq., and by Section 25117 of the California
Health and Safety Code, and those substances defined as "hazardous
substances" in Section 25316 of the California Health and Safety
Code, and the regulations adopted and publication promulgated
pursuant to said laws. Lessee shall indemnify, defend, and hold
Lessor harmless from and against all liability, including all
foreseeable and enforceable consequential damages, directly or
indirectly arising out of the use, generation, storage or disposal
of Hazardous Materials, including, without limitation, the cost of
any required or necessary repair, clean-up or detoxification and the
preparation of any closure or other required plans, to the full
extent that such action is attributable, directly or indirectly, to
the use, generation, storage or disposal of Hazardous Materials on
the Premises at any time. Lessee shall provide written notice to the
Lessor of any present or future hazardous substance release that
Lessee Knows or has reasonable cause to believe is or will be
present on or under the Premises, within a
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reasonable period of time after such release is discovered or
believed by the Lessee to be present. (See Health and Safety Code
Section 25359.7)
2) Hazardous Materials Report. Lessee agrees that if Lessee is unable
for any reason to complete the certification provided for in
Paragraph 1.3. below, Lessee shall obtain and deliver to Lessor
within five days before or after the termination of this Lease a
hazardous substance report concerning the Premises ("Hazardous
Materials Report"), the purpose of which Hazardous Materials Report
shall be to affirm that Lessee shall be in compliance with all
applicable laws, ordinances, rules, regulations of any governmental
agency having jurisdiction concerning the use, storage and/or
dispositions of hazardous materials on the Premises at the
termination of this Lease or any extension thereof. The Hazardous
Material Report shall be obtained by Lessee at its sole cost and
expense, for the purposes of this report, a "hazardous material" is
defined as any substance the existence or effect of which is subject
to Federal, State or Local regulation, investigation, correction or
removal as potentially injurious to public health or welfare. Lessor
and ▇▇▇▇▇▇ acknowledge that extensive Local, State and Federal
legislation establishes broad liability upon owners and/or users of
real property for the investigation and correction of such hazardous
material conditions. The Hazardous Material Report shall be in
writing, and shall be prepared by a licensed contractor or engineer
competent to perform such investigation on behalf of ▇▇▇▇▇▇. If the
Hazardous Materials Report shall indicate a condition requiring
correction or posing a potential liability to Lessor, Lessee shall
forthwith cure the condition(s) specified in the Hazardous Materials
Report at ▇▇▇▇▇▇'s sole cost and expense, prior to the termination
of this Lease.
3) Hazardous Materials Certification by ▇▇▇▇▇▇. Lessee may elect to
execute an indemnification agreement and notarized certification
under penalty or perjury substantially as follows, in lieu of the
report described in Paragraph 1.2 above:
i) That no hazardous materials other than those if any, listed in
Exhibit "A" have been introduced to the Premises.
ii) That there be no spillage of hazardous materials listed in
Exhibit "A" and that such materials have been properly stored
in closed containers in accordance with the law.
iii) That ▇▇▇▇▇▇ agrees to pay the cost of cleaning up any
contamination resulting from ▇▇▇▇▇▇'s use or occupancy of the
Premises and hold harmless and indemnify Lessor and ▇▇▇▇▇▇'s
agents for any claims that result therefrom. Lessee shall
deliver such certification to Lessor within five days before
or after the termination for any reason of ▇▇▇▇▇▇'s occupancy
of the Premises. If Lessee fails to so deliver such
certification within the time required. Lessee shall comply
with the provisions of Paragraph 1.2. above.
IN WITNESS WHEREOF, the parties hereto have set their hands on the date first
hereinabove written.
LESSOR LESSEE
------ ------
▇.▇. ▇▇▇▇▇ Cypress Bank
By: /S/ ▇.▇. ▇▇▇▇ By: /S/ ▇▇▇▇▇▇ ▇▇
------------------------------- -------------------------------
▇.▇. ▇▇▇▇ Ltd., Agent for Owner Officer of Corporation
Date: 3/6/97 Date: 3/3/97
----------------------------- ------------------------------
95
15
Exhibit "A"
Lease particulars (this page) and schematic location (next page-not to scale) of
Demised premise, common area, located within 484 Lighthouse, Suite 101.102 and
103. Monterey, CA, 93940:
1) Lessee Cypress Bank, a California Corporation
2) Demised Premises 484 Lighthouse, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3) Approximate Term 36 Months
4) Commencement Date 3-1-97
5) Expiration Date 2-28-2000
6) Approximate Area of
Demised Premises 1598 sq ft +/-
7) % of Occupancy Not Applicable
8) Business Purpose Retail Financial Institution
9) Security Deposit $1997.00
10) Address for Lessee ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇&▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11) Calculation of Monthly Payment:
Initial Fixed Rent $ 1997.00
Garbage $ 26.42
MRWPCA $ 9.48
Initial Monthly Payment $ 2032.90
12) Due Upon Execution of Lease:
Security Deposit $ 1997.00
Sec Dep Paid $(1309.00)
Initial Payment $ 2032.90
Total Due $ 2720.90
96
16
Exhibit "B"
(Schematic Drawing)
(Not to Scale)
FIRST FLOOR
97
17
ADDENDUM NO. 1 TO LEASE
THIS ADDENDUM, is to that Lease for the premises known as ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇-▇ &▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
WHEREAS, this is an addendum to the Lease dated March 1, 1997, between ▇. ▇.
▇▇▇▇▇, Lessor, and Cypress Bank, a California Corporation, Lessee, for the
premises at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇. 93940.
NOW THEREFORE, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ do further agree as follows:
CONDITION TO LEASE. This Lease is conditioned upon satisfaction of the
following:
a. Lessee obtaining approval of this lease transaction and ▇▇▇▇▇▇'s
contemplated use of the Premises by the Federal Deposit Insurance Corporation
("FDIC") and the State of California Department of Banking ("State Banking
Department"). Presently, the Lessee is seeking and has applied for such approval
from the FDIC and State Banking Department. If ▇▇▇▇▇▇ does not obtain approval
of this lease transaction and ▇▇▇▇▇▇'s contemplated use by the FDIC or State
Banking Department within (60) days after full execution of this Lease, then
this Lease shall terminate.
b. Lessee shall have First Right of Refusal to Lease approximately 250
sq.ft. of office space upstairs as soon as available.
c. Lessee shall have the right to install an ATM on blank wall on far
right of building. Lessee shall obtain proper permits and incur all costs.
D. Lessee shall have the right to make existing space and new space one,
including any removing and adding walls. Lessee shall incur all expenses. Lessee
shall submit all plans to Lessor for approval.
PARKING. Lessee shall have six designated parking spaces. Lessee and Lessor
agree that the Parking area shall be solely for the purpose of the daily parking
of passenger automobiles owned, leased, controlled or authorized by Lessee,
Lessor an other tenants. ▇▇▇▇▇▇ agrees to use such parking area solely for said
purpose and in accordance with provisions of this agreement and releases Lessor
of any obligation and all obligation or responsibility to prevent the use of
said area by persons and vehicles not conforming to such purpose, not licensed
by Lessor or not authorized by Lessee or other tenants. ▇▇▇▇▇▇ further release
and indemnifies Lessor against any claims for loss or damage to vehicles, their
occupants or contents which are parked or driven in the Parking Area or on other
grounds of the Building. ▇▇▇▇▇▇ agrees to be responsible for policing parking
and that parking will be limited to ▇▇▇▇▇▇'s assigned spaces.
TERMINATION OF LEASE. This Lease terminates the previous Lease signed and
dated 12/27/96 between ▇.▇. ▇▇▇▇▇, Lessor, and Cypress Bank, Lessee for the
premises at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum to be
effective,March 1, 1997.
LESSOR: LESSEE:
▇.▇. ▇▇▇▇▇ Cypress Bank, a California Corporation
/s/ ▇.▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇
-------------------------------- --------------------------------------
▇.▇. ▇▇▇▇, LTd., Agent for Owner Officer of Corporation
Date: 3/6/97 Date: 3/7/97
98
18
OPTION TO EXTEND TERM
If Lessee is not in default in the performance of any of ▇▇▇▇▇▇'s
obligations hereunder, Lessor hereby grants to Lessee an option to extend the
term of this Lease, subject to similar terms and conditions thereof, for an
additional period, of three years, such additional term to commence upon the
date following the final day of the original term granted herein, and subject to
the agreement of the fair market rental for such option period by Lessor and
Lessee. To exercise ▇▇▇▇▇▇'s option, Lessee shall give to Lessor notice in
writing by registered or certified mail, postage prepaid with the return receipt
requested, addressed to Lessor at Lessor's address for notice provided herein,
not sooner than eight (8) months prior to the expiration of the original term
hereof and not later than six (6) months prior to the expiration of the original
term hereof. Upon receipt of the notice of ▇▇▇▇▇▇'s exercise of said option,
Lessor and Lessee shall endeavor to reach an agreement upon the rental for the
term of said option period. If such agreement cannot be accomplished sixty (60)
days prior to the date on which the term of said option period commences, the
option right is hereby terminated. ▇▇▇▇▇▇ agrees to permit a "For Lease" sign in
window of demised premise, if agreement is not reached, as required above.
IN WITNESS WHEREOF, the above-named parties hereto have: A) set their hands the
date first hereinabove written, B) acknowledge receipt of a copy hereof, and C)
have read, understand and agree to all of the above.
LESSOR LESSEE
▇.▇. ▇▇▇▇▇ Cypress Bank, a California Corporation
/s/ ▇.▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇
-------------------------------- --------------------------------------
▇.▇. ▇▇▇▇, Ltd., Agent for Owner By Officer of Corporation
Date: 3/6/97 Date: 3/7/97
99
