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EXHIBIT 10.14
Consent to Assignment of Lease between Xxxxx de Oro Bank, N.A., Xxxxxx Estates
and Bank of America National Trust and Savings Association dated June 12, 1985
and underlying lease between Pacific Coast Properties, Inc. and Bank of America
National Trust and Savings Association dated November 9, 1960
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CONSENT TO ASSIGNMENT
THIS CONSENT TO ASSIGNMENT ("Consent Agreement") is dated as of the 22nd of
June, 1985, with reference to that certain Assignment of Lease (the
"Assignment") dated June 12, 1985 by and between Bank of America, National Trust
& Savings Association, ("Tenant") and Xxxxx de Oro Bank N.A. ("Assignee"), and
is entered into by and between Xxxxxx Estates, a California limited partnership,
a successor in interest ("Landlord"), Tenant and Assignee, with reference to the
following facts:
(i) Landlord and Tenant are the parties to that certain lease (the "Lease")
dated as of November 9th, 1960 as amended by a document entitled First Amendment
to Lease dated August 15th, 1973 and further amended January 30, 1985 by a
document entitled Addendum No. 1 to Lease, the initial term of which expires on
Sept. 7, 1991.
(ii) Tenant and Assignee wish to enter into the Assignment:
(iii) The Lease provides, inter alia, that Tenant may not enter into any
assignment without Landlord's prior written approval;
(iv) Tenant and Assignee have herewith presented the Assignment to Landlord
for Landlord's approval, upon all of the terms and conditions hereinafter
appearing.
NOW THEREFORE, for good and valuable consideration, the parties hereto
agree as follows:
1. Landlord hereby consents to the Assignment and the terms and conditions
thereof. The effective date of the consent shall be on or about August 1, 1985,
subject to the satisfaction of the conditions set forth in Section 13 of the
Assignment. This Consent Agreement shall not release Tenant from any existing or
future duty, obligation or liability to Landlord pursuant to the Lease, nor
shall this Consent Agreement change, modify, or amend the Lease in any manner,
except insofar as it constitutes Landlord's consent to Assign and except as
otherwise expressly provided in this Consent Agreement and in the Assignment.
2. Landlord's duties, obligations or liabilities to Assignee shall be no
greater than those possessed by Tenant under the Lease.
Landlord shall not (i) be liable to Assignee for any act, omission or
breach of this Assignment by Tenant, (ii) be subject to any offsets or defenses
which Assignee might have against Tenant, or (iii) be bound by any rent or
additional rent which Assignee might have paid in advance to Tenant.
3. Landlord (i) agrees and represents that as of the date hereof there are
no outstanding defaults of Tenant under the Lease, that the Lease is in full
force and effect and that the lease as amended are the only agreements between
Landlord and Tenant.
4. Assignee hereby (a) acknowledges that it has read and has knowledge of
all the terms, provisions, rules and regulations of the Lease and agrees not to
do or omit to do anything which would cause Tenant to be in breach of this Lease
and (b) assumes and agrees to pay and perform each covenant, agreement and
obligation contained in the lease which shall not relieve Tenant of any of its
obligations now existing or hereinafter arising under the Lease. Any such act or
omission shall also constitute a breach of this Consent Agreement and shall
entitle Landlord to recover any damage, loss, cost or expense which it thereby
suffers, from Assignee, whether or not Landlord proceeds against Tenant.
5. In the event of any litigation between or among the parties hereto with
respect to the subject matter hereof, the unsuccessful party agrees to pay to
the prevailing party all costs, expenses and reasonable attorney's fees incurred
therein by the prevailing party, which may be included as a part of a judgment
rendered therein.
6. The parties hereto acknowledge that the Assignment and this Consent
Agreement constitute the entire agreement between Tenant and Assignee with
respect to the subject matter thereof insofar as Landlord may be concerned, and
that no amendment, modification or change therein will be binding upon Landlord
unless Landlord shall have given its prior written consent thereto and that any
such purported amendment, modification or change made without such consent
shall, at the option of Landlord, be deemed a default under the Lease.
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7. This Consent Agreement shall be binding upon and shall inure to the
benefit of the parties' respective successors in interest and assigns, subject
at all times, nevertheless, to all agreements and restrictions contained in the
Lease, the Assignment, and herein, with respect to subleasing, assignment, or
other transfer. The agreements contained herein constitute the entire
understanding between the parties with respect to the subject matter hereof, and
supersede all prior agreements except the Lease, which shall remain in full
force and effect.
8. Notice required or desired to be given hereunder or under the Lease
shall be effective either upon personal delivery evidenced by a signed receipt
or upon the date of actual receipt or refusal as shown on return receipt after
deposit in the United States mail, by registered or certified mail, return
receipt requested, or when delivered by the telegraph office if sent by
telegraph, addressed to the Landlord at Suite 206; 0000 Xx Xxxxx Xxxx.; Xxx
Xxxxx, XX 00000, or to Tenant at Bank of America, Corporate Real Estate
Division, Unit 4753, 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, or
Assignee at the address of the Premises with a copy mailed to Assignee at X.X.
Xxx 0000; Campo at Kenwood; Xxxxxx Xxxxxx, XX 00000. Any party may change its
address by giving notice in the manner hereinabove provided.
9. Except to the extent of Landlord's obligations under the Lease as
amended, Tenant and Assignee agree to indemnify and hold Landlord harmless from
and against any loss, cost, expense, damage or liability, including reasonable
attorneys' fees, incurred as a result of a claim by any person or entity (i)
that it is entitled to a commission, finder's fee or like payment in connection
with the Assignment or (ii) relating to or arising out of the Assignment or any
related agreements or dealings.
10. Tenant and Assignee agree to execute and deliver to Landlord any and
all additional documents, instruments or agreements reasonably deemed necessary
or appropriate by Landlord to carry out the purpose, terms and provisions
hereof.
11. Tenant, Assignee and Landlord do hereby respectively warrant and agree
that neither it nor any of its agents or other parties has made any promises,
agreements, warranties or representations which have induced either of the
others to enter this transaction or otherwise, except as specifically set forth
in this Consent.
12. Landlord warrants and represents that there are no liens or
encumbrances on the Premises which will affect Tenant's or Assignee's rights
under the Lease so long as neither Tenant or Assignee are in default thereunder.
13. This Consent Agreement may be executed in any number of counterparts,
each of which shall be an original and all of which together shall constitute
and be construed as one and the same document.
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LANDLORD:
XXXXXX ESTATES,
a California limited partnership
By: PACIFIC VIEW CONSTRUCTION CO INC.,
general partner
Dated: By:
----------------- -----------------------------------------------
Name Title
--------------------- -------------------
TENANT:
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION,
A National Banking Association
Dated: June 12, 1985 By: /s/ X.X. XXXXXXX
---------------- ----------------------------------------------
Name X.X. Xxxxxxx Title Vice President
-------------------- ------------------
Dated: June 12, 1985 By: /s/ X.X. XXXXXXXX
---------------- ----------------------------------------------
Name X.X. XXXXXXXX Title Vice President
-------------------- ------------------
ASSIGNEE:
Xxxxx de Oro Bank, N.A.
Dated: By:
---------------- ----------------------------------------------
Name Xxxxxxx X. Xxxxx
---------------------------------------------
Title President and Chief Executive Officer
--------------------------------------------
Dated: By:
---------------- ----------------------------------------------
Name Title
-------------------- ------------------
(0385S)
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EXHIBIT "A"
A tract of land in that portion of Lot 29 of Block 8 of the subdivision of
Tract "H" of Jamacha Rancho in the County of San Diego, State of California,
according to the Map thereof No. 812 filed in the office of the County Recorder
of San Diego County February 21, 1896, described as follows:
Beginning at the intersection of the southerly and westerly lines of said Lot
29, which is also a point on the centerline of Sweetwater Road, thence North 19
degrees 10' West along the centerline of Sweetwater Road 237.76 feet; thence
North 70 degrees 50' East 91 feet to the true point of beginning; thence
continuing North 70 degrees 50' East 84 feet; thence North 19 degrees 10' West
65 feet; thence South 70 degrees 50' West 84 feet; thence South 19 degrees 10'
East 65 feet to the true point of beginning.
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RECORDED AT THE REQUEST OF: )
)
)
)
)
WHEN RECORDED MAIL TO: ) VITAL FILE
)
)
)
)
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Space above for Recorder's use
SHORT FORM LEASE
THIS LEASE, executed and delivered as of this 9th day of November, 1960 by
and between PACIFIC COAST PROPERTIES, INC., a Delaware corporation,
hereinafter referred to as Landlord/Lessor, and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, hereinafter
referred to as Tenant/Lessee,
WITNESSETH:
1. For valuable considerations, receipt of which is hereby acknowledged by
the parties hereto, Landlord/Lessor does hereby lease to Tenant/Lessee and
Tenant/Lessee does hereby lease from Landlord/Lessor that certain real property
situated in the County of San Diego, State of California, and particularly
described as Exhibit A attached hereto, and by this reference made a part
hereof, for a term of approximately thirty (30) years, commencing on September
8, 1961, ending on September 30, 1991.
2. This lease is made upon the terms and conditions of that certain lease
between the parties hereto of even date herewith, which said long-form lease is
hereby referred to, and
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EXHIBIT "A"
A tract of land in that portion of Lot 29 of Block 8 of the subdivision of
Tract "H" of Jamacha Rancho in the County of San Diego, State of California,
according to the Map thereof No. 812 filed in the office of the County Recorder
of San Diego County February 21, 1896, described as follows:
Beginning at the intersection of the southerly and westerly lines of said Lot
29, which is also a point on the centerline of Sweetwater Road, thence North 19
degrees 10' west along the centerline of Sweetwater Road 237.76 feet; thence
North 70 degrees 50' East 91.00 feet to the true point of beginning; thence
continuing North 70 degrees 50' East 84.00 feet; thence North 19 degrees 10'
West 65.00 feet; thence South 70 degrees 50' West 84.00 feet; thence South 19
degrees 10' East 65.00 feet to the true point of beginning.
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by this reference made a part hereof, for further particulars.
IN WITNESS WHEREOF, the parties hereto have executed
this lease as of the day and year first hereinabove written.
PACIFIC COAST PROPERTIES, INC. BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ XXXXX X. XXXXXXX By /s/ M.T. XXXXXX
__________________________ __________________________
President Assistant Vice President
By /s/ GEO. X. XXXXXXXXX By /s/ XXXXX X. XXXXXXX
__________________________ __________________________
Secretary Assistant Secretary
(SEAL) LANDLORD/LESSOR
STATE OF CALIFORNIA )
)SS
COUNTY OF LOS ANGELES )
On June 1, 1966 before me, the undersigned, a Notary Public in and for said
State, personally appeared M.T. Xxxxxx, known to me to be the Asst. Vice
President, and, XXXXX X. XXXXXXX, known to me to be Assistant Secretary of the
corporation that executed the within Instrument, known to me to be the persons
who executed the within Instrument on behalf of the corporation therein named,
and acknowledged to me that such corporation executed the within instrument
pursuant to its by-laws or a resolution of its board of directors.
WITNESS my hand and official seal.
Signature /s/ XXXXXXX X. XXXXXXX
_____________________________________________
Xxxxxxx X. Xxxxxxx
My commission expires March _______
_____________________________________________
Name (Typed or Printed)
[SEAL]
(This area for
Official Notarial Seal)
STATE OF CALIFORNIA )
)SS
COUNTY OF LOS ANGELES )
On June 3, 1966 before me, the undersigned, a Notary Public in and for said
State, personally appeared Xxxxx X. Xxxxxxx, known to me to be the ____
President, and Geo. X. Xxxxxxxxx, known to me to be _________Secretary of the
corporation that executed the within Instrument, known to me to be the persons
who executed the within Instrument on behalf of the corporation therein named,
and acknowledged to me that such corporation executed the within Instrument
pursuant to its by-laws or a resolution of its board of directors.
WITNESS my hand and official seal.
Signature /s/ XXXXX XXXXX
_____________________________________________
XXXXX XXXXX
My commission expires May 21, 1969
_____________________________________________
Name (Typed or Printed)
[SEAL]
(This area for
Official Notarial Seal)
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T A B L E O F C O N T E N T S
ARTICLE NO. PAGE
----------- ----
1. DEMISE.............................................. 1
2. TERM................................................ 1
3. RENTAL.............................................. 2
4. CONSTRUCTION, REPAIR, MAINTENANCE AND
RESTORATION......................................... 3
5. INDEMNIFICATION OF LAND............................. 5
6. OPTION TO EXPAND.................................... 6
7. OPTION TO RENEW..................................... 7
8. TAXES AND ASSESSMENTS............................... 8
9. USE AND SURRENDER OF PREMISES....................... 11
10. DESTRUCTION OF PREMISES DOES NOT TERMINATE
LEASE............................................... 13
11. DEFAULT............................................. 14
12. PARKING AND COMMON FACILITIES....................... 14
13. CONDEMNATION........................................ 16
14. ASSIGNMENT OR SUBLEASE.............................. 17A
15. NOTICE OF NON-RESPONSIBILITY........................ 18
16. SUBORDINATION....................................... 18
17. OFFSET STATEMENT.................................... 18
18. HOLDING-OVER BY TENANT.............................. 19
19. NOTICES............................................. 19
20. LEASE COVERS ALL OBLIGATIONS........................ 20
21. SUCCESSORS AND ASSIGNS.............................. 20
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L E A S E
THIS LEASE, made and entered into this 9th day of November, 1960, between
PACIFIC COAST PROPERTIES, INC., a Delaware corporation, hereinafter referred to
as Landlord, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association, hereinafter referred to as Tenant.
W I T N E S S E T H :
ARTICLE 1
Demise
------
WHEREAS, Landlord is the owner of that certain real property (hereinafter
referred to as the "Shopping Center") situate in the County of San Diego, State
of California, more particularly described in Exhibit "A" hereof, copy of which
is attached hereto, incorporated herein and by this reference made a part
hereof, and being graphically delineated on Exhibit "B" hereof, copy of which
is attached hereto, incorporated herein and by this reference made a part
hereof,
NOW, THEREFORE, it is hereby mutually agreed by and between the parties
as follows:
Landlord, for and in consideration of the rents herein reserved and of the
terms, covenants, conditions and agreements on the part of Tenant to be kept and
performed, does hereby lease and demise unto Tenant and Tenant does hereby take
and hire of and from Landlord, for the term and upon the terms, covenants and
conditions hereinafter set forth, those certain premises (hereinafter referred
to as the "demised premises") more particularly described in Exhibit "C" hereof,
copy of which is attached hereto, and by this reference made a part hereof. The
demised premises consists of land having dimensions of approximately 65 feet in
frontage ?????? the provisions of Article 6 hereinafter set forth, are located
in the Shopping Center approximately as designated and outlined in red on said
Exhibit "B" hereof.
ARTICLE 2
Term
----
The term of this Lease shall commence November 1, 1960 and, except as
otherwise herein provided, shall expire thirty (30) years after the Rental
Commencement Date, as the term "Rental Commencement Date" is hereinafter
defined.
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In the event the said Rental Commencement Date shall be a date other than
the first day of a calendar month, this Lease shall continue in full force and
effect for a period of thirty (30) years from the first day of the calendar
month next succeeding said Rental Commencement Date.
ARTICLE 3
Rental
------
Section 1 -- Rental Commencement Date Defined: The term "Rental
Commencement Date" as used in this Lease is hereby defined as that date upon
which either of the following events shall first occur:
(a) The date upon which Tenant actually commences to do business in,
upon and from the demised premises; or
(b) May 1, 1961.
Section 2 -- Rental: Subject to the provisions of Article 6 hereof,
Tenant hereby covenants and agrees to pay to Landlord as rental for the demised
premises the sum of FIVE HUNDRED EIGHT and 33/100ths ($508.33) DOLLARS per
month in advance on the first day of each and every calendar month commencing
on the Rental Commencement Date and thereafter throughout the term of this
Lease. In the event the Rental Commencement Date is other than the first day of
a calendar month, the rental for such initial calendar month shall be prorated
upon the basis which the number of days in such month during which rental is
payable bears to the total number of days in such month.
Section 3 -- Payment: All rental shall be paid to Landlord at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxx Xx. 000, Xxxxxxx Xxxxx, Xxxxxxxxxx, or at such other
place within the continental limits of the United States as the Landlord shall
from time to time designate by notice to the Tenant. All amounts payable under
this Article 3, as well as all other amounts payable by the Tenant under the
terms of this Lease, shall be paid in lawful money of the United States which
shall be legal tender in payment of all debts and dues, public and private, at
the time of payment. In the event any rent or other amounts payable by the
Tenant to the Landlord under the terms of this Lease shall be due and unpaid,
the same shall bear interest until paid at the rate of five (5%) percent per
annum.
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ARTICLE 4
Construction, Repair, Maintenance and Restoration
Section 1 - Title: The Tenant acknowledges that it has examined the
demised premises and that no statement or representations as to the past,
present or future condition or repair thereof have been made by or on behalf of
the Landlord. The Tenant agrees to accept the demised premises in the condition
in which the same may be upon the commencement of the term hereof. Landlord
hereby represents and warrants that it has full title, right and power to
execute and perform this Lease and to grant the estate demised to Tenant
herein, and that Landlord holds said title free and clear of encumbrances
except any taxes not delinquent, easements, rights of way, covenants,
conditions, restrictions, reservations, deeds of trust and other instruments of
record.
Section 2 - Construction: The Tenant covenants and agrees that on or
before November 1, 1961, it will commence the construction on the demised
premises of a modern bank building of first-class design, and that it will
proceed with all reasonable diligence and at its sole cost, expense and risk to
complete the construction of such building in accordance with all applicable
ordinances and laws. It is expressly understood and agreed that all
improvements on the demised premises of whatsoever kind, excepting only
Tenant's movable trade fixtures, equipment and furnishings, shall at all times
be and remain the sole property of Landlord.
Section 3 - Repair: The Tenant agrees that it will at its own cost and
expense keep and maintain, or cause to be kept and maintained the demised
premises and the buildings and improvements located thereon and all additions
and improvements thereto, and each and every part thereof in first class,
orderly, secure, safe, clean, and sanitary repair and condition, and will save
and hold the Landlord free of and harmless from all expenses and liability or
claim or liability, with respect thereto.
Section 4 - Restoration: In the event any future building, buildings or
other improvements on the demised premises shall be damaged or destroyed,
whether partially or entirely, and whether by fire or any other cause
whatsoever, then Tenant will repair, restore, and/or reconstruct the damaged or
destroyed building
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or improvements at its own expense, free of liens, and in such a manner that
the value thereof after such repair, restoration and/or reconstruction shall be
no less than the value thereof immediately prior to such damage or destruction.
The Tenant agrees that such work of repair, restoration and/or reconstruction
shall be diligently prosecuted to the end that the demised premises shall be at
all times in a sound condition and state of repair.
Anything in this Article 4 to the contrary notwithstanding, in the event
that said building or improvements are damaged or destroyed during the last
five (5) years of the term of this Lease, and if said building cannot be
restored by working under normal conditions within one hundred eighty (180)
working days from the date of such damage or destruction, or in the event that
said building or improvements, exclusive of foundations and basements, are
damaged or destroyed during the last five (5) years of the term of this Lease
in an amount equal to seventy-five (75%) percent or more of its then
replacement cost, then, and in either of such events, Tenant shall have the
option to pay Landlord an amount equal to the then full replacement cost of the
building (which payment shall be made to the order of Landlord and/or any
holder of a promissory note secured by a mortgage or deed of trust affecting
the demised premises; as their respective interests may appear), and upon
payment of said sum Tenant shall be relieved of its obligation to restore,
repair, and/or reconstruct said building or improvements and this Lease shall
thereupon terminate.
In the event of any dispute between the Landlord and Tenant relative to
the provisions of this paragraph, they each shall select an arbitrator, the two
arbitrators so selected shall select a third arbitrator, and the three
arbitrators shall hear and determine the controversy, and the decision of a
majority of them thereon shall be binding and final upon both Landlord and
Tenant who shall bear the cost of such arbitration in equal shares.
It is expressly understood and agreed that Landlord shall not at any time
or under any circumstances be required to build, demolish, construct,
reconstruct, maintain or repair any building or buildings or other improvements
upon the demised premises or any part thereof, nor to incur any expense,
obligations or liability for any damage whatsoever on account thereof.
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Section 5 -- Mechanics Liens: The Tenant expressly covenants and agrees to
promptly pay for any and all labor done or materials furnished for any work of
demolition, construction, repair, maintenance, improvement, alteration,
addition or any other matter pertaining to or in connection with the demised
premises, and agrees to keep and hold the demised premises and the Landlord
free, clear and harmless of and from any mechanics' liens or liens of a similar
nature which might or could arise by reason of any such matter.
ARTICLE 5
Indemnification of Landlord
The Tenant further covenants and agrees with the Landlord that the Landlord
shall not be liable for any injuries or damages to persons or property from any
cause whatsoever by reason of the use, occupation, control or enjoyment of the
demised premises by the Tenant or any other person at any time during the term
of this Lease. Tenant hereby covenants and agrees to indemnify and save Landlord
and the demised premises free, clear and harmless from all liability, loss,
costs, charges, penalties, obligations, expenses, attorney's fees, litigation,
judgments, damages, claims and demands of any kind whatsoever in connection
with, arising out of or by reason of any violation of law, ordinance or
regulation by Tenant, its agents, employees, servants, contractors, subtenants
licensees or concessionaires, or by reason of any injury however occurring to
any person or persons whomsoever (including Tenant, its agents, employees,
contractors, subtenants, licensees or concessionaires), or property of any kind
whatsoever and to whomsoever belonging (including Tenant, its agents,
contractors, subtenants, licensees or concessionaires), from any cause or causes
whatsoever, while in, upon, about or in any way connected with the demised
promises or any part thereof during the term of this Lease or any extension or
renewal hereof or any occupancy hereunder. The injuries or damages referred to
in this Article 5 shall include, without limiting the generality of the
preceding provisions of this Article 5, injuries or damages arising directly or
indirectly out of my demolition, repairs, restoration, construction or
reconstruction which the Tenant may make or cause to be made upon the demised
promises or any part thereof, whether pursuant to the provisions of this Lease
or otherwise.
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ARTICLE 6
Option To Expand
Section 1 -- Optional Area: Anything herein contained to the contrary
notwithstanding, it is understood and agreed that Tenant shall have the option
during the term hereof to lease additional space (hereinafter referred to as
the "Optional Area") adjacent to the rear of the original demised premises.
Said Optional Area shall contain not more than 2,665 square feet and shall
measure not more than 41 feet in depth. In no event shall the demised premises,
as expanded by said Optional Area, exceed 65 feet in frontage from north to
south, or 125 feet in depth from west to east.
Section 2 -- Terms and Conditions: Except as otherwise herein provided,
Tenant shall use and occupy said Optional Area only upon the same terms and
conditions as are herein provided for the original demised premises. Subject to
the provisions of this Article 6, said Optional Area shall, upon commencement
of the term therefor as hereinafter provided, be deemed included in and part of
the premises originally demised hereunder for all the purposes of this Lease,
the same as if said Optional Area had been originally included hereunder.
Section 3 -- Exercise of Option: Tenant may exercise the foregoing option
to lease said Optional Area at any time during the term or any extension or
renewal of the term of this Lease by giving written notice thereof to Landlord.
Said written notice of exercise shall contain the true legal description and
specify the dimensions of said Optional Area to be leased by Tenant. The term
of the Lease for said Optional Area shall commence upon the date the Landlord
receives written notice of Tenant's exercise of this option as provided for
hereinabove, and shall expire or terminate concurrently with the expiration or
termination of the term for the premises originally demised hereunder. As soon
as reasonably possible after receipt by Landlord of Tenant's said notice of
exercise, the parties shall execute a written memorandum confirming the
incorporation of said Optional Area into the premises demised hereunder, and
the description thereof, and executed copies of said memorandum shall thereupon
be attached to this Lease, incorporated herein and
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by this reference made a part hereof.
Section 4 -- Option Area Rental: Tenant hereby covenants and agrees to pay
to Landlord as monthly rental for said Optional Area (hereinafter referred to as
"Optional Area Rental"), in addition to the rental provided for in Article 3
hereinabove and in addition to all other sums payable on the part of Tenant
hereunder, an amount equal to FIVE HUNDRED EIGHT AND 33/100ths ($508.33) DOLLARS
multiplied by a fraction, the numerator of which shall be the total number of
square feet contained in said Optional Area, and the denominator of which shall
be FIVE THOUSAND FOUR HUNDRED SIXTY (5,460).
The said Optional Area Rental shall be payable in advance on the first day
of each and every calendar month throughout the term hereof commencing on the
occurrence of either of the following events, whichever shall first occur:
(a) The date upon which Tenant actually commences to do business in,
upon and from the improvements constructed on said Optional Area; or
(b) One hundred eighty (180) days after the date Landlord receives
Tenant's said written notice of exercise of this option, as provided for
hereinabove.
In the event the date upon which said Optional Area Rental commences is a
date other than the first day of a calendar month, the Optional Area Rental for
such initial calendar month shall be prorated upon the basis which the number of
days in such month during which said Optional Area Rental is payable bears to
the total number of days in such month.
Commencing with the first day of the calendar month next succeeding
commencement of said Optional Area Rental as provided for hereinabove, the
amount of said Optional Area Rental shall be added to, deemed a part of and
paid concurrently with the rental provided for in Article 3 hereinabove.
ARTICLE 7
Option to Renew
Providing the Tenant is not in default under any of the terms, covenants
and conditions hereof, it shall have two (2) consecutive options extending the
term hereof for two (2) additional periods of ten (10) years each,
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and otherwise upon all the terms, covenants, and conditions of this Lease,
which options must be exercised by the Tenant serving the Landlord with a
written notice of its intention so to do not later than one (1) year prior to
the expiration of the term or the first renewal of the term, respectively, of
this Lease.
ARTICLE 8
Taxes and Assessments
Section 1: The Tenant shall pay as additional rent hereunder, before
delinquency, all real estate and property taxes and assessments, water rates
and water meter charges, gas, electricity and other utility rates, sewer
rentals and sewer service charges, and all other charges (whether the same or
different in kind from the foregoing) which during the term of this Lease are
assessed or become liens upon or become chargeable against or payable in
connection with or attributable to the demised premises or any part thereof, or
any or all buildings and improvements at any time thereon, or the leasehold
estate created by this Lease, or the reversionary estate, or both of such
estates; provided, however, if any such tax, assessment, rate or charge may be
paid in installments the Tenant may pay each such installment on or before the
date upon which such installment may be paid without penalty or interest; and
the Tenant shall exhibit to the Landlord for examination receipts for all such
taxes, assessments, rates or charges within ninety (90) days after the last day
upon which the same may be paid without penalty or interest.
In the event the Tenant fails to pay such taxes, assessments, rates, or
charges before delinquency, and if such default shall continue for a period of
thirty (30) days after the Landlord shall have given to the Tenant notice in
writing of the existence thereof, and if payment by the Landlord will not
prejudice the Tenant's right to contest the amount or legality of the tax,
assessment, rate or charge as provided elsewhere in this Article 8, then and in
such event the Landlord may pay said taxes, assessments, rates or charges, as
the case may be, together with all interest and penalties thereon or in
connection therewith, and the amount so paid shall be deemed to be rent then due
and payable by the Tenant to the Landlord.
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18
Anything herein contained to the contrary notwithstanding, the Landlord
agrees that the Tenant shall have the right to contest the amount or legality
of any taxes, assessments, rates and charges which it is obligated to pay and
the right to make application for the reduction thereof or of any assessments
upon which the same may be based, and the Landlord hereby grants to the Tenant
the necessary power and authority to act therein in the name of the Landlord
wherever the same is permitted or required by law, without, however, any cost,
expense or liability to the Landlord. If the Tenant shall contest the amount or
legality of any such taxes, assessments, rates or charges, or make application
for the reduction thereof, or of any assessment upon which the same may be
based, the time within which the Tenant shall be required to pay the same shall
be extended until such contest or application shall have been finally
determined, but the Tenant shall at all times fully protect the title and
interest of the Landlord in the demised premises including all buildings and
improvements by paying the same before delinquency and seeking a refund, or by
depositing with the Landlord an amount sufficient to pay the same, with
appropriate instructions so that the same may be used to pay any such liability
when the same shall have been finally determined, or by furnishing to the
Landlord a bond with the Tenant as principal and in form and with a surety
satisfactory to the Landlord in an amount equal to not less than one hundred
twenty (120%) per cent of the amount of the taxes, assessments, rates or
charges so contested, which bond shall guarantee the payment thereof with
interest and penalties thereon. The Tenant agrees that it will prosecute any
such contest or application with due diligence and that it will within thirty
(30) days after final determination thereof pay the amount of any such taxes,
assessments, rates or charges which may have been the subject of such contest
or application as so determined, together with any interest and penalties,
costs and charges which may be payable in connection therewith; provided,
however, that if at any time payment of the whole or any part of the amount so
contested shall be necessary in order to prevent a sale of the demised premises
or any part thereof or interest therein because of the non-payment of such tax,
assessment, rate or charge, then the Tenant shall pay the same in time to
prevent such sale. In any
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case, upon the full payment of such taxes, assessments, rates or charges,
together with any such interest, penalties, costs and charges, the deposit with
the Landlord in respect thereof or the part thereof not applied to such
payment, shall be returned or the bond exonerated, as the case may be.
Nothing herein contained shall be construed to require the Tenant to pay
any franchise, estate, inheritance, succession, capital levy, or transfer tax
of the Landlord growing out of or connected with this Lease or the Landlord's
reversionary interest in the demised premises, or any income, excess profits or
revenue tax, or any other tax, assessment, rate or charge upon the rentals
payable by the Tenant under this Lease, and if the Tenant shall be required by
law to pay any such tax, assessment, rate or charge specified in this paragraph
the Tenant shall have the right to deduct the amount thereof from subsequent
installments of rent or additional rent due from the Tenant under the terms of
this Lease.
With respect to any assessment which may be levied against or upon the
demised premises and which under the laws then in force may be evidenced by
improvement or other bonds, or may be paid in annual installments, the Tenant,
at its option, may cause such improvement bonds to be issued, or cause such
assessments to be paid in such annual installments, and in such event the
Tenant shall only be required to pay such installments as each thereof matures.
Upon the expiration of the term of this Lease the Tenant shall be liable
only for such proportion of the taxes, assessments, rates or charges which
shall be payable with respect to the demised premises or any part thereof or
the buildings and improvements therefrom or the leasehold estate or the
reversionary estate, for the tax fiscal year in which this Lease expires as the
part of said fiscal year during which this Lease is in effect shall bear to the
whole of said fiscal year, and if the Tenant shall have paid more than such
proportion, the Landlord shall refund the excess to the Tenant.
All taxes for the tax fiscal year in which the term of this Lease shall
commence shall be prorated as between the Landlord and Tenant as of the date of
the commencement of the term hereof. The Landlord agrees to attempt to have a
tax segregation made wherein the demised premises will be taxed separately.
-10-
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In the event the demised premises are not separately assessed or if more than
the demised premises are included in any such assessment, then the amount
thereof shall be prorated and there shall be attributed to the demised premises
and paid by Tenant only that portion of such tax or assessment which is equal to
the proportion thereof which the number of square feet in the demised premises
bears to the total number of square feet of building area included in such
assessment.
ARTICLE 9
Use and Surrender of Premises
Section 1 - Use: The Tenant in the use, occupancy, control and
enjoyment of the demised premises and in the prosecution or conduct of any
business therein shall comply with all requirements of all laws, orders,
ordinances, rules and regulations of the federal, state, county, municipal and
other authorities, and which any direction or certificate of occupancy, pursuant
to law, of any public officer or officers, which shall impose any duty upon
Landlord or Tenant with respect to the demised premises or the use, occupancy,
control or enjoyment thereof, or the conduct of any business therein, and shall
not make or suffer any waste, or any improper or offensive use of said premises
or any part thereof and subject to provisions of Article 13 hereof the Tenant
agrees to use the demised premises only for the purpose of conducting therein a
general banking business.
The Tenant shall have the right, at its own cost and expense, to
contest or review by legal proceedings the validity or legality of any such law,
order, ordinance, rule, regulation, direction or certificate of occupancy, and
during such contest the Tenant may refrain from complying therewith; provided,
if requested to do so by the Landlord, the Tenant shall first furnish to the
Landlord a bond in form and amount approved by the Landlord (which approval the
Landlord agrees not unreasonably to withhold) guaranteeing to the Landlord
compliance by the Tenant with such law, order, ordinance, rule or regulation, if
required.
The Tenant covenants and agrees that it will not use or permit to be
used the demised premises, or any part thereof, for any dangerous, noxious or
offensive trade or business or for any unlawful or immoral purpose whatsoever
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or for any purpose which will substantially deteriorate the value of the demised
premises (ordinary wear and tear excepted) or impair the reputation or rental
value thereof. The Tenant shall not cause or maintain any nuisance in, at or
upon the demised premises. In the event that during the term of this Lease any
order of abatement or any order or judgment preventing the use of the demised
premises by the Tenant shall be made upon the ground that the demised premises
or any part thereof constitute a nuisance or are used or have been used in
violation of law, the Tenant covenants that it shall not be relieved thereby or
by reason of its loss of the possession of the demised premises of any of its
liabilities and obligations under this Lease. The Tenant shall keep the demised
premises, the windows, sidewalks, front and rear entrances clean and neat, and
not use the sidewalks for the sale or storage of merchandise, or location of
vending machines or other use, except ingress and egress. The Tenant shall have
the right to inscribe, paint, or affix any signs, advertisements or placards
relating to its business on the exterior and/or roof of the building to be
erected by the Tenant on the demised premises; provided, however, that such
signs and advertisements are customary and usual signs relating to the Tenant's
business, but the size, appearance and location of all roof signs must first be
approved in writing by Landlord (which approval shall not be unreasonably
withheld); and provided further, if the Tenant subleases all or any part of the
demised premises (subject to the provisions of Article 14 hereof) then the
Landlord shall have the right to approve any signs by such sublessee or
assignee.
Section 2 - Surrender: The Tenant, upon the expiration or sooner
termination of this Lease for any reason whatsoever, shall surrender to the
Landlord all buildings, ??????, improvements and building equipment in and upon
the demised premises, together with all alterations and replacements thereof, in
good order, condition and repair except for reasonable wear and use thereof. All
alterations, additions, building equipment, and improvements (except trade
fixtures and vault doors, furniture and equipment other than building equipment)
which may be made or installed by either the Landlord or the Tenant upon the
demised premises shall, except as otherwise herein provided, upon the making or
installation thereof be and become a part of the demised
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premises and shall remain upon and be surrendered with the demised premises as
a part thereof at the termination of this Lease.
Trade fixtures, furniture and equipment (other than building equipment)
which may be installed on the demised premises, shall not become a part of the
demised premises and may be removed by the Tenant from the demised premises;
provided, however, no trade fixtures, furniture or equipment shall be removed
while Tenant is in default of any of its obligations under this Lease except
with the prior written consent of the Landlord first had and obtained; and
provided further, that the Tenant shall at all events, at its sole cost and
expense, repair any and all damage to the demised premises resulting from or
caused by the removal of any trade fixtures, furniture or equipment pursuant to
the provisions of this Article 9.
The term "building equipment" wherever used in this Lease shall include
all equipment primarily used or useful in the operation of any building or
buildings as such upon the demised premises as distinguished from equipment
primarily used or useful in the operation of the business or businesses
conducted with such building or buildings. Vault doors shall be deemed trade
fixtures for the purposes hereof.
ARTICLE 10
Destruction of Premises Does Not Terminate Lease
It is mutually covenanted and agreed that damage to or destruction of any
portion of all of the buildings, structures, or improvements upon the demised
premises by fire, the elements or any other cause whatsoever, whether with or
without fault on the part of the Tenant, shall not terminate this Lease or
entitle the Tenant to surrender the demised premises, except as hereinabove set
forth in Article 4, or entitle the Tenant to any abatement of or reduction in
rent or other charges payable by the Tenant hereunder, or otherwise affect the
respective obligations of the parties hereto, any law to the contrary
notwithstanding; and further, that if the use of the demised premises for any
purpose should at any time during the term of this lease be prohibited by law or
ordinance, or other governmental authority, or prevented by injunction or other
local interference by any private person, firm or corporation, this Lease ?????
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surrender the demised premises, or to any statement or reduction in rent or
other charges payable by Tenant hereunder, or otherwise affect the respective
obligations of the parties hereto.
ARTICLE 11
DEFAULT
This Lease is made upon the condition that if default be made in the
payment of the said rent and such default shall continue for more than twenty
(20) days after receipt of a written demand by Landlord to Tenant therefor, or
if Tenant fails or neglects to perform any of the Tenant's obligations hereunder
for a period of twenty (20) days after receipt of written demand by Landlord to
Tenant for such performance (provided however, that if the default cannot be
remedied by Tenant within twenty (20) days after receipt of said written demand,
its obligation shall be satisfied if it commences to cure the particular default
during said period and proceeds thereafter with reasonable diligence to complete
the curing of same), or if Tenant shall abandon or vacate the demised premises,
or if the estate hereby created shall be taken on execution, and such execution
shall not be cancelled, satisfied or otherwise removed within thirty (20) days
after notice by Landlord, or if the Tenant shall be adjudicated bankrupt or
insolvent according to law, or if any assignment of its property shall be made
for the benefit of creditors, then and in any of said events, Landlord or the
legal representative of Landlord at its option within notice or demand, may
lawfully declare said term ended, and re-enter said premises or any part
thereof, either with or without process of law, and expel, remove and put out
Tenant or any person or persons occupying said premises and may remove all
personal property therefrom using such force as may be necessary to again
repossess and enjoy said premises as before this demise, without prejudice to
any remedies which might otherwise be used for arrears of rent or preceding
breach of covenant or condition and without liability to any person for damages
sustained by reason of such removal.
ARTICLE 12
PARKING AND COMMON FACILITIES
Landlord hereby grants to Tenant, during the term and any removal or
extension of the term hereof only, for use by Tenant, its subtenants, licensees,
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business invitees, customers, agents, representatives and employees, for the
purpose of ingress and egress to and from the Shopping Center and for parking
and driving of automobiles, light vehicles of transportation and service trucks
and vehicles serving the demised premises, a non-exclusive right in common with
others over, across and upon, all of those certain areas within the Shopping
Center (hereinafter collectively referred to as the "Common Facilities") not
otherwise improved with store rooms and/or storeroom buildings, including, but
not limited to parking areas, service areas, open means of ingress and egress,
plants and planting therein, areas containing signs, pylons or structures
advertising the common name given for the Shopping Center together with such
signs, pylons or structures contained therein and all other areas or facilities
within the Shopping Center intended for common usage, and all as more
particularly set forth on Exhibit "B" hereof.
The Common Facilities shall be subject to the exclusive management and
control of Landlord, and Landlord shall have the right from time to time to
establish, promulgate and enforce such reasonable rules and regulations
concerning said Common Facilities as it may deem necessary or desirable for the
proper and efficient management and operation thereof.
Tenant shall pay to Landlord as additional rental hereunder Tenant's pro
rata share of all expenses of said Common Facilities. Tenant's pro rata share of
expenses of said Common Facilities shall be that portion of all such expenses
which is equal to the proportion thereof which the number of square feet in the
ground floor area of the demised premises bears to the total number of square
feet of ground floor area leased in the entire Shopping Center.
It is understood and agreed that the phrase "expenses of said Common
Facilities" as used herein shall include, but not be limited to, all sums
expended by Landlord concerning said Common Facilities for all general
maintenance and repairs, surfacing, painting and restriping, cleaning, sweeping
and janitorial services, directional signs and other markers, lighting and
other utilities, landscaping and ornamental planting, reasonable depreciation
allowances on maintenance, equipment and other expense items, real and personal
property taxes and assessments, adequate public liability insurance (under
which Tenant shall be
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named as an additional assured) and all other things necessary to keep and
maintain said Common Facilities in a state of good and sanitary order,
condition and repair.
Landlord shall keep and maintain accurate and detailed records of all
expenses of said Common facilities and the same shall upon demand be made
available at reasonable times at the offices of Landlord for inspection by
Tenant.
ARTICLE 13
Condemnation
If all of the demised premises, or such part thereof be taken or condemned
under the power of eminent domain so that there does not remain a portion
thereof reasonably susceptible for Tenant's use and occupancy hereunder, this
Lease may be terminated by Tenant upon written notice to Landlord within
fifteen (15) days after the date title shall vest in the condemnor.
If any part of the demised premises shall be so taken or condemned and the
remaining portion thereof can reasonably be used by Tenant hereunder, this Lease
shall, only as to the part so taken, terminate as of the date title shall vest
in the condemnor, and the rent payable hereunder shall thereafter be adjusted so
that Tenant shall be required to pay for the remainder of the term only such
portion of such rent as the fair market value of the portion remaining after
condemnation bears to the fair market value of the entire demised premises prior
to the date of condemnation. Said fair market value shall be determined by a
consensus of at least two (2) of three (3) appraisers appointed for the purpose
of making such determination, as follows: one such appraiser to be appointed by
Landlord; one to be appointed by Tenant; and the third to be appointed jointly
by the other two.
If any portion of the common facilities in the shopping center shall be
taken for a public or quasi-public purpose under the power of eminent domain
and such taking deprives Tenant, its sub-tenants, licensees, concessionaires,
business invitees, customers, suppliers, agents, representatives or employees
of reasonable ingress and egress to and from the shopping center and/or the
demised premises, or if such taking reduces the area of the customer vehicle
parking portions of the common facilities by an amount in excess of twenty-five
(25%) per
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cent thereof, then and in either such event Tenant shall have the right, within
thirty (30) days after the date of such actual taking, to cancel and terminate
this Lease by giving Landlord at least thirty (30) days written notice of its
election so to do; provided, however, Tenant shall have no such right to cancel
or terminate this Lease if Landlord takes immediate steps to restore reasonable
means of ingress and egress and/or to restore the customer vehicle parking
portions of the common facilities to not less than seventy-five (75%) percent
of their area immediately prior to such taking by substituting therefor other
lands within the shopping center and/or reasonably adjacent thereto, and cause
such restoration within a reasonable period thereafter. In the event Tenant
shall elect to remain in possession, or if this Lease be not otherwise
terminated in accordance with the provisions of this paragraph, there shall be
no reduction, change or abatement of any rental or other charge whatsoever
payable on the part of Tenant to Landlord hereunder, and this Lease shall
continue in all respects in full force and effect.
All damages awarded or other sums paid on account of any condemnation or
taking under the power of eminent domain of the demised premises or any portion
or portions thereof shall, except as otherwise herein provided, belong to and be
the sole property of Landlord, whether such damages or other sums are awarded as
compensation for diminution in value of the leasehold or for the fee or the
demised premises or the improvements hereon or otherwise, and in no event shall
Tenant have any claim whatsoever against Landlord for diminution in value of the
leasehold or for the value of my unexpired term of this Lease, Tenant hereby
expressly waiving any such right or claim; provided, however, Tenant shall be
entitled to receive all awards, if any, made for or on account of any cost,
loss or damage sustained by Tenant for the taking of Tenant's fixtures or as
the result of any alterations, modifications or repairs which may be reasonably
required of Tenant in order to restore the portion of the demised premises not
so condemned to a condition suitable for Tenant's further occupancy. Anything
to the contrary notwithstanding contained in this Lease, Tenant shall be
entitled to receive that portion of any awards made for improvements to the
desired premises which is determined by taking the percentage thereof which
the then unexpired
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term of the Lease, including the option to extend, bears to the total term of
the Lease.
A voluntary sale by Landlord to any public or quasi-public body, agency
or person, corporate or otherwise, having the power of eminent domain, either
under threat of condemnation or while condemnation proceedings are pending,
shall be deemed to be a taking under the power of eminent domain for the
purposes of this Article 13.
In the event this Lease is cancelled or terminated pursuant to any of the
provisions of this Article 13, all rentals and other charges payable on the
part of Tenant to Landlord hereunder shall be paid up to the date upon which
actual physical possession shall be taken by the condemnor, and the parties
shall thereupon be released from all further liability hereunder.
ARTICLE 14
ASSIGNMENT OR SUBLEASE
----------------------
Tenant shall not have the right to sublet the demised premises, or any
part thereof, or to assign this Lease without the written consent of Landlord
being first had and obtained.
All subleases made by the Tenant with the approval of Landlord as
hereinabove provided shall contain the same provisions as are contained in this
Lease as to restriction on the use of the demised premises. Should any subtenant
engage in any unlawful business or use the premises in a manner forbidden by
this Lease, the Tenant shall promptly dispossess such subtenant, but if the
sublease contains the provisions required hereby the Tenant shall not be deemed
in default for delay involved in legal proceedings being taken and had against
the subtenant with all due diligence and dispatch, provided, however, the
Tenant shall in no event be excused from any of its obligations to indemnify
and hold harmless the Landlord and/or the demised premises.
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ARTICLE 15
NOTICE OF NON-RESPONSIBILITY
----------------------------
The Landlord or its agent shall at all reasonable times and from time to
time have the right to post and to keep posted on the demised premises notices
provided for by Section 1183.1 of the Code of Civil Procedure of the State of
California or by any other law of said State, or which the Landlord may deem to
be for the protection of the Landlord and/or the demised premises from
mechanics' liens or other liens of a similar nature.
ARTICLE 16
SUBORDINATION
-------------
Tenant agrees upon request of Landlord to subordinate its rights
hereunder to the lien of any mortgage, deed of trust or other encumbrance,
together with any conditions, renewals, extensions or replacements thereof, now
or hereafter placed, charged or enforced against the demised premises, or any
land, buildings or improvements included therein or of which the demised
premises are a part, or any portion or portions thereof. In connection with the
foregoing, Tenant further agrees to execute at any time and from time to time
such documents as may be required to effectuate such subordination of its
rights hereunder; provided, however, Tenant shall not be required to effectuate
such subordination unless it shall be expressly provided that so long as Tenant
is not in default of any of the terms, covenants or conditions of this Lease,
neither this Lease nor any of the rights of Tenant hereunder shall be
terminated or subject to termination by any trustee's sale or by any action or
proceeding in foreclosure.
ARTICLE 17
OFFSET STATEMENT
----------------
Tenant agrees during the term of this Lease and any extension or renewal
thereof, within ten (10) days after request therefor by Landlord, to deliver in
recordable form a certificate to any proposed mortgage or purchaser, or to
Landlord, certifying that this Lease is in full force and effect and that there
are no defenses or offsets thereto, or stating those claimed by Tenant.
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ARTICLE 18
Holding-over by Tenant
If the Tenant holds over or remains in the possession or occupancy of the
demised premises after the expiration of the term of this Lease, or after any
sooner termination thereof, with the consent of the Landlord expressed or
implied, without any written Lease of the demised premises being actually made
and entered into between the Tenant and Landlord, such holding-over or
continued possession or occupancy, shall create only a tenancy from month to
month at the last monthly rental and upon the terms (other than the length of
term or option to renew) herein specified; and such month to month tenancy may
be terminated at any time by either the Landlord or the Tenant's upon giving to
the other, thirty (30) days' notice of intention to terminate the same. The
Tenant agrees to deliver to the Landlord on the expiration of this Lease, or
any sooner termination thereof, a good and sufficient quitclaim deed covering
the demised premises together with the improvements thereon and appertinances
thereto.
ARTICLE 19
Notices
Any notices or demands which shall be required or permitted by law or any
provisions of this Lease shall be in writing; and if the same is to be served
upon the Landlord, may be personally delivered to Landlord or may be deposited
in the United States mail, certified, return receipt requested, postage
prepaid, addressed to the Landlord at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xx. 000,
Xxxxxxx Xxxxx, Xxxxxxxxxx, or at such other address as Landlord may designate
in writing.
If such notice or demands are to be served upon Tenant, said notices or
demands shall be in writing and may be personally delivered to Tenant or may be
deposited in the United States mail, certified, return receipt requested,
postage prepaid, addressed to the Tenant c/o Continental Service Company, 0000
Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx 15, California, or such other address as
Tenant may designate in writing.
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In case of service by mail, service shall be deemed completed upon
deposit thereof in the United States mail in accordance with the foregoing
provisions of this Article 19.
ARTICLE 20
Lease Covers All Obligations
The Landlord has made no representation or promises with respect to the
demised premises except as specifically contained herein. This Lease covers in
full each and every obligation of every kind or nature whatsoever from either
party to the other concerning the demised premises, and shall not be varied,
modified or amended other than by an agreement in writing executed by Landlord
and Tenant.
ARTICLE 21
Successors and Assigns
Subject to the provisions of Article 14 hereof, each and all of the
provisions and agreements herein contained shall be binding upon and shall inure
to the benefit of the parties hereto, their successors and assigns.
The Language and all parts of this Lease shall in all cases be construed
as a whole and according to its fair meaning, and not strictly for nor against
either the Landlord or the Tenant,
IN WITNESS WHEREOF, the Landlord and Tenant have executed and delivered
this Lease the day and year first above written.
PACIFIC COAST PROPERTIES, INC.
By Xxxxxx Illegible
-------------------------------
By Illegible
-------------------------------
Landlord
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By Illegible
-------------------------------
By Xxxxx X. Xxxxxxx
-------------------------------
Assistant Secretary
Tenant
31
EXHIBIT "A"
LEGAL DESCRIPTION OF SPRING VALLEY SHOPPING CENTER
That portion of Xxxx 00, 00, 00 xxx 00 xx Xxxxx 8 of the Subdivision of
Tract "N" of Jomocha Rancho in the County of San Diego, State of California,
according to the Map thereof No. 812 filed in the Office of the Recorder of San
Diego County February 21, 1896, together with a portion of the unnamed Street
lying between said Lots 28 and 29 and 20 and 21 as vacated and closed to public
use on December 22, 1941, by Resolution of the Board of Supervisors of said San
Diego County, a certified copy of which was recorded December 27, 1941, in Block
1297, Page 54, Official Records described as follows:
Commencing at a point on the Northerly line of Lot 27 in said Block 8 distant
thereon South 89 degrees 13' 40" West 200.00 feet from the Northeast corner
thereof, said point being the Northwest corner of land conveyed to Xxxx
Xxxxxxxxx et al by Deed dated March 14, 1950, and recorded in Book 3618, Page
392 Official Records; thence along the boundary of said land, South 0 degrees
33' 45" West 890.09 feet (record South 1 degree 25' West 890.00 feet more or
less) and North 89 degrees 40' 24" East 200.00 feet (record South 89 degrees 29'
East 200.00 feet more or less) to the Easterly line of said Lot 27; thence South
0 degrees 33' 45" West along said Easterly line 30.00 feet to the Northwest
corner of said Lot 21; thence North 89 degrees 40' 24" East along the Northerly
line of said Lot a distance of 282.18 feet; thence South 0 degrees 19' 36" East
183.00 feet; thence South 89 degrees 40' 24" West 60 feet to the true point of
beginning, being the point of beginning of a non tangent 25.00 foot radius curve
concave Southeasterly the center of which bears South 89 degrees 40' 24" West
from said point; thence Northwesterly along the arc of said curve through a
central angle of 90 degrees 00' a distance of 39.27 feet; thence tangent to said
curve, South 89 degrees 40' 24" West 875.43 feet to the beginning of a tangent
270.00 foot radius curve concave Southerly; thence Westerly along said curve
through a central angle of 18 degrees 50' 24" a distance of 88.78 feet; thence
tangent to said curve South 70 degrees 50' West 205.00 feet to the beginning of
a 25.00 foot radius curve concave Southeasterly; thence Southerly along said
curve through a central angle of 90 degrees, a distance of 39.27 ft; thence on a
radial line of said curve South 70 degrees 50' West, 35.00 feet to the Westerly
line of said Lot 28; thence along said Westerly line and along the Southerly
prolongation of said Westerly line and along the Westerly line of said Lot 29;
South 19 degrees 10' ast 1036.89 feet to the Southwest corner of said Lot 29;
thence South 89 degrees 45' 20" East along the Southerly line of said Lot, a
distance of 142. 24 feet to a point on the center line of the County Road as
shown on the Map of Road Survey NO. 1343 on file in the office of the Surveyor
of said San Diego County; thence along said cener line North 70 degrees 50' East
30.74 feet to the beginning of a tangent 955.00 feet radius curve concave
Northwesterly; thence Northeasterly along said curve through a central angle of
24 degrees 53' 31" a distance of 414.90 feet; thence tangent to said curve,
North 45 degrees 56' 29" East 198.24 feet to the beginning of a tangent 955.00
foot radius curve concave Southeasterly thence Northeasterly along said curve
through a central angle of 18 degrees 11' 58" a distance of 303.35 feet; thence
leaving said center line, North 25 degrees 51' 33" West 50.00 feet to
EXHIBIT "A" - PAGE 1
32
the point of beginning of a non-tangent 25.00 feet radius curve concave
Northwesterly, the center of which bears North 25 degrees 51' 33" West from said
point; thence Northerly along the arc of said curve through a central angle of
73 degrees 02' 55" a distance of 31.87 feet to the beginning of a reverse curve
concave Easterly having a radius of 1030.00 feet; thence Northerly along said
curve through a central angle of 8 degrees 34' 52" a distance of 154.26 feet;
thence tangent to said curve, North 0 degrees 19' 36" West 323.20 feet to the
true point of beginning.
EXHIBIT "A" - PAGE 2
33
EXHIBIT "C"
A tract of land in that portion of Lot 29 of Block 8 of the subdivision of Tract
"H" of Jamacha Rancho in the County of San Diego, State of California, according
to the Map thereof No. 812 filed in the office of the County Recorder of San
Diego County February 21, 1896, described as follows:
Beginning at the intersection of the southerly and westerly lines of said Lot
29, which is also a point on the centerline of Sweetwater Road, thence North 19
degrees 10' West along the centerline of Sweetwater Road 237.76 feet; thence
North 70 degrees 50 East 91.00 feet to the true point of beginning; thence
continuing North 70 degrees 50 East 84.00 feet; thence North 19 degrees 10 West
65.00 feet; thence South 70 degrees 50 West 84.00 feet; thence South 19 degrees
10 East 65.00 feet to the true point of beginning.
34
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES)
On this 3rd day of December, 1960, before me, the undersigned, a Notary
Public in and for said County and State, personally appeared Xxxxx X. Xxxxxxx,
known to me to be the President and Xxxxx X. Xxxxxxxx, known to me to be the
Secretary of the PACIFIC COAST PROPERTIES, INC., the Corporation that executed
the within Instrument, known to me to be the persons who executed the within
Instrument on behalf of said Corporation, and acknowledged to me that such
Corporation executed the same, pursuant to a Resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
/s/ M. XXXX XXXXXX
----------------------------------------
Notary Public in and for said County and
State
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES)
On this 27th day of December, 1960, before me, the undersigned, a Notary
Public in and for said County and State, personally appeared X. X. Xxxxxx,
known to me to be the Assistant Vice President and Xxxxx X. Xxxxxxx, known to
me to be the Assistant Secretary of the BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, the Corporation that executed the within Instrument, known
to me to be the persons who execute the within instruments on behalf of said
Corporation, and acknowledged to me that such Corporation executed the terms,
pursuant to a Resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
/s/ XXXXXXXX X. XXXXXXX
----------------------------------------
Notary Public in and for said County and
State
35
EXHIBIT "B"
VITAL FILE
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE, made and entered into as of this 15th day
of August, 1973, by and between XXXXXX ESTATES, a limited partnership, as
Landlord, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association, as Tenant,
W I T N E S S E T H:
WHEREAS, Landlord and Tenant are the parties to that certain Lease dated
November 9, 1960 (the "Lease"), Landlord having acquired its interest from
United California Bank, as Trustee of Trust No. 1-41-155-0, that in turn
acquired its interest from Pacific Coast Properties, a Delaware Corporation,
wherein and whereby that certain real property situated in Spring Valley,
County of San Diego, State of California, more particularly described in the
Lease, was leased to Tenant; and
WHEREAS, Tenant exercised its Option to Lease the "Optional Area" as set
forth in the Lease by letter dated October 10, 1972, which letter was received
by Landlord on October 13, 1972, and in addition thereto, Tenant desires to
lease more area than is described as the Optional Area in the Lease (said
additional area, together with the Optional Area being collectively referred to
herein as the "Expansion Area"); and
WHEREAS, it is the mutual desire and intention of the parties hereto to
amend the Lease to add the Expansion Area to the demised premises, to modify
certain of the Lease provisions in the light of such addition and to effect
certain other Lease amendments, all in the manner and to the extent more
particularly hereinafter set forth,
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties
-1-
36
hereto hereby amend the Lease as follows, effective as of the date hereof:
1. The effective date of the addition of the Expansion Area to the demised
premises under the Lease is August 15, 1973. From and after said effective date
Tenant acknowledges that all of Tenant's obligations under the Lease, except
for the commencement of payment of the Expansion Area Rental, apply to the
Expansion Area without exception.
2. Tenant agrees to pay Expansion Area Rental in the amount of $729.91 per
month commencing on the date hereof. Said Expansion Area Rental shall be in
addition to all rental or other sums due under the Lease from Tenant.
3. There parties hereto agree that the demised premises, including the
Expansion Area, measure 100 feet in frontage from north to south, and 133 feet
in depth from west to east. The final sentence of Section 1, Article 6 of the
Lease is hereby deleted.
4. Tenant expressly covenants and agrees that the work of constructing
improvements, including a drive-up teller window, on the Expansion Area shall
be done and completed at Tenant's sole cost and expense and in full and
complete compliance with the Lease and all local, county, state or federal
laws, codes or ordinances, as each may apply to said work. Tenant further
expressly covenants and agrees that all improvements constructed on the
Expansion Area, excepting only Tenant's moveable trade fixtures, equipment and
furnishings, shall at all times be and remain the sole property of Landlord.
5. Tenant agrees to provide Landlord with two sets of complete plans and
specifications for the work to be constructed on the Expansion Area, for
Landlord's approval prior to commencement of the work. Landlord shall approve
or disapprove said plans and specifications within ten (10) days after receipt
thereof from Tenant. If Landlord shall not have dissapproved said plans and
specifications within the stated ten (10) days time period, they shall be
deemed approved.
-2-
37
6. Exhibit "A" (Legal description of Spring Valley Shopping Center)
attached to the Lease is hereby deleted therefrom, and Exhibit "A" (Revised
Legal Description of Spring Valley Shopping Center) is hereby substituted
therefor.
7. Exhibit "B" (Plot plan of Spring Valley Shopping Center) attached to
the Lease is hereby deleted therefrom, and Exhibit "B" (Revised plot plan of
Spring Valley Shopping Center) attached hereto is hereby substituted therefor.
8. Exhibit "C" (Legal description of the demised premises) attached to the
Lease is hereby deleted therefrom, and Exhibit "C" (Legal description of the
demised premises including the Expansion Area) attached hereto is hereby
substituted therefor.
9. Except as expressly amended hereby, the Lease and all the provisions
thereof are and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Lease to be executed and delivered by their proper officers respectively
thereunto duly authorized on the date first above written.
LANDLORD: XXXXXX ESTATES, a limited partnership
By PACIFIC VIEW CONSTRUCTION CO., INC.
General Partner
By: /s/ [SIG]
-----------------------------------------
By: President
-----------------------------------------
TENANT: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ [SIG]
-----------------------------------------
Asst. Vice President
By: /s/ [SIG]
-----------------------------------------
Asst. Secretary
-3-
38
EXHIBIT "A"
That portion of Xxxx 00, 00, 00 xxx 00 xx Xxxxx 8 of the Subdivision
of Tract "H" of Jamacha Rancho in the County of San Diego, State of
California, according to Map thereof No. 812, filed in the office of
the County Recorder of San Diego County, February 21, 1896, TOGETHER
WITH a portion of the unnamed street lying between said Lots 28 and
29 and 20 and 21 as vacated and closed to public use on December 22,
1941 by Resolution of the Board of Supervisors of said San Diego
County, a certified copy of which was recorded December 27, 1941 in
Book 1297, page 54 of Official Records, described as follows:
Commencing at a point on the Northerly line of Lot 27 in said Block
8 distant thereon South 89 degrees 13'40" West 200.00 feet from the
Northeast corner thereof, said point being the Northwest corner of
land conveyed to Xxxx Xxxxxxxxx, et al, by Deed dated March 14, 1950
and recorded in Book 3618, page 392 of Official Records; thence
along the boundary of said land, South 00 degrees 33'45" West 890.09
feet (record-South 01 degrees 25'00" West 890.00 feet, more or less)
and North 89 degrees 40'24" East 200.00 feet (record-South 89
degrees 29'00" East 200.00 feet more or less) to the Easterly line
of said Lot 27; thence South 00 degrees 33'45" West along said
Easterly line 30.00 feet to the Northwest corner of said Lot 21;
thence North 89 degrees 40'24" East along the Northerly line of said
lot a distance of 282.18 feet; thence South 00 degrees 19'36" East
183.00 feet; thence South 89 degrees 40'24" West 60.00 feet to the
TRUE POINT OF BEGINNING, being the Point of Beginning of a
non-tangent 25.00 foot radius curve, concave Southwesterly, a radial
line of said curve bears North 89 degrees 40'24" East to said point;
thence Northwesterly along the arc of said curve through a central
angle of 90 degrees 00'00" a distance of 39.27 feet; thence tangent
to said curve, South 89 degrees 40'24" West 875.43 feet to the
beginning of a tangent 270.00 foot radius curve concave Southerly;
thence Westerly along said curve through a central angle of 18
degrees 50'24" a distance of 88.78 feet; thence tangent to said
curve South 70 degrees 50'00" West 205.00 feet to the beginning of a
25.00 foot radius curve concave Southeasterly; thence Southerly
along said curve through a central angle of 90 degrees 00'00", a
distance of 39.27 feet; thence along the prolongation of a radial
line of said curve South 70 degrees 50'00" West 35.00 feet to the
Westerly line of said Lot 28; thence along said Westerly line and
along the Southerly prolongation of said Westerly line and along the
Westerly line of said Xxx 00, Xxxxx 00 xxxxxxx 00'00" Xxxx 1036.09
feet to the Southwest corner of said Lot 29; thence South 89 degrees
45'20" East along the Southerly line of said lot, a distance of
142.24 feet to a point on the center line of the County Road as
shown on the Map of Road Survey No. 1343 on file in the office of
the Surveyor of said San Diego County; thence along said center
line, North 70 degrees 50'00" East 30.74 feet to the beginning of a
tangent 955.00 foot radius curve concave Northwesterly; thence
Northeasterly along said curve through a central angle of 24 degrees
53'31" a distance of 414.90 feet; thence tangent to said curve,
North 45 degrees 56'29" East 198.24 feet to the beginning of a
tangent 955.00 foot radius curve concave Southeasterly; thence
Northeasterly along said curve through a central angle of 18 degrees
11'58" a distance of 303.35 feet; thence leaving said center line,
North 25 degrees 51'33" West 50.00 feet to the Point of Beginning of
a non-tangent 25.00 foot radius curve concave Northwesterly, a
radial line of said curve bears South 25 degrees 51'33" East to said
point; thence Northerly along the arc of said curve through a
H-507821 central angle of 73 degrees 02'55", a
Page 1 of 2
39
distance of 31.87 feet to the beginning of a reverse curve concave Easterly
having a radius of 1030.00 feet; thence Northerly along said curve through a
central angle of 08 degrees 34'52" a distance of 154.26 feet; thence tangent to
said curve, North 00 degrees 19'36" West 323.20 feet to the TRUE POINT OF
BEGINNING.
EXCEPTING therefrom that portion described as follows:
Commencing at the Southeasterly corner of Spring Valley Estates Unit No. 1,
according to Map thereof No. 3947, filed in the office of the County Recorder
of San Diego County, August 20, 1958' thence along the boundary of said Map No.
3947, South 89 degrees 40'24" West, 60.00 feet to an angle point therein and
the TRUE POINT OF BEGINNING; thence continuing along the boundary of said Map
No. 3947 as follows: Northwesterly and Westerly along the arc of a 25.00 foot
radius curve, concave Southwesterly through a central angle of 90 degrees
00'00" a distance of 39.27 feet; and South 89 degrees 40'24" West, 230.15 feet;
thence leaving said boundary South 05 degrees 06'17" West, 102.60 feet; thence
South 19 degrees 06'05" East, 144.08 feet; thence South 19 degrees 08'49" East,
65.29 feet; thence South 19 degrees 09'02" East, 195.55 feet to a point on the
arc of a 1105.00 foot radius curve, concave Southeasterly, a radial line of
said curve bears North 31 degrees 04'59" West to said point, and being also a
point on the Northwesterly line of land described under Exhibit 1 in that
certain instrument recorded October 21, 1965 as File No. 191876 (known as Al's
Car Wash); thence along the Northwesterly line of said land, Northeasterly
along the arc of said curve through a central angle of 01 degrees 28'53" a
distance of 28.57 feet to the West line of land described in that certain
Memorandum of Lease between Pacific Coast Properties, Inc. (Lessor) and Shell
Oil Company (Lessee), recorded September 4, 1962 as File No. 152758; thence
along the boundary of said Shell Lease land as follows: North 87.33 feet to the
Northwest corner of said land; and East 109.73 feet to the Westerly line of
Spring Valley Estates Unit No. 2, according to Map thereof No. 3981, filed in
the office of the County Recorder of San Diego County, October 7, 1958 being a
point on the arc of a 1030.00 foot radius curve, a radial line of said curve
bears South 87 degrees 39'22" West to said point; thence along the Westerly
boundary of said Map No. 3981 as follows: Northerly along the arc of said curve
through a central angle of 02 degrees 01'02" a distance of 36.26 feet; and
North 00 degrees 19'36" West, 323.20 feet to the TRUE POINT OF BEGINNING.
TYPED
7-13-73
H-507821
Page 2 of 2
40
[SPRING VALLEY SHOPPING CENTER MAP]
EXHIBIT "B"
41
RE-REVISED LEGAL DESCRIPTION (Net)
BANK OF AMERICA
Parcel 7
All that portion of Xxx 00 xx Xxxxx 0 xx Xxxxxxxxxxx xx Xxxxx "H" of JAMACHA
RANCHO, in the County of San Diego, State of California, according to Map
thereof No. 812, filed in the Office of the Recorder of said County, February
21, 1896, described as follows:
Beginning at the intersection of the Southerly and Westerly lines of said Lot
29, being a point on the center line of Sweetwater Road, Road Survey No. 609,
said point being also illustrated on Map Xx. 0000 xx Xxxxxx Xxxxxx Xxxxxxx Xxxx
Xx. 0 filed in the Office of the Recorder of San Diego County;
Thence, North 19 degrees 10'00" West along said center line of Sweetwater Road
237.76 feet;
Thence, North 70 degrees 50'00" East 83.02 feet to the TRUE POINT OF BEGINNING;
Thence, North 70 degrees 51'15" East 133.00 feet;
Thence, North 19 degrees 10'00" West 100.00 feet;
Thence, South 70 degrees 51'15" West 133.00 feet;
Thence, South 19 degrees 10'00" East 100.00 feet to the true point of beginning.
EXHIBIT "C"
42
EXHIBIT "C"
ADDENDUM NO. 1 TO LEASE DATED NOVEMBER 9, 1960, BETWEEN PACIFIC COAST
PROPERTIES INC. AND ASSIGNED TO XXXXXX ESTATES, A LIMITED PARTNERSHIP, AS
LANDLORD AND BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, A NATIONAL
BANKING ASSOCIATION, AS TENANT, AGREE TO THE FOLLOWING EFFECTIVE JANUARY 1,
1985:
1. Common area and Tenant's Contribution (Page 14 Art. 12) and Real Property
Taxes (Page 8 Art. 8 Section 1) will be determined as follows:
Each lease or calendar year, the sum of all of the above items average for
the previous twelve (12) months, plus ten percent (10%) rounded of to an even
dollar amount shall be paid during the next twelve months in equal monthly
installments as additional rent, together with Tenant's Guaranteed Minimum
Monthly Rental. Also at the end of each lease or calendar year, the items
referred to above for the previous twelve (12) months (common area, taxes etc.),
will be recapped and adjusted for the next twelve (12) months and any
under-payment or over-payment will be adjusted through PAYMENT or CREDIT by
Tenant or Landlord within ten (10) days after a recap of all charges is sent to
Tenant. The present fixed averaged monthly payment for the balance of the
current lease or calendar year is $940.00.
Dated: 1-10-85 Date: 1-30-85
______________ ______________
LANDLORD: TENANT:
XXXXXX ESTATES, A Limited Partnership BANK OF AMERICA NT & SA,
By: PACIFIC VIEW CONSTRUCTION CO., INC. a banking association
General Partner
By: /s/ X.X. XXXXX By: /s/ XXXXXX XXXXXXXXX
________________________
______________________ Asst. Vice President
OR X.X. Xxxxx
Vice President By: [SIG]
________________________
Vice President
By:
________________________
By:
________________________
