THIS DOCUMENT IS A COPY OF THE LEASE FILED ON MAY 15, 1996
PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION
FIRST ADDENDUM TO OFFICE LEASE
BY AND BETWEEN
ALVAMIJ HUNTINGTON BEACH, CA.
AND
LIBERTY NATIONAL BANK
THIS IS A FIRST ADDENDUM to that certain Office Lease
consisting of "Basic Lease Provisions" and "Additional Lease
Provisions"), dated as of August 20, 1981, by and between ALVAMIJ
HUNTINGTON BEACH, INC., a California corporation, as successor to
One Pacific Plaza, a joint venture ("Landlord"), and LIBERTY
NATIONAL BANK, a national banking association ("Tenant"), with
respect to the following facts:
RECITALS
A. Tenant presently occupies Suites 100, 205, 206 and
560 of that certain office building (the "Building") known as One
Pacific Plaza, located at 7777 Center Drive, Huntington Beach,
California. Tenant occupies Suite 100 pursuant to the terms of the
above-referenced Lease. Said premises consist of an aggregate
rentable square footage of 8,386 square feet.
B. Tenant occupies Suites 205 and 206, which consist of
1,823 and 1,044 rentable square feet, respectively, pursuant to
those certain Office Leases, dated December 30, 1982, and January
6, 1984, respectively (hereinafter the second Floor Leases").
C. Tenant occupies Suite 560, which consists of 1,282
rentable square feet, pursuant to that certain Office Lease, dated
March 22, 1984 (hereinafter fifth Floor Lease").
D. Suite 102 is located on the first floor of the
Building, consists of 5,172 rentable square feet, and constitutes
the entire remaining portion of the first floor not presently
occupied by Tenant, excluding therefrom approximately 720 rentable
square feet presently occupied by Coffee Plus. The current tenant
of Suite 102 has recently vacated said premises and Tenant desires
to lease said Suite 102 on the terms and conditions contained
herein.
E. Effective upon the commencement date of Tenant's
lease of said Suite 102, Tenant desires to cancel its Second Floor
Leases (consisting of an aggregate of 2,867 rentable square feet)
and its Fifth Floor Lease, and Landlord is willing to permit said
cancellation in accordance with the provisions of paragraph 8
hereof.
TERMS AND CONDITIONS
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. Addition of Expansion Space. Effective as of February
1, 1986 (or such earlier date as Tenant occupies Suite 102), the
Premises (as that term is defined at the first paragraph of that
certain Office Lease "Ground Floor Premises", dated August 20,
1981, by and between One Pacific Plaza, a joint venture, as
landlord, and Liberty National Bank, a national building
association, in organization, hereinafter referred to as the
"Lease") is hereby expanded to include Suite 102 consisting of
5,172 rentable square feet. Attached hereto as Exhibit "A" is a
drawing of the Premises, including both Suite 100 and Suite 102.
2. Modification of Basic Lease Provisions. Effective as
of February 1, 1986 (or such earlier date as Tenant occupies Suite
102), the Basic Lease Provisions are hereby amended as follows:
(a) Paragraph 2 is hereby amended to provide as
follows:
"2. Total Net Rentable Area of the Premises:
13,558 square feet, consisting of the following:
Suite 100: 8,386 square feet
Suite 102: 5,172 square feet
Total: 13,558 square feet
Total Net Rentable Area of the Building: 93,228
square feet."
(b) Paragraph 3 is hereby amended to provide as
follows:
"3. Initial Basic Annual Rent:
Suite 100: $176,106.00 (1.75 per square foot) as of
October 1, 1981.
Suite 102: $99,302.40 ($1.60 per square foot) as of
February 1, 1986
or such earlier date as Tenant occupies Suite
102).
Notwithstanding anything to the contrary
contained herein, Landlord agrees that Tenant
shall be obligated to pay to Landlord Basic
Annual Rent for Suite 102 equal to only fifty
percent (50%) of the rate set forth
hereinabove until the earlier of (i) the
cancellation of the Fifth Floor Lease and the
Second Floor Leases or (ii) March 16, 1986."
Paragraph 4 is hereby amended to provide as
follows:
"4. Initial Monthly Rental Installments:
Suite 100: $14,675.50 as of October 1, 1981.
Suite 102: $8,275.20 as of February 1, 1986 (or such
earlier date
as Tenant occupies Suite 102).
Notwithstanding anything to the contrary
contained herein, Landlord agrees that Tenant
shall be obligated to pay to Landlord Initial
Monthly Rental Installments for Suite 102
equal to only fifty percent 50%) of the rate
set forth hereinabove until the earlier of (i)
the cancellation of the Fifth Floor Lease and
the Second Floor Leases or (ii) March 16,
1986."
3. Additional Rent. Landlord and Tenant
herebyacknowledge and agree that, pursuant to the provisions of
paragraph 3.3 of Article 3 of the Lease, for the 1986 calendar year
Tenant shall pay to Landlord as Tenant's Proportionate Share (which
is agreed to be 14.83%) of the Estimated Total Operating Expenses
for 1986 the following monthly sums:
Premise Monthly Installment
Suite 100 $ 2,479.18
Suite 102 $ 1,486.00
Total Monthly Installment $ 3,965.18
Tenant's Proportionate Share in the amount of 14.83% was
computed by comparing the square footage of Suite 100 to 100% of
the square footage of the Building and by comparing the square
footage of Suite 102 to 95% of the square footage of the Building,
as follows: Suite 100 = 8,386 square feet - 93,228 square feet =
8.99% and Suite 102 = 5,172 square feet - 93,228 square feet x 95%
= 5.84%, and 8.99% + 5.84% = 14.83%.
4. Earthquake Insurance Limitation. The second
paragraph of paragraph 3.5 of the Lease, located on page 10(a)
thereof, is hereby amended to provide in full as follows:
"Notwithstanding anything contained in Section
3.5(e) to the contrary, that portion of Total
Operating Expenses to be paid by Tenant
allocable to insurance premiums for earthquake
coverage with respect to Suite 100 shall not
exceed EIGHT HUNDRED DOLLARS ($800.00) per
year through the end of 1982, and the sum of
EIGHT HUNDRED DOLLARS ($800.00) per year
increased by any increase in the Consumer
Price Index between October 1981 and October
of the calendar year preceding the calendar
year for which such computation is being made,
such adjustment to be made in the manner
provided in Section 2.2.2 above, but without
the seventy-five percent (75%) limitation
provided for in said Section. There shall be
no limitation on Tenant's share of earthquake
insurance premiums as to Suite 102, as to
which Tenant shall pay its entire 5.84%
Tenant's Proportionate Share. In addition,
Tenant shall not be required to pay any
portion of said earthquake insurance premiums
at such time, if ever, as any other tenant in
the Building is not responsible, directly or
indirectly, for a portion of said earthquake
insurance premiums".
5. Additional Space Needs. The fourth (4th) line of
paragraph 7.3 of the Lease, located on page 17(a) thereof, is
hereby amended to provide as follows: "Floors 2, 3, 4 and/or 5 in
the Building, specifying in such notice. . ."
6. Parking. Landlord agrees to provide adequate surface
parking of the Project, on a non-exclusive basis, for customer and
invitees of Tenant.
7. Signs.
(a) Notwithstanding anything to the contrary
contained at paragraph 43.1 of the Lease, Landlord hereby agrees
that Tenant may relocate its existing sign on the northeasterly
side of the Building to the northwesterly side of the Building, as
indicated on Exhibit "B" attached hereto, provided that said
relocation shall be at Tenant's sole cost and expense (including
the repair of the area to be vacated by the existing sign) and
further subject to Tenant complying with all applicable laws,
regulations and ordinances, including permit requirements of the
City of Huntington Beach and subject to approval of the
Architectural Committee of One Pacific Plaza Association.
(b) The last sentence of footnote 2 to paragraph
43.1 of the Lease is hereby amended to provide as follows:
"If Tenant vacates or does not operate within
the Building as a bank or other financial
institution (a temporary vacation due to
casualty damage, remodeling and similar
circumstances excepted), Tenant shall remove
its signs from the roof of the Building and
its right to use the roof of the Building for
signs under this section shall terminate".
8. Cancellation of Second Floor Leases and Fifth Floor
Lease. Provided that Tenant is not then in material default of
either this Lease, the Second Floor Leases or the Fifth Floor
Lease, Landlord and Tenant hereby agrees as follows:
(a ) Tenant shall vacate the Fifth Floor Lease
space no later than February 14, 1986. At such time as Tenant
vacates said Fifth Floor Lease space, said Fifth Floor Lease shall
be cancelled and of no further force or effect whatsoever.
(b) Tenant shall vacate the Second Floor Leases
space no later than March 15, 1986. At such time as Tenant vacates
said Second Floor Leases space, said Second Floor Leases shall be
canceled and of no further force or effect whatsoever.
9. Agreement of Non-Disturbance. Landlord hereby agrees
that it shall deliver to Tenant, on or before May 1, 1986, fully
executed copies of the Agreements of Non-Disturbance attached
hereto as Exhibits "B-1" and "B-2", without any change or
alteration whatsoever. Landlord represents that except for the
Trust Deeds referred to in Recitals B to said Agreements of
Non-Disturbance, there are no other liens or encumbrances against
the Building and the Premises as of the date hereof other than real
property taxes and assessments.
10. No Other Changes. Except as expressly amended hereby,
the Lease shall remain in full force and effect without any change
or alteration of any nature whatsoever.
Dated: February 14, 1986
"Landlord" "Tenant"
ALVAMIJ HUNTINGTON BEACH, INC., LIBERTY NATIONAL BANK,
a California Corporation a National Banking Association
By: /s/ illegible signature By: /s/James Ott
Its: Agent Its: EVP
By: /s/ James P. Dazo By: Robert Lavallee
Its: Asst Treasurer Its: Senior V.P.
O F F I C E L E A S E
"GROUND FLOOR PREMISES"
BY AND BETWEEN
ONE PACIFIC PLAZA, A JOINT VENTURE
AS LANDLORD
AND
LIBERTY NATIONAL BANK
A National Banking Association (In Organization)
AS TENANT
One Pacific Plaza Building
Huntington Beach, California
OFFICE LEASE
THIS LEASE is made this 20 day of August, 1981, between
ONE PACIFIC PLAZA, a joint venture, hereinafter called "Landlord"
and LIBERTY NATIONAL BANK, a National Banking Association (In
Organization), hereinafter called "Tenant."
LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord, subject to all of the terms and conditions
hereinafter set forth, that certain office space consisting of a
portion of the ground floor (the "Premises") as shown in the
drawings attached hereto as Exhibit "A" and located in that certain
office structure being constructed on a portion of that certain
real property legally described as Parcel 1 shown on Parcel Map
79-585, in the City of Huntington Beach, County of Orange, State of
California, per Map filed in Book 144, pages 31-33 of Parcel Maps
in and for said County. Tenant shall have the right to construct
a vault adjacent to the Southeast corner of the Building on
foundations being installed by Landlord and, in such event, such
vault,shall be deemed to be a portion of the Premises. The
location of the said office structure (hereinafter called the
"Building") is shown on the first phase site plan attached hereto
as Exhibit "B". The commercial center of which the Building is a
part is hereinafter called the "Project" and is defined in paragraph
10 of the Basic Lease Provisions.
BASIC LEASE PROVISIONS
1. Building Name: One Pacific Plaza
Address: 7777 Center Drive, Huntington Beach, California
92647
2. Total Net Rentable Area of the Premises: 8,386 square feet.
Total Net Rentable Area of the Building: 92,730 square
feet.
3. Initial Basic Annual Rent: $180,600.00 ($1.75 per square
foot per month.)
4. Initial Monthly Rental Installments: $14,675.50
5. [Deleted]
6. Estimated Total Operating Expenses for each of calendar
year 1981 and calendar year for 1982:
$347.737.50
7. Term: Twenty (20) years plus four subsequent options of
five years each
8. Target Commencement Date: October 1, 1981
9. Security Deposit: $18,800 (See Article 4 of Additional
Lease Provision)
10. Declaration: That certain Declaration of Covenants,
conditions, Easements and Restrictions dated March 25, 1980,
encumbering the real property legally described as parcels 1
through 8 inclusive, as per the above described Parcel Map
(the "Project"), which Declaration was recorded March 26, 1980
in Book 13550, page 1015, Official Records of said County.
11. Broker: Grubb & Ellis
12. Address for Payment and Notices:
LANDLORD: TENANT:
ONE PACIFIC PLAZA LIBERTY NATIONAL BANK
7777 Center Drive At the Premises
Huntington Beach, CA 92647
With Copy To:
P. O. Box 8825
Fountain Valley, CA 92708
Attn: Guy Belcore
13. Lease Execution: In witness whereof, the parties hereto have
executed this Lease, consisting of the foregoing provisions
and of the Additional Lease Provisions which follow, as of the
date first above written.
THIS LEASE SHALL NOT BECOME ONE PACIFIC PLAZA,
EFFECTIVE UNTIL EXECUTED BY a joint venture
LANDLORD AND DELIVERED TO
TENANT AND THE SUBMISSION By JERWEL ENTERPRISES,
OF THIS FORM OF LEASE TO a partnership
TENANT BY LANDLORD, OR
LANDLORD'S AGENT, DOES NOT By:/s/ Gerald Klein
CONSTITUTE AN OFFER TO
LEASE. NO EMPLOYEE OR AGENT By BREDERO HUNTINGTON BEACH,
INC.
OF LANDLORD OR ANY PERSON a California corporation
WITH WHOM TENANT MAY HAVE
NEGOTIATED THIS LEASE HAS By: /s/ illegible signature
ANY AUTHORITY TO MODIFY THE Its:
TERMS HEREOF OR TO MAKE ANY "Landlord"
AGREEMENTS, REPRESENTATIONS,
OR PROMISES UNLESS THE SAME
ARE CONTAINED HEREIN OR ADDED
HERETO IN WRITING.
LIBERTY NATIONAL BANK,
a national banking association
(In Organization)
By: /s/ Richard M. Wilbur
Richard M. Wilbur,
An Organizer
By:/s/ Gaetano L. Belcore
Gaetano L. Belcore,
An Organizer
By:/s/ Robert R. Rigby
Robert R. Rigby,
An Organizer
MEMORANDUM OF ACTUAL COMMENCEMENT AND EXPIRATION DATES
Commencement Date: October 1, 1981
Expiration Date: September 30, 2001
ADDITIONAL LEASE PROVISIONS
TERM
Article 1.
1.1 The term of this Lease shall be as shown in item
7of the Basic Lease Provisions and shall commence on the Target
Commencement Date as shown in Item 8 of the Basic Lease
Provisions or such later date as the Premises shall be tendered
to Tenant as set forth in Section 1.2 below. The date of
commencement as defined above, hereinafter called the
"Commencement Date," shall be confirmed in writing by the parties
promptly upon such commencement.
1.2 Landlord may tender the Premises to Tenant on or
after the Target Commencement date upon not less than thirty (30)
days prior written notice stating that the Premises will be ready
for Tenant's construction work on the date specified in such
notice. (Tenant acknowledges the receipt of said notice
specifying the date of October 1, 1981 as the date the Premises
will be ready for Tenant's construction work and agrees said
notice shall be deemed to have been given, as required by this
lease, more than thirty (30) days prior to October 1, 1981.) In
the event that Landlord does not tender the Premises to Tenant as
aforesaid by December 31, 1981, Tenant shall have the right to
erect a temporary banking facility at Tenant's expense and in
accordance with all applicable laws and regulations, on a portion
of the project agreeable to Landlord and Tenant. (Said location
shall be Building Pad E as shown on exhibit "B" and shall be
erected, if at all, in a good and workmanlike manner consistent
with applicable laws and the Declaration.) Such facility shall
be removed by Tenant no later than four (4) months after the
actual Lease Commencement Date, subject to extension by that
amount of time during which Tenant's construction work has been
delayed by labor trouble, events beyond the reasonable control of
Tenant, and acts of Landlord, but in any event no later than
thirty (30) days after Tenant opens for business from the
Premises and Tenant shall repair any damage resulting from the
erection and/or removal thereof. (Such removal shall include
the removal of all paving, landscaping, utility lines and other
improvements in connection therewith.) Subject to Paragraph 2.1
hereof, no rent shall be payable for the operation of such
temporary facility, but the insurance indemnity and hold harmless
and mechanic's lien provisions of this Lease shall apply from and
after the erection of said temporary facility to said facility
just as though said facility were the Premises. Tenant shall pay
all utility charges and taxes resulting therefrom and shall
maintain the same in good condition and repair. In the event
that Landlord does not tender the Premises in such manner to
Tenant by March 31, 1982, this Lease, at Tenant's option, shall
become null and void. The Premises shall be deemed ready for
Tenant's construction work upon the expiration of thirty (30)
days from the date said notice is sent, and when utilities to the
Premises necessary for Tenant's construction are operative and
Landlord has substantially completed the construction work to the
Building and the adjacent parking areas to be completed by
Landlord under Paragraph 1 of that certain Work Letter, of even
date herewith, executed by Landlord and Tenant (the "Work
Letter"), as evidenced by the issuance of a certificate of
occupancy or temporary certificate of occupancy for the Building
by the City of Huntington Beach. The term "substantial
completion" shall have the meaning set forth in the Work Letter.
1.3 Landlord hereby grants to Tenant four options to
extend the term of this Lease, each for a five year period
commencing when the prior term expires. Each option to extend
shall be exercised by Tenant giving Landlord written notice of
such exercise no later than six (6) months prior to the time that
the subject option period would commence. All of the terms and
provisions of this Lease shall apply during each such option
period, and rent shall be adjusted in the same manner, and at the
same time intervals, as during the initial term of this Lease. A
subsequent option may not be exercised unless all prior options
have been exercised.
RENT
Article 2.
2.1 Basic Annual Rent. Tenant agrees to pay as Basic
Annual Rent for the Premises the initial sum shown in Item 3 of
the Basic Lease Provisions, increased in the manner provided
below. The Basic Annual Rent shall be payable in equal monthly
installments as shown in Item 4 of the Basic Lease Provisions,
payable in advance commencing upon the expiration of the first
four (4) months of the term of this Lease, subject to extension
by that amount of time during which Tenant's construction work
has been delayed by acts of Landlord, and continuing on the first
day of each calendar month thereafter. If the term of this Lease
commences on a date other than the first day of a calendar month,
then the rent for the-partial calendar month during which Basic
Annual Rent is first payable shall be prorated in the proportion
that the number of days in such month following the expiration of
such four (4) month period bears to the number of days in that
calendar month, and such rent shall be paid upon the expiration
of said four (4) month period.
The term "Lease Year" shall mean each succeeding period
of twelve full calendar months after the Commencement Date during
the term except that the first such period shall include any
partial month at the commencement of the Lease Term. In addition
to said Basic Annual Rent, Tenant agrees to pay additional rent
as and when hereinafter provided in this Lease. Said Basic
Annual Rent and additional rent are hereinafter sometimes
referred to collectively as the "rent." The rent shall be
payable to Landlord, without deduction or offset or abatement
(except as specifically provided in this Lease), in lawful money
of the United States of America at the address for Landlord as
shown in Item 12 of the Basic Lease Provisions, or to such other
person or at such other place as Landlord may from time to time
designate in writing.
2.2 Rental Adjustments
2.2.1 Adjustment to Fair Market Value. The Basic
Annual Rent shall be adjusted to one hundred percent (100%) of
the fair market value as hereinafter set forth on the tenth
(l0th), twentieth (20th), twenty-fifth (25th), thirthieth (30th)
and thirty-fifth (35th) anniversary of the Commencement Date.
Each said dates for adjustment of the Basic Annual Rent are
hereinafter referred to as a "Rental Adjustment Date.") In no
event shall the Basic Annual Rent for the Premises be decreased
below the amount set forth in Item 3 of the Basic Lease
Provisions.
If the parties are unable to agree in writing on the amount
of the Basic Annual Rent pursuant to this Section 2.2.1 on or
before the date four (4) months preceding the Rental Adjustment
Date, then within ten (10) days after said date each party, at
its cost and by giving written notice to the other party, shall
appoint a real estate appraiser with at least five (5) years'
full-time commercial appraisal experience in Orange County to
appraise and set the fair market value of the Basic Annual Rent
for the Premises. If a party does not appoint an appraiser
within ten (10) days after the other party has given notice of
the name of its appraiser, the single appraiser appointed shall
be the sole appraiser and shall set such fair market value. If
the two appraisers are appointed by the parties as stated in this
paragraph, they shall meet promptly and attempt to set such fair
market value. If they are unable to agree within thirty (30)
days after the second appraiser has been appointed, they shall
jointly select a third appraiser meeting the qualifications
stated in this paragraph within ten (10) days after the last day
the two appraisers are given to set such fair market value. If
they are unable to agree on the third appraiser within such ten
(10) day period, either party, by giving ten (10) days' written
notice to the other, may apply to the American Arbitration
Association, for the selection of a third appraiser who meets the
qualifications stated in this paragraph. Provided that if said
American Arbitration Association fails to so select such third
appraiser within thirty (30) days of request, either party, by
giving ten (10) days prior written notice to the other, may apply
to the Presiding Judge of te Superior Court of Orange County or
to the President of the Orange County Real Estate Association for
the selection of a third appraiser who meets the qualifications
stated in this paragraph. Each of the parties shall bear
one-half of the cost of appointing the third appraiser and of
paying the third appraiser's fee.
Within thirty (30) days after the selection of the
third appraiser, a majority of the appraisers shall set the
fair-market value of the Basic Annual Rent for the Premises. If
a majority of the appraisers are unable to set such fair market
value within the stipulated period of time, the twoappraisals
closest together shall be added together and their total divided
by two; the resulting quotient shall be multiplied by, 100% and
the result shall be the Basic Annual Rent for the Premises
commencing on the Rental Adjustment Date.
The appraiser or appraisers so selected shall be
instructed to appraise the Premises, taking the age of the
Building and this Lease and all of the terms hereof (including
term, expenses and rent escalation provisions, and further based
upon the fact that this is a triple net Lease wherein Tenant pays
separately for taxes, insurance, maintenance and other operating
expenses) into account, without value being added by reason of
any leasehold improvements, trade fixtures or equipment installed
by Tenant, (but including the right to use adjacent Common Area
for drive-through facilities once the "Drive-Through Facilities",
as defined in Section 8.3 below, have been constructed) based, to
the extent feasible, upon rents then being charged to banks in
comparable locations for comparable space in multi tenant
buildings with similar features under comparable leases executed
within one (1) year of the subject Rental Adjustment Date (which
rent shall be adjusted to the then current value).
2.2.2 Additional Adjustments. In addition to all
other rental adjustments provided for in this Lease, the Basic
Annual Rent, as same may be adjusted pursuant to Section 2.2.1
hereof, shall be further adjusted as of the first day of the
fifth month of the third, sixth, ninth, twelfth, fifteenth and
eighteenth Lease Years and on the third anniversary date of each
subsequent Rent Adjustment Date thereafter (each such date
referred to as an "Adjustment Date"), to an amount equaling the
sum total of the current Basic Annual Rent plus the lesser of the
following two amounts.
A. That amount equal to the Basic Annual
Rent payable prior to the subject Adjustment Date during the
subject Lease Year multiplied by 8.5% for each Lease Year since
the next preceding Adjustment Date, Rent Adjustment Date, or the
Commencement Date through the subject Adjustment Date compounded
on an annual basis (i.e., 27.773% for three (3) years).
B. That amount equal to 75% of the
percentage adjustment in the "C.P.I.", as that term is
hereinafter defined, multiplied by the Basic Annual Rent payable
prior to the subject Adjustment Date as follows:
(1) As used in this Lease, the term
"C.P.I." shall be defined as the Consumer Price Index of the
Bureau of Labor Statistics of the U.S. Department of Labor for
All Urban Consumers, Los Angeles-Long Beach-Anaheim, California,
All-Items (1967=100). In the event the compilation and/or
publication of the C.P.I. shall be transferred to any other
governmental department or bureau or agency or shall be
discontinued, then the index most nearly the same as the C.P.I.
shall be used to make such calculation. In the event that
Landlord and Tenant cannot agree on such alternative index, then
the matter shall be submitted for decision to the American
Arbitration Association in accordance with the then rules of said
association and the decision of the arbitrators shall be binding
upon the parties. The cost of said arbitrators shall be paid
equally by Landlord and Tenant.
(2) The current Basic Annual Rent shall
be multiplied by a fraction, the numerator of which is the C.P.I.
of the month, three months preceding the subject Adjustment Date
and the denominator of which shall be the C.P.I. of the calendar
month, three months preceding the immediate prior Adjustment
Date, Rent Adjustment Date or the Commencement Date. The product
of such calculation shall be multiplied by 75%.
For example: Assume that the current Basic Annual
Rent immediately prior to the subject Adjustment Date is $10,000.
Assume further that three Lease Years will have elapsed by the
time of the subject Adjustment Date since the last rental
adjustment, and 75% of the percentage of C.P.I. adjustment for
those three Lease Year totals 22.8, using the above formula.
Since 22.8% is less than 27.773%, the new Basic Annual Rental (to
be divided by 12 for the monthly rent) effective as of the
subject Adjustment Date, would be as follows:
Current Basic Annual Rent = $10,000 x 1.228 =
$12,280.
If any rental adjustment contemplated by Section 2.2
has not been determined by the subject Rent Adjustment Date or
Adjustment Date, Tenant shall continue to pay the rent
theretofore payable until such adjustment is completed, at which
time Tenant shall pay to Landlord an amount sufficient to
compensate Landlord for any underpayment of rent, plus, if such
delay is due to factors beyond Landlord's control, interest on
such payment at the prime rate of interest then charged by the
Bank of America per annum from the date such underpayment would
have been due.
ADDITIONAL RENT
Article 3.
3.1 With respect to each calendar year during the
Lease, the Tenant shall pay in the installments provided below in
Section 3.3 and 3.4, as ADDITIONAL rent, in addition to the Basic
Annual Rent specified in Article 2 above, a sum equal to the
product of Tenant's Proportionate Share (as hereinafter defined)
and the amount of Total Operating Expenses (as hereinafter
defined), prorated for any partial calendar year.
3.2 "Tenant's Proportionate Share" shall be computed
by dividing the net rentable area of the Premises identified in
Item 2 of the Basic Lease Provisions by the total net rentable
area of the Building identified in said Item 2.
The term "net rentable area" as used herein shall be
computed by measuring from the inside surface of the outer
building walls. Specifically included in such area shall be all
area within the outside walls, air conditioning shafts and ducts
where a central air conditioning system eliminates floor fan
rooms, private stairs, private elevators, toilets, air
conditioning rooms, fan rooms, air ducts, janitor's closets, slop
sinks, electrical closets, telephone closets, and all enclosing
walls for the above items, all of which exclusively serve the
floor in which they are located, and columns and projections
necessary to the Building. The area of air conditioning and fan
rooms located on a rental floor serving more than the floor in
which located, together with their enclosing walls, shall be
apportioned and included as rental area of the floors which they
serve. Except as provided above, there shall be excluded
building stairs, fire towers, elevator shafts, flues, vents,
stacks, pipe shafts and vertical ducts, with their enclosing
walls serving more than one floor, all parking decks and lobby,
public vestibules, public telephone booths, ramps, loading docks
and other public areas on the first floor of the Building. Net
rentable area for divided floors shall include a proportionate
share of public corridors, public toilets, air conditioning
rooms, fan rooms, air ducts, janitor's closets, electrical
closets, telephone equipment closets and their enclosing walls.
3.3 Landlord shall provide to Tenant a written
estimate of Total Operating Expenses at least thirty (30) days
prior to the start of each calendar year of the Lease Term. With
respect to each such calendar year during the Lease Term, the
Tenant shall pay to Landlord, monthly in advance, one-twelfth
(l/12th) of Tenants Proportionate Share of the estimated Total
Operating Expenses for such year. For 1981 and 1982, said
payment shall be based on the Estimated Total Operating Expenses
set forth in Item 6 of the Basic Lease Provisions.
3.4 With1n one hundred twenty (120) days after the end
of every calendar year during the Lease Term, commencing with the
calendar year 1981 Landlord shall provide Tenant with a written
statement certified as true and correct of the actual Total
Operating Expenses and Tenant's Proportionate Share thereof for
that year broken down in reasonable detail by expense category.
If the amount payable by Tenant under Paragraph 3.1 hereof should
exceed the amount previously paid by Tenant with respect to such
year, then Tenant shall pay to the Landlord the additional amount
due to Landlord within ten (10) days, and, if the amount payable
by Tenant under Paragraph 3.1 should be less than the estimated
amount paid by Tenant with respect to such year, then Landlord
shall credit against future additional rent the amount of
overpayment by Tenant.
3.5 Total Operating Expenses are defined a those
expenses necessary to operate and maintain the Building,
including appurtenances, in a manner deemed reasonable and
appropriate and for the best interest of the Tenants in the
Building, limited, however, to such items accountable as expenses
pursuant to generally accepted accounting principles, including
the following:
(a) Wages, salaries and fringe benefits of all
employees of Landlord engaged in the operation and maintenance of
the Building; employer's Social Security taxes, unemployment,
taxes or insurance, and any other taxes which may be levied on
such wages and salaries; the cost of disability and
hospitalization insurance and pension or retirement benefits for
such employees; all of the foregoing limited, however, to costs
customarily charged to Tenants in comparably sized office
buildings in projects similar to the Project in Orange County
and/or Los Angeles County;
(b) All supplies and materials used in operation
and maintenance of the Building;
(c) Cost of water, sewer, and trash pick up for the
Building, including water heating and condensing and the cost of
power, gas, heating, lighting, air conditioning and ventilating
for the public and common areas of the Building, it being
understood and agreed that Tenant, at Tenant's expense, shall
separately meter the Premises for electricity and gas and pay the
cost of such utilities as separately metered;
(d) Cost of replacement of equipment and all
reasonably necessary maintenance and service agreements on
equipment, including alarm service, building mechanical
equipment, window cleaning and elevator maintenance and water,
heating and cooling systems;
(e) Cost of casualty and liability insurance in
customary amounts applicable to the Building and Landlord's
personal property used in connection therewith, including rental
loss and/or other endorsements from time to time deemed
appropriate by Landlord, also including earthquake coverage.
(Liability insurance with limits of up to $10,000,000 for any one
occurrence and $1,000,000 property damage shall be deemed
customary as of the date of this lease.) See the attached page
10(a).
(f) Cost of repairs and general maintenance;
(g) Any capital improvement made or installed
after the calendar year 1981 for purposes of saving labor or
otherwise reducing applicable operating costs, not to exceed the
aggregate estimated costs savings annualized on a straight-line
basis over the useful life of the capital improvements as
determined by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time of
acquisition of the capital item.
Notwithstanding anything contained in Section
3.5(e) to the contrary, that portion of Total Operating Expenses
to be paid by Tenant allocable to insurance premiums for
earthquake coverage shall not exceed EIGHT HUNDRED DOLLARS
($800.00) per year through the end of 1982 and the sum of EIGHT
HUNDRED DOLLARS ($800.00) per year increased by any increase in
the Consumer Price Index between October 1981 and October of the
calendar year preceding the calendar year for which such
computation is being made, such adjustment to be made in the
manner provided in Section 2.2.2 above, but without the
seventy-five percent (75%) limitation provided for in said
Section.
(h) A pro rata share of all costs and charges
paid by Landlord as the owner of Parcel 1 as per the above
described Parcel Map 79-585 relating to the common and parking
areas within the Project pursuant to Section 4.2 or 4.5 of the
Declaration, which pro rata share shall be a fraction of the
numerator of which is the total building area within the Building
and the denominator of which is the total building area within
said Parcel 1, as the term building area is defined in the
Declaration;
(i) All taxes and assessments and governmental
charges whether federal, state, county or municipal, and whether
they be taxing districts or authorities presently taxing the
Building or by others, subsequently created or otherwise,
including license, permit and inspection fees and any other taxes
and assessments attributable to the Building or its operation,
including the land underlying the Building, and any tax or other
levy, however denominated, on or measured by the rental collected
by the Landlord with respect to the Building, or on the
Landlord's business of leasing the Building, but excluding taxes
on income. If Tenant, together with other tenants occupying in
excess of fifty percent (50%) of the net rentable area in the
Building, requests it to do so, Landlord will either exercise
any rights it may have to contest any increase in any tax
assessments or will pay any such tax under protest and permit
tenant and other Tenants of the Building to contest the same in
Landlord's name, but without cost or expense to Landlord. If
Landlord elects to contest any such assessment, which Landlord
may do whether or not Tenant or any other tenants request
Landlord to do so, all reasonable costs incurred by Landlord in
connection therewith shall be included within Total Operating
Expenses.
(j) The cost of all accounting and other
professional fees incurred in connection with the operation of
the Building, other than those incurred for (1) correction of
latent or patent construction defects of the Building, (2) the
delivery of services to specific tenants rather than the Building
in general, and (3) the enforcement of Landlord's right with
respect to other tenants of the Building.
(k) A management fee, not to exceed current market
rated, which may be payable to Landlord. (Any sums added to
Total Operating Expenses by this subparagraph (k) shall be
reducted by 14% before calculating Tenant's Proportionate Share.
3.6 Notwithstanding the foregoing, Total Operating
Expenses shall not include expenses for which the Landlord has
rights of reimbursement or indemnification (either by an insurer,
condemnor, tenant or otherwise); expenses incurred in leasing or
procuring tenants (including, without limitation, lease
commissions, advertising expenses, legal expenses, and expenses
of renovating space for tenants); legal expenses arising out of
disputes with tenants or the enforcement of the provisions of
any lease of space in the Building; interest or amortization
payments on any mortgage or mortgages, and rental under any
ground or underlying lease or leases; wages, salaries or other
compensation paid to any executive employees above the grade of
building manager; the cost of any work or service performed for
or facilities furnished to a tenant at the tenant's cost; the
cost of correcting defects (latent or otherwise) in the
construction of the Building or in the building equipment, except
that conditions (not occasioned by construction defects)
resulting from ordinary wear and tear shall not be deemed
defects; cost of capital improvements and depreciation or
amortization, (except as provided in Section 3.5(g) or otherwise
above). To the extent that any of the expenses described in
Section 3.5 are partially excluded from Total Operating Expenses
due to reimbursement or payment of a portion thereof by a tenant
of the Building, Tenant's Proportionate Share of the balance of
such expense shall be appropriately adjusted by excluding the net
rentable area leased to such tenant for purposes of the
computation required by Section 3.2.
3.7 Any operating expense increase for any calendar
year during the term of this Lease shall be apportioned so that
the Tenant shall pay its proportionate share of only that portion
of the increase for such year as falls within the term. This
provision shall survive the expiration or earlier termination of
the term of this Lease.
3.8 If any special assessments are included as part of
the real estate taxes and such assessment may be paid in
installments, the Tenant shall be obligated to pay only the
Tenant's proportionate share of the installment falling within
the term whether or not the Landlord pays such assessment in
installments.
3.9 In the event that at any time during the term of
this Lease, any governmental law, rule or regulation prohibits or
postpones in whole or in part any increase in the rent or other
sums payable by Tenant hereunder, then such increases under this
Lease shall be made to the maximum extent permissible by law at
the time provided in this Lease and/or at any time or times
thereafter such increase, or any portion thereof, may lawfully be
made and any such incrase in rent, or any portion thereof, or
other sums payable hereunder, or portions thereof, the payment of
which has been so prohibited or postponed, shall thereafter
become due and payable to the maximum extent and at the earliest
time or times permited by law.
.
3.10 Operating expenses for any year in which
occupancy of the Building is less than one hundred percent (100%)
shall be adjusted for the purposes of computing the amount
payable by Tenant under Section 3.1 above, to reflect at least
one hundred percent (100%) occupancy of the building.
SECURITY DEPOSIT
Article 4.
Tenant has deposited with Landlord the sum set forth in
Item 9 of the Basic Lease Provisions as security for the full and
faithful performance of every provision of this Lease to be
performed by Tenant. If Tenant defaults with respect to any
provision of this Lease, including but not limited to the
provisions relating to the payment of rent or the repair of
damage to the Premises caused by Tenant, Landlord may use, apply
or retain all or any part of this security deposit for the
payment of any rent or any other sum in default, the repair of
such damage to the Premises, or for the payment of any other
amount which Landlord may spend or become obligated to spend by
reason of Tenant's default or to compensate Landlord for any
other loss or damage which Landlord may suffer by reason of
Tenant's default to the full extent permitted by law. If any
portion of said deposit is so used or applied, Tenant shall
within ten (10) days after written demand therefor deposit cash
with Landlord in an amount sufficient to restore the security
deposit to its original amount and Tenant's failure to do so
shall be a material breach of this Lease. Landlord shall not be
required to keep this security deposit separate from its general
funds, and Tenant shall not be entitled to interest on such
deposit. If Tenant shall fully and faithfully perform every
provision of this Lease to be performed by it, the security
deposit or any balance thereof shall be returned to Tenant upon
the last to occur of (i) the date two (2) years from and after
the Commencement Date of the lease term, or (ii) the date of
Tenant's substantial completion of the Tenant improvements within
the Premises to be constructed by Tenant pursuant to the Work
Letter, or (iii) upon condensed water for HVAC system installed
by Tenant's written notice to Landlord that Tenant has
substantially completed Tenant improvements within the Premises.
If Landlord fails to return said security deposit or any balance
thereof within ten (10) days of the last to occur of said dates,
said security deposit shall bear interest, for the benefit of
Tenant, at the "prime rate" of Bank of America NT & SA, plus
three percent, but not to exceed the maximum rate allowable by
law.
UTILITIES AND SERVICES
Article 5.
5.1 Landlord shall furnish to the Premises between the
hours of 7:00 a.m., and 7:00 p.m. Monday through Friday, and
between the hours of 8:00 a.m. and 1:00 p.m. Saturday, except
legal holidays, such amounts of air conditioning, as Landlord
furnishes for normal office purposes in other portions of the
Building taking into consideration at any given time the
availability of energy resources and prudent energy conservation
practices. During other hours Landlord will provide such air
conditioning, heating and ventilation upon not less than 24 hours
advance notice from Tenant to Landlord, and Tenant, upon
presentation of a bill therefor, shall pay Landlord for such
services on an hourly basis at the then prevailing rates
therefore as reasonably established by Landlord. If such service
is not a continuation of that furnished during regular business
hours, Tenant shall pay for a minimum of three (3) hours of such
service. Subject to provisions set forth below, Landlord shall
at all times furnish the Premises with elevator service, and
water for kitchen, lavatory and drinking purposes. Tenant shall
separately meter the Premises pursuant to Paragraph 3.5(c).
Landlord shall provide janitor service; provided, however, that
Tenant shall pay for any unusual janitorial services required by
reason of any non-Building Standard improvements in the Premises,
including without limitation wall coverings and floor coverings,
installed by or for Tenant under the Work Letter or otherwise,
provided further that Landlord shall deliver to Tenant, prior to
the Commencement Date, detailed specifications describing the
scope and frequency of such janitorial services. Tenant shall
have the option to provide its own janitorial service to the
Premises in lieu of the services provided by Landlord, in which
case the Estimated Total Operating Expenses shall be reduced by
$4,300. Such janitorial service shall include the replacement of
fluorescent fixtures as required. Tenant shall pay for
replacement of all other bulbs as required. Landlord shall not
be liable for any failure to furnish any of such services or
utilities when such failure is caused by accidents, strikes,
lockouts, other labor troubles, governmental action, shortages or
other conditions beyond Landlord's reasonable control, and Tenant
shall not be entitled to any damages nor shall any such failure
relieve Tenant of the obligation to pay the full rent reserved
herein or constitute or be construed as a constructive or other
eviction of Tenant. Notwithstanding the foregoing, Tenant shall,
at Landlord's option, upon not less than thirty (30) days prior
written notice, provide its own janitorial service to the
Premises, in lieu of the above services to be provided by
Landlord and, in such event, the said Estimated Total Operating
Expenses shall be reduced by $4,300.
5.2 Tenant will not without the written consent of
Landlord use any apparatus or device in the Premises, including
without limitation electronic data processing machines, punch
card machines and machines using current in excess of 110 volts,
which will in any way increase the amount of water usually
furnished or supplied for use of the Premises as general office
space or that would overload the electrical capacity of the
Premises or require the installation of new electrical lines; nor
connect any apparatus, machine or device with water pipes or
electric current (except through existing electrical outlets in
the Premises) for the purpose of using electric current or water,
except as provided in the Work Letter. Landlord agrees to grant
such consent when required for Tenant's installation of photo
reproduction machines and other equipment commonly used in the
banking business, provided that the installation of any
additional utility lines required for such use shall be the
responsibility of Tenant. If Tenant shall require electric
current in excess of that and for all other electrical current
metered to the Premises. Tenant shall first obtain the consent
of Landlord, which Landlord may reasonably refuse, to the use
thereof and Landlord may cause an electric current meter to be
installed in the Premises to measure the amount of electric
current consumed for any such other use. Tenant, however, may
connect to the hot water line and the condensed water line in the
ceiling above the Premises for heating and air conditioning
purposes. The cost of any such meter and of installation,
maintenance and repair thereof shall be paid for by Tenant and
Tenant agrees to pay Landlord promptly upon demand by Landlord
for all such electric current consumed for any such other use as
shown by said meter provided by the Building system installed by
Landlord pursuant to the Work Letter, at the rates charged for
such services by the local public utility furnishing the same,
plus any additional expense incurred in keeping account of the
electric current so consumed. If any lights, machines or
equipment (including, but not limited to computers) are used by
Tenant in the Premises which materially affect the temperature
otherwise maintained by the air conditioning system, or generates
substantially more heat in the Premises than would be generated
by the Building Standard lights and usual fractional horsepower
office equipment, Landlord shall have the right to install any
machinery and equipment which Landlord reasonably deems necessary
to restore temperature balance, including, but not limited to
modifications to the standard air conditioning equipment, and the
cost thereof, including the cost of installation and any
additional cost of operation and maintenance occasioned thereby,
shall be paid by Tenant to Landlord upon demand by Landlord.
USE OF PREMISES
Article 6.
Tenant shall use and occupy the Premises for the
conduct of a banking facility and purposes incidental thereto or
for any other general office purpose and for no other use or
purpose provided that such general office purpose is in
connection with the conduct and operation of a business commonly
conducted and operated from the ground floors of comparable
office buildings in the Orange and Los Angeles County areas and
provided further in no event may Tenant permit the occupancy and
use of the Premises by any governmental agency. In respect
thereto, Landlord shall not during the first ten (10) years of
the term of this Lease, lease any other space on the ground floor
of the Building to any other banking business (excluding thrift
and savings institutions), so long as the Premises are being used
for banking purposes. Tenant shall not use or occupy the Premises
for the purpose of any medical or dental office, clinic,
laboratory or similar business, without the prior written consent
of Landlord. Tenant shall not use or occupy the Premises in
violation of law and shall, upon five (5) days written notice
from Landlord, discontinue any use of Premises which is declared
by any governmental authority having jurisdiction to be a
violation of law. Tenant, at its sole cost and expense, shall
comply with any direction of any governmental authority having
jurisdiction which shall impose any duty upon Tenant or Landlord
with respect to the Premises or the use or occupation thereof, by
reason of the nature of Tenant's use or occupancy of the
Premises. Tenant shall not do or permit to be done anything which
will invalidate or increase the cost of any fire and extended
coverage insurance policy covering the Building and/or property
located therein Tenant shall promptly upon demand reimburse
Landlord for any additional premium charged for such policy by
reason of Tenant's failure to comply with the provisions of this
Article.
ACCEPTANCE OF PREMISES; RIGHT OF FIRST REFUSAL
Article 7.
7.1 Landlord hereby makes the following covenants,
warranties and representations to Tenant:
A. Landlord shall operate and maintain the
Building, other than portions leased to third parties, in a
clean, orderly and first class manner.
B. Landlord shall deliver to Tenant, prior to the
Commencement Date, a certificate of the architect/designer of the
Building certifying as to the Net Rentable Area of the Premises
and of the Building. If said areas are different than those set
forth in Item 2 of the Basic Lease Provisions, Landlord and
Tenant shall appropriately modify Tenant's Proportionate Share,
as defined in Section 3.1, the Initial Basic Annual Rent and
Monthly Rental Installments, as set forth in Items 3 and 4 of the
Basic Lease Provisions and the Estimated Total Operating
Expenses, as set forth in Item 6 of the Basic Lease Provisions.
C. Any and all patent and latent defects in the
Building, other than improvements installed by individual tenants
(including Tenant), shall be promptly repaired or reasonably
corrected by Landlord, at Landlord's expense, as soon as
reasonably possible after Landlord receives notice thereof and
other than patent defects in the Premises or which Tenant fails
to give Landlord written notice within the ninety (90) day period
specified in Section 7.2 below, which shall be repaired and
reasonably corrected by Tenant.
D. Landlord shal1 deliver to Tenant, prior to the
Commencement Date, a non-disturbance agreement from all lenders
having liens against the real property upon which the Building
is located, having priority to this Lease, which non-disturbance
agreement shall state that Tenant's quiet possession of the
Premises shall not be disturbed so long as Tenant is not in
"material breach", as defined in Section 21.1 below, of any of
the terms of this Lease.
7.2 Except as otherwise set forth in this Lease,
Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to
the Premises or the Building or with respect to the suitability
or fitness of either for the conduct of Tenant's business or for
any other purpose. The taking of possession or use of the
Premises by Tenant for any purpose other than construction shall
conclusively establish that the Premises and the Building were at
such time in satisfactory condition (except for latent defects)
and in conformity with the provisions of this Lease in all
respects, except as to any items as to which Tenant shall give
Landlord written notice in reasonable detail within ninety (90)
days after Tenant takes such possession or commences such use of
the Premises or the term of this Lease otherwise commences as
provided in Article 1 above. Nothing contained in this Article 7
shall affect the commencement of the term of this Lease or the
obligation of Tenant to pay rent hereunder as provided in Article
2 above. Landlord shall promptly take such action as may
reasonably be required to remedy any actual defects of which it
is notified as provided above.
7.3 Following the expiration of the second year of the
term of this Lease, Tenant may, from time to time, notify
Landlord in writing that it desires to lease additional space on
Floors 2, 3 and/or 4 in the Building, specifying in such notice
the minimum and maximum size of the space Tenant desires to
lease. In the event that space on said floors, or any of them, in
the Building thereafter is available for lease, or will within
six (6) months become available for lease, satisfying the space
requirements set forth in the most recent notice from Tenant,
Landlord agrees to notify Tenant of such space and to give
toTenant a first opportunity to negotiate with Landlord to lease
such space and not to offer such space to or negotiate a lease
for such space with any third party while negotiations with
Tenant are proceeding. Landlord reserves the right to
discontinue negotiations with Tenant, at any time, by giving
written notice to Tenant, if Landlord determines, in its sole
discretion, that such negotiations are not likely to produce a
lease agreement on terms then satisfactory to Landlord, or if a
lease satisfactory to Landlord has not been executed within
thirty (30) days of Landlord's notice to Tenant of such space.
Space shallnot be deemed to be available for lease for the
purposes of this Section so long as Landlord is negotiating with
the then occupant of such space to re-lease such space and
Tenant's rights under this Section shall be subject to any and
all rights of first refusal, options to renew or extend and/or
expansion options either heretofore or hereafter granted to other
occupants of the Building or of the Project. Unless Tenant
notifies Landlord in writing within ten (10) days of its receipt
of any notice from Landlord of the availability of space in the
Building that it does not desire such space (upon Landlord's
receipt of such notice any rights of Tenant to negotiate for such
space under this Section shall terminate), Tenant's rights under
this Section 7.3 shall automatically terminate in the event that
Tenant refuses to lease such space on terms offered by Landlord
to Tenant upon Landlord's leasing such space to a third party for
a rent and upon terms not substantially less favorable to the
lessee than those rejected by Tenant. Nothing contained in this
Section shall be construed as obligating Landlord to divide space
becoming available for lease in order to satisfy Tenant's space
requirements. Tenant's sole remedy in the event of a default by
Landlord under this Section shall be to recover damages, it being
understood that Tenant hereby waives any right to specifically
enforce the provisions of this Section 7.3. (Provided such
notice includes the following statement in capital letters: "A
FAILURE TO RESPOND TO THIS NOTICE WITHIN TEN (10) DAYS OF RECEIPT
MAY RESULT IN A LOSS OF RIGHTS UNDER SECTION 7.3 OF YOUR LEASE
FOR GROUND FLOOR SPACE IN THE ONE PACIFIC PLAZA BUILDING,
HUNTINGTON BEACH, CALIFORNIA.")
ALTERATIONS AND EQUIPMENT
Article 8.
8.1 Tenant shall make no alterations, additions or
improvements to the Premises, other than usual decorating work,
without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, and Landlord may impose as a
condition to such consent the right to approve
and to require a bond, in form and amount satisfactory to
Landlord, from the contractor selected by Tenant to perform such
work, the right to approve the contractor selected by Tenant to
perform such work and the requirements applicable to alterations,
additions or improvements in the Work Letter. All such
alterations, additions or improvements including, without
limitation, those constructed or installed by or under Tenant
pursuant to the Work Letter, shall become the property of
Landlord and shall be surrendered with the Premises, as a part
thereof, at the end of the tern hereof except those described on
the attached Exhibit "E".
8.2 All articles of personal property and all trade
fixtures, machinery and equipment, furniture and movable
partitions owned by Tenant or installed by Tenant at its expense
in the Premises shall be and remain the property of Tenant and
may be removed by Tenant at any time during the Lease Term when
Tenant is not in material default hereunder, provided that Tenant
repairs any damage to the Premises or the Building caused by such
removal. On the expiration of the term of this Lease, or on any
earlier termination of this Lease, Tenant shall remove all such
personal property, etc., in accordance with the provisions of
Article 22 below.
8.3 Subject to obtaining all requisite governmental
approvals and Tenant's compliance with all applicable laws and
the Declaration, Tenant shall have the right, at Tenant's sole
cost and expense, to install two (2) exterior drive through
banking lanes with appropriate electronic banking equipment
adjacent to the Ground Floor Premises as depicted on Exhibit "A,"
with the prior written consent of Landlord of the plans and
specifications for such work, which consent shall not
unreasonably be withheld. All construction of said drive-through
banking lanes shall comply with the provisions of Section 8.1 and
8.2 above and shall be performed in a manner so as to minimize,
to the extent reasonably possible, interference with the use and
operation of the Common Areas adjacent to the work site. Tenant
shall maintain the Drive-Through Facilities in good condition and
repair and promptly correct and/or restore any defects in or
damage resulting from casualty or condemnation to the
Drive-Through Facilities, at its sole cost and expense. All
utilities used in connection with the Drive-Through Facilities
shall be separately metered, at Tenant's expense, and Tenant
shall pay all utility costs incurred in connection therewith.
The Drive-Through Facilities shall be deemed to be a portion of
the Premises for the purposes of Articles 4, 6 through 15 and 22
of this Lease.
From and after the date that Tenant commences the
construction or the Drive-Through Facilities, the Basic Annual
Rent shall be increased by an amount equal to the product of nine
(9) (being the number of parking spaces or potential parking
spaces in any underground or multi-level parking garage or
structure within the Project to Tenant and other occupants of the
Building or, in the absence of any such garage or structure,
$360.00 and Monthly Rental Installments shall be proportionately
increased; provided that if Tenant elects to construct only one
drive-through lane, said increase shall be equal to the product
of nine times the then annual charge for unassigned parking
spaces in any such underground or multi-level parking garage or
structure or, in the absence of any such garage or structure,
$240.00 per year per space and Monthly Rental Installments shall
be proportionately increased.
LIENS
Article 9.
Tenant shall keep the Premises and the Building free
from any mechanics liens arising out of any work performed by or
under the materials furnished to or obligations incurred by or
under Tenant. Tenant agrees to defend, indemnify and hold
harmless Landlord from and against any such lien or claim or
action thereon, together with costs of suit and reasonable
attorneys' fees incurred by Landlord in connection with any such
claim or actions.
TAX ON TENANT'S PROPERTY
Article 10.
10.1 Tenant shall be liable for and shall pay prior to
delinquency all taxes levied against any personal property or
trade fixtures placed by Tenant in or about the Premises. If any
such taxes on Tenant's personal property or trade fixtures are
levied against Landlord or Landlord's property and if Landlord,
after a minimum of thirty (30) days prior written notice to
Tenant, pays the same, which Landlord shall have the right to do
regardless of the validity of such levy, but only under proper
protest if requested by Tenant, or if the assessed value of
Landlord's property is increased by the inclusion therein of a
value placed upon such personal property or trade fixtures of
Tenant and if Landlord, after written notice to Tenant, pays the
taxes based upon such increased assessment, which Landlord shall
have the right to do regardless of the validity thereof, but only
under proper protest if requested by Tenant, Tenant shall, upon
demand, as the case may be, repay to Landlord the taxes so levied
against Landlord, or the proportion of such taxes resulting from
such increase in the assessment; provided that, in any such
event, Tenant shall have the right, in the name of Landlord and
with Landlord's full cooperation, but at no cost to Landlord, to
bring suit in any court of competent jurisdiction to recover the
amount of any such taxes so paid under protest, any amount so
recovered to belong to Tenant.
10.2 If the Tenant improvements in the Premises,
whether installed and/or paid for by Landlord or Tenant and
whether or not affixed to the real property so as to become a
part thereof, are assessed for real property tax purposes at a
valuation higher than the valuation at which Tenant improvements
conforming to Landlord's "Building Standard" in other space in
the Building are assessed, then the real property taxes and
assessments levie against Landlord or Landlord property by reason
of such excess assessed valuation shall be deemed to be taxes
levied against personal property of Tenant and shall be governed
by the provisions of Section 10.1 above.
MAINTENANCE AND REPAIR
Article 11.
11.1 Subject to the provisions of Section 11.2 below
Tenant shall maintain the Premises and fixtures therein in good
condition and repair, and subject to the provisions of Article 17
below, shall reimburse Landlord for all repair thereto or to the
Building which are made necessary as a result of any misuse or
neglect by Tenant, or any of its officers, agents, employees,
contractors, licensees, visitors, guests or invitees, except to
the extent that such repairs are covered by insurance maintained
by Landlord. Tenant shall also maintain the HVAC system
installed by Tenant in the Premises.
11.2 Subject to the provisions of Article 5.1 and
Article 17 hereof Landlord shall repair and maintain the Building
structure and public areas, and the plumbing, elevator and
electrical systems servicing the Premises, the exterior sides of
demising walls, and exterior parking and landscaping (other than
those areas that are expressly the responsibility of Tenant).
Landlord shall not be liable for any failure to make any repairs
or to perform any maintenance unless such failure shall persist
for an unreasonable time after written notice (or telephone
notice in the case of emergency endangering life or property of
the need for such repairs or maintenance is given to Landlord by
Tenant. In any event, Tenant shall have the right to make such
repair upon Landlord's failure to do so in a reasonable time
following notice and to recover Tenant's reasonable costs of
making such repairs from Landlord. Except as provided in Article
1, hereof, there shall be no abatement of rent and no liability
of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs,
alterations or improvements in or to any portion of the Building
or the adjacent parking and common areas; provided, however, that
in making such repairs, alterations or improvements to the
Building, Landlord shall interfere as little as reasonably
practicable with the conduct of Tenant's business in the
Premises.
ENTRY AND I N S P E CT I ON
Article 12.
Tenant will permit Landlord and its agents at any time
in case of emergency, and otherwise upon 24 hours prior written
notice to Tenant, in such manner as to cause as little
disturbance to Tenant as reasonably practicable, to take all
required materials and equipment into the Premises, and perform
all required work therein, including the erection of scaffolding,
props, or other mechanical devices, for the purpose of making
alterations, repairs or additions to the Premises or to any other
portion of the Building as may be provided for by this Lease or
as may be mutually agreed upon by the parties or as Landlord may
be required to make by law or for maintaining any service
provided by Landlord to Tenant hereunder, without any rebate of
rent to Tenant for any loss of occupancy or damage, injury or
inconvenience thereby occasioned, unless resulting from the
negligence or improper behavior on the part of Landlord or its
agents or contractors. Tenant shall also permit Landlord and its
agent, upon 24 hour prior written request, to enter and/or pass
through the Premises or any part thereof, at reasonable times
during normal business hours and accompanied at all times by an
authorized agent of Tenant to inspect the Premises and/or to show
the Premises to holders of encumbrances of the interest of
Landlord under the Lease, or prospective purchasers, mortgagees
or lessees of the Building as an entirety, and during the period
of six (6) months prior to the expiration date of this Lease,
Landlord may exhibit the Premises to prospective tenants in the
same manner. Landlord shall also have the right to enter or
and/or pass through the Premises, or any part thereof, at such
times as such entry shall be required by circumstances of
emergency affecting the Premises or any other portion of the
Building. If during the last thirty (30) days of the term hereof
Tenant shall have removed substantially all of Tenant's property
and personnel from the Premises, Landlord may enter the Premises
and repair, alter and redecorate the same, without abatement of
rent and without liability to Tenant, and such acts shall have no
effect on this Lease.
HOLD HARMLESS AND NON-LIABILITY
Article 13.
Tenant agrees to hold harmless and to indemnify
Landlord, Landlord's partners and/or joint venturers and the
officers and/or partners of such partners and/or join venturers,
from and against any and all claims arising from injury of
persons, loss of life or damage to property occurring in or about
the Premises and from and against any and all costs, expenses and
liabilities (including without limitation reasonable attorney's
fees) incurred by Landlord, and/or said other indemnitees, or any
of them, and/or inconnection with any such claim or any
proceeding based thereon, to the extent such injury, loss of life
or damage arises out of the negligent or willful act or failure
to act of Tenant, or any of its officers, employees, agents,
con-tractors, licensees, visitors, guests or invitees, or out of
Tenant's breach of this Lease, or out of Tenant's use of the
Premises or the conduct of its business from the Premises, and
not arising out of the negligent or wilful act or failure to act
of Landlord or Landlords agents, contractors or invitees, nor by
patent or latent defects in the construction of the Building.
Except in the case of Landlord or Landlord's agents' or
contractors' negligence or wilful act, neither Landlord nor its
agents shall be liable for any damage to property entrusted to
employees of the Building, nor for loss or damage to any property
by theft or otherwise, nor for any injury to or damage to persons
or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water or rain which may leak from any
part of the Building or from pipes, appliances or plumbing works
therein or from the roof, street or subsurface or from any other
place resulting from dampness or any other cause whatsoever,
unless caused by or due to the negligence of Landlord, its
agents, servants or employees. Neither Landlord nor its agents
shall be liable for interference with the light or other
incorporeal hereditaments, loss of business by Tenant. Tenant
shall give prompt notice to Landlord in case of fire or accidents
in the Premises or in the Building or defects therein.
Notwithstanding anything contained herein to the contrary,
Landlord shall not be required to reimburse Tenant for loss or
damage resulting from Landlord's or Landlord's agents' or
contractors' willful or negligent acts if and to the extent that
Tenant is reimbursed by insurance proceeds covering such acts.
Throughout the term of this Lease Tenant shall maintain
in effect comprehensive public liability and property damage
insurance with limits of liability of not less than ONE MILLION
DOLLARS ($1,000,000.00) combined single limit, naming Landlord as
an additional named insured under the
policy. The cost of naming Landlord as an additional insured on
said policy shall be borne by Tenant to the extent of the first
$100.00 with any excess in cost for so naming Landlord to be paid
by Landlord. Tenant agrees to furnish and to maintain with
Landlord at all times during the term of this
Lease, a current certificate evidencing the insurance required by
this Article, which certificate shall contain an agreement by the
insurer that said policy shall not be canceled or materially
changed without at least ten (10) days prior written notice to
such additional named insureds. Any such policy of insurance
shall be primary and not contributing with any insurance provided
by Landlord. Any such policy of public liability and property
damage insurance shall provide that any loss shall be payable to
Landlord notwithstanding any act or negligence of Tenant which
might otherwise result in the forfeiture of such insurance, if
available, but any additional charge for such provision shall be
paid by Landlord, unless Landlord waives the provisions of this
sentence .
WAIVER OF SUBROGATION
Article 14.
Landlord and Tenant hereby release the other from any
and all liability from or to the other party of every kind and
nature which may result from the perils of fire, lightning or
extended coverage perils which causes damage on or to the
Premises, the Building and/or property within the Building owned
by it, such waiver to include situations where the negligence of
one of the parties hereto or his agent, servant or representative
causes or contributes to the occurrence or the result of damage.
Each party agrees to furnish appropriate subrogation waiver
endorsements of their respective fire insurance companies.
ASSIGNMENT AND SUBLETTING
Article 15.
15.1. See page 23(a).
15.2. No subletting or assignment shall relieve Tenant
of its obligations to pay the rent and to perform all of the
other obligations to be performed by Tenant hereunder. The
acceptance by Landlord of any payment due hereunder from any
person, other than Tenant, shall not be deemed to be a waiver by
Landlord of any provision of this Lease or to be a consent to any
assignment, subletting or other transfer or interest.
TRANSFER OF LANDLORD'S INTEREST
Article 16.
In the event of any transfer or transfers of Landlord's
interest in the Premises or in the real property of which the
Premises are a part, other than a transfer for security purposes
only, the transferor shall be automatically relieved of any and
all obligations and liabilities on the part of Landlord accruing
from and after the date of such transfer, provided such
obligations and liabilities are assumed in writing by the
transferee.
16.1 Tenant shall not, either voluntarily or by
operation of law, assign, pledge or otherwise transfer al1 or any
part of Tenant's leasehold or permit the Premises to be occupied
by anyone other than Tenant or Tenant's employees or sublet the
Premises or any portion thereof, without Landlord's prior written
consent in each instance. Landlord agrees not to unreasonably
withhold its consent to any proposed assignment or sublease,
provided that such assignment or sublease is to a financially
responsible party with a good business reputation. Landlord's
consent given pursuant to this Section in one or more instances
shall not operate to exhaust Landlord's rights under this
Section. A voluntary or other surrender of this Lease by Tenant
or a mutual cancellation hereof shall not work a merger, and
shall, at the option of Landlord, terminate all or any existing
subleases or subtenancies or shall operate as an assignment to
Landlord of such subleases or subtenancies. If Tenant is a
corporation which, under the current guidelines published by the
Commissioner of Corporations of the State of California, is not
deemed a public corporation, or is an unincorporated association
or partnership the transfer, assignment or hypothecation of any
stock or interest in such corporation, association or partnership
in the aggregate in excess of twenty-five percent (25%) shall be
deemed an assignment within the meaning and provisions of this
Section, p ovided that this sentence shall not be applicable to
the transfer of shares in any corporation operating a bank from
the Premises, unless such transfer is in connection with a
transaction that includes or contemplates the use of the Premises
for a purpose other than as a bank, Tenant agress to reimburse
Landlord for Landlord's reasonable oasts and attorneys' fees
incurred in connection with the processing and documentation of
any such requested assignment, subletting, transfer, change of
cwrership or hypothecation of this Lease or Tenant's interest in
and to the Premises, not to exceed, however, $250.00 per request.
DAMAGE OR DESTRUCTION
Article 17.
17.1 In the event that the Premises or the Building,
or any portion or portions thereof, shall be damaged by fire,
explosion, windstorm or any other casualty, then Landlord shall
repair such damage as rapidly as reasonably possible, allowing
sufficient time for Landlord to settle with any applicable
insurer, and Tenant shall be entitled to an equitable abatement
of the Basic Annual Rent and all additional rent payable at such
time, based upon the extent to which the damage and Landlord's
making of such repairs shall interfere with the business carried
on by Tenant in the Premises. Notwithstanding the foregoing, if
the Premises and/or the Building shall be damaged by any casualty
which Landlord is otherwise obligated to repair, and such damage
shall be to the extent of more than twenty-five percent (25%) of
the value of the Building at the time of such damage, or should
such damage occur during the last twelve (12) months of the term
of this Lease, or should such damage be caused by a casualty not
covered by standard fire and extended coverage insurance or any
other insurance carried by Landlord and exceeds twenty percent
(20%) of the value of the Building at the time of such damage,
then Landlord may in any of such events, at its election upon
notice to Tenant given within thirty (30) days after such damage,
terminate this Lease effective as of the date of the casualty.
Notwithstanding the foregoing, there shall be no abatement of
rent by reason of any portion of the Premises being unusable for
a period equal to one (1) day or less. Unless this Lease is
terminated by Landlord pursuant to this section, Tenant may
terminate this Lease unless Landlord commences the restoration
and repair of such casualty damage required by this Section and,
subject to force majeure, substantially completes the work of
such restoration and repair and repair within eight (8) months of
the date of such casualty. See the attached page 24 (a).
17.2 No damages, compensation or claim shall be
payable by Landlord for inconvenience, loss of business or
annoyance arising from any repair or restoration of any portion
of the Premises or other portion of the Building. Landlord shall
use its best efforts to effect such repair or restoration
promptly and in such manner as not unreasonably to interfere with
Tenant's use and occupancy.
17.3 Landlord shall not be required to carry insurance
of any kind on Tenant's property and, except by reason of the
breach by Landlord of any of its obligations hereunder (subject
to the provisions of Article 14), shall not be obligated to
repair any damage thereto or to replace the same.
17.4 A total destruction of the Building shall
automatically terminate this Lease, provided, however, that
Tenant may thereafter for a period of not to exceed sixty (60)
days, enter the Premises for the purpose of salvaging personal
property and conducting investigations.
If the Premises cannot be occupied and used for banking
purposes as a result of casualty damage to the Premises or the
Building and if this Lease is not terminated under this Section
17.1 by reason of such casualty to the point tht the Premises can
be reoccupied for banking purposes, Landlord agrees to cooperate
reasonably with Tenant to permit Tenant's temporary use and
occupancy of such space until Tenant reasonably can reopen the
Premises for the conduct of its banking business. In such event,
Tenant shall execute a lease for such space on Landlord's then
standard form applicable to such space, modified to conform to
this Section, and pay the lesser of (I) the then market rate for
such space or (ii) a pro rata portion of the rent payabe under
this Lease prior to such casualty increased by the Additional
Rent payable under Article 3 for the preceding calendar year,
based on the ratio between the net rentable area in the Premises
and the net rentable area in such space to be leased by Tenant.
Any and all leasehold improvements required for the use and
occupancy of such space shall be constructed by Tenant, at
Tenant's sole cost and expense, shall be approved by Landlord,
which approval shall not unreasonably be withheld, and shall be
removed by Tenant promptlyupon th expiration of the term of such
lease and any damage resulting from such removal shall be
repaired by Tenant. A default by Tenant under any such lease
shall constitute a default under this Lease and any default under
this Lease by Tenant shall constitute a default by Tenant under
such new lease. Space previously leased and occupied by lessee
shall not be deemed available for lease so long as Landlord is
negotiating with the occupant of such space for a new lease
and/or an extension or renewal of an existing lease. Nothing
contained herein shall be construed as obligating Landlord to
divide any space available for lease so as to permit Tenant's
occupancy of less than all of the said space. Tenant agrees to
promptly repair and/or replace its leasehold improvements,
fixtures and equipment upon Landlord's completion of its repairs
to the Premises and/or the Building required for Tenant's work
and the use and occupancy of the Premises. If such suitable
space in the Building is not available following any such
casualty, if this Lease is not terminated under Section 17.1
above and if there is an unleased vacant building pad in any
portion of the Project, then owned by Landlord, free of option
and/or purchase agreements, Landlord agrees to rent space upon
such building pad, or upon any portion of the common area in the
Project, to Tenant for the erection and operation of a temporary
banking facility, pursuant to plans for such work approved by
Landlord (such approval shall not unreasonably be withheld) for
the temporary term contemplated above. Tenant shall pay as
rental for such use a proportionate share of the rental then
payable hereunder, based upon the net rentable area occupied by
Tenant in such temporary facility to the net rentable area of the
Premises, together with a pro rata share of the expenses
described in Section 35(h) allocable to the parcel upon which
Tenant's temporary facilities are situated under the Declaration
based upon the ratio between the building area (as defined in the
Declaration) in such temporary facility to the total building
area allowed to be constructed on such parcel under the
Declaration. Except for term, location of the leased premises and
rental, such rental agreement shall be upon the terms
contemplated in Section 1.2 above; provided that if such
temporary facility is located on a building pad, Tenant's tax
liability shall include the land tax allocable to the land area
occupied by such temporary facility.
EMINENT DOMAIN
Article 18.
18.1 If the whole of the Premises or so much thereof as
to render the balance unusable by Tenant shall be taken under
power of eminent domain, this Lease shall automatically terminate
as of the date of such condemnation, or as of the date possession
is taken by the condemning authority, whichever is earlier. No
taking of the Drive-Through Facilities shall be deemed to render
the balance of the Premises unusable by Tenant. No award for any
partial or entire taking shall be apportioned, and Tenant hereby
assigns to Landlord any award which may be made in any taking or
condemnation affecting the Premises or any portion of the
Project, together with any and all rights of Tenant now or
hereafter arising in or to the same or any part thereof,
provided, however, that nothing contained herein shall be deemed
to give Landlord any interest in or to require Tenant to assign
to Landlord any award made to Tenant for the taking of the
unamortized value of improvements installed by or under Tenant,
amortized on a straight-line basis over the last twenty-five (25)
years of the term of this Lease, including any unexercised
extension options.)
18.2 In the event of a partial taking which does not
result in a termination of this Lease, rent shall be abated in
proportion to the part of the Premises so made unusable by
Tenant.
EXHIBIT C
RULES AND REGULATIONS ATTACHED
TO AND MADE A PART OF
OFFICE LEASE
1. The sidewalks, entrances, passages, courts,
elevators, vestibules, stairways, corridors or halls of the
Building shall not be obstructed or used for any purpose other
than ingress and egress. The halls, passages, entrances,
stairways, balconies and roof are not for the use of the general
public, and Landlord shall in all cases retain the right to
control and prevent access thereto by all persons whose presence
in the judgment of the Landlord shall be prejudicial to the
safety, character, reputation or interests of the Building and
its tenants, provided that nothing herein contained shall be
construed to prevent such access by persons with whom Tenant
normally deals in the ordinary course of its business unless such
persons are engaged in illegal activities or violate Landlord's
applicable rules and regulations. No tenant and no employees of
any tenant shall go upon the roof of the Building without the
writing consent of Landlord.
2. No awnings or other projections shall be attached
to the outside walls of the Building without the prior written
consent of Landlord. No hanging planters, television sets or
other objects shall be attached to or suspended from ceilings
without the prior written consent of Landlord. No curtains,
blinds, shades or screens shall be attached to or hung in, or
used in connection with, any window or door of the Building,
without the prior written consent of Landlord. Except as
otherwise specifically approved by Landlord, all electrical
ceiling fixtures hung in offices or spaces along the perimeter of
the Building must be fluorescent, of a quality, type, design and
bulb color approved by Landlord.
3. No signs, advertisement or notice shall be
exhibited, painted or affixed by any tenant on any part of, or so
as to be seen from the outside of, his premises or the Building
without the prior written consent of the Landlord. In the event
of the violation of the foregoing by any tenant, Landlord may
remove same without any liability, and may charge the expense
incurred in such removal to the tenant violating this rule. The
Building lobby directory tablet shall be inscribed, painted or
affixed for each tenant by Landlord and shall be of a size, color
and style acceptable to Landlord.
4. The wash room partitions, mirrors, wash basins and
other plumbing fixtures shall not be used for any purpose other
than those for which they were constructed, and no sweepings,
rubbish, rags or other substances shall be thrown therein. All
costs incurred to correct damage resulting from any misuse of the
fixtures by a tenant or such tenant's servants, employees,
agents, visitors or licensees shall be promptly reimbursed
Landlord by such tenant upon demand.
5. No tenant shall mark, paint, drill into, or in any
way deface any part of his premises or the Building without the
prior written consent of Landlord. No boring, cutting or
stringing of wires or laying of linoleum or other similar floor
coverings shall be permitted except with the prior written
consent of Landlord and as Landlord may direct.
6. No bicycles, vehicles, vending machines or animals
of any kind shall be brought into or kept in or about the
Building and no cooking shall be done or permitted by any tenant
on his premises except that the preparation of coffee, tea, hot
chocolate and similar items for the tenant and its employees and
business visitors shall be permitted. No tenant shall cause or
permit any unusual or objectionable odors to escape from his
premises. Landlord acknowledges that Tenant's premises will
include an employee's kitchen with stove and microwave for use by
employees and caterers catering Board of Director's meetings and
other bank related meetings and bank related activities and
agrees that nothing contained in this Paragraph 6 shall be
construed as prohibiting such use of the premises, provided that
offensive cooking odors do not escape from the premises.
7. No premises within the Building shall be used for
manufacturing or for the storage of merchandise without
Landlord's prior written consent, except as such storage may be
incidental to the use of such premises for general office
purposes. No tenant shall occupy or permit any portion of his
premises to be occupied as an office for a public stenographer or
typist, or for the manufacture or sale of liquor, narcotics, or
tobacco in any form, or as a medical office, or as a barber shop,
manicure shop or employment agent, except with Landlord's prior
written consent. No tenant shall engage or pay any employees on
his premises except those actually working for such tenant on his
premises nor advertise for laborers giving an address at his
premises. No portion of the Building shall be used for lodging
or sleeping without Landlord's prior written consent nor for any
immoral or illegal purpose.
8. No tenant shall make, or permit to be made any
unseemly or disturbing noises, sounds or vibrations or disturb or
interfere with occupants of this or neighboring buildings or
premises or those having business with them whether by the use of
any musical instrument, radio, phonograph, unusual noise, or in
any other way.
9. No tenant shall throw or permit to be thrown anything
out of doors or down the passageways.
10. No tenant shall at any time bring or keep or permit
to be brought or kept upon his premises any inflammable,
combustible or explosive fluid, chemical or substance. No tenant
shall do or permit anything to be done in his premises, or bring
or keep anything therein, which shall in any way increase the
rate of fire insurance on the Building or on the property kept
therein, or obstruct or interfere with the rights of other
tenants, or in any way injure or annoy them, or conflict with the
regulations of the Fire Department or the fire laws, or with any
insurance policy upon the Building or any part thereof, or with
any rules and ordinances established by the local health
authority or other governmental authority.
11. All removals, or the carrying in or out of any
safes, freight, furniture, or bulky matter of any description
must take place during the hours which the Landlord may determine
from time to time. The moving of safes or other fixtures or bulky
matter of any kind must be made upon previous notice to the
manager of the Building and under his supervision and the persons
employed by any tenant for such work must be acceptable to the
Landlord. The Landlord reserves the right to inspect all safes,
freight or other bulky articles to be brought into the Building.
The Landlord reserves the right to prohibit or impose conditions
upon the installation in the Premises of heavy objects which
might overload the Building floors.
12. No tenant shall purchase or otherwise obtain for
use in his premises, water, ice, towel, vending machine,
janitorial, maintenance or other services of any kind except from
persons authorized by Landlord, and at hours and under
regulations fixed by Landlord.
13. Landlord shall have the right to prohibit any
advertising by any tenant which, in Landlord's opinion, tends to
impair the reputation of the Building or its desirability as an
office building and upon written notice from Landlord any tenant
shall refrain from or discontinue such advertising.
14. Landlord reserves the right to exclude from the
Building between the hours of 7 p.m. and 7 a.m. and at all hours
of Sundays and legal holidays all persons who do not present a
pass to the Building signed by the Landlord. The Landlord shall
furnish passes to persons for whom any tenant
requests the same in writing. Each tenant shall be responsible
for all persons for whom he requests passes and shall be liable
to the Landlord for all acts of such persons.
15. Any persons employed by any tenant to do janitor
work, shall, while in the Building and outside of his premises,
be subject to and under the control and direction of the manager
of the Building (but not as an agent or servant of said manager
or of the Landlord, and tenant shall be responsible for all acts
of such persons). Except with Landlord's prior written
permission, no tenant shall permit janitorial services to be
performed during the hours of 7:00 a.m. to 6:00 p.m. Mondays
through Fridays.
16. All doors opening into public corridors shall be
kept closed, except when in use for ingress and egress.
17. The requirements of tenants will be attended to only
upon application to the building manager's office of the
Building.
18. Canvassing, soliciting and peddling in the Building
are prohibited and each tenant shall cooperate to prevent the
same.
19. All office equipment of any electrical or
mechanical nature shall be placed by tenants in their premises in
settings approved by Landlord, to absorb or prevent any
vibration, noise or annoyance.
20. No air conditioning unit or other similar
apparatus shall be installed or used by any tenant without the
written consent of Landlord.
21. There shall not be used, in any space, or the
public halls of the Building, either by any tenant or others, any
hand trucks except those equipped with rubber tires and side
guards.
22. Landlord will direct electricians as to where and
how telephone or telegraph wires are to be introduced. No boring
or cutting for wires or stringing of wire will be allowed without
written consent of Landlord. The location of telephones, call
boxes and other office equipment affixed to the premises shall be
subject to the approval of Landlord.
23. Tenants shall cooperate with Landlord in obtaining
maximum effectiveness of the cooling system when outside
temperatures are in excess of 65 by closing drapes when the
sun's rays fall directly on windows of the Premises. Tenant
shall not obstruct, alter or in any way impair the efficient
operation of Landlord's heating, ventilating and air conditioning
system and shall not place bottles, machines, parcels or any
other articles on the induction unit enclosure so as to interfere
with air flow. Tenant shall not tamper with or change the
setting of any thermostats or temperature control valves.
SIGN CRITERIA
"None "
Exhibit "D"
EXHIBIT "E"
1. Vault door.
2. Safety deposit boxes, including frames.
3. Chandeliers.
4. Teller counters and booth.
5. Telephone and other communication systems, including
cables for service, business and printing.
6. Computer and computer cable systems.
7. Decorator items, such as wood carvings attached to
ceilings or walls (other than wall coverings such as
fabrics and/or paneling and molding), provided that any damage to
ceilings and/or walls resulting from such removal is
repaired by Tenant.
CONDITION SUBSEQUENT
Article 19.
Tenant shall use its best efforts and diligently pursue
obtaining the approval of this Lease by the Comptroller of the
Currency of the United States Government. In the event Tenant
does not obtain such approval within 45 days after mutual
execution hereof, Landlord may terminate this Lease by giving
written notice of such termination to Tenant at any time prior to
the date such approval is obtained by Tenant. In the event that
the Comptroller of the Currency disapproves of this Lease by
giving written notice of such disapproval to Tenant and in the
further event that Landlord is unwilling to make modifications to
this Lease required to obtain such approval within thirty (30)
days of Landlord's receipt of a copy of said notice of
disapproval, Tenant may terminate this Lease by giving written
notice of such disapproval to Landlord. Tenant agrees to promptly
deliver a copy of any such notice of disapproval received by
Tenant to Landlord. In the event of such termination, each of
the parties shall be excused from all covenants and obligations
to be performed or observed after the date of such termination,
and all deposits, moneys, plans and drawings delivered to
Landlord by Tenant shall be returned to Tenant.
PARKING
Article 20.
20.1 Subject to Section 20.4 and 20.5 below, Landlord
shall maintain at all times, and without
fee to Tenant, Tenant's employees or invitees, and with free
validation2, for use as a visitor and temporary parking area, the
portion or portions of the parking area cross-hatched on Exhibit
"B", which shall provide for 20 parking spaces immediately
adjacent to the Premises for the exclusive use of Tenant's
invitees. Said cross-hatched portion of the parking area shall
not be relocated or altered in any material way without Tenant's
approval, which approval shall not unreasonably be withheld, and
no specific parking spaces shall be assigned to any person within
such cross-hatched portion of the parking area, provided,
however, that Tenant may erect parking identification and
limitation signs in this area with Landlord's prior written
consent, which shall not be unreasonably withheld. Landlord
hereby designates Tenant as the agent of Landlord to enforce the
exclusivity of said parking area, and Tenant may take all
reasonable action necessary to so enforce such exclusivity,
provided that Tenant indemnify Landlord from and against any
liability or loss by reason of such action. Landlord shall not
be responsible for the improper use of said parking area by
unauthorized persons. No monthly charges or parking charges
shall be payable with respect to said twenty parking spaces
during the first ten (10) years of the term of this Lease and if
a system of validated parking is instituted, Tenant shall be
entitled to free validated parking for said twenty spaces.
20.2 Except as otherwise provided in paragraph 20.5
hereof, and in addition to the parking described in Paragraph
20.1 hereof, Tenant and Tenant's employees and invitees shall be
entitled, at no cost, fee, or expense whatsoever to Tenant or
Tenant's employees or invitees, (the monthly charges and
validated parking charges described in Section 20.3 below
excepted), to the nonexclusive use in common with Landlord and
others designated by Landlord of such parking facilities as may
from time to time be constructed and maintained for such purposes
by Landlord upon or adjacent to the real property of which
Building is a portion. Tenant agrees to comply with and to cause
its employees and invitees to comply with such reasonable rules
and regulations with respect thereto as Landlord may from time to
time establish. Such rules and regulations may include, but
shall not be limited to the restriction of designated areas for
drive-through banking, restaurant or other drive-through
facilities, periodic and/or seasonal sales activities and the
designation of specific parking spaces and/or areas for parking
by Tenant and/or other occupants of the Building or Project and
their respective employees. Landlord shall not be liable to
Tenant by reason of the failure of any other occupant of the
Building and/or Project to comply with such rules and
regulations, provided that Landlord takes reasonable action to
enforce such rules and regulations. Notwithstanding footnote 1
in this Section 20.2 and Section 20.3 to the contrary no monthly
charge or parking charge shall be payable for surface parking
during the first five (5) years of the term of this Lease and if
a validated parking system is instituted, Tenant shall be
entitled to free validated parking for the use of such surface
parking spaces.
20.3 Landlord reserves the right, but shall not be
obligated, to (i) construct underground or multi-level parking
garages and/or structures, subject, however, to such monthly
rates and other charges that may be established or allowed by
Landlord, or by the operator of such parking areas, at any time
or from time to time during the term of this lease including
monthly rates as permitted by (i) above, (such monthly rates for
Tenant and its employees), shall not exceed monthly rates charged
other tenants in the Building, nor shall such rates exceed, in
any event, the sum of $30.00 per assigned space per month during
the first year such garage and/or structure is operated and the
sum of $20.00 per unassigned space per month during the first
such year of operation, not shall such rates exceed those charged
for assigned and unassigned parking spaces in comparable parking
garages in the County of Orange, State of California, (ii) to set
aside and reserve parking garages and/or structures or areas for
use by certain occupants of the Project, their employees and/or
invitees and/or to institute systems of pay or validated parking
therein, and/or to limit parking in such areas to temporary
parking or temporary parking for use by certain occupants of the
Project, their employees and/or invitees, (iii) to institute
valet parking areas and systems on the Project, or portions
thereof, (iv) subject to Section 20.2 above, to alter and/or
modify the layout and design of the parking and driveway areas
from time to time constructed within or proposed to be
constructed within the Project; provided that Landlord shall at
all times, subject only to condemnation and/or other governmental
restriction, provide or cause to be provided sufficient parking
spaces for the Building to satisfy the parking requirements of
the City of Huntington Beach then applicable to the Building.
20.4 Tenant agrees that parking spaces designated for
use by Tenant, its employees, subtenants and the employees of its
subtenants may be either on the surface or within a parking
garage and Tenant agrees to park and to cause its employees,
subtenants and the employees of its subtenants to park within
parking spaces or areas from time to time designated by Landlord
for such purpose, provided that Tenant shall have the
preferential right to select the location of not more than 35
spaces for standard sedan type automobiles during the term of
this Lease for the exclusive use of Tenant, its employees and
invitees on the first or second floor of the parking structure.
In the event that such a parking structure is constructed within
the Project, provided that Tenant makes such selection within
thirty (30) days of Tenant's receipt of written request from
Landlord to make such selection, together with a floor plan of
the structure showing entrances, exits and parking spaces.
Landlord agrees not to make such a request of Tenant prior to the
commencement of construction of said structure. Tenant shall
further have the right to reduce the number of spaces used by
Tenant or Tenant's employees upon not less than thirty (30)days
written notice to Landlord and the operator of the parking
structure.
20.5 In the event that any parking surcharge or
regulatory fee, however designated, should be imposed upon or
levied or assessed against the Project, or any portion thereof,
on or on account of the parking spaces thereon, by any
governmental agency or authority pursuant to the "Clean Air Act",
or any plan implemented pursuant to such Act or any enactment
amendatory or in substitution thereof, or pursuant to any other
governmental act or decree, Tenant acknowledges that Landlord and
the other owners of the Project may elect to impose a parking
charge or additional parking charge upon the users of the parking
areas within the Project in order to recover any such surcharge
or fee from the users of such parking spaces. In the event that
Landlord and said other owners do not elect to collect any such
surcharge or fee from the users of the parking areas within the
Project by instituting such a parking charge, that portion of any
such surcharge or fee payable by Landlord, as the owner of Parcel
1, as per the above described Parcel Map, pursuant to law or
under any agreement for allocation with other owners of the
Project, shall be included within Total Operating Expenses as
defined in Section 3.5.
DEFAULTS AND REMEDIES
Article 21.
21.1 The occurrence of any of the following shall
constitute a material default and breach of this Lease by Tenant:
(i) Any failure by Tenant to pay the rental or
to make any other payment required to be made by Tenant
hereunder, where such failure continues for five (5) days after
written notice thereof by Landlord to Tenant.
(ii) The abandonment or vacation of the Premises
by Tenant.
(iii) Any failure by Tenant to observe and
perform any other provision of this Lease to be observed or
performed by Tenant, where such failure continues for thirty (30)
days (except where a different period of time is specified in
this Lease) after written notice by Landlord to Tenant. If the
nature of such default is such that the same cannot reasonably be
cured within such thirty-day period, financial inability
excepted, Tenant shall not be deemed to be in default if Tenant
shall within such period commence such cure and thereafter
diligently prosecute the same to completion.
21.2 In the event of any such default by Tenant, then,
in addition to any other remedies available to Landlord at law or
in equity, Landlord shall have the immediate option to terminate
this Lease and all rights of Tenant hereunder by giving Tenant
written notice of such election to terminate. In the event that
Landlord shall elect to so terminate this Lease then Landlord may
recover from Tenant:
(i) the worth at the time of award of any unpaid
rent which had been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount
by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such
rental loss Tenant proves could have been reasonably avoided;
plus
(iii) the worth at the time of award of the amount
by which the unpaid rent for the balance of the term after the
time of award exceeds the amount of such rental loss the Tenant
proves could be reasonably avoided; plus
(iv) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's
failure to perform his obligation under this Lease or which in
the ordinary course of things would be likely to result there
from, and
(v) at Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from
time to time by applicable law.
The term "rent" as used herein shall be deemed to be
and to mean the Basic Annual Rent and all other sums required to
be paid by Tenant pursuant to the terms of this Lease. As used
in subparagraphs (i) and (ii) above, the "worth at the time of
award" is computed by allowing interest at the rate charged by
Bank of America NT&SA on commercial loans to its most
creditworthy customers (prime rate) as of the date thirty (30)
days preceding the date of the award. As used in subparagraph
(iii) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award, but not
greater than ten percent (10%).
21.3 In the event of any such default by Tenant,
Landlord shall also have the right, with or without terminating
this Lease, to reenter the Premises and remove all persons and
property from the Premises; such property may be removed and
stored in a public warehouse or elsewhere at the cost of and for
the account of Tenant.
21.4 In the event of the vacation or abandonment of
the Premises by Tenant or in the event that Landlord shall elect
to re-enter as provided above or shall take possession of the
Premises pursuant to legal proceeding or pursuant to any notice
provided by law then if Landlord does not elect to terminate this
Lease as provided in this Article 21, then Landlord may from time
to time, without terminating this Lease, either recover all
rental as it becomes due or relet the Premises or any part
thereof for such term or terms and at such rental or rentals and
upon such other terms and conditions as Landlord in its sole
discretion may deem advisable with the right to make alterations
and repairs to the Premises.
21.5 In the event that Landlord shall elect to so
relet, then rentals received by Landlord from such reletting
shall be applied: First, to the payment of any indebtedness other
than rent due hereunder from Tenant to Landlord; second, to the
payment of any cost of such reletting; third, to the payment of
the cost of any alterations and repairs to the Premises; fourth,
to the payment of rent due and unpaid hereunder; and the residue,
if any, shall be held by Landlord and applied in payment of
future rent as the same may become due and payable hereunder.
Should that portion of such rentals received from such reletting,
during any month which is applied by the payment of rent
hereunder, be less than the rent payable during that month by
Tenant hereunder, then Tenant shall pay such deficiency to
Landlord immediately upon demand therefor by Landlord. Such
deficiency shall be calculated and paid monthly. Tenant shall
also pay to Landlord as soon as ascertained, any costs and
expenses incurred by Landlord in such reletting or in making such
alterations and repairs not covered by the rentals received from
such reletting.
21.6 No re-entry or taking possession of the Premises
by Landlord pursuant to this Article 21 shall be construed as an
election to terminate this Lease unless a written notice of such
intention be given to Tenant or unless the termination thereof be
decreed by a court of competent jurisdiction. Notwithstanding any
reletting without termination by Landlord because of any default
by Tenant, Landlord may at any time after such reletting elect to
terminate this Lease for any such default.
21.7 In the event of the material and undisputed
default of Tenant hereunder, Landlord shall have the right at
Landlord's option, to suspend or discontinue the services
specified in Article 5, above, or any part thereof, during the
continuance of any such default and any such suspension or
discontinuance shall not be deemed or construed to be an eviction
or ejection of Tenant.
SURRENDER OF PREMISES; REMOVAL OF PROPERTY
Article 22.
22.1 Upon the expiration of the term of this Lease, or
upon any earlier termination of this Lease, Tenant shall quit and
surrender possession of the Premises to Landlord in as good order
and state of repair as the same are now or hereafter may be
improved by Landlord or Tenant, reasonable wear and tear and
repairs which are Landlord's obligation excepted, and shall,
without expense to Landlord, remove or cause to be removed from
the Premises all debris and rubbish, all furniture, equipment and
trade fixtures, free-standing cabinet work, moveable partitioning
and other articles of personal property owned by Tenant or
installed or placed by Tenant at its expense in the Premises and
all similar articles of any other persons claiming under Tenant,
and Tenant shall repair all damages to the Premises resulting
from such removal.
22.2 Whenever Landlord shall re-enter the Premises as
Article 21 hereof, or as otherwise provided in any property of
Tenant not removed by Tenant upon the expiration of the term of
this Lease (or within forty-eight (48) hours after a termination
by reason of Tenant's default), as provided in this Lease, shall
be considered abandoned and Landlord may remove any or all of
such items and dispose of the same in any manner or store the
same in a public warehouse or elsewhere for the account and at
the expense and risk of Tenant, and if Tenant shall fail to pay
the cost of storing any such property after it has been stored
for a period of ninety (90) days or more, Landlord may sell any
or all of such property at public or private sale, in such manner
and at such times and places as Landlord, in its sole discretion,
may deem proper, without notice to or demand upon Tenant, for
the payment of all or any part of such charges or the removal of
any such property, and shall apply the proceeds of such sale:
First, to the cost and expenses of such sale, including
reasonable attorneys' fees actually incurred; second, to the
payment of the cost of or charges for storing any such property;
third, to the payment of any other sums of money which may then
or thereafter be due to Landlord from Tenant under any of the
terms hereof; and fourth, the balance, if any, to Tenant.
22.3 All fixtures, equipment, alterations, additions,
improvements and/or appurtenances attached to or built into the
Premises prior to or during the Term, whether by Landlord at its
expense or at the expense of Tenant or both, shall, be and remain
part of the Premises and shall not be removed by Tenant at the
end of the term the fixtures itemized on the attached Exhibit
"E", excepted such fixtures, equipment, alterations, additions,
improvements and/or appurtenances shall include but not be
limited to: All floor coverings, drapes, panelings, molding,
doors, vaults, plumbing systems, HVAC ducts, fans and other
equipment, lighting systems, silencing equipment communication
systems, all fixtures and outlets for the systems mentioned above
and for all telephone, radio, telegraph and television purposes,
and any special flooring or ceiling installations, except those,
if any, itemized on the attached Exhibit "E".
COSTS OF SUIT
Article 23.
23.1 If Tenant or Landlord shall bring any action for
any relief against the other, declaratory or otherwise, arising
out of or under this Lease, including any suit by Landlord for
the recovery of rent or possession of the Premises, the losing
party shall pay the successful party a reasonable sum for
attorney's fees in such suit and such attorney's fees shall be
deemed to have accrued on the commencement of such action and
shall be paid whether or not such action is prosecuted to
judgment.
23.2. Should Landlord, or Tenant, without fault on its
part, be made party to any litigation instituted by the other or
by any third party against the other, or by or against any person
holding under or using the Premises or the Building by license of
the other, or for the foreclosure of any lien for labor or
material furnished to or for Tenant or Landlord or any such other
person or otherwise arising out of or resulting from any act or
transaction of Tenant or Landlord or of any such other person,
each party covenants to save and hold the other harmless from any
judgment rendered against them or the Premises or any part
thereof, and all costs and expenses, including reasonable
attorneys' fees, incurred by either party in or in connection
with such litigation.
WAIVER
Article 24.
The waiver by Landlord or Tenant of any breach of any
term, covenant or condition herein contained shall not be deemed
to be a waiver of such term, covenant or condition as to any
subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of
this Lease, other than the failure of Tenant to pay the
particular rental so accepted, regardless of Landlord's knowledge
of such preceding breach at the time of acceptance of such rent.
HOLDING OVER
Article 25.
If Tenant holds over after the term hereof, with or
without the express or implied consent of Landlord, such tenancy
shall be from month to month only, and not a renewal hereof or
any extension for any further term, and in such case Basic Annual
Rent shall be payable in the monthly amount payable immediately
preceding the expiration of the lease term and at the time
specified in Articles 2 and 3 hereof, and such month to month
tenancy shall be subject to every other term, covenant and
agreement contained herein, including the payment of additional
rent under Article 3. Nothing contained in this Article 25 shall
be construed as consent by Landlord to any holding over by Tenant
and Landlord expressly reserves the right to require Tenant to
surrender possession of the Premises to Landlord as provided in
Article 22 above forthwith upon the expiration of the term of
this Lease or other termination of this Lease.
SUBORDINATION
Article 26.
Tenant agrees that this Lease shall be subject and
subordinate to any first mortgage, or first trust deed heretofore
or hereafter placed by Landlord or its successors in interest
upon its interest in said Premises to secure the payment of
monies loaned, interest thereon, and other obligation, in whole
or in part, at the option of the holder of such first mortgage or
first deed of trust, provided that such first trust deed lender
first delivers to Tenant a nondisturbance agreement in a form
satisfactory to Tenant, Tenant agrees to execute and deliver,
upon demand of Landlord, any and all instruments desired by
Landlord subordinating in the manner requested by Landlord this
lease to such mortgage, trust deed or like encumbrance. The
subordination of this Lease to any such mortgage, deed of trust
or other encumbrance shall, however, be subject to the condition
that in the event of the sale of the real property of which the
Premises are a part upon foreclosure or upon the exercise of a
power of sale, Tenant will attorn to the purchaser and recognize
the purchaser as the Landlord under this Lease.
.
RULES AND REGULATIONS
Article 27.
The Rules and Regulations attached hereto as Exhibit
"C" by this reference are hereby incorporated herein and made a
part hereof. Tenant agrees to abide by and comply with said Rules
and Regulations and any reasonable and nondiscriminatory
amendments, modifications and/or additions thereto as may
hereafter te adopted and published by written notice to tenants
by Landlord for the safety, care, security, good order, and/or
cleanliness of the Premises and/or the Building. Landlord shall
not be liable to Tenant for any violation of such rules and
regulations by any other tenant, provided that Landlord takes
reasonable actions to enforce the terms of such rules and
regulations, including any reguired legal action, required to
either (i) prevent interference with Tenant's use of the Premises
arising from such violation, or (ii) insure that the Building is
operated and used in a manner consistent with other first-class
office buildings in the Southern California area. This Section
shall not require Landlord to institute legal action to enforce
Paragraph 24 of Exhibit "C".
DE F I NED TERMS
Article 28.
The words "Landlord" and "Tenant", as used herein shall
include the plural as well as the singular. Words used in
neuter gender include the masculine and feminine and words used
in the masculine or feminine gender include the neuter. If there
be more than one Tenant, the obligations hereunder imposed upon
Tenant shall be joint and several. The headings or titles to the
Articles of this Lease are not a part of this Lease and shall
have no effect upon the construction or interpretation of any
part thereof.
HEIRS AND ASSIGNS
Article 29.
Subject to the provisions of Article 15 hereof relating
to assignment and subletting, this Lease is intended to and does
bind the heirs, executors, administrators, personal
representatives, successors and assigns of any and all of the
parties hereto.
TIME OF ESSENCE
Article 30.
Time is of the essence of this Lease.
SEPARABILITY
Article 31.
If any term or provision of this Lease shall be held
invalid or unenforceable to any extent, the remainder of this
Lease shall not be affected thereby and each term and provision
of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
ENTIRE AGREEMENT
Article 32.
This instrument along with any exhibits and attachments
or other documents affixed hereto or referred to herein
(including without limitation the Work Letter) constitutes the
entire and exclusive agreement between Landlord and Tenant
relative to the Premises herein described, and this agreement and
said exhibits and attachments may be altered, amended or revoked
only by an instrument in writing signed by both-Landlord and
Tenant. Landlord and Tenant hereby agree that all prior or
contemporaneous oral agreements, understandings, and/or practices
relative to the leasing of the Premises are merged in or revoked
by this agreement.
WORK LETTER
Article 33.
The Premises shall be finished in accordance with the
Work Letter.
RIGHT OF LANDLORD TO PERFORM
Article 34.
All covenants and agreements to be performed by Tenant
under any of the terms of this Lease shall be performed by Tenant
at Tenant's sole cost and expense and without any abatement of
rent. If Tenant shall fail to pay any sum of money, other than
rent, required to be paid by it hereunder or shall fail to
perform any other act on its part to be performed hereunder,
including without limitation providing or evidencing the
provision of any insurance and/or the payment or any lien, and
such failure shall continue beyond any applicable grace period
set forth in Article 21, Landlord may, but shall not be obligated
so to do, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment, obtain any such
insurance, pay any such lien or perform any such other act on
Tenant's part to be made or performed as in this Lease provided.
All sums so paid by Landlord and all necessary incidental costs,
together with interest thereon at the maximum rate permitted by
law per annum but not to exceed the prime rate charged from time
to time by Bank of America NT & SA plus 5% from the date of such
payment by Landlord, shall be payable to Landlord on demand and
Tenant covenants to pay any such sums, and Landlord shall have
(in addition to any other right or remedy of Landlord) the same
rights and remedies in the event of the nonpayment thereof by
Tenant as in the case of default by Tenant in the payment of the
rent.
INTEREST ON TENANT'S OBLIGATIONS
Article 35.
Any amount due from Tenant to Landlord (other than
interest) which is not paid when due shall bear interest at the
"prime rate" of Bank of America NT & SA or the maximum rate
permitted by law per annum, whichever is less, until paid (to the
extent enforceable by law), but the payment of such interest
shall not excuse or cure the default.
NOTICES
Article 36.
All notices which Landlord or Tenant may be required,
or may desire, to serve on the other may be served, as an
alternative to personal service, by mailing the same by
registered or certified mail, postage prepaid, addressed as set
forth in Item 12 of the Basic Lease Provisions and if so mailed
shall be deemed to have been served or given twenty-four (24)
hours after deposit in the U.S. Mails. Either party may change
the address for notices set forth in Item 12 by giving written
notice of such change of address to the other.
QUIET ENJOYMENT
Article 37.
Landlord covenants and agrees that Tenant, upon paying
the basic annual rent, additional rent and all other charges
herein provided for and observing and keeping the covenants,
agreements and conditions of this Lease on its part to be kept,
shall have the right to lawfully and quietly have, occupy and
enjoy the Premises during the term of this Lease without
hindrance or molestation of anyone lawfully claiming by, through
or under Landlord, subject, however, to the matters herein set
forth.
ESTOPPEL CERTIFICATES
Article 38.
38.1 Tenant agrees at any time and from time to time
upon not less than ten (10) days prior notice by Landlord to
execute, acknowledge and deliver to Landlord a statement in
writing certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the
same is in full force and effect as modified and stating the
modifications), and the dates to which the basic rent, additional
rent and other charges have been paid in advance, if any, and
stating whether or not to the best knowledge of the signer of
such certificate, Landlord is in default in performance of any
covenant, agreement or condition contained in this Lease and, if
so, specifying each such default of which the signer may have
knowledge, it being intended that any such statement delivered
pursuant to this section may be relied upon by any prospective
purchaser of the fee of the Building or any mortgages thereof or
any assignee of any mortgage upon the fee of the Building.
38.2 Landlord agrees at any time and from time to time
upon not less than twenty (20) days prior notice by Tenant to
execute, acknowledge and deliver to Tenant a statement in writing
certifying that this Lease is unmodified and in full force and
effect (or if there shall have been modifications that the same
is in full force and effect as modified and stating the
modifications) and the dates to which the basic rent, additional
rent and other charges have been paid in advance, if any, and
stating whether or not to the best knowledge of the signer of
such certificate Tenant is in default in the performance of any
covenant, agreement or condition contained in this Lease and, if
so, specifying each such default of which the signer may have
knowledge, it being intended that any such statement delivered
pursuant to this Section may be relied upon by any prospective
assignee of the Tenant's interest in this Lease.
ACCESS, CHANGES IN BUILDING
FACILITIES, NAME
Article 39.
39.1 The surfaces of all walls and doors bounding the
Premises (including exterior building walls, core corridor walls
and doors and any core corridor entrance), but excluding inside
surfaces of walls and doors bounding the Premises and any space
in or adjacent to the Premises used for shafts, stacks, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or
other building facilities, and the use thereof, as well as access
thereto through the Premises with prior written notice to Tenant
during normal business hours or otherwise accompanied by an
officer of Tenant as to time of desired access for the purposes
of operation, maintenance, decoration and repair, are reserved to
Landlord. Notwithstanding the foregoing, Tenant may install
building signs on the exterior of the Building as permitted by
Article 43 below.
39.2 Tenant shall permit Landlord to install, use and
maintain pipes, ducts and conduits within the demising walls,
bearing columns and ceilings of the Premises.
39.3 Subject to the terms and conditions of Article 3
of the Work Letter, Landlord reserves the right, at any time
before or after completion of the Building, without incurring any
liability to Tenant therefor, to make such changes in or to the
Building and the fixtures and equipment thereof, as well as in or
to the street entrances, halls, passages, concourse, elevators,
escalators, stairways and other improvements thereof, as it may
deem necessary or desirable, so long as such changes do not
affect the size of the Premises in an adverse manner and so long
as Tenant operates a bank from the Premises, Landlord agrees to
describe the Building by Tenant's bank name on Building
directories.
NONDISCRIMINATION
Article 40.
Tenant herein covenants by and for himself, his heirs,
executors, administrators, personal representatives, successors
and assigns, and all persons claiming under or through him, and
this Lease is made and accepted upon and subject to the following
conditions: That there shall be no discrimination against or
segregation of any person or group of persons, on account of
race, color, creed, sex, national origin, or ancestry, in the
leasing, sub-leasing, transferring, use, occupancy, tenure or
enjoyment of the Premises herein leased nor shall Tenant himself,
or any person claiming under or through him, establish or permit
any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees
of the Premises.
BROKERS
Article 41.
The parties recognize as the broker who procured this
Lease the firm specified in Item ll of the Basic Lease
Provisions, and agree that Landlord shall be solely responsible
for the payment of brokerage commissions to said broker and that
Tenant shall have no responsibility therefor unless written
provision to the contrary has been made a part of this Lease. If
Tenant has dealt with any other person or real estate broker in
respect to leasing or renting space in the Building, Tenant shall
be solely responsible for the payment of any fee due said person
or firm and Tenant shall hold Landlord free and harmless against
any liability in respect thereto.
PROJECT - NO WARRANTY
Article 42.
Nothing contained herein, including without limitation
the first phase site plan attached hereto as Exhibit "B" and/or
in the Declaration shall be construed as obligating Landlord to
construct any improvements within the Project, except for the
Building and the adjacent parking and common areas required by
applicable governmental authorities, nor as a representation or
warranty by Landlord that any portion of the Building or of other
buildings which may be constructed within the Project will be
devoted to any particular use or occupied by any particular
tenant or type of tenant. Landlord reserves the right from time
to time to add or to delete property from the Project and to
amend or terminate, in whole or in part, the covenants,
restrictions and easements established by the Declaration without
Tenant's approval or consent, provided that following any such
addition or deletion continues to be reasonable ingress and
egress to and from the Building and adjacent public streets and
sufficient parking spaces to satisfy the then applicable parking
code requirements of the City of Huntington Beach and provided
further that no such amendment or termination of the said
Declaration that is consistent with Tenant's rights hereunder
shall be binding upon Tenant.
SIGNS
Article 43.
43.1 Subject to approval of all appropriate
governmental authorities, and complying with all applicable laws,
Tenant shall have the exclusive right to install and affix, at
Tenant's sole cost and expense, exterior building signs on the
northeasterly and southwesterly sides of the Building, as
permitted by the regulating municipal authority, p rovided such
signs consist of the name of a bank then operating from the
Premises. Tenant may also install canopy signs on any canopy
constructed as a part of the Drive-Through Facilities, as
permitted by the regulating municipal authority. So long as
Tenant does not use the Premises for a purpose other than as a
bank, Landlord shall not allow any signs on the sides of the roof
to the building, other than the two (2) signs permitted Tenant by
this Section. If Tenant vacates or uses the Premises for a
purpose other than as a bank (a temporary vacation due to
casualty damage, remodeling, etc., excepted) Tenant shall remove
its signs from the roof of the building and its rights to use the
roof of the building for signs under this Section shall
terminate. Landlord reserves the right for other occupants of
the Building to install signs on the exterior sides of the
Building, except those portions of the exterior sides of the
Building enclosing the Premises on or below the first floor
and/or first floor canopy. Except for signs consistent with the
sign criteria set forth on the attached Exhibit "D", if any, the
size, location and design of any exterior roof signs to be
installed by Tenant shall be subject to the prior approval of
Landlord, which approval shall not unreasonably be withheld.
Tenant shall maintain and repair in a good and sightly condition
and pay any and all utility costs for its exterior signs.
Nothing contained herein shall be construed as a representation
by Landlord that governmental permits and approvals for either of
said signs may be obtained.