SHOPPING CENTER: Central Avenue Plaza Lompoc
SUITE: G6-12
TENANT: El Camino National Bank
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LANDLORD: AEW #33 TRUST
SHOPPING CENTER LEASE
TABLE OF CONTENTS OF LEASE i
LEASE SUMMARY-PROVISIONS iii
ARTICLE I PREMISES
Section 1.01 Premises Defined. . . . . . . . . . . . . .1
Section 1.02 Shopping Center . . . . . . . . . . . . . .1
Section 1.03 Modifications . . . . . . . . . . . . . . .1
ARTICLE II TERM
Section 2.01 Length of Term. . . . . . . . . . . . . . .1
Section 2.02 Rent Commencement Date. . . . . . . . . . .1
Section 2.03 Failure to Open . . . . . . . . . . . . . .1
ARTICLE III RENT
Section 3.01 Monthly Minimum Rent. . . . . . . . . . . .1
Section 3.02 Cost of Living Increase . . . . . . . . . .1
Section 3.03 Percentage Rent . . . . . . . . . . . . . .1
Section 3.04 Additional Rent . . . . . . . . . . . . . .1
ARTICLE IV RECORDS
Section 4.01 Records . . . . . . . . . . . . . . . . . .1
Section 4.02 Audit . . . . . . . . . . . . . . . . . . .1
ARTICLE V TAXES
Section 5.01 Real Estate Taxes . . . . . . . . . . . . .2
Section 5.02 Definitions . . . . . . . . . . . . . . . .2
Section 5.03 Other Taxes . . . . . . . . . . . . . . . .2
ARTICLE VI CONDUCT OF BUSINESS BY TENANT
Section 6.01 Use of Premises . . . . . . . . . . . . . .2
Section 6.02 Restrictions on Use . . . . . . . . . . . .2
ARTICLE VII MAINTENANCE, REPAIRS AND ALTERATIONS
Section 7.01 Maintenance and Repairs . . . . . . . . . .2
Section 7.02 Alterations, Additions, and Fixtures. . . .3
Section 7.03 Cleanliness; Waste and Nuisance . . . . . .3
ARTICLE VIII INSURANCE; INDEMNITY
Section 8.01 Liability Insurance- Premises . . . . . . .3
Section 8.02 Other Insurance . . . . . . . . . . . . . .3
Section 8.03 Insurance Policies. . . . . . . . . . . . .3
Section 8.04 Waiver. . . . . . . . . . . . . . . . . . .3
Section 8.05 Indemnity . . . . . . . . . . . . . . . . .3
Section 8.06 Exemption by Landlord . . . . . . . . . . .4
ARTICLE IX REPAIRS AND RESTORATION
Section 9.01 Minor Insured Damage. . . . . . . . . . . .4
Section 9.02 Uninsured Damage or Insured Substantial
Damage. . . . . . . . . . . . . . . . . . .4
Section 9.03 Damage Near End of Term . . . . . . . . . .4
Section 9.04 Continued Operation by Tenant . . . . . . .4
Section 9.05 Waiver. . . . . . . . . . . . . . . . . . .4
ARTICLE X ASSIGNMENT AND SUBLETTING
Section 10.01 Landlord's Rights. . . . . . . . . . . . .4
Section 10.02 No Release of Tenant . . . . . . . . . . .5
ARTICLE XI EMINENT DOMAIN
Section 11.01 Entire or Substantial Taking . . . . . . .5
Section 11.02 Partial Taking . . . . . . . . . . . . . .5
Section 11.03 Awards . . . . . . . . . . . . . . . . . .5
Section 11.04 Sale Under Threat of Condemnation. . . . .5
ARTICLE XII UTILITY SERVICE
Section 12.01 Utility Charges. . . . . . . . . . . . . .5
Section 12.02 Furnishing of Services . . . . . . . . . .5
Section 12.03 Interruption of Service. . . . . . . . . .5
Section 12.04 Heating, Ventilation and Air
Conditioning. . . . . . . . . . . . . . .5
ARTICLE XIII DEFAULTS; REMEDIES
Section 13.01 Defaults . . . . . . . . . . . . . . . . .5
Section 13.02 Remedies . . . . . . . . . . . . . . . . .5
Section 13.03 Determination of Rent. . . . . . . . . . .6
Section 13.04 Default by Landlord. . . . . . . . . . . .6
Section 13.05 Expense of Litigation. . . . . . . . . . .6
ARTICLE XIV COMMON AREAS
Section 14.01 Definition . . . . . . . . . . . . . . . .6
Section 14.02 Use of Common Areas. . . . . . . . . . . .6
Section 14.03 Control by Landlord. . . . . . . . . . . .6
Section 14.04 Environmental Protection Expense . . . . .7
Section 14.05 Common Area Charges. . . . . . . . . . . .7
Section 14.06 Proportionate Payment. . . . . . . . . . .7
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ARTICLE XV ESTIMATED CHARGES
Section 15.01 Election to Estimate Charges . . . . . . .7
Section 15.02 Statements of Actual Charges . . . . . . .7
Section 15.03 Adjustmen. . . . . . . . . . . . . . . . .7
Section 15.04 No Waiver. . . . . . . . . . . . . . . . .7
ARTICLE XVI SIGNS, LIGHTING AND ADVERTISING
Section 16.01 Signage. . . . . . . . . . . . . . . . . .7
Section 16.02 Advertising. . . . . . . . . . . . . . . .7
ARTICLE XVII MISCELLANEOUS
Section 17.01 Offset Statement . . . . . . . . . . . . .7
Section 17.02 Financial Statements . . . . . . . . . . .8
Section 17.03 Landlord's Right of Access . . . . . . . .8
Section 17.04 Holding Over . . . . . . . . . . . . . . .8
Section 17.05 Relocation of Premises . . . . . . . . . .8
Section 17.06 Transfer of Landlord's Interest. . . . . .8
Section 17.07 Floor Area . . . . . . . . . . . . . . . .8
Section 17.08 Separability . . . . . . . . . . . . . . .8
Section 17.09 Security Deposit . . . . . . . . . . . . .8
Section 17.10 Late Charges . . . . . . . . . . . . . . .8
Section 17.11 Interest . . . . . . . . . . . . . . . . .8
Section 17.12 Time of Essence. . . . . . . . . . . . . .8
Section 17.13 Headings . . . . . . . . . . . . . . . . .8
Section 17.14 Incorporation of Prior Agreements;
Amendments . . . . . . . . . . . . . . . .9
Section 17.15 Notices. . . . . . . . . . . . . . . . . .9
Section 17.16 Brokers. . . . . . . . . . . . . . . . . .9
Section 17.17 Waivers. . . . . . . . . . . . . . . . . .9
Section 17.18 Other Locations. . . . . . . . . . . . . .9
Section 17.19 Merchants' Association . . . . . . . . . .9
Section 17.20 Liens. . . . . . . . . . . . . . . . . . .9
Section 17.21 Subordination. . . . . . . . . . . . . . .9
Section 17.22 Successors in Interest . . . . . . . . . .9
Section 17.23 California Law . . . . . . . . . . . . . .9
Section 17.24 Zoning . . . . . . . . . . . . . . . . . .9
Section 17.25 Delays . . . . . . . . . . . . . . . . . .9
Section 17.26 Financing. . . . . . . . . . . . . . . . .9
Section 17.27 Limitation of Landlord's Liability . . . .9
Section 17.28 Tenant's Performance . . . . . . . . . . 10
Section 17.29 Waiver of Trial by Jury. . . . . . . . . 10
Section 17.30 Tenant's Property and Repair of
Property at Termination. . . . . . . . . 10
Section 17.31 No Warranties. . . . . . . . . . . . . . 10
Section 17.32 Recording. . . . . . . . . . . . . . . . 10
Section 17.33 Authority of Tenant. . . . . . . . . . . 10
Section 17.34 No Option to Lease . . . . . . . . . . . 10
ARTICLE XVIII
CONDITION OF PREMISES. . . . . . . . . . . . . . . . . . . . 10
SIGNATURES
EXHIBITS
RIDERS
ii JUNE 1987
SUITE G 6-12
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SHOPPING CENTER LEASE
LEASE SUMMARY PROVISIONS
Dated for Indentification Purposes: September 12, 1989
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Landlord: Thomas G. Eastman, H. Peter Norstrand, and John L. Patillo, as
Trustees of AEW #33 Trust, established under Declaration of Trust dated October
3, 1985, but not individually ("Landlord").
Address of Landlord: c/o D.W.A. Smith & Company, Inc.
1300 Quail Street, Suite 106
Newport Beach, CA 92660 Phone No.: 714/851-1244
Tenant: El Camino National Bank
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("Tenant")
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Trade Name: El Camino National Bank
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Address of Tenant: P.O. Box 997
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Lompoc, CA 93438
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Phone No.
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Shopping Center: Central Avenue Plaza, Lompoc, CA ("Shopping Center")
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Address of Premises: 1325 North H Street Suite E, Lompoc, CA 93436
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County: Santa Barbara
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("Premises") which Premises are outlined in red on
the site plan of the Shopping Center attached hereto
as Exhibit "A" and made a part hereof.
Size of Premises: Gross Ground Floor Area of Premises:3.85- square feet
Width 77 feet Depth: 50 feet
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(All measurements are approximate)
Lease Terms: Five (5) full years beginning November 1, 1989, plus
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Options shown on Rider No. 2
Rent Commencement Date: May 1, 1990
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Monthly Minimum Rent $4,815.00
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Monthly Estimated Charges $1.012.00
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Monthly Minimum rent shall be adjusted at the commencement of the THIRTEENTH
month following the Rent Commencement Date and every TWELFTH month thereafter,
as provided in Section 3.02.
Percentage Rent: N/A
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Permitted Uses: The operation of a branch or main banking office and
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for no other purpose.
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Concurrent Payments:
Security Deposit: $5,500.00 PAID TO LESSOR UPON EXECUTION OF LEASE
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First Month's Rent: $5,862.00 (including first month's estimated charges)
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(FIRST MONTHS RENT TO BE PAID TO LESSOR UPON MOVEIN BY LESSEE.)
Guarantor: JOHN J. KENNEDY, CLARKE K. MC CUNE,
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CHARLES W. WALKER
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Address of Guarantor:
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Phone No.
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Broker(s): Williams Bros. Realty
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Late Charge: 10% of unpaid amounts (see Section 17.10)
The foregoing Lease Summary Provisions are an integral part of this Lease and
each reference in this Lease to any such provision shall be construed to
incorporate all of the terms provided under such Lease Summary Provision. In
the event of any conflict between any Lease Summary Provision and the balance of
the Lease, the latter shall control.
Landlord's Initials
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Tenant's Initials
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Note: Landlords' and Tenant's initials present
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JUNE 1987
iii
SHOPPING CENTER LEASE
This Lease is dated for identification purposes SEPTEMBER 12, 1989 is made
by and between Landlord and Tenant, and incorporates the Lease Summary
Provisions specified on page iii, Exhibit "A" (Site Plan), Rider No 1, Rider
No. 2, Addendum, Guaranty, all of which are attached hereto.
ARTICLE I - PREMISES
SECTION 1.01 PREMISES DEFINED
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises for the term, at the rent, and upon all the conditions and agreements
set forth herein.
SECTION 1.02 SHOPPING CENTER
The parties hereto acknowledge that Exhibit "A" depicts the Shopping Center
before dedication or grant of easements for highways, streets, and public ways,
if any: Any site(s) shown on Exhibit "A" as "not a part" are excluded from the
Shopping Center. The Shopping Center as set forth in Exhibit "A" is a proposed
general layout and Landlord neither warrants not represents that the Shopping
Center is or shall be constructed as indicated thereon or that any tenant or
occupant designated by name of business shall be tenants in the Shopping Center
during the term hereof.
SECTION 1.03 MODIFICATIONS
Landlord reserves the right, in its sole discretion, at any time, to phase,
increase, decrease, or change the number, location, or dimension of the
buildings, the premises therein, driving lanes, driveways, wellways, parking
spaces, walkways and other improvements including, but not limited to, making
additions or alterations to any or all buildings in the Shopping Center.
ARTICLE II - TERM
SECTION 2.01 LENGTH OF TERM
The term of this Lease shall commence as of the date specified in the
applicable Lease Summary Provision, and shall continue for the period specified
in the applicable Lease Summary Provision measured from and beginning with said
date. However, if the term hereof commences on a day other than the first day
of the calendar month, the term of this Lease shall continue from the first day
of the calendar month next following the date hereof for the period of years set
forth in this Section 2.01.
SECTION 2.02 RENT COMMENCEMENT DATE
Tenant's obligation to pay rent shall commence on the earlier of the
following ("Rent Commencement Date"): (note: "a" and "b" are crossed out.) (c)
such other date as is agreed to by Landlord and Tenant and is set forth in the
applicable Lease Summary Provision.
SECTION 2.03 FAILURE TO OPEN
If Landlord notifies Tenant in writing that the Premises are ready for
occupancy as hereinabove set forth, and Tenant fails to take possession and open
the Premises for business, fully fixturized, stocked and staffed within 60 days
from the Rent Commencement Date, Landlord shall have, in addition to any and all
other remedies hereinafter provided, the right to immediately cancel and
terminate this Lease. If the Premises are not completed and possession
delivered to Tenant within 36 months from the date of execution hereof, then
this Lease shall be deemed null and void and have no further force or effect,
and there shall be no liability on the part of either party hereunder.
ARTICLE III - RENT
SECTION 3.01 MONTHLY MINIMUM RENT
From and after the Rent Commencement Date for each full calendar month
during the Lease term, Tenant shall pay to Landlord, in advance upon the first
day of each calendar month without demand, deduction or offset, the monthly
minimum rent specified in the applicable Lease Summary Provision, subject to
Section 3.02, plus all applicable excise taxes in lawful money of the United
States of America. One full monthly minimum rent payment shall be made by
Tenant to Landlord at the time of execution of this Lease. The monthly minimum
rent payment shall be made by Tenant to Landlord at the time of execution of
this Lease. The monthly minimum rent for any fractional part of a calendar
month at the beginning or end of the Lease term shall be a proportionate part of
the monthly minimum rent for a full calendar month based upon a 30-day month.
Payment shall be made to Landlord at the address set forth in the applicable
Lease Summary Provision or at such other place as may be designated from time to
time by Landlord. For purposes of venue, performance of this Lease shall be
deemed to be made at the address where rent payments are received.
SECTION 3.02 COST OF LIVING INCREASE
The amount of monthly minimum rent payable for the second and each
succeeding lease year of this Lease shall be adjusted as of the expiration of
each lease year of this Lease to reflect any change in the prices of goods and
services. The adjustment, if any, shall be calculated upon the basis of the
United States Department of Labor, Bureau of Labor Statistics, Consumer Price
Index for All Urban Consumers, Los Angeles-Anaheim-Riverside, California, All
Items, * ("CPI"). The CPI published for the calendar month four months prior
to the second and each succeeding lease year of this Lease shall be adjusted by
the percentage increase, if any, in the CPI as of the 8th month in the first
lease year and the 8th month in each succeeding lease year of this Lease
("adjustment date"); provided, however, that in no event shall the monthly
minimum rent be less than the monthly minimum rent for the immediately preceding
lease year. When the monthly minimum rent for a lease year is determined,
Landlord shall give Tenant written notice stating how the new monthly minimum
rent figure was computed. If the * base of the CPI is changed, the new base
shall be converted to the * base in accordance with tables issued by said
Bureau, and the base so converted shall continue to be used. If on any rental
adjustment date there shall not exist the CPI in the same format as recited in
this Section 3.02, the parties shall substitute any official index published by
existence and most nearly equivalent thereto. If the parties shall be unable to
agree upon a successor index, the parties shall refer the choice of the
successor index to arbitration in accordance with the rules of the American
Arbitration Association. *1982-84 = 100
SECTION 3.03 PERCENTAGE RENT
Note: All items under this section have been crossed out.
Initials are located on the bottom right hand corner of the page.
SECTION 3.04 ADDITIONAL RENT
Every payment required to be made by Tenant pursuant to this Lease shall be
additional rent due Landlord hereunder, whether or not expressly designated as
additional rent, and Tenant's failure to pay such additional rent to Landlord
when due shall entitle Landlord to exercise all rights and remedies provided in
Article XIII.
ARTICLE IV - RECORDS
SECTION 4.01 RECORDS
Note: All items under this heading have been crossed out.
SECTION 4.02 AUDIT
Note: All items under this heading have been crossed out.
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SECTION 5.01 REAL ESTATE TAXES
(a) Tenant shall pay to Landlord as additional rent all real estate taxes
( as hereinafter defined) applicable to the Premises, including the improvements
thereon. Landlord shall notify Tenant of the amount of Tenant's share of such
taxes, and Tenant shall pay to Landlord, Tenant's share of such taxes prior to
the due date thereof and no later than ten days after receipt from Landlord of
such notice. Landlord may, at its option, give Tenant a written estimate of
such taxes applicable to the Premises and Tenant shall pay same in a manner as
is provided in Article XV hereinafter stated.
(b) If, at any time during the term of this Lease, the methods of taxation
shall be altered so as to impose, in lieu of current methods of assessment and
taxation in whole or in part, taxes based on other standards, including, but not
limited to, a tax or excise on rent or any other tax, however described, or
assessed against Landlord on the rent or any portion thereof payable hereunder
as a direct substitute for the real property taxes. Tenant covenants to pay to
Landlord said tax in a manner and at a time to be determined by Landlord, but in
no event later than 10 days after receipt of said notice by Tenant.
SECTION 5.02 DEFINITIONS
(a) The term "real estate taxes" shall include all taxes, levies,
assessments, bonds and governmental charges levied upon or with respect to the
real property and improvements within the Shopping Center, other than the
portions thereof defined below as "common areas," and any tax or excise on rents
or any other tax, however described, levied against Landlord on account of the
rent reserved hereunder or on the business of renting space in the Shopping
Center; provided, however that the capital levy, net income or excess profits
taxes imposed upon Landlord except that if real estate taxes are withdrawn in
whole or in part and any substitute tax is made therefore, such tax shall in any
event for the purpose of this Lease be considered a real estate tax regardless
of how denominated or the source from which it is collected. Landlord and
Tenant acknowledge that the adoption of Proposition 13 by the voters of the
State of California in the June 1978 election may give rise to the imposition of
assessments, taxes, fees, levies and charges imposed by governmental agencies
for such services as fire protection, street, sidewalk and road maintenance,
refuse removal and other governmental services formerly provided without charge
to property owners or occupants (it being the intention of Tenant and Landlord
that any and all such new and increased assessments, taxes, fees, levies and
charges be included within the definition of real estate taxes for purposes of
this Section 5.02). The term "real estate taxes" shall also include all
expenses, including attorneys' fees, reasonably incurred by Landlord in seeking
reduction by the taxing authorities of real estate taxes applicable to the
Shopping Center.
(b) The term "real estate taxes applicable to the Premises" shall mean
the taxes separately assessed for the Premises or that portion of the real
estate taxes such term is hereinabove defined in Section 5.02(a), equal to the
product obtained by multiplying such real estate taxes by a fraction, the
numerator of which shall be the gross ground floor area of the Premises as
defined in the applicable Lease Summary Provision, and the denominator of which
shall be the gross ground floor area of all buildings, including the Premises,
occupied by tenants and which are then located within the Shopping Center,
together with an amount equal to 15% of said taxes to cover Landlord's
administrative and overhead expenses; provided, however that if any tenants in
such building or buildings pay real estate taxes directly to any taxing
authority, their gross ground floor area shall not be included in such
denominator.
(c) Real estate taxes which are levied on a fiscal year basis shall be
deemed to apply 1/12th to each calendar month in such fiscal year and shall be
charged to Tenant accordingly.
SECTION 5.03 OTHER TAXES
Tenant shall be responsible for and shall pay before delinquency all
municipal, county or state taxes, levies and fees of every kind and nature,
including, but not limited to, general or special assessments assessed during
the term of this Lease against any leasehold interest or personal property of
any kind, owned by, in, upon or about the Premises of Tenant. If any or all of
Tenant's fixtures or other personal property shall be assessed and taxed with
the Landlord's real property, Tenant shall pay to Landlord its share of such
taxes within 10 days after delivery to Tenant by Landlord of a statement in
writing setting forth the amount of such taxes applicable to such property of a
tenant. Additionally, Tenant shall pay to Landlord all applicable excise taxes.
ARTICLE VI - CONDUCT OF BUSINESS BY TENANT
SECTION 6.01 USE OF PREMISES
(a) Tenant is granted the non-exclusive right to use the Premises solely
for the purposes and under the trade name specified in the applicable Lease
Summary Provisions and for no other purposes or under any other name without the
prior written consent of Landlord. Tenant shall devote the entire Premises to
such use except for areas reasonably required for restrooms, office or storage
space. Tenant shall continuously and without interruption during the term hereof
conduct storage space. Tenant shall continuously and without interruption
during the term hereof conduct its business activity in the Premises during all
business hours usual for Tenant's type of business; however, in no event less
than eight hours per day, six days per week, but in any event during those
hours, if any, established by Landlord for the operation of the Shopping Center
unless Tenant is prevented from doing so by strike, fire or other cause beyond
Tenant's reasonable control, and except during reasonable periods for repairing,
cleaning and decorating the Premises. Tenant shall at all times carry a full
and complete stock of merchandise offered for sale at competitive prices and
shall maintain an adequate staff or the service of its customers. Tenant shall
employ its best and shall maintain an adequate staff for the service of
customers. Tenant shall employ its best judgment, efforts, and abilities to
operate the business conducted by it in the Premises in such manner as to
produce the maximum profitable volume of sales reasonably obtainable and to
enhance the reputation and attractivemenss of the Shopping Center. If any
conflict shall develop between Tenant and any other tenant of the Shopping
Center regarding what merchandise Tenant may carry or with respect to any other
matter governed by or referred to in this Article VI, Landlord shall be the sole
arbiter of such conflict and his decision shall be binding on Tenant, and
Landlord shall incur no liability to Tenant as a result of any determination
made by Landlord hereunder.
(b) For the purpose of computing percentage rent, Tenant's gross sales for
any period during which Tenant does not continuously conduct its business as
required by this Section 6.01 shall be deemed to be the greater of Tenant's
gross sales for (i) such period, or (ii) the corresponding period of the last
preceding year during which Tenant was continuously open for business.
SECTION 6.02 RESTRICTIONS ON USE
Tenant shall comply promptly with all applicable statutes, ordinances,
rules, regulations, restrictions, orders and requirements relating to the use of
the Premises. Tenant shall not use or permit the use of the Premises in any
manner that will tend to create a nuisance or tend to disturb other tenants or
occupants of the Shopping Center or tend to injure the reputation of the
Shopping Center. Tenant shall not sell, exhibit or display any immoral or
pornographic materials, goods or services in or on the Premises. Landlord
shall, in its sole discretion, determine whether such materials, goods or
services are immoral or pornographic in nature. No auction, fire sale,
bankruptcy sale, sidewalk sale, going out of business sale or continuous
discount operation may be conducted in the Premises without the prior written
consent of Landlord, which may be withheld in Landlord's sole discretion.
Tenant shall use its best efforts to complete or cause to be completed, all
deliveries, loading, unloading, rubbish removal and other services to the
Premises prior to 10:00 a.m. of each day. Landlord reserves the right to
further regulate the activities of Tenant in regard to deliveries and servicing
of the Premises, and Tenant agrees to abide by such further nondiscriminatory
regulations of Landlord.
Tenant shall not place or cause to be placed any fences, walls, booths,
stands, kiosks, racks, structures, divisions or rails outside the Premises in
the Shopping Center without the prior written consent of Landlord.
Landlord may, without liability therefore or notice to Tenant, remove any
item placed, constructed or maintained upon or outside of any roof, wall or
window of the building within which the Premises are located, unless such item
has been previously consented to in writing by Landlord.
Tenant shall keep the display windows and signs on the Premises
well-lighted during the hours from sundown to 10:00 p.m. unless prevented by
causes beyond the control of Tenant. If Landlord determines any display window
to be out of harmony with the business character or architecture of the
Premises, or with the balance of the Shopping Center, Tenant shall promptly
remove or modify such display as requested by Landlord.
Tenant shall comply at all times with such Rules and Regulations and such
amendments and modifications thereof and additions thereto as Landlord may from
time to time reasonably adopt for the safety, care and cleanliness of the
Shopping Center or the preservation of good order therein. Landlord shall not
be liable to Tenant for the failure of any tenant or other person to comply with
such Rules and Regulations.
Tenant shall not use the Premises or any part thereof for any purpose which
will increase the existing rate of insurance upon the Premises or any part
thereof for any purpose which will increase the existing rate of insurance upon
the Premises or the Shopping Center or cause the cancellation of any insurance
policy covering the Premises or the Shopping Center, nor shall Tenant sell or
permit to be kept, used or sold in or about the Premises any article which may
be prohibited by standard fire insurance policies.
Tenant shall not place any coin or token-operated amusement machines on or
in the Premises without the prior written consent of Landlord.
ARTICLE VII - MAINTENANCE, REPAIRS AND ALTERATIONS
SECTION 7.01 MAINTENANCE AND REPAIRS
(a) Subject to the provisions of Article IX and XII hereof, Tenant shall,
at its sole cost and expense during the term of this Lease, keep in first-class
order, condition and repair, the Premises and every part thereof, including,
without limiting the generality of the foregoing, maintenance, repair and
replacement of all plumbing, heating, ventilating, air conditioning, electrical
wiring and conduits, lighting facilities and equipment, fixtures, walls, wall
covering and paint,
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ceilings, floors and floor coverings, windows and window casement, doors, plate
glass, showcases, sprinkler systems (if any), skylights, entrances and other
facilities.
(b) Tenant shall not place any rubbish or other matter outside the
Premises, except in such containers as are authorized from time to time by
Landlord. Tenant shall promptly sweep and clean the sidewalk adjacent to the
Premises as needed.
(c) If Tenant fails to perform its obligations under this Section 7.01,
Landlord may, at its option, after five days written notice to Tenant, except in
the event of an emergency in the judgment of Landlord, in which case no notice
shall be required, enter upon the Premises and put the same in good order,
condition and repair and the cost thereof shall become due and payable as
additional rent by Tenant to Landlord upon demand.
(d) Tenant expressly waives any right pursuant to any law now existing, or
which may be effective during the term hereof, to make repairs at Landlord's
expense, including, without limitation, the provisions of Sections 1932(2),
1933(4), 1941 and 1942 of the California Civil Code, and any provisions
amendatory thereof or supplemental thereto.
(e) Tenant shall reimburse Landlord on demand for Tenant's pro rata share
of the cost of repairs made by Landlord to the roof of the building in which the
Premises are located, said pro rata share to be based on the proportion that the
gross ground floor area of the Premises bears to the gross ground floor area of
said building, and said reimbursement may be changed by Landlord pursuant to
Section 15.01 of this Lease.
SECTION 7.02 ALTERATIONS, ADDITIONS, AND FIXTURES
(a) Tenant shall not, without the prior written consent of Landlord, make
any alterations, improvements, remodeling or additions to either the interior or
exterior of the Premises or to fixtures installed therein in accordance with
approved fixture plans, or mark, paint, drill, or in any way deface any portion
of the Premises. Landlord may require as a condition and in consideration for
such approval that Tenant pay to Landlord a sum equal to Landlord's reasonable
expenses incurred in evaluating and approving Tenant's proposed improvements
and/or addition, including, but not limited to, attorneys', architectural and
engineering fees.
(b) Tenant shall maintain the Premises in accordance with all federal,
state, county and municipal laws and ordinances and with all rules, orders,
ordinances, and regulations at any time issued or in force applicable to the
Premises or to Tenant's use and occupation thereof, of the several federal,
state, county and city governments and of each and every department, bureau and
official thereof, and the Board of Fire Underwriters. If a change in such laws
or ordinances or additional development in the Shopping Center makes necessary
improvements, modifications, alterations or additions to the Premises
(including, without limitaiton, the installation of a fire protection system),
such improvements, modifications, alterations or additions shall be made at
Tenant's sole cost and expense.
(c) Tenant shall repair any damage to the building and/or store adjacent
to the Premises caused by Tenant's use or occupancy thereof. Any such repair
referred to in this Section 7.02(c) shall be completed by Tenant within 15 days
after notice to Tenant by Landlord. The provisions of this Section 7.02(c)
shall survive the expiration of the term hereof.
SECTION 7.03 CLEANLINESS; WASTE AND NUISANCE
Tenant shall at all times keep the Premises in a neat, clean and sanitary
condition, shall neither commit nor permit any waste or nuisance thereon, and
shall keep the walks, service, and loading areas adjacent thereto free from
waste and debris.
ARTICLE VIII - INSURANCE; INDEMNITY
SECTION 8.01 LIABILITY INSURANCE- PREMISES
(a) Tenant shall at all times during the term hereof and at Tenant's sole
expense, maintain in effect workers' compensation insurance and personal injury
liability and property damage liability insurance adequate to protect Landlord
and naming Landlord and Landlord's property management company as insured in the
liability contract, against liability for injury to or death or any person or
damage to property in connection with the use, operation or condition of the
Premises, in an amount not less the $1,000,000 combined single limit coverage.
In no event shall the limits of said policies be considered as limiting the
liability of Tenant under this Lease.
(b) If Tenant fails to perform its obligations under this Section 8.01,
Landlord may, at its option, obtain such insurance and the cost thereof shall
become due and payable as additional rent by Tenant to Landlord upon demand.
SECTION 8.02 OTHER INSURANCE
(a) Tenant shall pay as additional rent any and all insurance premiums on
the Premises for insurance not hereinabove described including, but not limited
to, insurance for fire and extended coverage, vandalism, malicious mischief,
sprinkler leakage and such other perils or risks, including earthquake and
flood, as Landlord may choose to insure, together with insurance for loss of
rental resulting from damage to the Premises by an insured peril and rent
guaranty insurance. Tenant shall, within 10 days after presentation of the bill
to Tenant by Landlord, reimburse Landlord for such insurance premiums, and in
the instance of a claim made by Landlord under any such insurance policy, Tenant
shall pay any deductible required thereunder. If insurance premiums paid by
Landlord policy, Tenant shall cover more than the Premises, Tenant shall
reimburse Landlord for Tenant's pro rata share of such premiums computed in the
same manner as is provided in Section 5.02(b) of this Lease relating to
computing Tenant's share of real estate taxes, together with an amount equal to
15% of Tenant's share of such premiums to cover Landlord's administrative and
overhead expenses. Landlord may, at its option, give Tenant a written estimate
of such insurance premiums and Tenant shall pay such estimated premiums as
provided in Section XV hereinafter stated. Not withstanding anything to the
contrary hereinabove set forth, if Tenant's specific use of the Premises
increases the premiums for the insurance hereinabove referred to over that
charged for normal retail uses, for example, if Tenant shall also be responsible
for additional rent in the full amount of such increase in premiums as such
amount shall be determined by Landlord's insurance broker. Tenant shall make,
at its sole cost and expense, any improvements or modifications to the Premises,
or any part thereof, required by Landlord's insurance carrier within 30 days of
notice of such improvements or modifications.
(b) Tenant shall at all times during the term hereof, and at its cost and
expense, maintain in effect policies of insurance covering (i) its stock in
trade, furniture, fixtures and equipment located on the Premises, in an amount
not less than 80% of their actual cash value, providing protection against any
peril included within the classification "Fire and Extended Coverage"' together
with insurance against sprinkler damage, vandalism and malicious mischief and
(ii) all plate glass on the Premises. The proceeds of such insurance, so long
as this Lease remains in effect, shall be used to repair or replace the stock in
trade, furniture, fixtures, equipment and plate glass so insured.
SECTION 8.03 INSURANCE POLICIES
All insurance required to be carried by Tenant here under shall be with
companies, on forms and with loss payable clauses satisfactory to Landlord, and
copies of policies of such insurance or certificates evidencing such insurance
shall be delivered to Landlord by Tenant. Each policy of public liability
insurance required pursuant to this Article VII shall be primary and
noncontributing with the insurance carried by Landlord. No such policy shall be
subject to cancellation, termination or change except after 10 days written
notice to Landlord.
SECTION 8.04 WAIVER
Except for any cause proved by Tenant to be the proximate result of
Landlord's negligence, Tenant hereby waives any and all rights to recovery
against Landlord or against any other tenant or occupant of the Shopping Center
or against the officers, employees agents, representatives, customers and
visitors of Landlord or of such other tenant, or occupant of the Shopping
Center, for loss or damage to Tenant, or any person claiming through Tenant or
to its property or the property of others under its control, arising from any
cause required to be insured against by Tenant under this Lease. Tenant shall
obtain and furnish evidence to Landlord of waiver by Tenant's insurance carrier
of any such right of subrogation. Tenant hereby waives any right to set-off
damages against Landlord pursuant to California Code of Civil Procedure, Section
431.70 or any successor Statute.
SECTION 8.05 INDEMNITY
Except for claims proved by Tenant to have been proximately caused by
Landlord's negligence, Tenant shall indemnify and hold harmless Landlord against
and from any and all claims arising from Tenant's use of the Premises or from
the conduct of its business or from any activity, work or other things done,
permitted or suffered by the Tenant in or about the Premises, and shall further
indemnify and hold harmless Landlord against and from any and all claims arising
from any breach or default in the performance of an obligation on Tenant's part
to be performed under the terms of this Lease, or arising from any act or
negligence of the Tenant, or any officer, agent, employee, guest, or invitee of
Tenant, and from all costs, attorney's fees, and liabilities incurred in or
about the defense of any such claim or any action or proceeding brought thereon
and in case any action or proceeding be brought against Landlord by reason of
such claim, Tenant upon notice from Landlord shall defend the same at Tenant's
expense by councel reasonably satisfactory to Landlord.
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SECTION 8.06 EXEMPTION OF LANDLORD
Unless proximately caused by Landlord's negligence, as proved by Tenant,
Landlord shall not be liable for injury or damage which may be sustained by the
person, goods, wares, merchandise or property of Tenant, its employees, invitees
or customers or any other person in or about the Premises caused by or resulting
from any accident or occurrence in, on or about the Shopping Center including,
but not limited to, injury or damage caused by or resulting from Landlord's
failure to make repairs, or injury or damage from fire, steam, electricity, gas,
water or rain which may leak or flow from or into any part of the Premises, or
from the breakage, leakage, obstruction or other defects of the pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures
of the same, whether said damage or injury results from conditions arising upon
the Premises or upon other portions of the building of which the Premises are a
part, or from other sources. Landlord shall not be liable for any damage
arising from any act or neglect of any other tenant in the Shopping Center.
ARTICLE IX - REPAIRS AND RESTORATION
SECTION 9.01 MINOR INSURED DAMAGE
Subject to the provisions of Section 9.03, if at any time during the term
hereof the Premises are damaged and such damage is not "substantial", as that
term is defined in Section 9.05(a), and such damage was caused by an insured
casualty, then Landlord shall promptly repair such damage, and this Lease shall
continue in full force and effect, unless such damage was caused by Tenant's
negligent or willful act or omission, in which event Tenant shall promptly
repair such damage.
SECTION 9.02 UNINSURED DAMAGE OR INSURED SUBSTANTIAL DAMAGE
Subject to the provisions of Section 9.03, if at any time during the term
hereof the Premises are damaged and (i) such damage is "substantial", as that
term is defined in Section 9.05(a), and such damage was caused by an insured
casualty, or (ii) regardless whether such damage is substantial as so defined,
such damage was caused by a casualty not insured against by Landlord, then
Landlord may, at its option, either (a) repair such damage and restore the
Premises at Landlord's expense, in which event this Lease shall continue in full
force and effect, or (b) cancel and terminate this Lease as of the date that
Tenant vacates the Premises, unless such damage was caused by Tenant's negligent
or willful act or omission, in which event Tenant shall promptly repair such
damage.
SECTION 9.03 DAMAGE NEAR END OF TERM
Notwithstanding anything to the contrary contained in this Article IX, if
the Premises are destroyed or damaged during the last two years of the term of
this Lease, or any extenuation thereof, Landlord may, at its option, cancel and
terminate this Lease as of the date of occurrence of such damage by giving
written notice to Tenant of its election to do so within 30 days after the date
of occurrence of such damage.
SECTION 9.04 CONTINUED OPERATION BY TENANT
If the Premises are destroyed or damaged and Landlord repairs or restores
them pursuant to the provisions of this Article IX, Tenant shall continue the
operation of its business in the Premises to the extent reasonably practicable
from the standpoint of prudent business management. There shall be no abatement
of any rent payable hereunder, and Tenant shall have no claim against Landlord
for any damage suffered by Tenant by reason of any damage, destruction, repair
or restoration of the Premises. Landlord shall not be required to make repairs
or replacements to Tenant's leasehold improvements, fixtures or personal
property. Upon completion of such repair or restoration, Tenant shall promptly
refixture and restock the Premises substantially to the condition prior to the
casualty and shall reopen for business if closed by the casualty.
SECTION 9.05 DEFINITIONS
(a) For the purpose of this Article IX, "substantial" damage to the
Premises shall be deemed to be damage to the building of which the Premises are
a part or damage to the Shopping Center, wherein the cost of repair as estimated
by Landlord exceeds 10% of the estimated replacement cost of such building.
(b) The determination in good faith by Landlord of the estimated cost of
repair of any damage or of the estimated replacement cost of any building shall
be conclusive for the purpose of this Article IX.
SECTION 9.06 WAIVER
Tenant waives any provision of law allowing termination of a lease for
damage or destruction of the leased premises.
ARTICLE X - ASSIGNMENT AND SUBLETTING
SECTION 10.01 LANDLORDS RIGHTS
(a) Tenant shall not, either voluntarily or by operation of law, assign,
sell, encumber, pledge or otherwise transfer all or any part of Tenant's
leasehold estate hereunder, 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's
consent shall not be unreasonably withheld.
(b) Each of the following conditions shall apply to any proposed
assignment or sublease: (i) the occupancy resulting therefrom shall not
violate any rights theretofore given to any other tenant of the Shopping Center;
(ii) substantially the same or higher type, class nature, quality and volume of
merchandise sold or offered for sale, financial soundness and business
experience or ownership and management shall be maintained and furnished in a
manner compatible with the high standards comtemplated by this Lease; (iii) each
and every covenant, condition or obligation imposed upon Tenant by this Lease
and each and every right, remedy or benefit afforded Landlord by this Lease,
shall not be impaired or diminished; (iv) Tenant shall assign and pay to
Landlord one-half of all subrent paid by the sublessees which are in excess of
the monthly minimum rent (measured on a per square foot basis) provided to be
paid by Tenant hereunder; (v) the monthly minimum rent then payable under this
Lease shall be automatically increased by 15% effective on the date of
Landlord's consent; and (vi) the form and content of the documentation
evidencing such assignment or sublease is subject to Landlord's approval.
(c) Landlord may collect rent from the assignee, subtenant, occupant or
other transferee, and apply the amount so collected, first to the monthly
minimum rent due, then to any additional rent due and refund the balance (if
any) to Tenant, but no such assignment, subletting, occupancy, transfer or
collection shall be deemed a waiver of Landlord's rights under this Section
10.01 or the acceptance of the proposed assignee, subtenant, occupant or
transferee, or a release of Tenant from the further performance of the covenants
obligating Tenant under this Lease.
(d) Tenant shall not be in default under this Lease as of the effective
date of the assignment or sublease.
(e) Consent by Landlord to one or more assignments of this Lease or to one
or more sublettings of the Premises shall not be deemed to be a consent to any
subsequent assignment or subletting.
(f) Any assignment or subletting without Landlord's consent shall be void
and shall, at the option of Landlord, constitute a default under the terms of
this Lease.
(g) The voluntary or other surrender of this Lease by Tenant or mutual
cancellation hereof shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenacies or shall
operate as an assignment to Landlord of such subleases or subtenancies.
(h) If Tenant is a corporation which, under the then-current guidelines,
is not deemed a public corporation, or is an unincorporated association or
partnership in the aggregate in excess of 25% shall be deemed an assignment
within the meaning and provisions of this Article.
(i) Tenant shall pay to Landlord as additional rent a transfer fee of $200
for Landlord's administrative, accounting and other costs incurred in
conjunction with the processing and documentation of any such requested
assignments, subletting, transfer, change of ownership or hypothecation of this
Lease or Tenant's interest in and to the Premises.
(j) Neither this Lease nor any interest in this Lease shall be assignable
or transferable by operation of law, and if any proceeding under the Bankruptcy
Act, or any amendment thereto or chapter thereunder, be commenced by or against
Tenant (or should tenant be a partnership or consist of more than one person,
then any partner or such person) or if Tenant be adjudged insolvent, or make an
assignment for the benefit of creditors, or if a receiver is appointed in any
proceeding or action to which Tenant in a party, with the authority to take
possession or control of the Premises or the business conducted on the Premises
by Tenant, this Lease, at the option of Landlord, shall immediately terminate
and shall not be treated as an asset of Tenant after the exercise of Landlord's
option, and Tenant shall have no further rights under this Lease, and Landlord
shall have the right, after the exercise of its option, to terminate as provided
this subparagraph 10.01, and to forthwith re-enter and repossess itself of the
Premises.
(k) Tenant agrees to fully defend and indemnify Landlord with respect to
all costs, claims (including attorney's fees expended by Landlord in connection
with any such claim), and liability for compensation claimed by any broker or
agent employed by Tenant in connection with any assignment, subletting or other
transfer of Tenant's interest under the Lease.
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SECTION 10.02 NO RELEASE OF TENANT
No subletting or assignment, even with the consent of Landlord, shall
relieve Tenant of its obligation to pay the rent and to perform all of the other
obligations to be performed by Tenant hereunder. The acceptance of rent by
Landlord from any person shall not be deemed to be a waiver by Landlord of any
provision of this Lease or to be a consent to any assignment or subletting.
ARTICLE XI - EMINENT DOMAIN
SECTION 11.01 ENTIRE OR SUBSTANTIAL TAKING
If more than 40% of the Premises or more than 40% of the balance of the
Shopping Center shall be taken under the power of eminent domain, this Lease
shall terminate as of the date on which the condemning authority takes
possession.
SECTION 11.02 PARTIAL TAKING
If any taking under the power of eminent domain does not result in a
termination of this Lease pursuant to Section 11.01, Landlord, at its option,
may terminate this Lease as of the date on which the condemning authority take
possession. If Landlord shall not so terminate this Lease, then the monthly
minimum rent payable hereunder shall be reduced, effective as of the date on
which the condemning authority takes possession, in the same proportion which
the gross ground floor area of the portion of the Premises taken bears to the
gross ground floor area of the entire Premises prior to the taking. Landlord
shall promptly restore the portion of the Premises not so taken to as near its
former condition as is reasonably possible, and this Lease shall continue in
full force and effect.
SECTION 11.03 AWARDS
Any award for taking of all or any part of the Premises under the power of
eminent domain shall be the property of Landlord, whether such award shall be
made as compensation for diminution in value of the leasehold or for taking of
the fee. Nothing contained herein, however, shall be deemed to preclude Tenant
from obtaining, or to give Landlord any interest in, any award to Tenant for
loss of or damage to Tenant's trade fixtures and removable personal property.
SECTION 11.04 SALE UNDER THREAT OF CONDEMNATION
A sale by Landlord to an authority having the power of eminent domain,
either under threat of condemnation or while condemnation proceedings are
pending, shall be deemed a taking under the power of eminent domain for all
purposes under this Article XI.
ARTICLE XII - UTILITY SERVICE
SECTION 12.01 UTILITY CHARGES
Tenant shall pay all charges for gas, water, sewer, electricity, telephone
and other utility services used in or about the Premises during the term of this
Lease. If any such charges are not paid when due, Landlord may pay the same,
and any amount so paid by Landlord shall thereupon become due to Landlord from
Tenant as additional rent. Any or all utility connection fees and permits or
assessments required by Tenant's use of occupancy in, on or from the Premises
shall be paid by Tenant at its sole cost and expense.
SECTION 12.02 FURNISHING OF SERVICES
If Landlord shall elect to furnish any utility services to the Premises,
Tenant shall purchase its requirements thereof from Landlord so long as the
rates charged therefore by Landlord do not exceed those which Tenant would be
required to pay if such services were furnished it directly by a public utility.
SECTION 12.03 INTERRUPTION OF SERVICE
Landlord shall no be liable in damages or otherwise for any failure,
interruption or inadequacy of any utility service being furnished on the
Premises and no such failure, interruption or inadequacy shall entitle Tenant to
terminate this Lease.
SECTION 12.04 HEATING, VENTILATION AND AIR CONDITIONING
If the Premises has a separate heating, ventilating and air conditioning
unit ("HVAC"), Tenant shall be responsible for the maintenance and service of
same. Landlord may, at its sole option, contract for such maintenance and
service and Tenant shall reimburse Landlord for the cost of such maintenance and
service, together with an amount equal to 15% of such costs to cover Landlord's
administrative and overhead expenses. If the Premises has an HVAC which is not
separately metered, Tenant shall reimburse Landlord on demand as additional rent
or Tenant's proportionate share of Landlord's costs of operation and maintenance
of said HVAC, determined in the same manner as is provided by Section 5.02(b) of
this Lease relating to computing Tenant's share of real estate taxes, together
with an amount equal to 15% of such cost to cover Landlord's administrative and
overhead expenses. Landlord may, at its option, give Tenant a written estimate
of Tenant's share of the costs set forth above and Tenant shall pay such
estimated amount to Landlord in equal monthly installments, in advance, as part
of the same check with which Tenant pays the monthly minimum rent. Year end
adjustments shall be made in the same manner as set forth in Section 15.02 of
this Lease.
ARTICLE XIII - DEFAULTS; REMEDIES
SECTION 13.01 DEFAULTS
The occurrence of any one or more of the following events shall constitute
a default hereunder by Tenant:
(a) The vacation or abandonment of the Premises by Tenant.
(b) Without the giving of any notice by Landlord, the failure by Tenant to
make any payment of rent, additional rent or other payment required to be made
by Tenant hereunder, as and when due, or the failure by Tenant to be observed or
performed by Tenant.
(c) (i) The making by Tenant of any assignment or arrangement for the
benefit of creditors; (ii) the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or a petition for reorganization or arrangement under
any law relating to bankruptcy; (iii) the appointment of a trustee or receiver
to take possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease; or (iv) the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease.
(d) Any attempted or involuntary transfer of Tenant's interest in this
lease without Landlord's prior written consent, as set forth more specifically
in Section 10.01 of this Lease.
(e) If any lease (other than this Lease) made by Tenant for other space in
the Shopping Center is terminated or terminable after the commencement of the
term of this lease due to any default by Tenant under such other lease.
(f) The discovery by Landlord that any warranty, representation or
financial statement given to Landlord by Tenant, any assignee of Tenant, any
subtenant of Tenant, any successor in interest of Tenant, or any guarantor of
Tenant's obligations hereunder, or any of them, was materially false.
(g) The violation by Tenant of its restrictions as to use of the Premises,
asset forth in Article VI of this Lease.
SECTION 13.02 REMEDIES
(a) In the event of any default by Tenant as defined herein, Landlord may
exercise the following remedies:
(i) Landlord shall have the option to continue this Lease in full
force and not terminate the Tenant's right to possession or such other rights as
are provided for in this Lease and such rights as are permitted by law.
(ii) Landlord may terminate this Lease by express written notice to
Tenant of its election to do so. In the event of such termination, Landlord
shall be entitled to recover from Tenant:
(1) the worth at the time of the award of any obligation which
has accrued prior to the date of termination; and
(2) the worth at the time of the award of the amount by which
the unpaid rent and additional charges which would have been earned after
termination until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; and
(3) the worth at the time of award of the amount by which the
unpaid rent and additional charges for the balance of the term after the time of
award exceeds the amount of such loss of rent that Tenant proves could be
reasonably avoided.
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(iii) As used in (ii)(1) and (ii)(2) above, the "worth at the time of
award" is computed by allowing interest at the lower of 12% per annum or the
highest rate permitted by law. As used in (ii)(3) 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 plus 1%.
(iv) Landlord may recover from Tenant, and Tenant shall pay to
Landlord upon demand, such expenses as Landlord may incur in recovering
possession of the Premises, placing the same in good order and condition and
altering or repairing the same for reletting, all other expenses, commissions
and charges incurred by Landlord in exercising any remedy provided herein or as
a result the detriment caused by the Tenant's failure to perform Tenant's
obligations under the Lease or which in the ordinary course of things would be
likely to result therefrom.
(v) Landlord may exercise any other remedy or right now or hereafter
available to a landlord against a defaulting tenant under the laws of the
governing jurisdiction and not otherwise specifically reserved herein, including
self-help, if and as permitted under State law.
(b) Landlord shall be under no obligation to observe or perform any
covenant of this Lease on its part to be observed or performed which accrues
after the date of any default by Tenant hereunder.
(c) In any action of unlawful detainer commenced by Landlord against
Tenant by reason of any default hereunder, the reasonable rental value of the
Premises for the period of the unlawful detainer shall be deemed to be the
greater of (i) the amount of monthly minimum rent and percentage rent, or (ii)
the fair marker rent, plus (iii) additional rent and other charges reserved in
this Lease for such period or the comparable period of the preceding year.
(d) Tenant hereby waives any right of redemption of relief from forfeiture
under the law of the governing jurisdiction, or under any other present or
future law, if Tenant is evicted or Landlord takes possession of the Premises by
reason of any default by Tenant hereunder.
(e) The various rights and remedies reserved to Landlord herein, including
those not specifically described herein, shall be cumulative, and except as
otherwise provided by statutory law in force and effect at the time of the
execution hereof, Landlord may pursue any or all of such rights and remedies,
whether at the same time or otherwise.
(f) One or more waivers by Landlord's breach or default shall not be a
waiver of any other breach or default of the same or any other provision.
Landlord's consent or approval of any act by Tenant requiring Landlord's consent
to or approval shall not be deemed to waive or render unnecessary Landlord's
consent to or approval of any subsequent similar act by Tenant.
(g) The receipt by Landlord of any rent or payment with or without
knowledge of the breach of any other provision hereof shall not be deemed a
waiver of any such breach; provided, however, the receipt and acceptance by
Landlord of any delinquent rent and/or other sum which may be due hereunder
shall constitute a waiver of said breach of timely payment for the particular
payment include (but not as to any other breach), and no waiver by Landlord of
any sum due hereunder or any provision hereof shall be deemed to have been made
unless expressed in writing and signed by Landlord.
(h) No delay or omission in the exercise of any right or remedy accruing
to Landlord upon any breach by Tenant under this Lease shall impair such right
or remedy or be construed as a waiver of any such breach theretofore or
thereafter occurring.
(i) In any action commenced by Landlord against Tenant by reason of any
default hereunder, each and every person and/or entity executing this Lease as
Tenant, appoints as their agent each and any other person and/or entity
executing this Lease, for purposes of service of process of any complaint or
other moving or responding paper.
SECTION 13.03 DETERMINATION OF RENT
For the purposes of this Article XIII, the rent due for any calendar month
after re-entry by Landlord shall be deemed to be the greater of (i) the contract
rent, or (ii) the average monthly rent, including any percentage rent,
additional rent and other charges, which shall have been payable pursuant to
this Lease for the 12-month period immediately prior to such re-entry or for
such shorter period of time as this Lease shall have been in effect.
SECTION 13.04 DEFAULT BY LANDLORD
Landlord shall not be deemed to be in default in the performance of any
obligation required to be performed by it hereunder unless and until it has
failed to perform such obligation within 30 days after written notice by Tenant
to Landlord specifying wherein Landlord has failed to perform such obligation;
provided, however that if the nature of Landlord's obligation is such that more
than 30 days are required for its performance, then Landlord shall not be deemed
to be in default if it shall commence such performance within such 30-day period
and thereafter diligently prosecute the same to completion. This Lease may not
be canceled for any default by Landlord. Tenant's sole remedy for any default
by Landlord shall be such damages as may be afforded by law. Copies of such
notices shall be concurrently sent to any lender who directly or through
Landlord so requests in writing.
SECTION 13.05 EXPENSE OF LITIGATION
If either party incurs any expense, including reasonable attorney's fees,
in connection with any action or proceeding, including declaratory relief,
instituted by either party by reason of any default or alleged default of the
other party hereunder, the party prevailing in such action or proceeding shall
be entitled to recover its reasonable expenses from the other party. In
addition, should it become necessary for Landlord to utilize legal counsel to
enforce any of the provisions herein contained, Tenant agrees to pay all legal
fees and other costs incurred, whether or not a suit is instituted or prosecuted
to final judgement.
ARTICLE XIV - COMMON AREAS
SECTION 14.01 DEFINITION
All areas within the exterior boundaries of the Shopping Center which are
neither (i) areas occupied by buildings (roof overhangs and canopies and any
columns supporting them, swinging doors and subsurface foundations shall not be
deemed encroachments on common areas) not (ii) areas designated by Landlord for
the exclusive use of a particular tenant or tenants, shall be deemed "common
areas." Landlord may make changes at any time and from time to time in the
size, shape, location, number and extent of the common areas or any of them.
SECTION 14.02 USE OF COMMON AREAS
Tenant and its employees and invitees shall be entitled to the
non-exclusive use of the common areas during the Lease term, in common with
Landlord and with other persons authorized by Landlord from time to time to use
such areas, subject to such reasonable rules and regulations relating to such
use as Landlord may from time to time establish.
SECTION 14.03 CONTROL BY LANDLORD
(a) Landlord directly or by contract shall operate, manage, equip, light,
repair, replace, clean and maintain the common areas in such manner as Landlord
may in its sole discretion determine to be appropriate. Landlord may
temporarily close any common area for repairs or alterations, to prevent a
dedication thereof or the accrual of prescriptive rights therein, or for any
other reason deemed sufficient by Landlord.
(b) Landlord shall at all times during the term of this Lease have the
sole and exclusive control of the automobile parking areas, driveways, entrances
and exits, and the sidewalks and pedestrian passageways and other common areas,
and may at any time and from time to time during the term hereof restrain any
use or occupancy thereof except as authorized by the rules and regulations for
the use of such areas established by Landlord from time to time. The rights of
Tenant in and to the common areas shall at all times be subject to the rights of
Landlord, the other tenants of Landlord and other owners of stores in the
Shopping Center to use the same in common with Tenant, and Tenant shall keep
said areas free and clear of obstructions created or permitted by Tenant or
resulting from Tenant's operation. If in the opinion of Landlord, unauthorized
persons are using any of the said areas by reason of the presence of Tenant in
the Shopping Center, Tenant, upon demand of Landlord, shall restrain such
unauthorized person from the common areas or to prohibit the use of any said
areas by unauthorized persons.
c) Tenant and its employees shall park their vehicles only in those
portions of the parking areas from time to time designated for that purpose by
Landlord. Tenant shall furnish Landlord with a list of its employees' vehicle
license numbers within 15 days after taking possession of the Premises and
Tenant shall thereafter notify Landlord of any change in such list within five
days after each such change occurs. Tenant agrees to assume responsibility for
compliance by its employees with the parking provisions contained herein. If
Tenant or its employees park in other than such designated parking areas, then
Landlord may charge Tenant, as additional rent, $10.00 per day for each day or
partial day each such vehicle is parked in any part of the common areas other
than that designated. Tenant hereby authorizes Landlord to tow away from the
Shopping Center any vehicle belonging to Tenant or Tenant's employees parked in
violation of these provisions, and/or to attach violation stickers or notices to
such vehicle.
(d) If Landlord elects to limit or control parking by customers or
invitees of the Shopping Center, whether by validation or assessment program
under such reasonable rules and regulations as are from time to time established
by Landlord with respect thereto.
(e) Tenant shall have no right to approve the development or redevelopment
of the Shopping Center nor the location of other tenants in the Shopping Center.
Tenant acknowledges that Landlord may not now or in the future own the entire
property consisting of the Shopping Center and Tenant agrees to waive any
violation or breach of this Lease occurring by virtue of any act or omission to
act with respect to property not owned by Landlord. In the event of any such
violation or breach, Tenant agrees that it shall not attempt to cancel this
Lease, reduce or abate its rent or pursue any other potential remedy against
Landlord.
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SECTION 14.04 ENVIRONMENTAL PROTECTION EXPENSE
If, prior to or at any time during the term of this Lease, a law,
regulation, or rule is adopted by any governmental authority requiring that
monitoring equipment measuring air quality be installed in the Shopping Center,
Tenant shall pay to Landlord as additional rent upon demand, its pro rata share
of the cost, maintenance and operating expense of such equipment, determined in
the same manner as is provided in Section 5.02 of this Lease relating to
computing Tenant's share of real state taxes. Additionally, if in the same
manner there is similarly required extraordinary waste disposal facilities or
equipment or modifying existing waste treatment facilities and equipment of the
Shopping Center, Tenant shall pay to Landlord as additional rent upon demand its
pro rata share of the cost, maintenance, and operating expense thereof
calculated in accordance with Section 5.02 of this Lease as hereinabove set
forth. Tenant shall extend to Landlord reasonable rights of entry to the
Premises for purposes of testing air quality as may be required. Tenant
acknowledges that Landlord maybe required from time to time by governmental
authority to reduce the energy consumption of the Shopping Center, to impose a
parking or similar regulatory charge, to modify or restrict the hours of
operation of Tenant's business, to limit access to the Shopping Center or to
reduce the number of parking spaces available for Tenant's customers and other
limiting actions, all of which shall be binding on Tenant if enacted or enforced
by Landlord in accordance with the requirements of a governmental authority. No
such action on the part of the Landlord shall be deemed to be a breach by
Landlord of its obligations under this Lease. This section shall not in any way
limit any right given Landlord under any other section of this Lease.
SECTION 14.05 COMMON AREA CHARGES
Tenant shall pay to Landlord, as additional rent, in the manner and at the
time provided below, Tenant's proportionate share, as defined below, of all
costs and expenses incurred by Landlord in the operation, maintenance,
replacement and repair of the common areas during the term of this Lease. Such
costs and expenses shall include, without limiting the generality of the
foregoing, gardening, landscaping, relandscaping, resurfacing, repaving, roofs,
maintenance and repair of HVAC, bumpers, directional signs and other markers,
cost of public liability, property damage, vandalism and malicious mischief, and
other insurance, real estate taxes (as defined in Section 5.02 but applicable to
the common areas), personal property taxes, replacements, repairs, painting
lighting and other utilities, cleaning trash removal, depreciation of equipment,
fire protection, governmentally-imposed parking charges or costs, security, the
cost of personnel to implement such services, materials, supplies, utilities,
fees to third parties in connection with same, and similar items and an amount
equal to 15% of all such costs and expenses to cover Landlord's administrative
and overhead expense. (All of such costs, expenses and Landlord's
administrative and overhead expense are hereinafter called "common area
charges.")
Tenant further agrees that, in addition to the foregoing, if Tenant
requests, and Landlord consents to and provides lighting of the common area or
any portion thereof, or HVAC which is not separately metered, beyond the normal
and customary business hours of the Shopping Center, Tenant shall pay to
Landlord as further and additional rent, all costs incurred by Landlord with
respect thereto.
SECTION 15.06 PROPORTIONATE PAYMENT
(a) Tenant's proportionate share of such common area charges shall be
determined in the same manner as is provided in Section 5.02 of this Lease
relating to computing Tenant's share of real estate taxes.
(b) Landlord may, at its option, give Tenant a written estimate of
Tenant's share of such common area charges and Tenant shall pay such estimated
common area charges as provided in Article XV. If Landlord elects not to
estimate, Tenant shall pay its share of such common area charges at such
intervals as Landlord may elect to bill Tenant.
ARTICLE XV - ESTIMATED CHARGES
SECTION 15.01 ELECTION TO ESTIMATE CHARGES
Landlord may, at its option, elect to estimate Tenant's anticipated costs
for real estate taxes applicable to the Premises, insurance premiums and common
area charges pursuant to Articles V, VIII, XII, and XIV herein stated
(hereinafter collectively referred to as "estimated charges").
If Landlord so estimates, Landlord shall submit a written statement of
estimated charges to Tenant for the ensuing year or portion thereof. Tenant
shall pay as additional rent such estimated charges to Landlord in equal monthly
installments, in advance, as part of the same check with which Tenant pays
monthly minimum rent. Tenant shall continue to make such payments until
notified by Landlord of a change thereof. Landlord may adjust the estimated
charges at any time and from time to time to more accurately reflect the actual
charges to be paid by Tenant. In any year in which resurfacing and restriping
of any part of the common areas is contemplated, Landlord shall be permitted to
include the anticipated cost of same as part of the estimated monthly charges.
SECTION 15.02 STATEMENT OF ACTUAL CHARGES
Within 90 days after the end of each calendar year, Landlord shall furnish
to Tenant a statement showing in reasonable detail the actual real estate taxes,
insurance premiums and common area charges and Tenant's proportionate share
thereof (hereinafter referred to as "actual charges"). If the actual charges
exceeds the actual charges, such excess shall be credited to Tenant's estimated
charges for the ensuing year.
SECTION 15.03 ADJUSTMENT
Upon expiration of the term hereof or any extension or earlier termination
hereto, Tenant shall pay on demand any and all sums due for actual charges and
any sums due Tenant shall be promptly paid by Landlord. This Section 15.03
shall survive the expiration or earlier termination of the term of this Lease
until such time as Landlord has received from or paid to Tenant the difference
between actual and estimated charges as provided in Section 15.02 of this Lease.
SECTION 15.04 NO WAIVER
Failure by Landlord to strictly adhere to the provisions stated hereinabove
shall not be deemed a waiver of Tenant's obligations to pay such estimated or
actual charges.
ARTICLE XVI - SIGNS, LIGHTING, ADVERTISING
SECTION 16.01 SIGNAGE
Tenant shall not, without Landlord's prior written consent, (a) install or
affix any signs, exterior lighting or plumbing fixtures, shades, awnings or
exterior decorations (including exterior painting); (b) display or sell
merchandise on, or otherwise obstruct, any area outside of the Premises; (c)
cause or permit to be used any advertising materials or methods which are
objectionable to Landlord or to other tenants of the Shopping Center, including,
without limiting the generality of the foregoing, loudspeakers, mechanical or
moving display devices, unusually bright, neon or flashing lights and similar
devices, the effect of which may be seen or heard outside the Premises; (d)
solicit business in the parking or other common areas; or (e) distribute any
handbills or other advertising matter in the parking or other common areas.
Tenant shall, however, erect one sign in a location designated by Landlord, no
later than the date Tenant opens for business in the Premises. If Landlord
institutes a program for the installation of under-canopy signs, Tenant shall
promptly install one such sign. Said sign(s) shall be in accordance with
Landlord sign criteria and approved by Landlord in writing. upon termination of
the term hereof, Tenant shall, at its sole cost and expense, remove all signs,
installation and devices, and repair all damage caused by the installation,
maintenance and removal thereof, except that Tenant's internally illuminated
sign enclosure shall remain in place and become the property of Landlord.
SECTION 16.02 ADVERTISING
Paragraph was crossed out and initials were placed
ARTICLE XVII - MISCELLANEOUS
SECTION 17.01 OFFSET STATEMENT
(a) Tenant shall, at any time, from time to time and within 10 days after
receipt of written notice from Landlord, execute, acknowledge and deliver to
Landlord a statement in writing in a form provided by Landlord (i) certifying
that this Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease, as so
modified, is in full force and effect) and the dates to which the monthly
minimum rent, percentage rent and additional rent charges are paid in advance,
if any, (ii) verifying the commencement and termination dates of this Lease,
(iii) acknowledging that there are not, to the best of Tenant's knowledge, any
uncured defaults on the part of Landlord hereunder, or specifying such defaults,
if any, as are claimed, and (iv) that
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Tenant has paid to Landlord the security deposit set forth in this Lease. Any
statement stated maybe relied upon by any prospective purchaser or encumbrance
of the Premises or of all or any portion of the Shopping Center in which the
Premises are situated.
(b) Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, and that not more than
one month's monthly minimum rent has been paid in advance, (ii) that the
commencement and termination dates of this Lease are as represented by Landlord,
(iii) that there are no uncured defaults in Landlord's performance, and (iv)
that Tenant has paid to Landlord the security deposit set forth in this Lease.
SECTION 17.02 FINANCIAL STATEMENTS
Tenant has submitted its current financial statement and application, and
Tenant certifies the same to be true and correct. Tenant shall, each year
within 30 days after the anniversary of the Rent Commencement Date of this
Lease, submit to Landlord a current financial statement.
SECTION 17.03 LANDLORD'S RIGHT OF ACCESS
(a) Landlord and its agents shall have free access to the Premises for the
purpose of examining the same to ascertain if they are in good repair, posting
notices of non-responsibility, making repairs or installations which Landlord
may be required or permitted to make hereunder, and exhibiting the Premises to
prospective purchasers, lenders or tenants. Landlord shall have no liability to
Tenant for any exercise of its right of entry hereunder or under any other
provision of this Lease.
(b) This section has been crossed out and initialed.
SECTION 17.04 HOLDING OVER
If Tenant remains in possession of the Premises or any part thereof after
the expiration of the term hereof without the express written consent of
Landlord, such occupancy shall not be deemed a renewal or extension of this
Lease for any term whatsoever or for a month to month tenancy. To the extent
Tenant occupies the Premises beyond the term of this Lease, Tenant agrees to pay
Landlord as rent per day a sum equal to 150% of the monthly minimum rent per day
applicable to the last month of the term hereof, adjusted as provided in Section
3.02 above, together with all other charges payable hereunder, and to otherwise
abide by all the terms, convenants and conditions of this Lease applicable to
such occupancy. If Tenant fails to surrender the Premises upon the termination
of this Lease, Tenant shall indemnify and hold harmless Landlord from loss or
liability resulting from such failure, including, without limiting the
generality of the foregoing, any claims made by the succeeding tenant arising
out of such failure to surrender the Premises.
SECTION 17.05 RELOCATION OF PREMISES
This paragraph has been cross out and initialed.
SECTION 17.06 TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer of Landlord's interest in the Premises,
Landlord 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. At such time Landlord shall transfer the portion of the security
deposit remaining (after any deductions made pursuant to Section 17.09) to
Landlord's successor in interest, and thereafter notify Tenant of such transfer,
of any claims made against the security deposit, and of the transferee's name
and address, after which Landlord shall be relieved of any further liability
with respect to the security deposit.
SECTION 17.07 FLOOR AREA
As used in this Lease, "gross ground floor area" means, with respect to the
Premises and with respect to each store area separately leased, the aggregate of
(a) the number of square feet of floor space on the ground floor level, measured
from the exterior faces of exterior walls and the center line of party walls,
and (b) all outside selling areas used for the sale of merchandise by tenants.
No deduction or exclusion from floor area shall be made by reason of columns,
stairs, elevators, escalators or other interior construction or equipment.
SECTION 17.08 SEPARABILITY
Any provision of this Lease which shall prove to be invalid, void or
illegal shall in no way affect, impair or invalidate any other provision hereof,
and such remaining provisions shall remain in full force and effect.
SECTION 17.09 SECURITY DEPOSIT
Tenant has deposited with Landlord the amount specified in the applicable
Lease Summary Provision, as security for the full and faithful performance of
every provision of this Lease to be performed by Tenant, and Tenant shall, from
time to time upon Landlord's request, augment the security deposit by the amount
of any percentage increase in the CPI as computed in accordance with Section
3.02. If Tenant defaults with respect to any provisions of this Lease, Landlord
may use, apply or retain all or any part of the security deposit for the payment
of any rent or other sum in default, 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 including, without limitation, Tenant's
failure to comply with its obligation pursuant to Section 17.30 herein. If any
portion of said security deposit is so use or applied, Tenant shall, within five
days after written demand therefore, deposit cash with Landlord in an amount
sufficient to restore the security deposit to its original amount plus any CPI
increase adjustment, and Tenant's failure to do so shall be a material breach of
this Lease. Landlord shall not be required to keep the security deposit separate
from its general funds, and Tenant shall not be entitled to interest on such
security deposit. If Tenant shall fully and faithfully perform every provision
of this Lease to be performed by it, the security deposit or any balance thereof
shall be returned to Tenant (or, at Landlords' option, to the last assignee of
Tenant's interest hereunder) within 10 days after the expiration of the Lease
term. Nothing contained in this section 17.09 shall in any way diminish or be
construed as waiving any of Landlord's other remedies otherwise set forth in
this Lease, or by law or equity.
SECTION 17.10 LATE CHARGES
Tenant hereby acknowledges that late payment by Tenant to Landlord of rent
or other sums due hereunder will cause Landlord to incur costs not contemplated
by this Lease, the exact amount of which will be extremely difficult to
ascertain. Such costs include, but are not limited to, any mortgage or trust
deed covering the Premises. Accordingly, if any installment of rent or any sum
due from Tenant shall not be received by Landlord's designee within five days
after said amount is due, then Tenant shall pay to Landlord a late charge equal
to 10% of such overdue amount, plus any attorneys' fees incurred by Landlord by
reason of Tenant's failure to pay rent and/or other charges when due hereunder.
The parties hereby agree that such late charges represent a fair and reasonable
estimate of the cost that Landlord will incur by reason of the late payment by
Tenant. Acceptance of such late charges by the Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, not
prevent Landlord from exercising any of the other rights and remedies granted
hereunder. Landlord may, at its option, include all late charges accrued during
any calendar year in Tenant's estimated charges for the ensuing year.
SECTION 17.11 INTEREST
Unless otherwise specifically provided in this Lease, any sum accruing to
Landlord under the terms and provisions of this Lease which shall not be paid
when due shall bear interest at the lower of 12% per annum or the highest lawful
rate from the date the same becomes due and payable by the terms and provisions
of this Lease until paid by Tenant. The highest lawful rate shall be determined
as of the 25th day of the month preceding the date when such sum becomes
payable.
SECTION 17.12 TIME OF ESSENCE
Time is of the essence with respect to the performance of every provision
of this Lease in which time of performance is a factor.
SECTION 17.13 HEADINGS
The article and section captions and the placement of particular provisions
under certain Articles or Sections contained in this Lease are for convenience
only and shall not be considered in the construction or interpretation of any
provision hereof.
8
SECTION 17.14 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no agreement or
understanding pertaining to any such matter shall be effective for any purpose.
No provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest,
and this Lease may not be modified by an oral agreement whether or not supported
by new consideration. Tenant acknowledges that in executing this Lease, Tenant
is not relying on any representations, oral or written unless such
representations are specifically stated in this Lease.
SECTION 17.15 NOTICES
Any notice or demand required or permitted to be given hereunder, including
but not limited to, any "Notice To Pay Rent or Quit," shall be in writing and
may be served in any manner consistent in the applicable Lease Summary Provision
or mailed to the Premises address. Any notice so given by mail shall be deemed
effectively given when deposited in the United States mail, registered or
certified, postage prepaid, and addressed as specified above. Either party may,
by written notice to the other, specify a different address, but not the address
of the Premises, for notice purposes.
SECTION 17.16 BROKERS
Tenant warrants that it has had no dealings with any real estate broker or
agent in connection with the negotiations of this Lease unless specifically
stated to the contrary in the applicable Lease Summary Provision.
SECTION 17.17 WAIVERS
No waiver by Landlord of any provision of this Lease shall be effective
unless in writing or shall be deemed to be a waiver of any other provision
hereof or of any subsequent breach by Tenant of the same or any other provision.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act by Tenant, whether or
not similar to the act so consented to or approved.
SECTION 17.18 OTHER LOCATIONS
Neither Tenant, nor any affiliate or subsidiary of Tenant, directly or
indirectly, shall operate, manage or have any interest in any other competing or
similar store or business, including a department or concession in another
store, within a five-mile radius outward from the Shopping Center, measured from
the nearest outside boundary of the Shopping Center. Without limiting
Landlord's remedies, if Tenant should violate this covenant, Landlord may, at
its option, include the gross sales of such other store in the gross sales
transacted in the Premises for the purpose of computing the percentage rent due
hereunder, as though such sales had actually been made from the Premises. If
Landlord so elects, all the provisions of Articles III and IV relating to the
payment of rent and to accounting shall be applicable to such other store.
However, any such store existing as of the date of this Lease may continue to be
operated, managed, conducted and owned in the same manner as on the date of this
Lease.
SECTION 17.19 MERCHANTS' ASSOCIATION
Paragraph has been crossed out and initials are present on the right hand
side of the page.
SECTION 17.20 LIENS
Tenant shall keep the Premises, and the Shopping Center in which the
Premises are situated, free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. Landlord requires that
Tenant shall provide to Landlord, at Tenant's sole cost and expense, a lien and
completion bond in an amount equal to one and one half time the estimated cost
of any improvements, additions, or alterations in the Premises which the Tenant
desires to make or has made, to insure Landlord against any liability for
mechanics' and materialmen's liens and to insure completion of the work.
SECTION 17.21 SUBORDINATION
This Lease shall be and remain subordinate to any mortgage, ground lease,
or deed or trust that may exist or hereafter be placed upon the Shopping Center
or any part thereof and to any and all advances to be made thereunder and to the
interest thereon and to all renewals, replacements and extensions thereof.
Tenant shall, upon written demand by Landlord, execute such instruments as may
be required at any time and from time to time to evidence the subordination of
the rights and interest of Tenant under this Lease to the lien of any such
ground lease, mortgage or deed of trust; provided, however, that Tenant shall,
if any proceedings are brought for default under such ground lease or for the
foreclosure of any such mortgage ordered of trust, attorn to the purchaser upon
foreclosure sale or sale under power of sale, or to the ground lessor
terminating Landlord's rights as ground lessee, and shall recognize such
purchaser or ground lessor as Landlord under this Lease, and, so long as Tenant
is not in default hereunder, any such event shall not terminate this Lease.
SECTION 17.22 SUCCESSORS IN INTEREST
The covenants herein contained shall, subject to the provisions as to
assignment, apply to and bind the heirs, successors, executors, administrators
and assigns of all the parties hereto, and all the parties hereto shall be
jointly and severally liable hereunder.
SECTION 17.23 CALIFORNIA LAW
This Lease shall be construed and enforced in accordance with the laws of
the State of California.
SECTION 17.24 ZONING
Tenant hereby accepts the Premises subject to all applicable zoning,
municipal, county and state laws, ordinances, regulations and any changes
thereto, governing and regulating the use and occupancy of the Premises.
SECTION 17.25 DELAYS
Whenever a period of time is provided in this Lease or in any exhibit or
rider hereto for Landlord to do or perform any act or thing, Landlord shall not
be liable or responsible for nor shall Tenant be excused from performing any
obligation hereunder as result of any delay due to strikes, lockouts,
casualties, acts of God, or governmental regulations or control, or other causes
beyond the reasonable control of Landlord, and the time for performance
specified herein shall be extended for the amount of time Landlord is so
delayed. The provisions of this Section 17.25 shall not operate to excuse
Tenant from the prompt payment of monthly minimum rent, additional rent or other
payments required by the terms of this Lease.
SECTION 17.26 FINANCING
Tenant understands and acknowledges that Landlord may, from time to time,
finance the construction of and improvements within the Shopping Center, and
that a lender or lenders may have to approve this Lease. In order to receive
such approval, this Lease may have to be amended or modified. Provided that
neither the term hereof, nor the size and location of the Premises is altered,
nor the amount or share of rent, taxes, insurance or other charges be increased
thereby, Tenant agrees to immediately execute any such amendment or modification
of this Lease as maybe requested by said lender or lenders. It is agreed,
however, that no such amendment or modification shall be required of Tenant
after the Rent Commencement Date. If Tenant fails to consent to any such
amendment or modification, Landlord, at its option, may cancel and terminate
this Lease on 30 days' written notice to Tenant, without liability to Landlord
or Tenant.
For purposes of this Section 17.26, lender or lenders shall include any
financial institution holding a mortgage, deed of trust or ground lease,
insurance company, pension fund or other lending institution.
SECTION 17.27 LIMITATION OF LANDLORD'S LIABILITY
Anything in this Lease to the contrary notwithstanding, Tenant agrees that
it shall look solely to the estate and property of Landlord in the land and
buildings comprising the Shopping Center and/or building within which the
Premises are located, and subject to prior rights of the holder of any mortgage
or deed of trust of the Premises, for the collection of any judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default or
9
breach by Landlord with respect to any of the terms, covenants and conditions of
this Lease to be observed and/or performed by Landlord, and no other assets of
Landlord shall be subject to levy, execution or any procedures for the
satisfaction of Tenant's remedies.
SECTION 17.28 TENANT'S PERFORMANCE
If Tenant shall fail within anytime limits which maybe provided herein, or
in any exhibit hereto, to complete any work or perform any of the requirements
provided to be performed by Tenant prior to the Rent Commencement Date, or if
Tenant shall cause a delay in the completion of any work, then Landlord shall
have the option of terminating this Lease by a written notice of termination and
upon forwarding of said notice to Tenant, this Lease shall cease and terminate
and all improvements which Tenant may have annexed to the realty to the date of
such termination shall become the property of Landlord.
SECTION 17.29 WAIVER OF TRIAL BY JURY
To the extent legally possible, the parties hereto waive their right to
trial by jury in any action arising out of this Lease.
SECTION 17.30 TENANT'S PROPERTY AND REPAIR OF PREMISES AT TERMINATION
(a) Upon the expiration of the term of this Lease, or upon any earlier
termination thereof, Tenant shall deliver to Landlord all keys for the Premises,
the combination of all locks and safes, if any, on the Premises, and surrender
the Premises in the same condition as when received, broom clean, and provided
that Tenant is not in default, Tenant shall remove, at its own expense, all
trade fixtures, equipment, merchandise and other personal property ("Tenant's
property") which were installed by Tenant or any subtenant, concessionaire or
licensee, in or on the Premises. Additionally, Tenant shall remove any of
Landlord's property that Landlord so designates in writing. Lighting fixtures,
electrical panels, heat and air conditioning units, wiring and duct work shall
be considered property of Landlord, and not Tenant's, unless specifically stated
otherwise by Landlord in a written document.
(b) All alterations, improvements, remodeling, additions, or fixtures,
other than trade fixtures not permanently affixed to the Premises, which may be
made or installed in the Premises and which are attached to the floor, wall or
ceiling to the Premises, which may be made or installed in the Premises and
which are attached to the floor, wall or ceiling of the Premises and any floor
covering which is cemented or otherwise affixed to the floor of the Premises,
shall likewise be the property of Landlord.
(c) If any injury or damage to the building in which the Premises are
located (including any adjacent store(s) or building (s)) or any portion of the
Premises results from the removal of Tenant's property or any designated
Landlord's property, Tenant shall immediately repair and/or pay to Landlord the
cost of repairing said injury or damage caused by the installation, maintenance
and removal thereof, including the potential loss of revenue to Landlord due to
the time needed to repair such injury or damage. Tenant shall complete such
removal, repair and/or payment upon the expiration of the term of this Lease or
upon any earlier termination thereof.
(d) If Tenant fails to remove its property upon the expiration of the term
of this Lease, or upon any earlier termination thereof, or if Tenant is in
default, Tenant shall not remove its property unless notified by Landlord to do
so, and title thereto shall immediately vest in Landlord without the execution
of documents of sale or conveyance by Tenant. Landlord shall have the right, at
its option, to take the exclusive possession of Tenant's property and to use it
rent or charge free, or Landlord may remove any or all items of Tenant's
property from the Premises and dispose of them in any manner Landlord sees fit.
Tenant shall pay to Landlord, upon demand, the actual expense of such clean-up,
removal, disposition and/or repair, together with interest thereon at the lesser
of 12% per annum or the prevailing legal rate from the date of payment by
Landlord for such expense until repayment by Tenant plus any consequential
damages which may be suffered by Landlord (including, but not limited to, loss
of revenue from the Premises) as the result of Tenant's failure to comply with
its obligations under this Section 17.30.
(e) In addition to the above-described rights of Landlord in Tenant's
property upon default, expiration of Lease term, or termination of Lease, Tenant
hereby grants Landlord a security interest in all of Tenant's personal property
located on the Premises, to secure full performance by Tenant of all obligations
under this Lease. However, while Tenant is not in default in the payment of
rent or any of its obligations under this Lease, it may trade in or replace any
of said items free of this security interest and the security shall them apply
to the newly-acquired items. This security interest shall be deemed perfected,
by possession, on the first date that Tenant's property is located on the
Premises. Landlord shall, within 15 business days after written demand from
Tenant, provided that Tenant is not in default of its obligations under this
Lease, execute and deliver in a form and content satisfactory to Landlord, a
document required by any supplier, lessor, or lender in connection with the
installation in the Premises of Tenant's personal property or Tenant's trade
fixture, in which Landlord waives any security interest it may have or acquire
with respect to that property, if the supplier, lessor, or lender agrees in
writing that: (i) it will remove such property from the Premises before
expiration of the term or within five days after termination of the term, and if
it does not remove such property within said five days after termination of the
term, and if it does not remove such property within said five days, it shall
have waived any rights it may have had to such property, and (ii) it shall make
whatever restorations to the Premises are necessitated by the installation,
maintenance, or removal of Tenant's property, or pay to Landlord the cost for
such restoration. If Landlord executes such waiver documentation, Tenant shall
pay to Landlord a fee of $200.00 for Landlord's administrative and other costs
incurred in conjunction with the processing, documentation and administration of
such waiver documentation.
SECTION 17.31 NO WARRANTIES
Tenant acknowledges that neither Landlord nor Landlord's agents or
employees have made any representation or warranty as to the suitability of the
Premises for the conduct of Tenant's business.
SECTION 17.32 RECORDING
Tenant shall not record this Lease or any memorandum or short form thereof
without the prior written consent of the other party. Promptly following the
expiration or earlier termination of the term of this Lease, if requested by
Landlord, Tenant shall execute, acknowledge and deliver to Landlord a recordable
written instrument releasing and quitclaiming to Landlord all right, title and
interest in the Premises by reason of this Lease or otherwise.
SECTION 17.33 AUTHORITY OF TENANT
If Tenant is a corporation, each individual executing this Lease on behalf
of said corporation represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation, in accordance with
its terms. If a corporation executes this Lease as Tenant, Tenant shall
promptly furnish to Landlord certified corporate resolutions attesting to the
authority of the officers to execute the Lease of such corporation.
SECTION 17.34 NO OPTION TO LEASE
The submission by Tenant of this Lease to Landlord does not constitute a
reservation of or option to lease the Premises, and this Lease becomes effective
only upon execution by Tenant and Landlord.
See Addendum
ARTICLE XVIII - CONDITION OF PREMISES
Tenant takes and accepts the Premises in its present "AS IS" condition.
All tenant improvements, additions and alterations shall be at Tenant's sole
cost and expense and Landlord shall have no responsibilities therefore.
Landlord shall arrange to have existing kitchen equipment removed prior to
commencement of Lease. Landlord approves installation of window. Landlord has
made no representations or warranties as to the physical condition of the
Premises or any other matter concerning the Premises. Tenant has inspected the
Premises, is familiar with the condition of the Premises, and is not relying
upon any representations or warranties of Landlord.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
dates indicated below.
Landlord: Tenant: EL CAMINO NATIONAL BANK
Signature present, By- Signature present
- --------------------------- ------------------------------
Thomas G. Eastman, its Chairman
H. Peter Norstrand and John L. Patillo as
Trustees of AEW #33 Trust, By- Signature present
under Declaration ------------------------------
of Trust dated October 3, 1985, its President
but not individually
Dated: 10-20-89 Dated: Sept. 26, 1989
---------------------- -----------------------
Note: Right hand side of paper indicates the following:
to receipt of drawings for approval of tenant work and approval of same.
JUNE 1987
10
El Camino National Bank
Lompoc, CA
AMENDMENT NO. 1 TO LEASE
THIS AMENDMENT NO. 1 TO LEASE is dated for identification purposes June 10,
1994, and is made by and between GRANT MONAHAN, REID SAMUELSON & JAMES S. KEAGY,
as Trustees of AEW #33, TRUST, established under Declaration of Trust dated
October 3, 1985, but not individually ("Landlord"), whose address is c/o D.W.A.
Smith & Company, Inc., 1300 Quail Street, Suite 106, Newport Beach, California
92660-2711, and El Camino National Bank ("Tenant") whose address is P. O. Box
1149, Lompoc, CA 93438.
RECITALS
A. Tenant entered into that certain Shopping Center Lease dated September 12,
1989 ("Lease") whereby that portion of the shopping center located at 1325
North "H" Street, Lompoc, California, as more particularly described in the
Lease ("Premises") was leased from Landlord.
B. Landlord and Tenant desire to further amend said Lease.
NOW THEREFORE, in consideration of the Premises, the covenants and agreements
herein contained and other good and valuable consideration, Landlord, Tenant and
Assignee agree as follows:
AGREEMENT
1. TERM: Section 2.01 of said Lease is hereby amended to extend the Term of
said Lease to October 31, 1999, plus the Option to Renew shown on Rider No. 1
attached hereto and made a part hereof.
2. MONTHLY MINIMUM RENT: Section 3.01 of said Lease is hereby amended to
reflect a Monthly Minimum Rent from November 1, 1994 through October 31, 1999 of
Four Thousand Eight Hundred Fifteen and no/100 Dollar ($4,815.00).
3. FIRST RIGHT OF REFUSAL: Provided Tenant is not in default under the Lease,
Tenant shall have a First Right of Refusal to lease the approximately 2, 150
square foot space adjacent to the leasehold premises (the "Expansion Space").
During such period each time the Expansion Space becomes available and Landlord
has finalized terms and conditions by which Landlord and a third party tenant
are prepared to enter into a lease of the expansion space, Tenant shall have a
first and prior right to enter into a lease for such space on the terms and
conditions accepted by Landlord. Tenant shall have 48 hours in which to respond
with a written offer to enter into a lease for said space. Should Tenant
decline to enter into this lease, Landlord's obligation to give a First Right of
Refusal has been fulfilled. This First Right of Refusal is granted only to
Tenant and may not be assigned to any subsequent tenant, whether by assignment
or sublease.
4. TENANT IMPROVEMENT ALLOWANCE: Landlord grants to Tenant a Tenant
Improvement Allowance of Seven Thousand Seven Hundred and no/100 Dollars
($7,700.00) which shall be paid to Tenant's contractor upon the receipt of
invoices and mechanic and/or materialmen's Lien Releases.
5. TENANT REPRESENTATIONS AND WARRANTIES: Tenant hereby represents and
warrants that, with respect to following corporations or entities, the Tenant or
the officers or directors of Tenant;
a. could not be included in a consolidated federal income tax return with
any such corporation or entity;
b. are not fiduciary or any qualified retirement plan established for the
benefit of employees of any such corporation or entity or the
employees of any corporation which files a consolidated federal income
tax return with any of these corporations;
c. are not an officer or director of any of the companies or any company
that could be included in a consolidated federal income tax return
with any such company; and
d. neither own, directly nor indirectly, more than fifty percent (50%) of
the value of the outstanding stock of any such corporation nor is the
brother, sister, spouse, ancestor or lineal descendant of a person
having such an ownership interest;
HONEYWELL, INC. STATE OF MINNESOTA
INTERNATIONAL PAPER COMPANY TEKTRONIX, INC.
MARS, INC. WEST PUBLISHING CO.
STATE OF CONNECTICUT
WISCONSIN ELECTRIC CO.
STATE STREET BANK RETIREMENT PLAN
6. TERMS AND CONDITIONS: Except as specifically amended herein, all terms and
conditions of said Lease shall remain in full force and effect.
7. ATTORNEYS' FEES: If any party commences an action against any of the
parties arising out of or in connection with this Amendment of Lease, the
prevailing party or parties shall be entitled to recover from the losing party
or parties reasonably attorneys' fees and costs of the suit.
THIS AMENDMENT NO. 1 TO LEASE is hereby reviewed, approved and accepted by the
parties hereto and shall become a part of the Lease.
"LANDLORD"
GRANT MONAHAN, REID SAMUELSON & JAMES S. KEAGY, as Trustees of AEW #33 TRUST,
established under Declaration of Trust dated October 3, 1985, but not
individually.
By: Signature Present 6/24/94
------------------------ ---------------
Date
"TENANT"
EL CAMINO NATIONAL BANK
By: Signature Present 6/13/94
------------------------ ---------------
Date
Its: President
------------------------
By: Signature Present 6/13/94
------------------------ ---------------
Date
Its: President
------------------------
Page 2 of 2 Pages
OPTION TO RENEW
OPTION TO RENEW
Provided Tenant is not then in default with respect to the Lease to which this
OPTION TO RENEW is attached and has kept and performed all of its obligations
under said Lease, Tenant shall have the right and option at any time, at least
six (6) months before the expiration of said Lease, to extend the term thereof
for one (1) additional term of five (5) years from the date of expiration of
said Lease, which notice of exercise of option shall only be effective if in
writing and sent to the Landlord as provided in the Lease for the mailing of
notices. Provided, however, that Tenant may not exercise this right if the
Tenant has received three (3) or more notices of default throughout the initial
term of this Lease, whether or not those defaults were cured, or at any time
when Tenant has breached and not cured or is in default under this Lease.
Should Tenant breach or default under this Lease at any time after giving notice
of extension and prior to the first day of the extended term, Landlord shall
have the right to declare Tenant's notice void and of no effect, and the term of
this Lease shall expire as if notice had not been given.
Such Lease extension shall be upon the identical terms and conditions as set
forth in the Lease, except that the rental to be paid by Tenant hereunder shall
be increased as of the commencement of the extended term to the greater of: (a)
the rent for the period immediately preceding the option period, increased as
provided in and subject tot the provisions of Section 3.02 of the Lease, or (b)
market rent for like space in the area, as determined by negotiation between
Landlord and Tenant. If Landlord and Tenant cannot agree, each party will
appoint a qualified appraiser (MAI or equivalent) to do a market analysis. If
the two appraisers cannot agree, they will appoint a third similarly qualified
appraiser and the decision of the majority of the appraisers shall be binding on
all parties. However, regardless of the findings of the appraisers, the minimum
rent for the next period shall not be less than the rent prescribed in (a)
above.
Rent for the second and each subsequent year during the option term shall be
increased as provided in and subject to the provisions of Section 3.02 of the
Lease.
Any security deposit held by Landlord shall be increased in the ratio as the
rent is increased in the first year of the option period divided by the rent for
the first year of the initial term.
Upon default in payment of the full increase in rental provided for above,
Landlord shall have the same rights and remedies as upon default in the rent
otherwise provided for in the Lease.
This OPTION TO RENEW or extend may be exercised only by the original Tenant
while physically occupying the Premises and any consent by Landlord to
assignment or sublease of the Premises shall not be construed as a waiver of
this prohibition.
Landlord's Initials Initials Present
----------------
Tenant's Initials Initials Present
----------------
Initials Present
----------------
Rider No. 2
Page 3 of 2 Pages