EXHIBIT 10.9
TBOH Head Office Lease
OFFICE LEASE
ARTICLE I
IDENTIFICATION OF PARTIES AND PROPERTY
1.1. PARTIES. This lease ("Lease") is entered into between TDE
INCORPORATED, a California corporation, as landlord (called "Landlord" in this
Lease), and THE BANK OF HEMET, a California corporation as tenant (called
"Tenant" in this Lease), and the parties agree to the terms specified below.
1.2. PROPERTY. The property which is the subject of this lease (called
"the Property" in this Lease) is located in the County of Riverside, State of
California, and is commonly known as Units 111 through 120 of The Bank of Hemet
Professional Building, 1600 E. Florida Avenue, Hemet, California 92344. The
Property is approximately 7,210 square foot bank office together with remote
drive-through teller islands located generally northwest of The Property, the
roof over the islands and structural supports and all machinery and equipment
either above or underground which operates or is part of the remote teller
locations, all of which are outlined in red on Exhibit A, attached to and made a
part of this Lease by this reference together with all easements appurtenant
thereto. The Property is part of The Bank of Hemet Professional Building (called
"The Building" in this Lease).
1.3. USE OF ADDITIONAL AREAS. Landlord gives to Tenant and its authorized
representatives and invitees the non-exclusive right to use The Building common
areas, with others who are
entitled to use the common areas, subject to Landlord's rights set forth in this
Lease.
Landlord further gives to Tenant and its authorized representatives and
invitees the full and unimpaired access to The Property, including access
through the Florida Avenue entrance and the Girard Street entrance, at all times
except as provided in Article VII of this Lease.
The term "common areas" means all areas, space, equipment, and special
services provided to the Landlord by The 1600 Professional Building Owners
Association, a non-profit corporation (called "the owners association" in this
Lease) pursuant to Declaration of Restrictions, amended as of August 14, 1978
and recorded August 15, 1978 as Instrument No. 171582 in Official Records of
Riverside County, California (called "the declaration" in this Lease) for
parking and ingress and egress, and/or for the common and joint use and benefit
of the occupants, tenants and their respective authorized representatives and
invitees, of The Building as the owners association may in the future designate,
and may change, except as limited by the terms of the Lease or the declaration,
at any time during the terms hereof, including, without limitation, parking
area, access roads, driveways, retaining walls, landscaped areas, truck
serviceways or tunnels, loading docks, pedestrian malls, courts, stairs, ramps,
and sidewalks, comfort and first aid stations, washrooms and parcel pick up
stations.
The Property was originally owned by Tenant and has been sold by Tenant to
Landlord and that Tenant is aware of all
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provisions of the condominium plan including, without limitation, all provisions
of the declaration, the recorded condominium plan, the owners association
documentation, etc.
ARTICLE II
TERM OF LEASE
2.1. TERM OF LEASE. Landlord leases The Property to Tenant for a term
of fifteen (15) years, beginning on 12:01 A.M. March 17, 1988, and ending on
12:01 A.M. March 17, 2003.
ARTICLE III
RENT
3.1. RENT. During the term of this Lease, Tenant agrees to pay Landlord
a minimum monthly rent of $7,210.00 (7,210 square feet x. $1.00 per sq. ft. -
$7,210.00), called "the Rent" in this Lease), subject to adjustment as specified
below, for the use and occupancy of the Property.
3.2. ADJUSTMENT FOR COST OF LIVING INCREASE.
3.2.1. SCHEDULED ADJUSTMENTS. The rent provided for in paragraph
3.1 shall be subject to adjustment at the commencement of the second year of
the term and each year thereafter ("the adjustment date") as follows:
The basis for computing the adjustment is the revised Consumer
Price Index for All Urban Consumers for Los Angeles - Long Beach - Anaheim,
California for All Items (1967 = 100), published by the United States
Department of Labor, Bureau of Labor Statistics ("Index"), which is in effect
on the date of the commencement of the term ("Beginning Index"). The Index
most immediately preceding the adjustment date in question ("Extension
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Index") is to be used in determining the amount of the adjustment. If the
Extension Index has increased over the Beginning Index, the rent for the
following year (until the next rent adjustment) shall be set by multiplying the
rent set forth in paragraph 3.1 by a fraction, the numerator of which is the
Extension Index and the denominator of which is the Beginning Index. In no
event shall the rent be less than the rent set forth in paragraph 3.1. On
adjustment of the rent as provided in this Lease, the parties shall immediately
execute an amendment to this Lease, stating the new rent.
In the event the Index is either unavailable, is no longer
published, or is calculated on a significantly different basis following the
date of this Lease, the most comprehensive official index published which most
closely approximates the rate of inflation shall be substituted in place of the
Index.
3.3. ADJUSTMENT FOR COMMON AREA COSTS. Tenant shall pay to Landlord, in
addition to the rental heretofore specified, as further and additional rent, The
Property's proportionate share of the common area operating costs as billed to
the Landlord by the owners association. Operating costs mean the real property
taxes and assessments and other taxes and assessments, including but not limited
to liens or bonds, of any nature levied and assessed against the common areas,
or assessed against the owners association as a result of the common areas; all
sums expended by the owners association for the maintenance, repair,
replacements, and operation of the common areas; and an allowance to the owners
association for the owners association supervision, maintenance
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and operation of the common areas. Costs for maintenance and operation of the
common areas shall include, without limitation, cost of resurfacing, repainting
and restriping, cleaning, sweeping, and other janitorial services, policing,
purchase, construction, and maintenance of refuse receptacles, painting and
relandscaping, directional signs and other markers, car stops, lighting and
other utilities, reasonable depreciation allowance on improvements, machinery,
and equipment used in connection with the common areas, premiums on public
liability and property damage insurance, fire and earthquake insurance, if any,
and other costs necessary in the owners association's judgment for the
maintenance and operation of the common areas.
Landlord will designate its agent for the sole purpose of obtaining
information and other data from the owners association on all matters relating
to the common areas, including operating costs of the common areas and asserting
all rights which Landlord may have under the declaration to object to or modify
the expense of the operating costs.
3.4. MANNER OF PAYMENT. The Rent is due and payable in advance in
monthly installments commencing on the date the term of this Lease begins. In
the event that any installment of the Rent is not paid within ten (10) days of a
due date, a late penalty shall be added to such installment in the amount of
five percent (5%) of such installment. In the event the Lease term shall
commence on a date other than the first day of the month, the Rent shall be
prorated to the end of such month in order that
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the Rent thereafter becomes due on the first day of each month of the term of
the Lease. The Rent and all other amounts due under this Lease shall be paid,
without prior notice or demand, to Landlord at the address specified for notices
to Landlord in this Lease, or at such other address as Landlord may from time to
time specify by written notice to Tenant.
3.5. PERSONAL PROPERTY TAXES. Tenant agrees to pay all taxes,
assessments, or other charges imposed by any government entity on personal
property placed on The Property by Tenant, whether or not the personal property
may, or will be, removed at the termination of this Lease.
3.6. REAL PROPERTY TAXES. Tenant agrees to pay to Landlord, prior to
delinquency, all "taxes applicable to the Property," which shall include taxes,
assessments, bonds and other charges imposed by any government entity on The
Property, any special assessments imposed on The Property for the construction
or improvement of public works for the benefit of The Property, and any tax,
fee, or excise levied, assessed, and/or based on rent, on the square footage of
The Property, on the act of entering into this Lease, or on Tenant's occupancy,
or any other tax, fee, or excise, however described, in substitution or in
addition to taxes applicable to The Property, including, without limitation, a
so-called value added tax; provided, however, that Tenant shall not be required
to pay any municipal, county, state, or federal income or franchise taxes of
Landlord or transfer taxes of Landlord.
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With respect to any assessments which may be levied against or on The
Property and which under the laws then in force may be evidenced by improvement
or other bonds or may be paid in annual installments, there shall be included
within the definition of "taxes applicable to The Property," with respect to any
tax fiscal year, only the current annual installment for such tax fiscal year.
In the event The Property is not separately assessed, then the taxes,
assessments and other charges shall be apportioned upon the ratio of total
number of square feet in The Property to the total number of square feet in all
offices in The Building.
Within a reasonable time after the date Landlord receives each tax bill
covering The Property, Landlord shall notify Tenant in writing of the following:
(1) the total taxes applicable to The Property for the tax fiscal year in
question; and (2) the basis for calculating the taxes applicable to The
Property.
Tenant's liability to pay taxes applicable to The Property shall be
prorated on the basis of a 365-day year to account for any fractional portion
of a tax fiscal year included in the term at its commencement and expiration.
After expiration or termination of the term, Tenant shall pay to Landlord,
immediately on demand, the amount remaining unpaid toward Tenant's obligation
to pay taxes applicable to The Property for the partial tax fiscal year
included in the term at its end, or Landlord shall pay to Tenant any excess
amounts Tenant shall have paid to Landlord for such last tax fiscal year
included in the term at its end, provided Tenant is not in default.
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3.7. UTILITIES AND SERVICES. Tenant agrees to pay all charges whatsoever
for the furnishing of utilities, including, but not necessarily limited to, gas,
electricity, water, and telephone service to The Property and for removal of
garbage from The Property.
ARTICLE IV
PREPARATION AND MAINTENANCE
4.1. CONDITION OF PROPERTY. Tenant accepts The Property, including the
appurtenant facilities and improvements, in their present condition. Tenant has
inspected The Property and stipulates that The Property and appurtenant
facilities and improvements are in good, clean, safe, and tenantable condition
as of the date of signing this Lease.
4.2. TRADE FIXTURES. Tenant may, at Tenant's expense, install trade
fixtures on The Property for use in Tenant's business to be conducted on The
Property. All trade fixtures, goods, effects, personal property, machinery, and
equipment owned by Tenant, or installed at Tenant's expense, on The Property
shall remain the personal property of Tenant and may be removed by Tenant at any
time, and from time to time, during the term of this Lease; provided, that
Tenant shall, in removing any such property, repair all damage to The Property
caused by such removal and shall restore The Property to its original condition
at the commencement of the term, reasonable wear and tear excepted.
4.3. ALTERATIONS TO PROPERTY. Tenant shall not make any alterations or
additions on the demised premises nor make any
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contract therefore without first procuring Landlord's written consent, except
for nonstructural interior alterations and/or improvements made by Tenant to or
upon the demised premises.
All work with respect to alterations, additions, and changes must be done
in a good and workmanlike manner and diligently prosecuted to completion to the
end that the improvements on the demised premises shall at all times be a
complete unit except during the period of work.
Any changes, alterations, and improvements shall be performed and done
strictly in accordance with the laws and ordinances relating thereto, and with
the requirements of all carriers of insurance on the demised premises and the
Board of Underwriters, Fire Rating Bureau, or similar organization. In
performing the work of any such alterations, additions or changes, Tenant shall
have the work performed in such a manner so as not to obstruct the access to The
Building of any other tenant in The Building.
Before commencing any such work or construction in or about the demised
premises, Tenant shall notify Landlord in writing of the expected date of
commencement thereof. Landlord shall have the right at any time and from time to
time to post and maintain on the demised premises such notices as Landlord deems
necessary to protect the demised premises and Landlord from the liens of
mechanics, laborers, materialmen, suppliers or vendors.
4.4. SIGNS. Tenant may not install, or permit any other person to
install, any sign, awning, canopy, marquee, or other advertising on any exterior
wall, door, or window of The Property
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or The Building without Landlord's prior written consent, which shall not be
unreasonably withheld or delayed. The parties acknowledge that Tenant from time
to time may engage in promotional advertising which includes the use of signs or
other advertising affixed to the interior side of exterior windows. In such
instances, Tenant shall not be required to obtain the Landlord's prior written
consent before installing such signs. On the expiration or sooner termination
of this Lease, Tenant shall remove any items which were permitted to be
installed according to the terms of this paragraph.
4.5. LANDLORD'S MAINTENANCE DUTY. Landlord shall participate with the
owners association as required by all the CC&R's and amendments in keeping in
good order, condition and repair, including replacement if required, the roof,
the foundations, bearing and exterior walls (excluding the interior of all
walls, and any exterior or interior of any windows, doors, plateglass, display
windows, and interior ceiling of The Property), subflooring, unexposed
electrical, plumbing and sewage systems, including, without limitation, those
portions of the system lying outside The Property, except for (a) any damage
thereto caused by any act, negligence or omission of Tenant or its agents,
contractors, servants, or employees, (b) reasonable wear and tear and (c) for
any structural alterations or improvements required by a governmental agency by
reason of Tenant's use and occupancy of The Property. Tenant shall reimburse
Landlord for the costs which Landlord incurs in performing its obligations as
aforesaid, with respect to the
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building of which The Property are a part, and which is identified as 1600 E.
Florida Avenue, Hemet, California. Said costs and expenses shall be paid to
Landlord within ten (10) days of receipt of an invoice for the costs of same
from Landlord.
Landlord, where permitted by law and the CC&R's and amendments, shall
have fifteen (15) days after written notice from Tenant to commence
performance of Landlord's obligation under this paragraph, except that
Landlord, where permitted by law and the CC&R's and amendments, shall perform
its obligations immediately, if the nature of the problem presents a hazard
or emergency. Tenant waives the provisions of any law permitting Tenant to
make repairs at Landlord's expense. Tenant expressly agrees that the use of
roof area shall be limited to ingress for maintenance purposes only, and that
said roof areas shall not be used for storage, inventory and other similar
uses.
4.6. TENANT'S MAINTENANCE DUTY.
(1) Except as provided in paragraph 4.5, Tenant shall, during the
term of this Lease, keep the demised premises in good order, condition and
repair, including the improvements constructed by Tenant therein, and including
the interior surface of exterior walls, ceiling, all windows, doors, door frames
and door closures, plateglass, storefronts, and showcases, all heating and
electrical equipment, air conditioning equipment and plumbing systems, if any,
installed therein, and shall as necessary, or when required by governmental
authority, make modifications or replacements thereof. Furthermore, Tenant shall
keep in good order, condition and repair, including replacement as
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required, the remote drive-through teller building and all its related areas.
Upon Tenant's request, Landlord shall assign to Tenant all
warranties applicable to the equipment, machinery and portions of The Property
which Tenant is obligated to maintain or replace pursuant to this paragraph 4.6.
(2) If Tenant refuses or neglects to make repairs and/or maintain
the demised premises, or any part thereof, in a manner reasonably satisfactory
to Landlord, Landlord shall have the right but shall not be obligated to make
such repairs or perform such maintenance on behalf of and for the account of
Tenant without liability to Tenant for any loss or damage that may accrue to
Tenant's business by reason thereof. In such event, such work shall be paid for
by Tenant as additional rent promptly upon demand.
(3) Tenant shall contract with a service company for the
maintenance of the heating and air conditioning equipment.
4.7. ENTRY BY LANDLORD. Landlord, and Landlord's agents and
representatives, shall have the right to enter and inspect The Property at any
reasonable time, for the purpose of ascertaining the condition of The Property,
of exercising any right or performing any obligation of Landlord under this
Lease, or of exhibiting The Property to prospective tenants, purchasers,
mortgagees, or insurers of Landlord's interest in The Property. In case of
emergency, Landlord shall have the right to enter The Property at any time; and,
if Tenant is not present to permit such entry, Landlord may forcibly enter The
Property and any such
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entry shall not in any circumstances be construed or deemed to be a forcible or
unlawful entry onto or a detainer of The Property or any portion of The
Property. No entry by Landlord, permitted under this paragraph, shall be deemed
a re-entry nor shall Tenant be entitled to compensation or abatement of rent for
any inconvenience, nuisance, or discomfort occasioned by such entry.
ARTICLE V
USE OF PROPERTY
5.1. PERMITTED USE. Tenant agrees to use The Property for the sole
purpose of operating a full-service bank branch and offering related financial
services, during normal and customary business hours within the financial
community of Hemet during the term of this Lease. Tenant may not use The
Property for any other purpose than the primary purpose, or uses normally
incident to the primary purpose, without Landlord's prior written consent, which
shall not be unreasonably withheld. Tenant shall, at Tenant's own cost and
expense, obtain any and all licenses and permits necessary for such use of The
Property.
5.2. PROHIBITED USE. Tenant agrees not to do or permit to be done on or
about The Property, nor to bring or keep or permit to be brought or kept on or
about The Property, anything which is prohibited by or will in any way conflict
with any law, statute, or government regulation now or hereafter in effect,
which is prohibited by the standard form of fire insurance, or which will in any
way increase the existing rate of, cause the cancellation of, or otherwise
affect fire or any other insurance on The Property or any of its contents.
Tenant agrees not to use or
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allow The Property to be used for residential purposes or for any improper,
immoral, unlawful, or objectionable purpose. Tenant agrees not to cause,
maintain, or permit any nuisance on or about The Property and further agrees not
to commit or suffer to be committed any waste on The Property.
5.3. COMPLIANCE WITH GOVERNMENT REGULATIONS. Tenant agrees to comply
with all statutes, ordinances, regulations, and requirements, whether now in
force or enacted during the term of this Lease, of all government entities
having jurisdiction over Tenant's use and occupancy of The Property. Landlord
may terminate this Lease immediately if Tenant is found to be in violation of
any statute, ordinance, regulation, or requirement of any government entity and
does not cure such violation within ninety (90) days of such violation. The
judgment of any court, or the Tenant's admission of violation in any proceeding
brought by a government entity, shall be conclusive proof between Landlord and
Tenant of Tenant's violation. Such termination shall not relieve Tenant from any
and all obligations under this Lease.
ARTICLE VI
INDEMNITY AND INSURANCE
6.1. INDEMNITY. Landlord shall not be liable to Tenant for any loss or
damage to person or property caused by theft, fire, act of God, acts of the
public enemy, riot, strike, insurrection, war, court order, requisition or
order of governmental body or authority, or other causes beyond Landlord's
reasonable control. Tenant shall indemnify Landlord and hold Landlord
harmless of and from any and all loss, cost, damage, injury, or expense
arising
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out of or related to claims of injury to or death of persons or to claims of
damage to property occurring or resulting directly or indirectly from Tenant's
use or occupancy of The Property or from Tenant's activities on or about The
Property, such indemnity to include, but without limitation, the obligation to
provide all costs of defense against any such claims; provided, that such
indemnity shall not extend to any such loss arising from Landlord's negligence.
In addition, Tenant shall hold and save Landlord harmless and indemnify Landlord
of and from any and all loss, cost, damage, injury, or expense arising out of or
in any way related to claims for work or labor performed or to claims for
materials or supplies furnished to or at the request of Tenant or in connection
with performance of any work done for the account of Tenant on The Property.
6.2. LIABILITY INSURANCE. Tenant agrees to secure and maintain a broad
form comprehensive coverage policy of public liability and property damage
insurance, with a limit of not less than $3,000,000 combined single limit bodily
injury and property damage coverage, issued by an insurance company acceptable
to Landlord, insuring against loss or liability resulting from Tenant's use or
occupancy of The Property or from Tenant's activities on or about The Property.
Tenant agrees to name Landlord as an additional insured under the policy for the
purpose of assuring Tenant's performance of the indemnity provisions set forth
in paragraph 6.1 of this Lease, but Tenant's duty to indemnify Landlord is not
limited to the amount of insurance procured pursuant to the terms of this
paragraph 6.2.
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6.3. ALL RISK INSURANCE. Tenant agrees to secure and maintain an all
risk replacement cost insurance policy with agreed amount endorsement, issued by
an insurance company acceptable to Landlord, covering any improvements, and
Tenant's trade fixtures, equipment, and personal property of every description
located on The Property, in an amount equal to the full replacement value
thereof.
6.4. WAIVER OF SUBROGATION. The parties agree to release each other, and
their respective authorized representatives, from any claims for damage to any
person, The Property or any improvements on The Property, or Tenant's trade
fixtures, equipment, or personal property located on The Property, caused by or
resulting from risks insured against under any insurance policies carried by the
parties pursuant to this Lease that are in force at the time of any such damage
to the extent of the available insurance proceeds. Each party shall cause each
insurance policy carried pursuant to this Lease by that party to be written to
provide that the insurance company waives all right of recovery by way of
subrogation against either party in connection with any damage covered by the
policy.
6.5. EVIDENCE OF INSURANCE. Tenant agrees to deliver to Landlord a
certificate of insurance, evidencing all insurance required to be maintained
by Tenant under this Lease, prior to Tenant's occupancy of The Property.
Notwithstanding any other provision of this Lease to the contrary, Landlord
shall have no obligation to deliver possession of The Property to Tenant
until Landlord has received the certificate of insurance. Upon request
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of Tenant, Landlord shall provide to tenant a certificate of insurance
evidencing all insurance required to be maintained by the Landlord under this
Lease.
ARTICLE VII
DESTRUCTION OR CONDEMNATION
7.1. LANDLORD'S OBLIGATION TO RESTORE THE PROPERTY.
Subject to the provisions of paragraphs 7.2, 7.3, and 7.4 of this Article, in
case of damage to The Property by fire or other casualty against which Landlord
is insured pursuant to paragraph 6.3 of this Lease or through the owners
association, Tenant shall give immediate notice in writing of the damage to
Landlord, who shall, on receipt of the notice, rebuild and restore The Property
to its former condition or cause the owners association to do so, with
reasonable speed, at Landlord's expense, subject to delays which may arise by
reason of adjustment of loss under insurance policies and for delays beyond
Landlord's reasonable control. To the extent that any part of The Property is
rendered untenantable as a result of the damage, the rent shall abate
proportionately from the date of the damage until the restoration of The
Property is completed. Untenantable as used in this section shall be interpreted
to mean that Tenant cannot use that portion of The Property in Tenant's normal
business operation or is precluded from using it by operation of law.
7.2. LANDLORD'S OPTION TO TERMINATE THE LEASE. If The Property is
damaged or destroyed by any cause whatsoever, and if, in Landlord's reasonable
opinion, The Property cannot be rebuilt or made fit for Tenant's purposes within
180 days after the
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damage or destruction, instead of rebuilding and restoring The Property Landlord
may terminate this Lease by giving notice of termination to Tenant within 30
days after such damage or destruction. On giving such notice, the rent shall be
apportioned and paid to the date of the damage, and Tenant shall immediately
deliver up possession of The Property to Landlord.
7.3. DAMAGE DURING LAST YEAR OF TERM. If The Property is substantially
destroyed by fire or other causes at any time during the last year of the term
of this Lease, either Landlord or Tenant may terminate this Lease on written
notice to the other party given within 60 days of the date of such destruction.
Termination shall be effective within 30 days after the notice is given, the
rent shall abate proportionately from the date of the destruction until the date
of termination, and Tenant shall deliver up possession of The Property to
Landlord on the date of termination.
7.4. NO CLAIMS. Any insurance proceeds received by Landlord because of
damage to or destruction of all or a portion of The Property shall be the
Landlord's sole property, and Tenant agrees to make no claim against the
proceeds. No damages, compensation, or claim in excess of any insurance proceeds
shall be payable by Landlord to Tenant for inconvenience, loss of business, or
annoyance arising from any repair or restoration of any portion of The Property
pursuant to paragraph 7.1 of this Lease. Landlord shall use best efforts to
effect such repairs or restoration promptly and in such manner as not to
interfere unreasonably with Tenant's occupancy.
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7.5. TOTAL TAKING. In the event that the whole or substantially the
whole of The Property is lawfully condemned or taken in any manner for public or
quasi-public use, this Lease, and the term and estate granted by this Lease,
shall cease forthwith and terminate as of the date of taking of possession of
The Property for such public or quasi-public use.
7.6. PARTIAL TAKING. If more than 50 percent of The Property is
condemned or taken, either party may elect at any time within 30 days of the
date of the condemnation or taking to cancel this Lease on written notice to the
other, and this Lease shall terminate on the date specified in the notice, which
date shall be no earlier than the date of the condemnation or taking. If this
Lease continues in force as to any part of The Property following any such
condemnation or taking, the rent shall be diminished by an amount representing
the part of the rent that is properly applicable to the portion of The Property
which is condemned or taken. If less than fifty percent (50%) of The Property is
condemned or taken and if the condemnation or taking renders the remaining
portion of The Property unsuitable for Tenant's continued use of The Property,
either party may, on 30 days written notice to the other, terminate this Lease
as of the date of the condemnation or taking.
7.7. TERMINATION OF THE LEASE ON TAKING. In the event of the termination
of this Lease pursuant to the provisions of paragraph 7.5 or 7.6, this Lease,
and the term and estate granted by this Lease, shall expire as of the date of
such termination in the same manner and with the same effect as if that were the
date
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set for the normal expiration of the term of this Lease, and the rent shall be
apportioned as of that date.
7.8. CONDEMNATION AWARD. Except as otherwise provided in paragraph 7.9
of this Lease, Landlord shall be entitled to receive the entire award in any
condemnation proceeding without deduction therefrom for any estate vested in
Tenant by this Lease, and Tenant shall receive no part of such award. Tenant
expressly assigns to Landlord any and all of Tenant's right, title, and interest
in or to such award or any part of such award. Notwithstanding the foregoing,
Tenant shall be entitled to appear, claim, prove, and receive in the
condemnation proceeding such award as may be made that represents the loss or
damage to Tenant's trade fixtures and removable personal property located on The
Property, removal or relocation costs, and the unamortized balance of any
improvements or alterations installed on The Property at Tenant's expense.
7.9. TEMPORARY TAKING. If the temporary use or occupancy of all or any part
of The Property is condemned or taken for any public or quasi-public use during
the term of this Lease, this Lease shall remain unaffected by such condemnation
or taking, and Tenant shall continue to pay in full all sums payable by Tenant
under this Lease. In the event of any such condemnation or taking, Tenant shall
be entitled to appear, claim, prove, and receive in the condemnation proceeding
such award as may be made that represents compensation for the use and occupancy
of The Property during the term of this Lease and Landlord shall be entitled to
appear, claim, prove, and receive such award as may
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be made that represents compensation for the use and occupancy of The Property
after the end of the term of this Lease.
7.10. RESTORATION OF THE PROPERTY. In the event of any condemnation or
taking of less than the whole of The Property, and this Lease shall continue in
effect, in whole or in part, or in the event of a condemnation or taking for a
temporary use or occupancy of all or any part of The Property, Landlord, to the
extent that the condemnation award shall be sufficient for the purpose, shall
restore the remaining part of The Property to substantially its former condition
to the extent that this is feasible.
ARTICLE VIII
ASSIGNMENT AND SUBLEASING
8.1. LIMITATION ON ASSIGNMENT OR SUBLEASING. Tenant may not assign,
encumber, or otherwise transfer all or any part of Tenant's interest in The
Property, sublease all or any part of The Property, or allow any person except
Tenant's authorized agents or employees, to occupy or otherwise use all or any
part of The Property, without Landlord's prior written consent. The occupancy of
The Property by any successor firm of the Tenant, or any firm into which the
Tenant may become merged, and any entity controlling, under common control with,
or controlled by, Tenant shall not be deemed an assignment of this Lease. Any
assignment, transfer, encumbrance, or sublease without Landlord's prior written
consent is voidable by Landlord. This Lease shall continue in effect for so long
as Landlord does not terminate Tenant's right to possession, and Landlord may
enforce all rights
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and remedies under this Lease, including the right to recover the rent as it
becomes due.
8.2. CONSENT NOT TO BE UNREASONABLY WITHHELD. Landlord's consent to any
assignment, transfer, encumbrance, or sublease may not be unreasonably
withheld, provided that any transferee (assignee or sublessee, as
appropriate) shall execute Landlord's form of lease, assuming all terms,
covenants, and conditions of this Lease. A consent given to a particular
assignment, transfer encumbrance, or sublease shall not constitute a consent
to any subsequent assignment, transfer, encumbrance, or sublease, or a waiver
of the provisions of this Article.
8.3. ASSIGNMENT OF RENTS ON SUBLEASING. If Landlord's consent to a
sublease is obtained as provided above, Tenant shall immediately and
irrevocably assign to Landlord all rent from the sublease. However, so long
as Tenant is not in default with regard to the payment of rent under this
Lease, Tenant may collect the rents from any subtenants. If at any time after
the assignment is made, Tenant defaults in the payment of rent, Landlord may
collect the rent due from any subtenants and apply it toward Tenant's
obligations under this Lease. However, Landlord's acceptance of rent from any
transferee of Tenant shall not constitute a consent to the transfer or a
waiver of Tenant's breach of the covenants contained in this Article.
8.4. TRANSFER OF RIGHTS NOT DEEMED AN ASSIGNMENT. If Tenant, or any
permitted assignee or subtenant of Tenant, is a corporation, and if at any
time during the term of this Lease any part or all of the corporate shares or
voting rights of
22
shareholders shall be transferred by sale, assignment, bequest, inheritance,
trust, operation of law, or other disposition, or treasury shares be issued so
as to result in a change in the control of the corporation by reason of
ownership of greater than 50 percent of the voting shares of the corporation or
otherwise, then such transfer or issue shall not be deemed an assignment for the
purposes of this Article. Tenant shall, however, notify Landlord in writing of
any such changes and, on Landlord's request, shall make available to Landlord
for inspection appropriate books and records of Tenant which, alone or with
other data, provide Landlord with adequate information concerning the change of
control.
8.5. EFFECT OF TERMINATION OF LEASE ON SUBTENANTS. In the event of a
termination of this Lease, at Landlord's option, each subtenant of space on The
Property shall attorn to Landlord and shall be deemed to have agreed to the
provisions of this paragraph.
ARTICLE IX
TERMINATION OF LEASE
9.1. TERMINATION ON TENANT'S DEFAULT. In the event that (i) Tenant defaults
in the payment of rent and such default continues for a period of 10 consecutive
days, or (ii) Tenant vacates or abandons The Property for a continuous period in
excess of 10 days, or (iii) Tenant defaults in the performance of any obligation
required to be performed by Tenant under this Lease (other than abandonment or
the payment of rent) and fails for a period of 20 days after written notice from
Landlord
23
specifying such default to cure the default (unless the default cannot be cured
within this 20-day period, in which case Tenant shall commence to cure the
default within the 20-day period and shall cure the default with all reasonable
dispatch), or (iv) Tenant is adjudicated bankrupt, or a petition by or against
Tenant for reorganization or adjustment of Tenant's obligations under the
Bankruptcy Act or any other existing or future insolvency or bankruptcy statute
is approved, or Tenant makes a general assignment of Tenant's property for the
benefit of creditors, or a receiver or trustee is appointed to take control
of Tenant's business or assets, then, and in each such case, Landlord may, at
Landlord's option, terminate Tenant's right to possession and thereby terminate
this Lease, or without terminating this Lease, Landlord may re-enter The
Property and for the account of Tenant re-let The Property, or any portion or
portions of The Property, for all or any part of the unexpired term of
this Lease on such terms and conditions as Landlord may elect.
9.2. DAMAGES RECOVERABLE ON TERMINATION. In the event of a termination
of this Lease by Landlord pursuant to paragraph 9.1, Landlord shall be entitled
to recover from Tenant (i) the worth at the time of award of the unpaid rent
which had been earned at the time of termination, (ii) the worth at the time of
award of the amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided, (iii) the worth at the time of
award of the amount by which the unpaid rent for the balance of the term after
the time
24
of award exceeds the amount of such rental loss that Tenant proves could be
reasonably avoided, and (iv) any other amount necessary to compensate Landlord
for all detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease, or, which in the ordinary course of things, would
be likely to result from Tenant's failure to perform. Efforts by Landlord to
mitigate the damages caused by Tenant's breach of this Lease shall not
constitute a waiver by Landlord of Landlord's right to recover damages under
this Lease.
9.3. "WORTH AT THE TIME OF AWARD". The "worth at the time of award" of
the amounts referred to in subsections (i) and (ii) of paragraph 9.2 shall be
computed with interest at the lesser rate of 18 percent per year or the maximum
rate allowed by law. The "worth at the time of award" of the amount referred to
in subsection (iii) of paragraph 9.2 shall be computed by reference to competent
appraisal evidence or the formula prescribed by and using the lowest discount
rate permitted under applicable law.
9.4. LANDLORD'S RIGHT TO RE-LET THE PROPERTY ON TENANT'S DEFAULT. In the
event that Landlord re-lets The Property, without terminating this Lease,
pursuant to paragraph 9.1, Landlord shall be entitled to recover monthly from
Tenant the difference between the monthly installments of Basic Rent and such
other amounts as may be payable by Tenant to Landlord pursuant to the provisions
of this Lease over the total monthly rental received by Landlord on such
re-letting, after first deducting therefrom all expenses reasonably incurred by
Landlord in such re-letting and in repairing, renovating, remodeling, and
25
altering The Property for the purpose of such re-letting. Landlord shall not be
deemed to have elected to terminate this Lease, the liability of Tenant to pay
rent, or the liability of Tenant for damages under any of the provisions of this
Lease by any such re-letting or by any action in unlawful detainer or otherwise
to obtain possession of The Property, unless Landlord shall have notified tenant
in writing that Landlord has so elected to terminate this Lease.
For purposes of this Article, the following shall not constitute
termination of Tenant's right to possession: (1) acts of maintenance or
preservation or efforts to re-let The Property; or, (2) the appointment of a
receiver on Landlord's initiative to protect Landlord's interest under this
Lease. Nothing contained in this Article shall be construed as obligating
Landlord to re-let the whole or any part of The Property. In the event of any
re-letting of The Property, Landlord shall have the right, but not the
obligation, to remove from The Property all or any part of the personal
property located on The Property and may place such personal property in
storage at a public warehouse selected by Landlord, at the expense and risk
of the owner or owners of such personal property.
9.5. ADDITIONAL REMEDIES. The remedies provided to Landlord by this
Article shall be cumulative and shall be in addition and supplemental to all
other rights or remedies which Landlord may lawfully pursue in the event of any
breach or threatened breach by Tenant of any of the provisions of this Lease.
26
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. NOTICES AND RENT PAYMENTS. Except as otherwise expressly required
by law, all rent payments are deemed tendered, and all notices required to be
given by this Lease are deemed duly served, either when personally delivered to
the party to whom it is addressed, or when mailed by registered or certified
mail addressed as follows:
Landlord: TDE, INCORPORATED
5602 East Second Street
Long Beach, California 90803
Tenant: THE BANK OF HEMET
1600 E. Florida Avenue, Suite 211
Hemet, California 92344
Landlord and Tenant may change their respective addresses by giving written
notice to the other in the manner specified in this paragraph. Any notice
mailed, as provided in this paragraph, shall be effective at the expiration
of 72 hours after deposit of the notice, with postage prepaid, in the United
States mail at any place within the State of California.
10.2. INTERPRETATION. This Lease is to be construed and interpreted in
accordance with the laws of the State of California. If any provision of this
Lease is held either invalid, void, or unenforceable by a court of competent
jurisdiction, the remaining provisions of this Lease remain in full force and
effect. This instrument constitutes the entire agreement between Landlord and
Tenant, and correctly sets forth the obligations and rights of Landlord and
Tenant with respect to each other and The Property as of the date of signing
this Lease. Any
27
agreements or representations not expressly set forth in this Lease are null and
void. This Lease has been drafted on the basis of the parties' mutual
contributions of language and it is not to be construed against any party as
being the drafter (or causing the drafting) of this Lease.
10.3. HEADINGS. The headings of the articles and paragraphs of this Lease
are inserted for convenience only and do not constitute part of this Lease and
may not be used in its construction.
10.4. ATTORNEYS' FEES. If either Landlord or Tenant commences any legal
action or proceeding against the other party to enforce the provisions of this
Lease, the prevailing party is entitled to recover reasonable attorneys' fees
and costs of suit, including attorneys' fees and costs on appeal.
10.5. COUNTERPARTS. For the convenience of the parties, this Lease may be
executed in one or more counterparts, which must each be considered an original.
All of the counterparts constitute one and the same instrument.
10.6. QUIET ENJOYMENT. So long as Tenant is not in default under any of
the covenants and agreements of this Lease, Tenant's quiet and peaceful
enjoyment of The Property shall not be disturbed or interfered with by Landlord
or by any person claiming by, through, or under Landlord.
10.7. HOLDING OVER. In the event Tenant shall hold The Property after the
expiration of the term of this Lease with the express or implied consent of
Landlord, such holding over shall be deemed to have created a tenancy from month
to month,
28
terminable on 30 days notice by either party to the other, at a monthly Rent
equal to the monthly rent then in effect.
10.8. TRANSFERS BY LANDLORD. Landlord shall have the right to transfer
and assign, in whole or in part, all of Landlord's rights and obligations under
this Lease and in The Property, and in such event and on assumption by
Landlord's transferee of Landlord's obligations under this Lease, no further
liability or obligations shall accrue against Landlord under this Lease, and
Landlord shall be entirely relieved of all agreements and conditions of this
Lease to be performed by Landlord. Tenant agrees to attorn to any such
transferee or assignee.
10.9. ESTOPPEL CERTIFICATES. Tenant agrees, from time to time, within
20 days after Landlord's request, to deliver to Landlord, or Landlord's
designee, an estoppel certificate stating that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the Lease
is in full force and effect as modified and stating the modifications), the
date to which rent and other charges have been paid, the unexpired term of
this Lease, whether there are any defaults or rent abatements or offsets
claimed by Tenant, and such other matters pertaining to this Lease as may be
reasonably requested by Landlord or Landlord's mortgagee, assignee, or
transferee, it being intended that any such statement delivered pursuant to
this paragraph may be relied on by any prospective purchaser of all or any
part of Landlord's interest in The Property or by any mortgagee or assignee
of any mortgage on all or any part of Landlord's interest in The
29
Property and their respective successors and assigns.
10.10. MODIFICATION. This Lease may not be altered, changed, or amended
except by an instrument in writing signed by Landlord and Tenant.
10.11. TIME IS OF THE ESSENCE. Time is of the essence of this Lease, and
all provisions of this Lease relating thereto shall be strictly construed.
10.12. RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be
deemed or construed by Landlord and Tenant, nor by any third party, as creating
the relationship of principal and agent, of partnership, or of joint venture by
Landlord and Tenant, it being understood and agreed that no provision contained
in this Lease, nor any acts of Landlord and Tenant, shall be deemed to create
any relationship other than the relationship of landlord and tenant.
10.13. COVENANTS AND CONDITIONS. All of the obligations of Landlord and
Tenant under this Lease shall be deemed and construed to be conditions as
well as covenants, as though the words specifically expressing or importing
covenants and conditions were used in each separate instance.
10.14. SALE OF PROPERTY. Notwithstanding any of the provisions of this
Lease, Landlord may:
(1) assign in whole or in part Landlord's interest in
this Lease; and
(2) sell all or any part of The Building or the leased
premises.
30
10.15. BINDING ON SUCCESSORS. The covenants and agreements herein
contained shall bind and inure to the benefit of Landlord and Tenant's
successors and assigns, and Tenant, and each of its partners, their heirs,
personal representatives, successors and assigns, subject to the provisions of
this Lease.
10.16. AUTHORITY OF TENANT CORPORATION. A certified copy of the resolution
of the board of directors of Tenant which authorizes the signatories to this
Lease on Tenant's behalf to enter into and execute this Lease and to take all
further actions necessary to implement the provisions of this Lease is contained
in Exhibit B which is attached to and made a part of this Lease by this
reference.
10.17. USE OF TENANT'S NAME. So long as Tenant remains as tenant in The
Bank of Hemet Professional Building, the Landlord covenants and agrees, if
Landlord hereafter acquires fee ownership of The Building or ownership
interest of a majority of the condominium units in The Building, The Building
shall be known as The Bank of Hemet Professional Building and so designated
in all advertising for The Building. In any event, Landlord further covenants
and agrees that it shall use its best efforts to preserve use of the name The
Bank of Hemet Professional Building for The Building so long as Tenant
remains a tenant in said building.
In addition, so long as Tenant remains a tenant in The Bank of Hemet
Professional Building, the Landlord may, upon written consent of the Tenant,
incorporate in its signs Tenant's logo, a
31
copy of which is attached hereto as Exhibit B and incorporated herein by
reference.
Landlord shall submit to Tenant for review and approval, before
fabrication, a detailed drawing covering the location, size, layout, design
and color, including all lettering and graphics, of any proposed sign which
incorporates the words, "The Bank of Hemet," or The Bank of Hemet logo.
Tenant's approval shall not be unreasonably withheld.
In the event Tenant is acquired by, merges or consolidates with another
business entity and, as a result, changes its name but remains a tenant under
its new name, then Landlord covenants and agrees, if Landlord hereafter
acquires fee ownership of The Building, that the name of The Building shall
be changed to Tenant's new name for so long as Tenant remains a tenant in The
Building. Tenant shall pay all costs of modifying signage and other
identifying features of The Building to reflect The Building's new name.
This covenant shall survive assignment of this Lease by Landlord or Tenant
and shall be binding upon the successors and assigns of Landlord.
10.18. PARKING AND TRAFFIC CIRCULATION. In addition to the parking rights
conferred on Tenant pursuant to the common area provisions of the lease, the
Tenant shall be entitled to the exclusive use of the parking spaces subject to
approval of owners association and entrance and exit traffic lanes to the
drive-through remote tellers, all of which are highlighted in charcoal grey on
Exhibit A, attached.
32
The traffic circulation in the parking areas, as it exists as of the date
of execution of this Lease, is an integral part of the efficient functioning of
customer access to Tenant and use of the drive-through remote teller islands. In
the event Landlord hereafter acquires fee ownership of The Building or ownership
interest of a majority of the condominium units in The Building, Landlord shall
not rearrange or redesignate the existing traffic circulation, as of the date of
this Lease, without the prior written consent of Tenant, which shall not be
unreasonably withheld. In any event, Landlord further covenants and agrees that
it shall use its best efforts to preserve the existing traffic circulation, as
of the date of this Lease, without the prior written consent of Tenant, which
shall not be unreasonably withheld.
10.19. TENANT TO ABIDE BY RULES. Tenant agrees to observe, abide by and
conform to the rules and regulations pertaining to the use and occupancy of The
Property and The Building, and acknowledges receipt of a copy of the rules and
regulations and amendments thereto.
Tenant understands that the property is part of a project which is subject
to the provisions of a Declaration, Articles of Incorporation, and Bylaws
("project documents"). In addition, the project is subject to the rules and
regulations as adopted by the board of directors of the owners association. In
the event of any conflict between project documents and this Lease, the project
documents shall control. Tenant hereby acknowledges receipt of a copy of each of
said documents, represents that is
33
has read the same and agrees to abide by all of the terms, provisions and
conditions of said documents, and further agrees to abide by any and all rules
and regulations not now in effect but hereafter adopted by the board of
directors of the owners association or by the association itself. Breach of this
covenant by Tenant shall be grounds for termination of the Lease.
Executed on March 15, 1988, at Hemet, California.
LANDLORD: TDE, INCORPORATED.
A California Corporation
By: /s/ Norene E. Scott
-------------------------------------
NORENE E. SCOTT, President
TENANT: THE BANK OF HEMET
By: /s/ James B. Jaqua
-------------------------------------
JAMES B. JAQUA, President
34
Exhibit A
[FLOOR PLAN]
[FLOOR PLAN]
BANK OF HEMET PROFESSIONAL BUILDING
-----------------------------------
BASEMENT PARKING
SPACE ALLOCATION
ASSIGNMENTS
ADDENDUM TO LEASE
Pursuant to that Lease dated March 15, 1988 between THE BANK OF HEMET, a
California Corporation as tenant ("Tenant in said Lease), and TDE INCORPORATED,
a California Corporation, as Landlord ("Landlord" in said Lease), both parties
here agree to modifications to the Lease as follows:
ARTICLE III
Section 3.4 MANNER OF PAYMENT
Paragraph one, line five, strike out the word "Penalty" and substitute
"Charge".
Section 3.6 REAL PROPERTY TAXES
In the last sentence of the first paragraph, strike out "transfer taxes of
Landlord" and substitute "any taxes imposed on income from the sale of the
property by Landlord".
ARTICLE IV
Section 4.4 SIGNS
Paragraph one, line ten, to the sentence ending "before installing such
signs," add ", Provided tenant obtains prior approval from the Condominium
Association".
Section 4.6.(1) TENANT'S MAINTENANCE DUTY
Second paragraph, second line, strike "all warranties applicable to" and
substitute "any warranties, held by Landlord applicable to".
Article 4.6.(3) TENANT'S MAINTENANCE DUTY
Delete existing sentence and substitute the following sentence: Tenant
shall contract for and pay the costs of maintenance of all heating and air
conditioning equipment not maintained by the owners association.
ARTICLE V
Section 5.1 PERMITTED USE
In the first sentence after the word "bank" add "or savings and loan".
Strike the second sentence and substitute the following sentence: Tenant
may not use the Property for any other purpose than the sole purpose set
forth above, or uses incident thereto, without the prior written consent of
Landlord, which shall not be unreasonably withheld.
ARTICLE VIII
Section 8.1 LIMITATION ON ASSIGNMENT OR SUBLETTING
In the third sentence strike "is voidable by Landlord" and substitute
"shall be void".
Section 8.2 CONSENT NOT TO BE UNREASONABLY WITHHELD
At the point in the first sentence after the word "appropriate" add
"provided that any transferee shall operate a full service Bank branch or
savings and loan branch office offering related financial services and".
At the end of Paragraph one add the sentence "Landlord's consent to any
assignment, transfer, encumbrance, or sublease, however, shall not release
Tenant from its obligation under this Lease".
ARTICLE X
Section 10.19 TENANT TO ABIDE BY RULES
Paragraph two, last sentence reads "Breach of this covenant by Tenant shall
be grounds for termination of the Lease" which shall be modified as
follows; "Breach of this covenant by Tenant shall be considered an event of
default pursuant to Article IX, Section 9.1 of this Lease".
Section 10.20 NON WAIVER (to be added to ARTICLE X)
No covenant, term or condition, or breach thereof, shall be deemed waived
except if expressly waived in a written instrument executed by Landlord,
and any such waiver of such breach shall not be deemed to be a waiver of
any preceding or succeeding breach. Acceptance of all or any portion of
rent at any time shall not be deemed to be a waiver of any covenant, term
or condition, except as to the rent payment accepted.
Executed on March 17, 1988
Tenant: THE BANK OF HEMET
By: /s/ James B. Jaqua
-----------------------------------
James B. Jaqua, President
Landlord: TDE, INCORPORATED
a California Corporation
By: /s/ Norene E. Scott
-----------------------------------
NORENE E. SCOTT, PRESIDENT