1
EXHIBIT 10.11
Lease between Xxxxx de Oro Bank, N.A. and Wellesley Company, N.V., a Netherlands
Antilles corporation, dated September 1, 1994
2
Rent for any period during.
STANDARD INDUSTRIAL LEASE -- NET
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
[LOGO]
1. PARTIES. This Lease, dated for reference purposes only, ______, 1994, is made
by and between WELLESLEY COMPANY N.V., a Netherlands Antilles corporation
(herein called "Lessor") and XXXXX DE ORO BANK, a California banking corporation
(herein called "Lessee").
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor for
the term, at the rental, and upon all of the conditions set forth herein, that
certain real property situated in the County of San Diego, State of California
commonly known as 0000 Xxxx Xxxx Xxxxxx, Xx Xxxxx and described as Parcel 1 of
Parcel Map No. 6678, filed in the official records of San Diego County,
California on December 21, 1977, as File No. 77-527133. Said real property
including the land and all improvements therein, is herein called "the
Premises".
3. TERM.
3.1 TERM. the term of this Lease shall be for five (5) years and three
(3) months commencing on September 1, 1994 and ending on November 30, 1999
unless sooner terminated pursuant to any provision hereof.
3.3 EARLY POSSESSION. If Lessee occupies the Premises prior to said
commencement date, such occupancy shall be subject to all provisions hereof,
such occupancy shall not advance the termination date, and Lessee shall pay
rent for such period at the initial monthly rates set forth below.
4. RENT. Lessee shall pay to Lessor as rent for the Premises, monthly payments
of $10,867, in advance, on the first day of each month of the term hereof.
Lessee shall pay Lessor upon the execution hereof $10,867 as rent for the month
of December 1994. Rent for September 1994 through November 1994 shall be $0.
However, Lessee will be responsible for maintenance, insurance and taxes, and
other property operating expenses commencing September 1, 1994.
Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the monthly installment. Rent shall be payable in
lawful money of the United States to Lessor at the address stated herein or to
such other persons or at such other places as Lessor may designate in writing.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
$10,867 as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder, or
otherwise defaults with respect to any provision of this Lease, Lessor may use,
apply or retain all or any portion of said deposit for the payment of any rent
or other charge in default or for the payment of any other sum to which Lessor
may become obligated by reason of Lessee's default, or to compensate Lessor for
any loss or damage which Lessor may suffer thereby. If Lessor so uses or applies
all or any portion of said deposit, Lessee shall within ten (10) days after
written demand therefor deposit cash with Lessor in an amount sufficient to
restore said deposit to the full amount hereinabove stated and Lessee's failure
to do so shall be a material breach of this Lease. Lessor shall not be required
to keep said deposit separate from its general accounts. If Lessee performs all
of Lessee's obligations hereunder, said deposit, or so much thereof as has not
theretofore been applied by Lessor, shall be returned, without payment of
interest or other increment for its use, to Lessee (or, at Lessor's option, to
the last assignee, if any, of Lessee's interest hereunder) at the expiration of
the term hereof, and after Lessee has vacated the Premises. No trust
relationship is created herein between Lessor and Lessee with respect to said
Security Deposit.
6. USE.
6.1 USE. The Premises shall be used and occupied only for banking,
general office, or any other use which is reasonably comparable and for no
other purpose.
6.2 COMPLIANCE WITH LAW. See Addendum paragraph 54.
Lessee shall, at Lessee's expense, comply promptly with all applicable
statues, ordinances, rules, regulations, orders, covenants and restrictions of
record, and requirements in effect during the term of any part of the term
hereof, regulating the use by Lessee of the Premises. Lessee shall not use nor
permit the use of the Premises in any manner that will tend to create waste or
a nuisance or, if there shall be more than one tenant in the building
containing the Premises, shall tend to disturb such other tenants.
6.3 CONDITION OF PREMISES.
Lessee hereby accepts the Premises in their condition existing as of the
Lease commencement date or the date that Lessee takes possession of the
Premises, whichever is earlier, subject to all applicable zoning, municipal,
county and state laws, ordinances and regulations governing and regulating the
use of the Premises, and any covenants or restrictions of record, and accepts
this Lease subject thereto and to all matters disclosed thereby and by any
exhibits attached hereto. Lessee acknowledges that neither Lessor nor Lessor's
agent has made any representation or warranty as to the present or future
suitability of the Premises for the conduct of Lessee's business. See Addendum
paragraph 55.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS. Lessee shall keep in good order, condition and
repair the Premises and every part thereof, structural and non structural,
(whether or not such portion of the Premises requiring repair, or the means of
repairing the same are reasonably or readily accessible to Lessee, and whether
or not the need for such repairs occurs as a result of Lessee's use, any prior
use, the elements or the age of such portion of the Premises) including,
without limiting the generality of the foregoing, all plumbing, heating, air
conditioning. (Lessee shall procure and maintain, at Lessee's expense, an air
conditioning system maintenance contract) ventilating, electrical, lighting
facilities and equipment within the Premises, fixtures, walls (interior and
exterior), foundations, ceilings, roofs, (interior and exterior), floors,
windows, doors, plate glass and skylights located within the Premises, and all
landscaping, driveways, parking lots, fences and signs located on the Premises
and sidewalks and parkways adjacent to the Premises.
7.2 SURRENDER. On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same
condition as when received, ordinary wear and tear excepted, clean and free of
debris. Lessee shall repair any damage to the Premises, occasioned
Initials:
----
----
(C)American Industrial Real Estate Association 1980
NET
3
by the installation or removal of Lessee trade fixtures, furnishings and
equipment. Notwithstanding anything to the contrary otherwise stated in this
Lease, lessee shall leave the air lines, power panels, electrical distribution
systems, lighting fixtures, space heaters, air conditioning, plumbing and
fencing on the premises in good operating condition.
7.3 LESSOR'S RIGHTS. If Lessee fails to perform Lessee's obligations under
this Paragraph 7, or under any other paragraph of this Lease, Lessor may at its
option (but shall not be required to) enter upon the Premises after ten (10)
days' prior written notice to Lessee (except in the case of an emergency, in
which case no notice shall be required), perform such obligations on Lessee's
behalf and put the same in good order, condition and repair, and the cost
thereof together with interest thereon at the maximum rate then allowable by law
shall become due and payable as additional rental to Lessor together with
Lessee's next rental installment.
7.4 LESSOR'S OBLIGATIONS. Except for the obligations of Lessor under
Paragraph 9 (relating to destruction of the Premises) and under Paragraph 14
(relating to condemnation of the Premises), it is intended by the parties hereto
that Lessor have no obligation, in any manner whatsoever, to repair and maintain
the Premises nor the building located thereon nor the equipment therein, whether
structural or non structural, all of which obligations are intended to be that
of the Lessee under Paragraph 7.1 hereof. Lessee expressly waives the benefit of
any statute now or hereinafter in effect which would otherwise afford Lessee the
right to make repairs at Lessor's expense or to terminate this Lease because of
Lessor's failure to keep the premises in good order, condition and repair.
7.5 ALTERATIONS AND ADDITIONS.
(a) Lessee shall not, without Lessor's prior written consent make any
alterations, improvements, additions, or Utility Installations in, on or about
the Premises, except for nonstructural alterations not exceeding $2,500 in
cumulative costs during the term of this Lease. In any event, whether or not in
excess of $2,500 in cumulative cost, Lessee shall make no change or alteration
to the exterior of the Premises nor the exterior of the building(s) on the
Premises without Lessor's prior written consent. As used in this Paragraph 7.5
the term "Utility Installation" shall mean carpeting, window coverings, air
lines, power panels, electrical distribution systems, lighting fixtures, space
heaters, air conditioning, plumbing and fencing. Lessor may require that Lessee
remove any or all of said alterations, improvements, additions or Utility
Installations at the expiration of the term, and restore the Premises to their
prior condition. Lessor may require Lessee to provide Lessor, at Lessee's sole
cost and expense, a lien and completion bond in an amount equal to one and
one-half times the estimated cost of such improvements, to insure Lessor against
any liability for mechanic's and materialmen's liens and to insure completion of
the work. Should Lessee make any alterations, improvements, additions or Utility
Installations without the prior approval of Lessor, Lessor may require that
Lessee remove any or all of the same.
(b) Any alterations, improvements, additions or Utility Installations in,
or about the Premises that Lessee shall desire to make and which requires the
consent of the Lessor shall be presented to Lessor in written form, with
proposed detailed plans. If Lessor shall give its consent, the consent shall be
deemed conditioned upon Lessee acquiring a permit to do so from appropriate
governmental agencies, the furnishing of a copy thereof to Lessor prior to the
commencement of the work and the compliance by Lessee of all conditions of said
permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanics' or
materialmen's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days' notice prior to the commencement of any
work in the Premises, and Lessor shall have the right to post notices of
non-responsibility in or on the Premises as provided by law. If Lessee shall, in
good faith, contest the validity of any such lien, claim or demand, then Lessee
shall, at its sole expense defend itself and Lessor against the same and shall
pay and satisfy any such adverse judgment that may be rendered thereon before
the enforcement thereof against the Lessor or the Premises, upon the condition
that if Lessor shall require, Lessee shall furnish to Lessor a surety bond
satisfactory to Lessor in an amount equal to such contested lien claim or demand
indemnifying Lessor against liability for the same and holding the Premises free
from the effect of such lien or claim. In addition, Lessor may require Lessee to
pay Lessor's attorneys fees and costs in participating in such action if Lessor
shall decide it is to its best interest to do so.
(d) Unless Lessor requires their removal, as set forth in Paragraph
7.5(a), all alterations, improvements, additions and Utility Installations
(whether or not such Utility Installations constitute trade fixtures of Lessee),
which may be made on the Premises, shall become the property of Lessor and
remain upon and be surrendered with the Premises at the expiration of the term.
Notwithstanding the provisions of this Paragraph 7.5(d), Lessee's machinery and
equipment, other than that which is affixed to the Premises so that it cannot be
removed without material damage to the Premises, shall remain the property of
Lessee and may be removed by Lessee subject to the provisions of Paragraph 7.2.
See Addendum paragraph 56.
8. INSURANCE INDEMNITY.
8.1 INSURING PARTY. As used in this Paragraph 8, the term "insuring party"
shall mean the party who has the obligation to obtain the Property Insurance
required hereunder. The insuring party shall be designated in Paragraph 46
hereof. In the event Lessor is the insuring party, Lessor shall also maintain
the liability insurance described in paragraph 8.2 hereof, in addition to, and
not in lieu of, the insurance required to be maintained by Lessee under said
paragraph 8.2, but Lessor shall not be required to name Lessee as an additional
insured on such policy. Whether the insuring party is the Lessor or the Lessee,
Lessee shall, as additional rent for the Premises, pay the cost of all insurance
required hereunder, except for that portion of the cost attributable to Lessor's
liability insurance coverage in excess of $1,000,000 per occurrence. If Lessor
is the insuring party Lessee shall, within ten (10) days following demand by
Lessor, reimburse Lessor for the cost of insurance so obtained.
8.2 LIABILITY INSURANCE. Lessee shall, at Lessee's expense obtain and keep
in force during the term of this Lease a policy of Combined Single Limit, Bodily
Injury and Property Damage insurance insuring Lessor and Lessee against any
liability arising out of the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be a combined
single limit policy in an amount not less than $2,000,000 per occurrence. The
policy shall insure performance by Lessee of the indemnity provisions of this
Paragraph 8. The limits of said insurance shall not, however, limit the
liability of Lessee hereunder.
8.3 PROPERTY INSURANCE.
(a) The insuring party shall obtain and keep in force during the term
of this Lease a policy or policies of insurance covering loss or damage to the
Premises, in the amount of the full replacement value thereof, as the same may
exist from time to time, against all perils included within the classification
of fire, extended coverage, vandalism, malicious mischief, flood (in the event
same is required by a lender having a lien on the Premises), and special
extended perils ("all risk" as such term is used in the insurance industry).
Said insurance shall provide for payment of loss thereunder to Lessor or to the
holders of mortgages or deeds of trust on the Premises. The insuring party
shall, in addition, obtain and keep in force during the term of this Lease a
policy of rental value insurance covering a period of one year, with loss
payable to Lessor, which insurance shall also cover all real estate taxes and
insurance costs for said period. A stipulated value or agreed amount endorsement
deleting the coinsurance provision of the policy shall be procured with said
insurance. If the insuring party shall fail to procure and maintain said
insurance the other party may, but shall not be required to, procure and
maintain the same, but at the expense of Lessee. If such insurance coverage has
a deductible clause, the deductible amount shall not exceed $1,000 per
occurrence, and Lessee shall be liable for such deductible amount.
(b) If the Premises are part of a larger building, or if the Premises
are part of a group of buildings owned by Lessor which are adjacent to the
Premises, then Lessee shall pay for any increase in the property insurance of
such other building or buildings if said increase is caused by Lessee's acts,
omissions, use or occupancy of the Premises.
(c) If the Lessor is the insuring party the Lessee will not insure
Lessee's fixtures, equipment or tenant improvements unless the tenant
improvements have become a part of the Premises under paragraph 7, hereof. But
if Lessee is the insuring party the Lessee shall insure its fixtures, equipment
and tenant improvements.
8.4 INSURANCE POLICIES. Insurance required hereunder shall be in companies
holding a "General Policyholders Rating" of at least A or such other rating as
may be required by a lender having a lien on the Premises, as set forth in the
most current issue of "Best's Insurance Guide". The insuring party shall deliver
to the other party copies of policies of such insurance or certificates
evidencing the existence and amounts of such insurance with loss payable clauses
as required by this paragraph 8. No such policy shall be cancellable or subject
to reduction of coverage or other modification except after thirty (30) days'
prior written notice to Lessor. If Lessee is the insuring party Lessee shall, at
least thirty (30) days prior to the expiration of such policies, furnish Lessor
with renewals or "binders" thereof, or Lessor may order such insurance and
charge the cost thereof to Lessee, which amount shall be payable by Lessee upon
demand. Lessee shall not do or permit to be done anything which shall invalidate
the insurance policies referred to in Paragraph 8.3. If Lessee does or permits
to be done anything which shall increase the cost of the insurance policies
referred to in Paragraph 8.3, then Lessee shall forthwith upon Lessor's demand
reimburse Lessor for any additional premiums attributable to any act or omission
or operation of Lessee causing such increase in the cost of insurance. If Lessor
is the insuring party, and if the insurance policies maintained hereunder cover
other improvements in addition to the Premises, Lessor shall deliver to Lessee a
written statement setting forth the amount of any such insurance cost increase
and showing in reasonable detail the manner in which it has been computed. See
Addendum paragraph 57.
8.5 WAIVER OF SUBROGATION. Lessee and Lessor each hereby release and
relieve the other, and waive their entire right of recovery against the other
for loss or damage arising out of or incident to the perils insured against
under paragraph 8.3, which perils occur in, on or about the Premises, whether
due to the negligence of Lessor or Lessee or their agents, employees,
contractors and/or invitees. Lessee and Lessor shall, upon obtaining the
policies of insurance required hereunder, give notice to the insurance carrier
or carriers that the foregoing mutual waiver of subrogation is contained in this
Lease.
8.6 INDEMNITY. Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's us of the Premises, or from the
conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere and shall
further indemnify and hold harmless Lessor from and against any and all claims
arising from any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease, or arising from any
negligence of the Lessee, or any of Lessee's agents, contractors, or employees,
and from and against all costs, attorney's fees, expenses and liabilities
incurred in the defense of any such claim or any action or proceeding brought
thereon; and in case any action or proceeding be brought against Lessor by
reason of any such claim, Lessee upon notice from Lessor shall defend the same
at Lessee's expense by counsel satisfactory to Lessor. Lessee, as a material
part of the consideration to Lessor, hereby assumes all risk of damage to
property or injury to persons, in, upon or about the Premises arising from any
cause and Lessee hereby waives all claims in respect thereof against Lessor.
8.7 EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that Lessor
shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitees, customers, or any other person in or about
the Premises, nor shall Lessor be liable for injury to the person of Lessee,
Lessee's employees, agents or contractors, whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water or rain, or from
the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether the 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 or places and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Lessee. Lessor shall not be liable for any damages arising from any act or
neglect of any other tenant, if any, of the building in which the Premises are
located.
INITIALS: _________
_________
- 2 -
4
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "Premises Partial Damage" shall herein mean damage or destruction
to the Premises to the extent that the cost or repair is less than 50% of the
then replacement cost of the Premises. "Premises Building Partial Damage" shall
herein mean damage or destruction to the building of which the Premises are a
part to the extent that the cost of repair is less than 50% of the then
replacement cost of such building as a whole.
(b) "Premises Total Destruction" shall herein mean damage or
destruction to the Premises to the extent that the cost of repair is 50% or
more of the then replacement cost of the Premises. "Premises Building Total
Destruction" shall herein mean damage or destruction to the building of which
the Premises are a part to the extent that the cost of repair is 50% or more of
the then replacement cost of such building as a whole.
(c) "Insured Loss" shall herein mean damage or destruction which was
caused by an event required to be covered by the insurance described in
paragraph 8. See Addendum paragraph 58.
9.2 PARTIAL DAMAGE -- INSURED LOSS. Subject to the provisions of
paragraphs 9.4, 9.5 and 9.6, if at any time during the term of this Lease there
is damage which is an Insured Loss and which falls into the classification of
Premises Partial Damage or Premises Building Partial Damage, then Lessor shall,
at Lessor's expense, repair such damage, but not Lessee's fixtures, equipment
or tenant improvements unless the same have become a part of the Premises
pursuant to Paragraph 7.5 hereof as soon as reasonably possible and this Lease
shall continue in full force and effect. Notwithstanding the above, if the
Lessee is the insuring party, and if the insurance proceeds received by Lessor
are not sufficient to effect such repair, Lessor shall give notice to Lessee of
the amount required in addition to the insurance proceeds to effect such
repair. See Addendum paragraph 59.
9.3 PARTIAL DAMAGE -- UNINSURED LOSS. Subject to the provisions of
Paragraphs 9.4, 9.5 and 9.6, if at any time during the term of this Lease there
is damage which is not an Insured Loss and which falls within the classification
of Premises Partial Damage or Premises Building Partial Damage, unless caused by
a negligent or willful act of Lessee (in which event Lessee shall make the
repairs at Lessee's expense), Lessor may ay Lessor's option either (i) repair
such damage as soon as reasonably possible at Lessor's expense, in which event
this Lease shall continue in full force and effect, or (ii) give written notice
to Lessee within thirty (30) days after the date of the occurrence of such
damage of Lessor's intention to cancel and terminate this Lease, as of the date
of the occurrence of such damage. In the event Lessor elects to give such notice
of Lessor's intention to cancel and terminate this Lease, Lessee shall have the
right within ten (10) days after the receipt of such notice to give written
notice to Lessor of Lessee's intention to repair such damage at Lessee's
expense, without reimbursement from Lessor, in which event this Lease shall
continue in full force and effect, and Lessee shall proceed to make such repairs
as soon as reasonably possible. If Lessee does not give such notice within such
10-day period this Lease shall be cancelled and terminated as of the date of the
occurrence of such damage.
9.4 TOTAL DESTRUCTION. If at any time during the term of this Lease there
is damage, whether or not an insured Loss, (including destruction required by
any authorized public authority), which falls into the classification of
Premises Total Destruction or Premises Building Total Destruction, this Lease
shall automatically terminate as of the date of such total destruction. See
Addendum paragraph 60.
9.5 DAMAGE NEAR END OF TERM
(a) if at any time during the last six months of the term of this
Lease there is damage, whether or not an insured Loss, which falls within the
classification of Premises Partial Damage, Lessor may at Lessor's option cancel
and terminate this Lease as of the date of occurrence of such damage by giving
written notice to Lessee of Lessor's election to do so within 30 days after the
date of occurrence of such damage.
(b) Notwithstanding paragraph 9.5(a), in the event that Lessee has an
option to extend or renew this Lease, and the time within which said option may
be exercised has not yet expired, Lessee shall exercise such option, if it is to
be exercised at all, no later than 20 days after the occurrence of an Insured
Loss falling within the classification of Premises Partial Damage during the
last six months of the term of this Lease. If Lessee duly exercises such option
during said 20 day period, Lessor shall, at Lessor's expense, repair such
damage as soon as reasonably possible and this Lease shall continue in full
force and effect. If Lessee fails to exercise such option during said 20 day
period, then Lessor may at Lessor's option terminate and cancel this Lease as of
the expiration of said 20 day period by giving written notice to Lessee of
Lessor's election to do so within 10 days after the expiration of said 20 day
period, notwithstanding any term or provision in the grant of option to the
contrary.
9.6 ABATEMENT OF RENT LESSEE'S REMEDIES.
(a) In the event of damage described in paragraph 9.2 or 9.3, and
Lessor or Lessee repairs or restores the Premises pursuant to the provisions of
this Paragraph 9, the rent payable hereunder for the period during which such
damage, repair or restoration continues shall be abated in proportion to the
degree to which Lessee's use of the Premises is impaired. Except for abatement
of rent, if any, Lessee shall have no claim against Lessor for any damage
suffered by reason of any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Paragraph 9 and shall not commence such repair or
restoration within 90 days after such obligations shall accrue, Lessee may at
Lessee's option cancel and terminate this Lease by giving Lessor written notice
of Lessee's election to do so at any time prior to the commencement of such
repair or restoration. In such event this Lease shall terminate as of the date
of such notice.
9.7 TERMINATION - ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this Paragraph 9, an equitable adjustment shall be made concerning
advance rent and any advance payments made by Lessee to Lessor. Lessor shall,
in addition, return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Xxxxxx.
9.8 WAIVER. Lessor and Lessee waived the provisions of any statutes which
relate to termination of leases when property is destroyed and agree that such
event shall be governed by the terms of this Lease.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Lessee shall pay the real property tax, as defined
in paragraph 10.2, applicable to the Premises during the term of this Lease. All
such payments shall be made at least ten (10) days prior to the delinquency date
of such payment. Lessee shall promptly furnish Lessor with satisfactory evidence
that such taxes have been paid. If any such taxes paid by Lessee shall cover any
period of time prior to or after the expiration of the term hereof, Lessee's
share of such taxes shall be equitably prorated to cover only the period of time
within the tax fiscal year during which this Lease shall be in effect, and
Lessor shall reimburse Lessee to the extent required. If Lessee shall fail to
pay any such taxes, Lessor shall have the right to pay the same, in which case
Lessee shall repay such amount to Lessor with Lessee's next rent installment
together with interest at the maximum rate then allowable by law.
10.2 DEFINITION OF "REAL PROPERTY TAX". As used herein "real property tax"
shall include any form of real estate tax or assessment, general, special,
ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed on the Premises by any authority having the direct or
indirect power to tax, including any school, agricultural, sanitary, fire,
street, drainage or other improvement district thereof, as against any legal or
equitable interest of Lessor in the Premises or in the real property of which
the Premises are a part, as against Lessor's right to rent or other income
therefrom, and as against Lessor's business of leasing the Premises. The term
"real property tax" shall also include any tax, fee, levy, assessment or change
(i) in substitution of, partially or totally, any tax, fee, levy, assessment or
charge hereinabove included within the definition of "real property tax," or
(ii) the nature of which was hereinbefore included within the definition of
"real property tax," or (iii) which is imposed for a service or right not
charged prior to June 1, 1978, or, if previously charged, has been increased
since June 1, 1978, or (iv) which is imposed as a of result of a transfer,
either partial or total, of Lessor's interest in the Premises or which is added
to a tax or charge hereinbefore included within the definition of real property
tax by reason of such transfer, or (v) which is imposed by reason of this
transaction, any modifications or changes hereto, or any transfers hereof. See
Addendum paragraph 66
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion not to be determined by Lessor from the respective valuations
assigned in the assessor's work sheets or such other information as may be
reasonably available. Lessor's reasonable determination thereof, in good faith,
shall be conclusive.
10.4 PERSONAL PROPERTY TAXES.
(a) Lessee shall pay prior to delinquency all taxes assessed against
and levied upon, trade fixtures, furnishings, equipment and all other personal
property of Lessee contained in the Premiss or elsewhere. When possible, Lessee
shall cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes attributable to
Lessee within 10 days after receipt of a written statement setting forth the
taxes applicable to Lessee's property.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises, together
with any taxes thereon. If any such services are not separately metered to
Lessee, Lessee shall pay a reasonable proportion to be determined by Lessor of
all charges jointly metered with other premises.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in this Lease or in the Premises,
without Lessor's prior written consent, which Lessor shall not unreasonably
withhold. Lessor shall respond to Lessee's request for consent hereunder in a
timely manner and any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a breach of
this Lease.
12.2 LESSEE AFFILIATES. Notwithstanding the provisions of paragraph 12.1
hereof, Lessee may assign or sublet the Premises, or any portion thereof with
thirty (30) days prior notice to but without Lessor's consent, to any
corporation which controls, is controlled by or is under common control with
Lessee, or to any corporation resulting from the merger or consolidation with
Lessee, or to any person or entity which acquires all the assets of Lessee as a
going concern of the business that is being conducted on the Premises, provided
that said assignee assumes, in full, the obligations of Lessee under this Lease.
Any such assignment shall not, in any way, affect or limit the liability of
Lessee under the terms of this Lease even if after such assignment or subletting
the terms of this Lease are materially changed or altered without the consent of
Lessee, the consent of whom shall not be necessary.
12.3 NO RELEASE OF LESSEE. Regardless of Lessor's consent, no subletting
or assignment shall release Lessee of Lessee's obligation or alter the primary
liability of Lessee to pay the rent and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of rent by Lessor from any other
person shall not be deemed to be a waiver by Lessor of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event of default by any assignee of
Lessee or any successor of Lessee, in the performance of any of the terms
hereof, Lessor may proceed directly against Lessee without the necessity of
exhausting remedies against said assignee. Lessor may consent to subsequent
assignments or subletting of this Lease or amendments or modifications to this
Lease with assignees.
INITIALS:_______
_______
-3-
5
of Lessee, without notifying Lessee, [ILLEGIBLE] successor of Lessee, and
without obtaining its [ILLEGIBLE] consent thereto and such action shall not
relieve Lessee of liability under this Lease.
12.4 ATTORNEY'S FEES. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting or if
Lessee shall request the consent of Lessor for any act Lessee proposes to do
then Lessee shall pay Lessor's reasonable attorneys fees incurred in connection
therewith, such attorneys fees not to exceed $350.00 for each such request.
13. DEFAULTS; REMEDIES.
13.1 DEFAULTS. The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder, as and when due, where such
failure shall continue for a period of ten days after written notice thereof
from Lessor to Lessee. In the event that Lessor serves Lessee with a Notice to
Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes such Notice
to Pay Rent or Quit shall also constitute the notice required by this
subparagraph.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed
by Lessee, other than described in paragraph (b) above, where such failure
shall continue for a period of 30 days after written notice thereof from Lessor
to Lessee; provided, however, that if the nature of Lessee's default is such
that more than 30 days are reasonably required for its cure, then Lessee shall
not be deemed to be in default if Lessee commenced such cure within said 30-day
period and thereafter diligently prosecutes such cure to completion.
(d) (i) The making by Lessee of any general arrangement or
assignment for the benefit of creditors: (ii) Lessee becomes a "debtor" as
defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in
the case of a petition filed against Lessee, the same is dismissed within 60
days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within 30
days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within 30 days.
Provided, however, in the event that any provision of this paragraph 13.1(d) is
contrary to any applicable law, such provision shall be of no force or effect.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, any assignee of Lessee, any subtenant of Lessee, any
successor in interest of Lessee or any guarantor of Lessee's obligation
hereunder, and any of them, was materially false.
13.2 REMEDIES. In the event of any such material default or breach by
Lessee, Lessor may at any time thereafter, with or without notice or demand and
without limiting Lessor in the exercise of any right or remedy which Lessor may
have by reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee all damages incurred by Lessor
by reason of Lessee's default including, but not limited to, the cost of
recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's
fees, and any real estate commission actually paid; the worth at the time of
award by the court having jurisdiction thereof of the amount by which the
unpaid rent for the balance of the term after the time of such award exceeds
the amount of such rental loss for the same period that Lessee proves could be
reasonably avoided; that portion of the leasing commission paid by Lessor
pursuant to Paragraph 15 applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent
as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises are
located. Unpaid installments of rent and other unpaid monetary obligations of
Lessee under the terms of this Lease shall bear interest from the date due at
the maximum rate then allowable by law.
13.3 DEFAULT BY LESSOR. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but
in no event later than thirty (30) days after written notice by Lessee to
Lessor and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to Lessee
in writing, specifying wherein Lessor has failed to perform such obligation;
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance then Lessor shall not be in
default if Lessor commences performance within such 30-day period and
thereafter diligently prosecutes the same to completion.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but at not limited to, processing
and accounting charges, and late charges which may be imposed on Lessor by the
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or any other sum due from Lessee shall not be received by
Lessor or Lessor's designee within ten (10) days after such amount shall be
due, then, without any requirement for notice to Lessee, Lessee shall pay to
Lessor a late charge equal to 6% of such overdue amount. The parties hereby
agree that such late charge represents a fair and reasonable estimate of the
costs Lessor will incur by reason of late payment by Lessee. Acceptance of
such late charge by Lessor shall in no event constitute a waiver of Lessee's
default with respect to such overdue amount, nor prevent Lessor from exercising
any of the other rights and remedies granted hereunder. In the event that a
late charge is payable hereunder, whether or not collected, for three (3)
consecutive installments of rent, then rent shall automatically become due and
payable quarterly in advance, rather than monthly, notwithstanding paragraph 4
or any other provision of this Lease to the contrary.
13.5 IMPOUNDS. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) installments of rent or any other
monetary obligation of Lessee under the terms of this Lease, Lessee shall pay to
Lessor, if Lessor shall so request, in addition to any other payments required
under this Lease, a monthly advance installment, payable at the same time as the
monthly rent, as estimated by Lessor, for real property tax and insurance
expenses on the Premises which are payable by Lessee under the terms of this
Lease. Such fund shall be established to insure payment when due, before
delinquency, of any or all such real property taxes and insurance premiums. If
the amounts paid to Lessor by Lessee under the provisions of this paragraph are
insufficient to discharge the obligations of Lessee to pay such real property
taxes and insurance premiums as the same become due, Lessee shall pay to Lessor,
upon Lessor's demand, such additional sums necessary to pay such obligations.
All moneys paid to Lessor under this paragraph may be intermingled with other
moneys of Lessor and shall not bear interest. In the event of a default in the
obligations of Lessee to perform under this Lease, then any balance remaining
from funds paid to Lessor under the provisions of this paragraph may, at the
option of Lessor, be applied to the payment of any monetary default of Lessee in
lieu of being applied to the payment of real property tax and insurance
premiums.
14. CONDEMNATION. If the Premises or any portion thereof are taken under
the power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever first occurs. If more than 10% of the floor area
of the building on the Premises, or more than 25% of the land area of the
Premises which is not occupied by any building, is taken by condemnation, Lessee
may, at Lessee's option, to be exercised in writing only within ten (10) days
after Lessor shall have given Lessee written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the rent shall be
reduced in the proportion that the floor area of the building taken bears to the
total floor area of the building situated on the Premises. Any award for the
taking of all or any part of the Premises under the power of eminent domain or
any payment made under threat of the exercise of such power shall be the
property of Lessor, whether such award shall be made as compensation for
diminution in value of the leasehold or for the taking of the fee, or as
severance damages; provided, however, that Lessee shall be entitled to any award
for loss or damage to Lessee's trade fixtures and removable personal property.
In the event that this Lease is not terminated by reason of such condemnation,
Lessor shall to the extent of severance damages received by Lessor in connection
with such condemnation, repair any damage to the Premises caused by such
condemnation except to the extent that Lessee has been reimbursed therefor by
the condemning authority. See Addendum paragraph 61.
15. [Intentionally deleted]
16. ESTOPPEL CERTIFICATE.
(a) Lessee shall at any time upon not less than ten
(10) days' prior written notice from Lessor execute, acknowledge and deliver to
Lessor a statement in writing (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 date to which the rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to Lessee's
knowledge, any uncured defaults on the part of Lessor hereunder, or specifying
such defaults if any are claimed. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer of the Premises.
(b) At Lessor's option, Lessee's failure to deliver such statement
within such time shall be a material breech of this Lease or shall be
-4-
Initials
------
------
6
conclusive upon Lessee (i) that this Lease is in full force and effect, without
modification except as may be represented by Lessor, (ii) that there are no
uncured defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance or such failure may be considered by
Lessor as a default by Lessee under this Lease.
(c) If Lessor desires to finance, refinance, or sell the Premises, or any
part thereof, Lessee hereby agrees to deliver to any lender or purchaser
designated by Lessor such financial statements of Lessee as may be reasonably
required by such lender or purchaser. Such statements shall include the past
three years' financial statements of Lessee. All such financial statements
shall be received by Lessor and such lender or purchaser in confidence and
shall be used only for the purpose herein set forth.
17. LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean only the
owner or owners at the time in question of the fee title or a lessee's interest
in a ground lease of the Premises, and except as expressly provided in Paragraph
15, in the event of any transfer of such title or interest. Lessor herein named
(and in case of any subsequent transfers then the grantor) shall be relieved
from and after the date of such transfer of all liability as respects Lessor's
obligations thereafter to be performed, provided that any funds in the hands of
Lessor or the then grantor at the time of such transfer, in which Lessee has an
interest, shall be delivered to the grantee. The obligations contained in this
Lease to be performed by Lessor shall, subject as aforesaid, be binding on
Lessor's successors and assigns, only during their respective periods of
ownership.
18. SEVERABILITY. The invalidity of any provision of this Lease as determined
by a court of competent jurisdiction, shall in no way affect the validity of
any other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein provided, any
amount due to Lessor not paid when due shall bear interest at the maximum rate
then allowable by law from the date due. Payment of such interest shall not
excuse or cure any default by Lessee under this Lease, provided, however, that
interest shall not be payable on late charges incurred by Lessee nor on any
amounts upon which late charges are paid by Lessee.
20. TIME OF ESSENCE. Time is of the essence.
21. ADDITIONAL RENT. Any monetary obligations of Lessee to Lessor under the
terms of this Lease shall be deemed to be rent.
22. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
agreement or understanding pertaining to any such matter shall be effective.
This Lease may be modified in writing only, signed by the parties in interest
at the time of the modification. Except as otherwise stated in this Lease,
Lessee hereby acknowledges that neither the real estate broker listed in
Paragraph 15 hereof nor any cooperating broker on this transaction nor the
Lessor or any employees or agents of any of said persons has made any oral or
written warranties or representations to Lessee relative to the condition or
use by Lessee of said Premises and Lessee acknowledges that Lessee assumes all
responsibility regarding the Occupational Safety Health Act, the legal use and
adaptability of the Premises and the compliance thereof with all applicable
laws and regulations in effect during the term of this Lease except as
otherwise specifically stated in this Lease.
23. NOTICES. Any notice required or permitted to be given hereunder shall be
in writing and may be given by personal delivery or by certified mail, and if
given personally or by mail, shall be deemed sufficiently given if addressed to
Lessee or to Lessor at the address noted below the signature of the respective
parties, as the case may be. Either party may by notice to the other specify a
different address for notice purposes except that upon Lessee's taking
possession of the Premises, the Premises shall constitute Lessee's address for
notice purposes. A copy of all notices required or permitted to be given to
Lessor hereunder shall be concurrently transmitted to such party or parties at
such addresses as Lessor may from time to time hereafter designate by notice to
Lessee.
24. WAIVERS. See Addendum paragraph 62.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a "short form" memorandum of this
Lease for recording purposes.
26. HOLDING OVER. If Lessee, with Lessor's consent, remains in possession of
the Premises or any part thereof after the expiration of the term hereof, such
occupancy shall be a tenancy from month to month upon all the provisions of
this Lease pertaining to the obligations of Lessee, but all options and rights
of first refusal, if any, granted under the terms of this Lease shall be deemed
terminated and be of no further effect during said month to month tenancy. See
Addendum paragraph 63.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
28. COVENANTS AND CONDITIONS. Each provision of this Lease performable by
Lessee shall be deemed both a covenant and a condition.
29. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof restricting
assignment or subletting by Lessee and subject to the provisions of Paragraph
17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
wherein the Premises are located.
30. SUBORDINATION.
(a) This Lease, at Lessor's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation or security now or
hereafter placed upon the real property of which the Premises are a part and to
any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Lessee, this Lease shall be deemed prior to such mortgage,
deed of trust, or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
(b) Lessee agree to execute any documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be. Lessee's failure
to execute such documents within 10 days after written demand shall constitute
a material default by Lessee hereunder. See Addendum paragraph 64.
31. ATTORNEY'S FEES. If either party or the broker named herein brings an
action to enforce the terms hereof or declare rights hereunder, the prevailing
party in any such action, on trial or appeal, shall be entitled to his
reasonable attorney's fees to be paid by the losing party as fixed by the
court. The provisions of this paragraph shall inure to the benefit of the broker
named herein who seeks to enforce a right hereunder.
32. LESSOR'S ACCESS. Lessor and Lessor's agents hall have the right to enter
the Premises at reasonable times for the purpose of inspecting the same,
showing the same to prospective purchasers, lenders, or lessees, and making
such alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the Premises any ordinary "For Sale"
signs and Lessor may at any time during the last 120 days of the term hereof
place on or about the Premises any ordinary "For Lease" signs, all without
rebate of rent or liability to Lessee.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first
having obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
34. SIGNS. Lessee shall not place any sign upon the Premises without Lessor's
prior written consent except that Lessee shall have the right, without the
prior permission of Lessor to place ordinary and usual for rent or sublet signs
thereon.
35. MERGER. The voluntary or other surrender of this Lease by Lessee, or a
mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of lessor, operate as an assignment to
Lessor of any or all of such subtenancies.
36. CONSENTS. Except for paragraph 33 hereof, wherever in this Lease the
consent of one party is required to an act of the other party such consent
shall not be unreasonably withheld.
37. GUARANTOR. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Lessee under this Lease.
38. QUIET POSSESSION. Upon Lessee paying the rent for the Premises and
observing and performing all of the covenants, conditions and provisions on
Lessee's part to be observed and performed hereunder, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease. The individuals executing this Lease on behalf of
Lessor represent and warrant to Lessee that they are fully authorized and
legally capable of executing this lease on behalf of Lessor and that such
execution is binding upon all parties holding an ownership interest in the
Premises.
39. OPTIONS.
39.1 DEFINITION. As used in this paragraph the word "Options" has the
following meaning: (1) the right or option to extend the term of this Lease or
to renew this Lease or to extend or renew any lease that Lessee has on other
property of Lessor, (2) the option or right of first refusal to lease the
Premises or the right of first offer to lease the Premises or the right of
first refusal to lease other property of Lessor or the right of first offer to
lease other property of Lessor; (3) the right or option to purchase the
Premises, or the right of first refusal to purchase the Premises, or the right
of first offer to purchase the Premises or the right or option to purchase
other property of Lessor, or the right of first refusal to purchase other
property of Lessor or the right of first offer to purchase other property of
Lessor.
Initials:
----
----
NET -5-
7
39.2 OPTIONS PERSONAL. Each Option granted to Lessee in this Lease are
personal to Lessee and may not be exercised or be assigned, voluntarily or
involuntarily, by or to any person or entity other than Lessee, provided,
however, the Option may be exercised by or assigned to any Lessee Affiliate as
defined in paragraph 12.2 of this Lease. The Options herein granted to Lessee
are not assignable separate and apart from this Lease.
39.3 MULTIPLE OPTIONS. In the event that Lessee has any multiple options
to extend or renew this Lease a later option cannot be exercised unless the
prior option to extend or renew this Lease has been so exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option, notwithstanding
any provision in the grant of Option to the contrary. See Addendum Paragraph 67
or (iii) at any time after an event of default described in paragraphs 13.1(a),
13.1(d), or 13.1(e) (without any necessity of Lessor to give notice of such
default to Lessee), or (iv) in the event that Lessor has given to Lessee three
or more notices of default under paragraph 13.1(b), where a late charge has
become payable under paragraph 13.4 for each of such defaults, or paragraph
13.1(c), whether or not the defaults are cured, during the 12 month period prior
to the time that Lessee intends to exercise the subject Option.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's due and
timely exercise of the Option, if, after such exercise and during the term of
this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee
for a period of 30 days after such obligation becomes due (without any necessity
of Lessor to give notice thereof to Lessee), or (ii) Lessee fails to commence to
cure a default specified in paragraph 31.1(c) within 30 days after the date that
Lessor gives notice to Lessee of such default and/or Lessee fails thereafter to
diligently prosecute said cure to completion, or (iii) Lessee commits a default
described in paragraph 13.1(a), 13.1(d) or 13.1(e) (without any necessity of
Lessor to give notice of such default to Lessee), or (iv) Lessor gives to Lessee
three or more notices of default under paragraph 13.1(b), where a late charge
becomes payable under paragraph 13.4 for each such default, or paragraph
13.1(c), whether or not the defaults are cured.
40. MULTIPLE TENANT BUILDING. In the event that the Premises are part of a
larger building or group of buildings then Lessee agrees that it will abide by,
keep and observe all reasonable rules and regulations which Lessor may make
from time to time for the management, safety, care, and cleanliness of the
building and grounds, the parking of vehicles and the preservation of good
order therein as well as for the convenience of other occupants and tenants of
the building. The violations of any such rules and regulations shall be deemed
a material breach of this Lease by Lessee.
41. SECURITY MEASURES. Lessee hereby acknowledges that the rental payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of Lessee, its agents and
invitees from acts of third parties.
42. EASEMENT. Lessor reserves to itself the right, from time to time, to grant
such easements, rights and dedications that Lessor deems necessary or
desirable, and to cause the recordation of Parcel Maps and restrictions, so
long as such easements, rights, dedications, Maps and restrictions do not
unreasonably interfere with the use of the Premises by Lessee. Lessee shall
sign any of the aforementioned documents upon request of Lessor and failure to
do so shall constitute a material breach of this Lease.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one party to the other under the
provisions hereof, the party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such payment
shall not be regarded as a voluntary payment, and there shall survive the right
on the part of said party to institute suit for recovery of such sum. If it
shall be adjudged that there was no legal obligation on the part of said party
to pay such sum or any part thereof, said party shall be entitled to recover
such sum or so much thereof as it was not legally required to pay under the
provisions of this lease.
44. AUTHORITY. If Lessee is a corporation, trust, or general or limited
partnership, each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and deliver
this Lease on behalf of said entity. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after execution of this
Lease, deliver to Lessor evidence of such authority satisfactory to Lessor. See
Addendum paragraph 65.
45. CONFLICT. Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions shall be controlled by the typewritten or
handwritten provisions.
46. INSURING PARTY. The insuring party under this lease shall be the Lessee.
47. ADDENDUM. Attached hereto is an addendum or addenda containing paragraphs
48 through 67 which constitutes a part of this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED
AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS
LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND
EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR SUBMISSION
TO YOUR ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR RECOMMENDATION
IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE
REAL ESTATE BROKER OF ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE
TRANSACTION RELATING THERETO; THE PARTIES SHALL RELY SOLELY UPON THE
ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES
OF THIS LEASE.
THE PARTIES HERETO HAVE EXECUTED THIS LEASE AT THE PLACE ON THE DATES SPECIFIED
IMMEDIATELY ADJACENT TO THEIR RESPECTIVE SIGNATURES.
Executed at Oakland, Ca WELLESLEY COMPANY N.V.
on September 7, 1994 By Brighton Pacific Authorized Agent
Address 000 Xxxxxxxxxx Xxxxxx ---------------------------------
Suite 820 By [SIG], Vice Chairman
Xxx Xxxxxxxxx, ---------------------------------
Xxxxxxxxxx 00000
(000) 000-0000 "LESSOR" (Corporate seal)
Executed at XXXXX DE ORO BANK
------------------------
on By /s/ XXXXXXX X. XXXXX, PRESIDENT/CEO
--------------------------------- -----------------------------------
Address By
---------------------------- -----------------------------------
----------------------------------- "LESSEE" (Corporate seal)
For these forms write or call the American Industrial Real Estate Association,
000 Xxxxx Xxxxxxxx Xx., Xxxxx 000, Xxx Xxxxxxx, XX 00000
8
ADDENDUM TO STANDARD INDUSTRIAL LEASE
BETWEEN WELLESLEY COMPANY, N.V. AND XXXXX DE ORO BANK
FOR 0000 XXXX XXXX XXXXXX, XX XXXXX, XXXXXXXXXX
48. ANNUAL RENT ADJUSTMENT. Rent payable by Lessee pursuant to Paragraph 4 shall
be increased for each year of the term of this Lease, including any renewal
thereof, as of each anniversary of the commencement date of the term of this
Lease to reflect any increase in the cost of living, which adjustment shall be
determined as follows:
(a) At the end of the first Lease Year and each Lease Year
thereafter, the then most recently published CPI (as defined below) figure shall
be established and rent for the succeeding Lease Year shall be the rent set
forth under Paragraph 4 increased by the same percentage, if any, by which the
then most recently published CPI figure shall have increased over the CPI for
the month in which the term of this Lease commenced, provided that in no event
shall rent be less than the rent payable in the immediately preceding Lease
Year.
(b) As used herein, the term "Lease Year" shall mean a period of 365
days or 366 days, as the case may be, commencing on the commencement date of the
term of this Lease and on each anniversary thereof, and ending on the day prior
to the anniversary of the commencement of each respective Lease Year.
(c) As used herein, the term "CPI" shall refer to the "Consumer Price
Index For All Urban Consumers, San Diego, California (All Items)" compiled by
the U.S. Department of Labor, Bureau of Labor Statistics (1982-84 equals 100).
(d) If the CPI should hereafter be changed, then the new base shall be
converted to the 1982-84 base and the base as so converted shall be used. In the
event that the Bureau shall cease to publish the CPI, then the successor or most
nearly comparable index thereto shall be used.
(e) If the commencement date is other than on the first day of a
calendar month, then the installment of rent payable on the first day of any
month during which an increase in rent is to occur shall be prorated based on
the number of days in such month prior to the effective date of the increase and
the number of days in such month on or after the effective date of the increase.
Addendum Page 1 of 11
9
Notwithstanding anything in this Paragraph 48 to the contrary, the adjustment
described above shall in no event be less than three percent (3%) or be more
than six percent (6%) per year.
49. REGULATORY APPROVAL. Lessee acknowledges that it has obtained the consent of
the office of the Comptroller of the Currency to open a branch bank in the
Premises.
50. LICENSE TO STORE PERSONAL PROPERTY. Lessor has granted Lessee an irrevocable
license (the "License") to store certain furniture, equipment and personal
property which Lessee purchased from the Federal Deposit Insurance Corporation
on the first floor of the Premises for a term of commencing on February 1, 1994
and ending on the commencement date of this Lease. Lessee shall pay Lessor, on
the first day of each month during the term of the License, a license fee of Two
Thousand Dollars ($2,000). Lessee shall observe and perform the terms and
conditions of this Lease regarding the Premises during the term of the License,
including, without limitation, all rules and regulations reasonably established
by Lessor concerning the storage of Lessee's personal property.
51. OPTION TO EXTEND THE TERM.
(a) Lessor hereby grants to Lessee the option to extend the initial
term (the "Renewal Option") with respect to all of the rentable area of the
Premises leased by Lessee as of the expiration date of the initial term for
three periods of five (5) years each (each a "Renewal Term"). Each Renewal Term
shall commence immediately following the expiration date of the preceding term
("Renewal Commencement Date") and shall expire on the day before the fifth
anniversary of the Renewal Commencement Date. Each Renewal option shall be
exercised, if at all, by written notice to Lessor not less than six (6) months
nor more than twelve (12) months prior to the expiration date of the preceding
term, which notice shall be irrevocable by Lessee; provided, however, that, if
Lessee is in default under this Lease either at the time Lessee exercises any
Renewal Option or at any time thereafter prior to or upon the commencement of
the applicable Renewal Term, Lessor shall have, in addition to all of Lessor's
other rights and remedies under this Lease, the right to terminate all
unexercised Renewal Options and to cancel unilaterally Lessee's exercise of the
applicable Renewal Option, in which event the expiration date of this Lease
shall be and remain the then scheduled expiration date, and Lessee shall have no
further rights under this Lease to renew or extend the preceding term.
Addendum Page 2 of 11
10
(b) Each Renewal Term shall be upon and subject to all of the terms,
covenants and conditions of this Lease; provided, however, that rent for each
Renewal Term shall be equal to the Prevailing Market Rental for space comparable
to the Premises in the El Cajon, California, area as of the date of commencement
of the applicable Renewal Term, and shall be adjusted annually in accordance
with paragraph 48. The term "Prevailing Market Rental" shall mean the base
annual rental for such comparable space, taking into account any additional
rental and all other monetary payments and escalations payable hereunder and by
tenants under leases of such comparable space, and any tenant improvements and
other concessions granted to Lessee and tenants under leases of such comparable
space. Such rent shall be determined by Lessor not later than four (4) months
prior to the commencement of the applicable Renewal Term. If Lessee disputes
Lessor's determination of the Prevailing Market Rental for the applicable
Renewal Term, Lessee shall, within twenty (20) days after the date of Lessor's
notice setting forth the Prevailing Market Rental for the applicable Renewal
Term, send to Lessor a notice stating that Lessee either (x) elects to terminate
its exercise of the applicable Renewal Option, in which event such Renewal
Option shall lapse and this Lease shall terminate on the expiration date of the
preceding term in the manner provided herein, or (y) disagrees with Lessor's
determination of Prevailing Market Rental for the applicable Renewal Term and
elects to resolve the disagreement as provided in Paragraph 51(d) below. If
Lessee does not send to Lessor a notice as provided in the previous sentence,
Lessor's determination of the Prevailing Market Rental shall be determinative.
Until the disagreement is resolved as provided in Paragraph 51(d) below,
Lessee's monthly payments of rent shall be in an amount not less than the rent
payable for the twelve (12) month period immediately preceding the applicable
Renewal Commencement Date. Within ten (10) business days following the
resolution of such dispute by the parties or the decision of the brokers, as
applicable, Lessee shall pay to Lessor the amount of any deficiency in the rent
theretofore paid.
(c) Notwithstanding anything to the contrary set forth in this
Paragraph 51, in no event shall the rent for any Renewal Term be less than the
rent payable for the twelve (12) month period immediately preceding the
applicable Renewal Commencement Date. Lessee shall in any event pay all
applicable additional charges with respect to the Premises, in the manner and at
the times provided in this Lease, effective upon the applicable Renewal
Commencement Date, and notwithstanding any dispute regarding rent for the
applicable Renewal Term.
Addendum Page 3 of 11
11
(d) Any disagreement regarding the Prevailing Market Rental as
defined in this Paragraph 51 shall be resolved as follows:
(i) Within twenty (20) days after Lessee's response to Lessor's
notice to Lessee of the Prevailing Market Rental, Lessor and Lessee shall meet
no less than two (2) times, at a mutually agreeable time and place, to attempt
to resolve any such disagreement.
(ii) If, within the twenty (20) day consultation period, Lessor
and Lessee cannot reach an agreement as to the Prevailing Market Rental, they
shall each select one broker to determine the Prevailing Market Rental. Each
such broker shall arrive at a determination of the Prevailing Market Rental and
submit their conclusions to Lessor and Lessee within thirty (30) days after the
expiration of the twenty (20) day consultation period.
(iii) If only one determination is submitted within the requisite
time period, it shall be deemed to be the Prevailing Market Rental. If both
determinations are submitted within such time period, and if the two
determinations so submitted differ by five percent (5%) or less of the higher of
the two, the average of the two shall be the Prevailing Market Rental. If the
two determinations differ by more than five percent (5%) the higher of the two,
then the two brokers shall immediately select a third broker who shall within
thirty (30) days after his or her selection make a determination of the
Prevailing Market Rental and submit such determination to Lessor and Lessee.
This third determination will then be averaged with the closer of the two
previous determinations and the result shall be the Prevailing Market Rental.
(iv) All brokers specified pursuant to this paragraph 51 shall be
real estate brokers licensed and in good standing with the State of California
with not less than ten (10) years experience in commercial property leasing in
the El Cajon, California, area. Each party shall pay the cost of the broker
selected by such party and one-half of the cost of the third broker plus
one-half of any other costs incurred in resolving the disagreement pursuant to
this Paragraph 51(d).
52. OPTION TO PURCHASE THE PREMISES.
(a) Provided that Lessee has duly exercised the first Renewal Option
in accordance with Paragraph 51, Lessor grants to Lessee the one-time option
(the "Purchase Option")
Addendum Page 4 of 11
12
to purchase the Premises on December 1, 2004 (the "Closing Date") for the Fair
Market Value of the Premises as determined in accordance with Paragraph 52(b),
subject to the terms and conditions of this Paragraph 52. The Purchase Option
shall be exercised, if at all, by written notice to Lessor not less than six (6)
months nor more than twelve (12) months prior to the Closing Date, which notice
shall be irrevocable by Lessee; provided, however, that, if Lessee is in default
under this Lease either at the time Lessee exercises the Purchase Option or at
any time thereafter prior to the Closing Date, Lessor shall have, in addition to
all of Lessor's other rights and remedies under this Lease, the right to
terminate the Purchase Option and to cancel unilaterally Lessee's exercise of
the Purchase Option.
(b) The fair market value of the Premises (the "Fair Market
Value") shall be determined by Lessor on the basis of the highest and best use
of the Premises as if the Premises were unencumbered and free of all liens,
including this Lease. Lessor shall notify Lessee of the Fair Market Value of the
Premises not later than four (4) months prior to the Closing Date. If Lessee
disputes Lessor's determination of the Fair Market Value, Lessee shall, within
twenty (20) days after the date of Lessor's notice setting forth the Fair Market
Value, send to Lessor a notice stating that Lessee either (i) elects to
terminate its exercise of the Purchase Option, in which event the Purchase
Option shall be deemed terminated, or (ii) disagrees with Lessor's determination
of Fair Market Value and elects to resolve the disagreement as provided in
Paragraph 52(c) below. If Lessee does not send to Lessor a notice as provided in
the previous sentence, Lessor's determination of the Fair Market Value shall be
determinative. The Fair Market Value of the Premises, as established pursuant to
this Paragraph 52, shall be the purchase price which Lessee shall pay Lessor on
the Closing Date.
(c) Any disagreement regarding the Fair Market Value as defined in
this Paragraph 52 shall be resolved as follows:
(i) Within twenty (20) days after Lessee's response to Lessor's
notice to Lessee of the Fair Market Value, Lessor and Lessee shall meet no less
than two (2) times, at a mutually agreeable time and place, to attempt to
resolve any such disagreement.
(ii) If, within the twenty (20) day consultation period, Lessor
and Lessee cannot reach an agreement as to the Fair Market Value, they shall
each select one appraiser to determine the Fair Market Value.
Addendum Page 5 of 11
13
Each such appraiser shall arrive at a determination of the Fair Market Value and
submit their conclusions to Lessor and Lessee within thirty (30) days after the
expiration of the twenty (20) day consultation period.
(iii) If only one determination is submitted within the requisite
time period, it shall be deemed to be the Fair Market Value. If both
determinations are submitted within such time period, and if the two
determinations so submitted differ by five percent (5%) or less of the higher of
the two, the average of the two shall be the Fair Market Value. If the two
determinations differ by more than five percent (5%) of the higher of the two,
then the two appraisers shall immediately select a third appraiser who shall,
within thirty (30) days after his or her selection, make a determination of the
Fair Market Value and submit such determination to Lessor and Lessee. This third
determination will then be averaged with the closer of the two previous
determinations and the result shall be the Fair Market Value.
(iv) All appraisers specified pursuant to this paragraph 52
shall be members of the American Institute of Real Estate Appraisers with not
less than ten (10) years experience in appraising commercial properties in the
El Cajon, California, area. Each party shall pay the cost of the appraiser
selected by-such party and one-half of the cost of the third appraiser plus
one-half of any other costs incurred in resolving the disagreement pursuant to
this Paragraph 52(c).
(d) Within five (5) days after the final determination of the
purchase price, Lessee and Lessor will open an escrow (the "Escrow") with a
mutually agreeable title and escrow company. Lessee and Lessor will each deposit
such instruments as are reasonably required by the Escrow holder or otherwise
required to close Escrow, and shall designate the Escrow holder as the
"Reporting Person" for the transaction pursuant to Section 6045(e) of the
Internal Revenue Code. At the close of Escrow, fee simple title to the Premises
will be conveyed to Lessee by Lessor by grant deed, subject only to a lien for
real property taxes and assessments not then delinquent, matters of title
affecting the Premises as of the date of this Lease, and matters affecting the
condition of title to the Premises created by or with the consent of Lessee or
otherwise approved by Lessee. Lessee agrees that the Premises are to be sold to
and accepted by Lessee at the close of Escrow in its then condition AS-IS AND
WITH ALL FAULTS. In connection with the closing, Lessor will pay all documentary
transfer taxes, one-half of the costs and fees associated with the
Addendum Page 6 of 11
14
Escrow and Lessor's share of prorations. Lessee will pay all document recording
charges, one-half of the costs and fees associated with the Escrow, the title
policy, the survey, if any, and Lessee's share of prorations. Lessee and Lessor
will each pay all legal and professional fees and fees of other consultants
incurred by Lessee and Lessor, respectively. All other costs and expenses will
be allocated between Lessee and Lessor in accordance with the customary practice
in the county in which the Premises are located. All non-delinquent real estate
taxes and assessments on the Property will be prorated as of the Closing Date
based on the actual current tax xxxx. If the Closing Date takes place before the
real estate taxes are fixed for the tax year in which the Closing Date occurs,
the apportionment of real estate taxes will be made on the basis of the real
estate taxes for the immediately preceding tax year applied to the latest
assessed valuation, and adjusted after the Closing Date by the parties to the
extent necessary. Any tax refunds received by Lessee which are allocable to the
period prior to Closing Date will be paid by Lessee to Lessor.
(e) Lessee may not, either voluntarily or by operation of law, assign
or otherwise transfer its rights in and to the Purchase Option without Lessor's
prior written consent, which consent may withhold in Lessor's sole and absolute
discretion; provided, however, that Lessee may assign such rights in connection
with an assignment of this Lease pursuant to the terms of Paragraph 12. Any
attempted assignment or other transfer made without such consent or not in
connection with an assignment of this Lease pursuant to the terms of Paragraph
12 below shall be null and void.
53. ADDITIONAL REMEDIES OF LESSOR. In addition to the remedies of Lessor in the
event of a material default or breach by Lessee described in Paragraph 13.2,
Lessor shall have the following rights and remedies:
(a) The rights and remedies provided by California Civil Code Section
1951.2, including but not limited to the right to terminate Lessee's right to
possession of the Premises and to recover the worth at the time of award of the
amount by which the unpaid rent, additional rent and other charges for the
balance of the term of this Lease after the time of award exceed the amount of
rental loss for the same period that Lessee proves could be reasonably avoided,
as computed pursuant to subsection (b) of said Section 1951.2;
Addendum Page 7 of 11
15
(b) The rights and remedies provided by California Civil Code Section
1951.4, that allows Lessor to continue this Lease in effect and to enforce all
of its rights and remedies under this Lease, including the right to recover
rent, additional rent and other charges as they become due, for so long as
Lessor does not terminate Lessee's right to possession. Acts of maintenance or
preservation, efforts to relet the Premises, the appointment of a receiver upon
Lessor's initiative to protect its interest under this Lease, or withholding
consent to a subletting or assignment or terminating a subletting or assignment,
if the withholding or termination does not violate the rights of Lessee
specified in Section 1951.4(b) shall not constitute a termination of Lessee's
right to possession;
(c) The right to terminate this Lease by giving notice to Lessee in
accordance with applicable law;
(d) The right, exercisable with or without terminating this Lease, to
re-enter the Premises and remove all persons and property from the Premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Lessee. No re-entry or taking possession of
the Premises by Lessor pursuant to this Paragraph 52 shall be construed as an
election to terminate this Lease unless a written notice of such intention is
given to Lessee or unless the termination thereof is decreed by a court of
competent jurisdiction; and
(e) Any and all other rights and remedies available to Lessor at law
or in equity.
All rights, options and remedies of Lessor contained in this Lease or
provided by law or in equity shall be construed and held to be cumulative, and
no one of them shall be exclusive of the other. No waiver of any breach or
default hereunder shall be implied from any acceptance by Lessor of any rent,
additional rent or other charges due hereunder or any omission by Lessor to take
any action on account of such breach or default, and no express waiver shall
affect any breach or default other than as specified in said waiver. The consent
or approval of Lessor to or of any act by Lessee requiring Lessor's consent or
approval shall not be deemed to waive or render unnecessary Lessor's consent or
approval to or of any subsequent similar acts by Lessee.
54. INSERT TO PARAGRAPH 6.2. Lessor represents to Lessee in good faith that to
the best of Lessor's actual knowledge, without any duty of independent inquiry:
(a) the Premises was constructed in accordance with local building codes that
Addendum Page 8 of 11
16
were applicable when the Premises were constructed, (b) Lessor has not received
written notice of any violations of law with respect to the Premises, (c) the
Premises and the Lessor are in compliance with covenants and agreements of
record, if any, (d) no hazardous materials or substances exist on the Property
except for the presence of layered asbestos membrane (which constitutes part of
the roof), and (e) the roof and HVAC systems will be in good repair and operable
condition following the completion of Lessor's repair/maintenance work described
in Paragraph 55 below.
55. INSERT TO PARAGRAPH 6.3. Notwithstanding the foregoing, Lessor agrees that
it will undertake to encapsulate the southern portion of the roof with a new
roof, and encapsulate the northern portion of the roof to xxxxx the layered
asbestos membrane contained therein. In addition, Lessor will either repair the
HVAC system or replace any necessary parts. Upon completion of Lessor's
repair/replacement work on the HVAC system, in the event major
repair/replacement work ("Work") is required during the period beginning on the
Commencement Date and terminating eighteen (18) months thereafter (i.e. February
29, 1996) (the "Repair Period"), the parties agree that Lessee shall pay for the
initial One Thousand Dollars ($1,000) of Work, and Lessor shall pay for the cost
of any Work in excess of the initial One Thousand Dollars ($1,000). Any such
Work must be previously approved in writing by Lessor or its consultant. Any
such Work required after the Repair Period shall be Lessee's sole responsibility
and Lessee shall pay the cost of any such Work after the Repair Period at
Lessee's sole cost and expense. Lessee will also be performing its initial
tenant improvement work described on Schedule 1 attached hereto. Lessor and
Lessee acknowledge that both parties will undertake to perform the work
described above on the commencement date of this Lease, and both parties agree
that they will cooperate in good faith with each other so as to minimize any
interference with the other party's repair or tenant improvement work.
56. INSERT TO PARAGRAPH 7.5. (e) Notwithstanding anything in this Paragraph 7.5
to the contrary, Lessee shall remove from the Premises all of its personal
property, trade fixtures, machinery and equipment (including ATM machines) upon
early termination or expiration of this Lease. Lessee agrees that it shall
repair any damage to the Premises caused by such removal and restore the
Premises to its original condition, reasonable wear and tear excepted.
57. INSERT TO PARAGRAPH 8.4. Lessor acknowledges that Lessee intends to satisfy
its insurance obligations hereunder pursuant to a blanket policy of insurance.
Addendum Page 9 of 11
17
58. INSERT TO PARAGRAPH 9.1. In the event the Premises are damaged by fire or
other casualty, Lessee shall promptly give notice thereof to Lessor, generally
describing the nature and extent of such damage or destruction and setting forth
Lessee's best estimate of the cost of repair.
59. INSERT TO PARAGRAPH 9.2. Lessee shall have the option to contribute the
required amount to Lessor within ten (10) days after Lessee has received notice
from Lessor of the shortage of insurance proceeds to complete such repairs as
necessary to restore the Premises to its condition existing immediately prior to
such Premises Partial Damage or Premises Building Partial Damage. When Lessee
contributes such amount to Lessor, Lessor shall make such repairs as soon as
reasonably possible and this Lease shall continue in full force and effect.
Lessee shall in no event have any right to reimbursement for any such amounts so
contributed. In the event Lessee does not elect to contribute the required
amount to Lessor within ten (10) days after Lessee has received notice from
Lessor of the shortage of insurance proceeds to complete such repairs, Lessor
shall have the option to either (a) terminate this Lease by giving written
notice to Lessee within fifteen (15) business days after the expiration of such
ten (10) day period, or (b) contribute such required amount, at Lessor's sole
cost and expense, and make such repairs as soon as reasonably possible and this
Lease shall continue in full force and effect. In the event Lessor fails to
complete such repairs within one (1) year of such damage or destruction for any
reason other than Lessee's default under this Lease, Lessee shall have the
option to terminate this Lease by giving written notice to Lessor within ten
(10) days after the expiration of such one (1) year period.
60. INSERT TO PARAGRAPH 9.4. All insurance proceeds, if any, on account of such
damage or destruction shall be paid directly to Lessor, except for any insurance
proceeds applicable to Lessee's personal property, trade fixtures, machinery or
equipment, which shall be paid to Lessee.
61. INSERT TO PARAGRAPH 14. In addition, Rent shall also be reduced for area
taken which does not have a building located thereon in proportion to the effect
of the partial condemnation upon Lessee's business. Notwithstanding the
foregoing, in the event such partial condemnation reduces the parking area or
access thereto, or any area which does not have a building located thereon,
below Lessee's minimum requirements which are more particularly described on
Exhibit A attached hereto, Lessee shall have the option to terminate this Lease
by giving written notice to Lessor within ten (10) days after the date the
condemning authority takes title or possession, whichever occurs first.
Addendum Page 10 of 11
18
62. INSERT TO PARAGRAPH 24. No waiver by either party or any provision hereof
shall be deemed a waiver of any other provision hereof or of any subsequent
breach by the other party of the same or any other provision. One party's
consent to, or approval of, any act shall not be deemed to render unnecessary
the obtaining of the same party's consent to or approval of any subsequent act.
The acceptance of rent hereunder by Lessor shall not be a waiver of any
preceding breach by Lessee of any provision hereof, other than the failure of
Lessee to pay the particular rent so accepted, regardless of Lessor's knowledge
of such preceding breach at the time of acceptance of such rent.
63. INSERT TO PARAGRAPH 26. The rent during such month to month tenancy shall be
one hundred fifty percent (150%) of the rent payable during the last month of
the term hereof.
64. INSERT TO PARAGRAPH 30. In connection with any attornment or subordination
provided herein, Lessor will use its best efforts to obtain a non-disturbance
agreement from any party requiring such attornment or subordination. However,
Lessor's failure to obtain a non-disturbance agreement shall in no way affect
the non-disturbance provision set forth in subsection (a) above.
65. INSERT TO PARAGRAPH 44. If Lessor is a corporation, trust or partnership,
Lessor shall, within thirty (30) days after execution of this Lease, deliver to
Lessee evidence of such authority.
66. INSERT TO PARAGRAPH 10.2. Notwithstanding the foregoing, the term "real
property tax" shall not include any tax, levy, fee, assessment or charge which
is imposed as a result of a transfer, either partial or total, of Lessor's
interest in the Premises during the initial five (5) years of this Lease, or
which is added to a tax or charge hereinbefore included within the definition of
real property tax by reason of such transfer.
67. INSERT TO PARAGRAPH 39.4(a). (i) at any time after an event of default
described in paragraphs 13.1(b) and 13.1(c) has occurred and Lessee has failed
to cure such default within any applicable cure period after receipt of notice
of such default from Lessor, or (ii) [intentionally deleted],
Addendum Page 11 of 11
