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EXHIBIT 10.12
Amendment No. 1 and Assignment Agreement (Lease) by and among Xxxxx de Oro Bank,
N.A., Grossmont Land Company and BSD Service Company dated January 29, 1993
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AMENDMENT NO. 1 and ASSIGNMENT AGREEMENT
Dated
January 29, 1993
by and among
GROSSMONT LAND CO. ("Landlord")
BSD SERVICE COMPANY ("Assignor") and
XXXXX de ORO BANK ("Assignee")
INDEX
Tab No. Document
------ --------
1 Amendment No. 1 and Assignment dated January 29, 1993 by and among
Grossmont Land Co., BSD Service Company, and Xxxxx de Oro Bank
2 Sublease Termination Agreement dated January 29, 1993 by and between BSD
Service Company and the Bank of San Diego
3 Consent of Master Lessor dated April 26, 1993 from Rainbow Investment
Co.
4 Estoppel Certificate dated April 26, 1993 from Rainbow Investment Co.
5 Estoppel Certificate dated April 15, 1993 from Grossmont Land Co.
6 Estoppel Certificate dated January 29, 1993 from BSD Service Company
7 Estoppel Certificate dated January 29, 1993 from Xxxxx X. Xxxxxxx, M.D.
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AMENDMENT NO. 1 AND ASSIGNMENT AGREEMENT
This AMENDMENT NO. 1 AND ASSIGNMENT AGREEMENT (this "Agreement") is
made and entered into as of January 29, 1993, by and among GROSSMONT LAND CO., a
California limited partnership ("Landlord"), BSD SERVICE COMPANY, a California
corporation ("Assignor"), and XXXXX DE ORO BANK, N.A., a national banking
association ("Assignee"), with respect to the Recitals below.
RECITALS
A. Landlord and Rainbow Investment Co., a California limited
partnership ("Master Lessor") entered into that certain Ground Lease dated
January 10, 1958, as amended (the "Master Lease") which is on file in the office
of Landlord.
B. Landlord and Assignor entered into that certain Lease dated
August 6, 1982 (the "Lease"), pertaining to improved real property located at
0000 Xxxxxx Xxxxx, Xx Xxxx, Xxxxxxxxxx (the "Premises").
C. Assignor and Xxxxx X. Xxxxxxx, M.D., a medical corporation
("Xxxxxxx") entered into that certain Sublease dated March 26, 1984, as extended
(the "Xxxxxxx Sublease"), pertaining to a portion of the Premises.
D. Assignor and The Bank of San Diego entered into that certain
Sublease dated October 25, 1988 (the "Bank Sublease"), pertaining to a portion
of the Premises.
X. Xxxxxxx and Xxxx X. Xxxxxx, D.D.S. ("Xxxxxx") entered into that
certain Sublease dated November 1, 1991 (the "Xxxxxx Sublease"), pertaining to a
portion of the Premises.
F. Assignor and Assignee entered into that certain Branch Purchase
and Assumption Agreement dated June 30, 1992 (the "Purchase Agreement")
providing for, among other things, the transfer of Assignor's interest in the
Lease to Assignor as of the Closing Date (defined in the Purchase Agreement).
G. As of the Closing Date, the parties intend to amend the Lease
and assign Assignor's interest in the amended Lease to Assignee, as more fully
set forth below.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants
and promises herein contained, and for other good and valuable consideration,
the receipt and sufficiency of
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which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. As used in this Agreement, the following
capitalized terms have the following meanings:
(a) "Assignment Date" means that date which corresponds to the
"Closing" (as defined in the Purchase Agreement).
(b) "Conditions to Assignment" means those conditions set forth
in Section 6 of this Agreement.
(c) "Required Consents" means, collectively, all consents and
other authorizations that are required to be obtained pursuant to
Section 16 of the Lease with respect to this Agreement.
Capitalized terms used in this Agreement, and not otherwise defined herein,
shall have the same meanings ascribed to them in the Lease or the Purchase
Agreement, as appropriate.
2. Assignment of Lease. As of the Assignment Date, Assignor grants,
conveys and assigns to Assignee all of Assignor's right, title and interest in
and to the Lease as amended pursuant to Section 11, below.
3. Assumption of Obligations. As of the Assignment Date, Assignor
assigns to Assignee, and Assignee hereby assumes, all obligations and
liabilities of Assignor under the Lease that accrue after the Assignment Date.
Assignee hereby agrees to defend, indemnify and hold Assignor harmless from
all claims, demands, causes of action, liabilities, losses, costs and expenses
(including reasonable attorneys, fees) arising from or in connection with the
obligations and liabilities assumed by Assignee hereunder. Assignor hereby
agrees to defend, indemnify and hold Assignee harmless from all claims,
demands, causes of action, liabilities, losses, costs and expenses (including
without limitation costs of suit and reasonable attorneys' fees) arising from
or in connection with any obligation or liability of Assignor under the Lease
which accrue prior to the Assignment Date. No assumption by Assignee of any
obligations of Assignor under this Section 3 shall be effective except in
conjunction with the assignment to Assignee of the rights and interests of
Assignor under Section 2.
4. Continuing Obligation of Assignor. Notwithstanding the assignment
and assumptions set forth in Sections 2 and 3 above, Assignor shall remain
obligated under all terms and conditions of the Lease to Landlord from the
Assignment Date through December 31, 1999, in the event of Assignee's default.
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5. Delivery of the Premises. On the Assignment Date, Assignor shall
deliver the Premises to Assignee in its then "as is" condition, which shall be
the same condition as existed on the date of execution of the Purchase
Agreement, reasonable wear and tear excepted. Notwithstanding the foregoing,
Assignor shall be responsible for the cost of roof repair pursuant to separate
contract with Green Roofing (and related contracts), which expenses may accrue
prior to, or after, the Assignment Date.
6. Conditions to Assignment. Notwithstanding anything to the contrary
contained herein, no assignment by Assignor to Assignee shall be effective until
each of the following conditions (the "Conditions to Assignment") have been
fulfilled:
(a) Assignor and Assignee shall have obtained all Required
Consents, including an original, fully executed copy of the Consent of
Master Lessor in the form attached as Exhibit "E" to this Agreement;
(b) Assignor shall have caused the Bank Sublease to be terminated
as of the Assignment Date, by entering into a Sublease Termination
Agreement with the Bank of San Diego in the form attached hereto as
Exhibit "F" to this Agreement; and
(c) Assignee shall have received an original, fully executed copy
of an Estoppel Certificate in the form attached as Exhibit "G" to this
Agreement from Master Lessor (with respect to the Master Lease),
Landlord (with respect to the Lease), and Xxxxxxx (with respect to the
Xxxxxxx Sublease).
7. Representations and Warranties of Assignor. Assignor hereby
represents and warrants to Assignee, as of the date this Agreement is executed
by Assignor, that:
(a) A true and complete copy of the Lease, together with all
supplements, amendments and other modifications thereto, is attached hereto as
Exhibit "A" and made a part hereof.
(b) True and complete copies of the Xxxxxxx Sublease and the
Xxxxxx Sublease, together with all supplements, amendments and other
modifications thereto, are attached hereto as Exhibits "B", and "C,"
respectively.
(c) A true and complete copy of the Bank Sublease, together with
all supplements, amendments and other modifications thereto, is attached hereto
as Exhibit "D" and made a part hereof.
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(d) The Lease is in full force and effect, and Assignor's rights
and interests under the Lease are free of any liens, charges and encumbrances
created by Assignor (other than the Xxxxxxx Sublease and the Xxxxxx Sublease).
(e) No uncured default or event, which with the giving of notice
or passage of time, or both, would constitute a default by Landlord or Assignor,
presently exists under the Lease.
(f) No uncured default or event, which with the giving of notice
or passage of time, or both, would constitute a default by Xxxxxxx or Xxxxxx,
presently exists under the Xxxxxxx Sublease or the Xxxxxx Sublease.
(g) There are no contracts or other agreements (other than the
Lease, the Xxxxxxx Sublease, and the Xxxxxx Sublease) by which Assignor will be
bound in connection with its tenancy of the Premises following the Assignment
Date.
8. Acknowledgements, and Representation and Warranty of Landlord.
Assignor and Assignee acknowledge that portions of Center Drive are subject to
closure after the date of this Agreement; Assignee and Assignor acknowledge and
approve this closure. Landlord represents and warrants to Assignor and Assignee
that despite the potential closure of portions of Center Drive, the Premises
shall have uninterrupted access for ingress and egress from the former Center
Drive, as proposed on the "Center Drive Parking" preliminary map dated November
17, 1992, a copy of which has been provided to Assignee, and the plan prepared
by Architectural Management dated February 4, 1993 showing possible additional
entry from the former Center Drive and ingress and egress from Grossmont Center
Drive. These changes, as delineated and outlined in red on the Architectural
Management plan would be subject to approval by the City of La Mesa and funding
by the Tenant.
9. Covenants Prior to Closing. Following the execution of this Agreement
by Assignor and until the Assignment Date occurs, Assignor shall not, without
the prior written consent of Assignee, take any action, or omit to take any
action, which will render any representation or warranty set forth in Section 7
inaccurate, and shall notify Assignee in writing, within three (3) business days
of Assignor's learning, from time to time, of any fact or circumstance which
renders any such representation or warranty inaccurate. Without limiting the
generality of the foregoing, Assignor shall not, without Assignee's prior
written consent, supplement, amend or otherwise modify the Lease or the Xxxxxxx
Sublease, or enter into any other agreement or contract which affects the
Premises.
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10. Amendment of Lease. As of the Assignment Date, the Lease shall be
amended by Landlord and Assignor, and Assignor's interest in the amended Lease
shall concurrently be assigned to Assignee as set forth in Section 2 of this
Agreement. As of the Assignment Date, the Lease shall be amended as follows:
(a) Extension of Lease Term. The Lease Term set forth in Section
3 of the Lease shall be extended to January 10, 2015 (which is coterminous with
the Master Lease).
(b) Rent Adjustment. The CPI limitations (5% floor and 8%
ceiling) in Section 4B of the Lease shall be eliminated, such that the rental
rate shall be adjusted to the full extent of any CPI increase for the applicable
adjustment period. To that end, Section 4B of the Lease is amended and restated,
in its entirety, as follows:
4B. Monthly Rent. Tenant shall pay to Landlord, without
abatement, deduction, or offset, monthly rent in the approximate amount of $1.98
per square foot ($15,844.63 per month for the Premises), in advance, on or
before the first day of each month. Commencing January 1, 1995, and every three
(3) years throughout the term of the Lease (the "Adjustment Date"), the rent
shall be subject to adjustment by the Consumer Price Index for All Urban
Consumers for the San Diego Metropolitan Area (1982 -1984 = 100), published by
the United States Department of Labor, Bureau of Labor Statistics (the "Index").
The base index shall be January, 1992 which is 144.7 (the "Beginning Index").
The Index which is published for each Adjustment Date shall be the "Adjustment
Index." If the Adjustment Index has increased over the Beginning Index, then
rent shall be adjusted by multiplying the monthly rent set forth in this
paragraph by a fraction, the numerator of which is the Adjustment Index and the
denominator of which is the Beginning Index. In no event shall the Monthly Rent
decrease at any time during the term of this Lease. In the event the Index is
discontinued or revised during the term, such other government index or
computation with which it is replaced shall be used in order to obtain
substantially the same result as would be involved if the Index had not been
discontinued or revised.
(c) Improvements and Alterations. In addition to the rights set
forth in Section 7 of the Lease, Tenant shall have the right to make such
improvements and alterations to the Premises as may be reasonable and necessary
to improve access, convenience and enjoyment of the Premises, subject to
Landlord's prior written consent, which shall not be unreasonably withheld.
(d) Tenant's Limited Right of First Refusal. If Landlord
determines that Landlord will build a new building generally in the area of the
Premises at 8690 Center Drive (the
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"Site") which will necessitate Landlord's exercising its early termination
right, as specified in subparagraph 10(e), then Landlord shall be obligated to
extend to Tenant a "Limited Right of First Refusal" to occupy new premises to be
constructed by Landlord on the Site (hereinafter referred to as the "New
Building").
(i) Landlord may deliver to Tenant notice of Tenant's first right
of refusal any time between January 1, 2006, and June 30, 2007. Landlord and
Tenant shall negotiate in good faith for a period not to exceed ninety (90) days
from the date of Landlord's offer (the "Negotiation Period") to establish rental
terms for the New Building. Such terms for the New Building shall be based upon
similar terms then being offered to similarly situated tenants for comparable
premises in the Grossmont area. In the event of a dispute as to Tenant's base
rental rate for the New Building, such base rental rate for the new premises
shall be established by calculating the average of three "fair market" base
rental rates for the New Building (taking into account all relevant factors,
including but not limited to size, location, tenant improvements, rental term
and additional rent) as determined by three (3) mutually acceptable independent
appraisers. If, at the end of the Negotiation Period, Landlord and Tenant are
unable to reach an agreement on the rental terms for the New Building, Tenant's
rights under this Section 10(d)(i) shall expire, and Landlord shall have no
further obligations to Tenant under this Section 10, except for Sections
10(d)(iii) and 10(e).
(ii) If, during the Negotiation Period, Landlord and Tenant agree
on rental terms and conditions for a lease in the New Building, then Landlord
will permit Tenant to place a trailer on the Site (or nearby the Site) to be
used as a temporary premises. Such trailer site would be made available to
Tenant thirty (30) days prior to Tenant's required vacation of the existing
Premises.
(iii) If, during the Negotiation Period, Landlord and Tenant do
not agree on rental terms and conditions for a lease in the New Building and
Landlord still elects to terminate the lease, Landlord shall use reasonable
efforts to locate replacement premises as provided in Section 10(e)(i) below.
However, in the event Landlord and Tenant are unable to agree on a suitable
alternate location, Landlord shall have no further obligations to Tenant beyond
the termination compensation provided in Section 10(e)(ii).
(e) Landlord Right of Early Termination. Landlord may terminate
the Lease, upon at lease one (1) year's prior written notice (the "Early
Termination Notice") delivered to Assignee, or the then-existing tenant
("Tenant"), between January 1, 2007 and June 30, 2007. Landlord's right of early
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termination shall apply only in the event that Tenant's improvements on the
Premises are to be demolished. In the event Landlord elects to terminate the
Lease, Landlord shall provide the following to Tenant:
(i) If Landlord and Tenant do not agree on rental terms and
conditions for a lease in the New Building, then for a period not to exceed four
(4) months from the date of Landlord's delivery of the Early Termination Notice
(the "Relocation Period"), Landlord shall use its reasonable efforts to locate
existing replacement premises for Tenant in the Grossmont area, suitable for
Tenant's business purposes. Such substitute premises shall be subject to
Tenant's approval, which shall not be unreasonably withheld. If, at the end of
the Relocation Period, Landlord is unable to locate existing replacement
premises for Tenant, Landlord shall have no further obligations to Tenant under
this Section 1(e), except for Landlord's obligation under Section 11(e)(ii).
(ii) Upon delivery of the Early Termination Notice, Landlord
shall reimburse Tenant the sum equal to 7/22 (31.818%) of Tenant's investment to
acquire the existing Leasehold Improvements (as defined in the Purchase
Agreement) from Tenant's predecessor-in-interest, plus 7/22 (31.818%) of
Tenant's improvements to the Premises during 1993 (or thereafter, in the event
Tenant's improvements are delayed for reasons beyond Tenant's control) approved
by Landlord after the date of this Agreement.
11. Conflicting Terms. Except as modified by this Agreement, the Lease
shall remain in full force and effect. In the event a conflict exists between
the terms and conditions of the Agreement and the terms and conditions of the
Lease, the terms and conditions of this Agreement shall control.
12. Further Assurances. Each party hereto shall execute, acknowledge and
deliver to each other party all documents, and shall take all actions,
reasonably required by such other party from time to time to confirm or effect
the matters set forth herein, or otherwise to carry out the purposes of this
Agreement.
13. Attorneys' Fees. In the event that any litigation shall be commenced
concerning this Agreement by any party hereto, the party prevailing in such
litigation shall be entitled to recover, in addition to such other relief as may
be granted, its reasonable costs and expenses, including without limitation
reasonable attorneys' fees and court costs, as awarded by a court of competent
jurisdiction.
14. Notices. All notices, demands, approvals and other communications
provided for in this Agreement shall be in
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writing and be delivered to the appropriate party at its address as follows:
If to Landlord: Grossmont Land Co.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
If to Assignor: BSD Service Company
000 Xxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
If to Assignee: Xxxxx de Oro Bank, N.A.
X.X. Xxx 0000
0000 Xxxxx Xxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
With a copy to: Pillsbury Madison & Sutro
000 Xxxx Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Jo Xxx Xxxxxxxx, Esq.
Addresses for notice may be changed from time to time by written notice to all
other parties. All communications shall be effective when actually received;
provided, however, that nonreceipt of any communication as the result of a
change of address of which the sending party was not notified or as the result
of a refusal to accept delivery shall be deemed receipt of such communication.
15. Miscellaneous. This Agreement shall bind, and shall inure to the
benefit of, the successors and assigns of the parties hereto. This Agreement may
be executed in counterparts with the same force and effect as if the parties had
executed one instrument, and each such counterpart shall constitute an original
hereof. No provision of this Agreement that is held to be inoperative,
unenforceable or invalid shall affect the remaining provisions, and to this end
all provisions hereof are hereby declared to be severable. Time is of the
essence of this Agreement. This Agreement shall be governed by the laws of the
State of California.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Landlord: GROSSMONT LAND CO., a California
limited partnership
By: Denele Co., an Illinois
limited partnership, general
partner
By: Delen Management, an
Illinois Corporation,
general partner
By: /s/
------------------------
Its:
------------------------
Assignor: BSD SERVICE COMPANY, a California
corporation
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Xxxxxxx X. Xxxxxx
Its: Chief Financial Officer
Assignee: XXXXX DE ORO BANK, N.A. a national
banking association
By: /s/ XXXXXXX X. XXXXX
----------------------------------
Xxxxxxx X. Xxxxx
Its: President and Chief
Executive Officer
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LEASE
Between
GROSSMONT LAND CO., A California Limited Partnership
And
BSD SERVICE COMPANY, A California Corporation
Dated: August 6, 1982
EXHIBIT A
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Lease between GROSSMONT LAND CO., a California Limited Partnership
(Landlord) and BSD SERVICE COMPANY, a California Corporation (Tenant).
TABLE OF CONTENTS
Page
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1. PARTIES ....................................................1
2. PREMISES ...................................................1
A. Description.......................................1
B. Lease of Premises.................................1
C. Limited Option....................................1
3. TERM ..................................................2
4. RENT AND OTHER CONSIDERATION................................2
A. Lease Consideration...............................2
B. Monthly Rent......................................2
C. Net Lease.........................................3
D. Other Consideration and Conditions................3
5. TAXES AND ASSESSMENTS ......................................3
A. Personal Property Taxes ..........................3
B. Real Property Taxes ..............................3
C. Tax Impound ......................................4
D. New Assessments ..................................4
E. Tenant's Right to Contest Real
Property Taxes ...................................4
F. Substitute or Additional Taxes ...................5
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6. USE..................................................................5
A. Limits on Use.................................................5
B. Exclusive Use.................................................6
7. IMPROVEMENTS, ALTERATIONS AND ADDITIONS............................6
A. In General....................................................6
B. Mechanic's Liens and Lien Release Bond........................6
8. COMMON AREA........................................................6
A. Definition....................................................6
B. Maintenance...................................................7
C. Costs.........................................................7
9. MAINTENANCE........................................................8
10. UTILITIES AND SERVICES.............................................8
11. INDEMNITY, EXCULPATION AND INSURANCE...............................9
A. Assumption of Risk............................................9
B. Indemnity.....................................................9
C. Liability and Property Damage Insurance......................10
D. Personal Property Insurance..................................10
E. Worker's Compensation Insurance..............................10
F. General Insurance Provisions.................................10
G. Landlord's Insurance.........................................11
H. Waiver of Subrogation........................................11
12. DESTRUCTION.......................................................12
13. CONDEMNATION......................................................13
A. Definitions..................................................13
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B. Total Taking...........................................13
C. Partial Taking.........................................13
D. Award..................................................14
E. Temporary Taking.......................................15
F. Taking in Final Year...................................15
14. DEFAULT.......................................................15
15. REMEDIES OF LANDLORD..........................................16
16. ASSIGNMENT....................................................19
17. ENTRY BY LANDLORD DURING THE TERM
OF THE LEASE..................................................20
18. SUBORDINATION.................................................21
19. NOTICES.......................................................21
20. RECORDATION OF MEMORANDUM OF LEASE............................22
21. SUCCESSORS....................................................22
22. EXPIRATION, TERMINATION AND HOLDING OVER......................22
23. ARBITRATION...................................................23
24. LIMITED RIGHT OF FIRST REFUSAL................................23
A. Notice..................................................23
B. Negotiation.............................................24
C. First Refusal Rights....................................24
D. Termination of this Lease...............................24
25. MISCELLANEOUS PROVISIONS......................................25
A. Counterparts............................................25
B. Time of the Essence.....................................25
C. Authority...............................................25
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D. Estoppel Certificates..........................................25
E. Applicable Law.................................................25
F. Prior Agreements and Modification..............................25
G. Sale of Premises by Landlord...................................25
H. Captions, Table of Contents, Headings
and Marginal Headings..........................................26
I. Attorneys' Fees................................................26
J. Provisions are Covenants and Conditions........................26
K. Severability...................................................26
L. Non-Merger of Fee and Leasehold Estates........................26
M. Rent Payable in United States Currency.........................26
N. Sublease.......................................................26
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LEASE
1. PARTIES
This Lease, is made and entered into by and between GROSSMONT LAND CO., a
California limited partnership (hereinafter referred to as "Landlord") and BSD
California corporation (hereinafter referred to as "Tenant") , effective August
6, 1982.
2. PREMISES
A. Description. This lease is made with respect to certain real
property located at 0000 Xxxxxx Xxxxx, Xx Xxxx, Xxxxxxxxxx 00000, as depicted on
Exhibit "A", attached hereto and incorporated herein by this reference. Said
real property consists of three (3) separate parcels, depicted on Exhibit "A",
and hereinafter respectively referred to as "Parcel 1", "Parcel 2", and "Parcel
3". This lease provides that tenant is leasing Parcel 1 and Parcel 2, commencing
on different dates, and that Tenant has a limited option to lease Parcel 3. As
used hereinafter, the term "Premises" refers to the parcel(s) tenant is leasing
at the applicable time.
B. Lease of Premises. Landlord does hereby lease to Tenant, and
Tenant hereby leases from Landlord, Parcel 1 and Parcel 2, as well as any
drive-up facility constructed by Tenant pursuant to Paragraph 7 of this Lease.
Said Premises are hired, demised and leased to Tenant from Landlord in an
"as-is" condition with respect to compliance with statutes, ordinances, rules,
regulations, zoning variances and/or conditional use permits applicable to the
Premises. Tenant hereby accepts the building and improvements on the Premises in
their existing condition. No representation, statement or warranty, express or
implied, has been made by or on behalf of Landlord as to the condition or as to
the use that may be made of the Premises. In no event shall Landlord be liable
for any defect in the Premises or for any limitation on its use which may be
imposed by statute, ordinance, regulation, economic condition or otherwise.
C. Limited Option. Parcel 3 will be available for lease on August
1, 1983. Landlord hereby grants Tenant the limited option to lease all of Parcel
3 as of August 1,1983, at the monthly rent of $1.25 per square foot, with cost
of living adjustments pursuant to the provisions of Paragraph 4.B. below, and on
all of the same terms and conditions contained in this Lease. Tenant shall
exercise this limited option by giving written notice of exercise to Landlord on
or before January 31, 1983; provided that if Tenant is in default hereunder on
the date
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of giving the notice of exercise of option, or on August 1, 1983, the exercise
will be ineffective and this option will be void. If effective notice of
exercise of option is not delivered on or before January 31, 1983, this option
shall automatically terminate. Tenant may not exercise this option for less than
the entire Parcel 3.
3. TERM
The term of this Lease shall commence on November 15, 1982, as to Parcel
1, and as to Parcel 2, upon termination of the existing lease of Parcel 2 to
Prudential Insurance Company of America, but in no event later than August 1,
1983. This lease shall terminate on December 31, 1999 as to the entire Premises.
4. RENT AND OTHER CONSIDERATION
A. Lease Consideration. Upon execution hereof, Tenant shall pay
Landlord the sum of $5,000.00 as consideration for entering into this Lease.
This payment is non-refundable and shall not be applied to any future rents
payable hereunder.
B. Monthly Rent. Commencing November 15, 1982, Tenant shall pay
to Landlord, without abatement, deduction, or offset, monthly rent in the amount
of $1.25 per square foot ($1,065.31 per month for Parcel 1), in advance, on or
before the first day of each month, with the first month's rent prorated.
Commencing August 1, 1983, the rent shall be adjusted to the sum of $6,618.44
per month to reflect the addition of Parcel 2 to the Premises. If Tenant
exercises the option described in Paragraph 2.C. above, the monthly rent shall
be adjusted to reflect the increased square footage of the Premises. Commencing
January 1, 1986, and every three (3) years thereafter, the rent shall be subject
to adjustment as follows:
The base for computing the adjustment is the Consumer Price Index for
Urban Wage Earners and Clerical Workers - All Items for San Diego,
California, published by the United States Department of Labor, Bureau
of Labor Statistics (the "Index"), which is published for May, 1982
(the "Beginning Index"). If the latest published Index ("Adjustment
Index") before the adjustment date has increased over the Beginning
Index, the monthly rent shall be set by multiplying the monthly, rent
set forth in this Paragraph 4.B. by a fraction, the numerator of which
is the Adjustment Index and the denominator of which is the Beginning
Index. No adjustment to the monthly rent shall be less than five
percent (5%) per year (compounded) nor more than eight
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percent (8%) per year (compounded). If the Index is changed so that the
base year differs from that used as of May, 1982, the Index shall be
converted in accordance with the conversion factor published by the
United States Department of Labor, Bureau of Labor Statistics. In the
event the Index is discontinued or revised during the term, such other
government index or computation with which it is replaced shall be used
in order to obtain substantially the same result as would be involved if
the Index had not been discontinued or revised.
C. Net Lease. It is the intention of the parties that this be a net
lease, and that all costs of maintenance, taxes and insurance be borne by Tenant
in addition to the rent stated herein.
D. Other Consideration and Conditions. This Lease is subject to the
terms, covenants and conditions herein set forth. Tenant covenants as a material
part of the consideration for this Lease to keep and perform each and all of
said terms, covenants and conditions by it to be kept and performed, and this
Lease is made upon the condition of said performance.
5. TAXES AND ASSESSMENTS
A. Personal Property Taxes. Tenant shall pay before delinquency all
taxes, assessments, license fees, and other charges that are levied and assessed
against Tenant's personal property installed or located in or on the Premises,
and that become payable during the term of the Lease. On demand by Landlord,
Tenant shall furnish Landlord with satisfactory evidence of these payments. If
any taxes on Tenant's personal property are levied against Landlord or
Landlord's property, or if the assessed value of the building and other
improvements in which the Premises are located is increased by the inclusion of
a value placed on Tenant's personal property, and if Landlord pays the taxes on
any of these items or the taxes based on the increased assessment of these
items, Tenant, on demand, shall immediately reimburse Landlord for the sum of
the taxes levied against Landlord, or the proportion of the taxes resulting from
the increase in Landlord's assessment. Landlord shall have the right to pay
these taxes regardless of the validity of the levy.
B. Real Property Taxes. Tenant hereby agrees to pay its
proportionate share of all real property taxes, general and special assessments,
and other charges of every description levied on or assessed against the
Premises, improvements located on the Premises, the Common Area (defined in
Paragraph 8 below), the leasehold estate, or any subleasehold estate, to the
full
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extent of the installments falling due during the term of this Lease. Tenant's
proportionate share shall be the ratio of such taxes that the total number of
square feet in the Premises bears to the total number of leaseable square feet
in the building in which the Premises are located (hereinafter referred to as
the "Proportionate Share"), which is initially 66.31 percent and which is
subject to recalculation as necessary. At such time as Tenant leases all of
Xxxxxx 0, Xxxxxx 2 and Parcel 3, Tenant's Proportionate Share shall be 100%.
Landlord shall notify Tenant of Landlord's calculation of Tenant's
Proportionate Share of the real property taxes and together with such notice
shall furnish Tenant with a copy of the tax xxxx. Tenant shall pay its
Proportionate Share of the real property taxes semi-annually not later than
ten (10) days before the taxing authority's delinquent date, or ten (10) days
after receipt of the tax xxxx, whichever is later. As of such time as Tenant's
Proportionate Share is 100%, Tenant shall make all payments hereunder directly
to the charging governmental authority at least ten (10) days before the
taxing authority's delinquency date. All payments of taxes and other charges
pursuant to this paragraph shall be prorated for the initial lease year and
for the year in which this Lease terminates.
C. Tax Impound. If Landlord's lender required Landlord to
impound real property taxes on a periodic basis during the term, Tenant, on
notice from Landlord, shall pay its Proportionate Share of the real property
taxes to Landlord on a periodic basis in accordance with the lender's
requirements. Landlord shall impound the tax payments received from Tenant in
accordance with the requirements of the lender.
D. New Assessments. If any general or special assessment is
levied or assessed against the building, or other improvements, or land of
which the Premises and Common Area are a part, Landlord can elect to either
pay the assessment in full or allow the assessment to go to bond. If Landlord
pays the assessment in full, Tenant shall pay to Landlord each time a payment
of real property taxes is made a sum equal to that which would have been
payable (as both principal and interest) had Landlord allowed the assessment
to go to bond.
E. Tenant's Right to Contest Real Property Taxes. Tenant shall at
its own cost have the right to seek a reduction in the assessed valuation of
the land and improvements of which the Premises and Common Area are a part, or
any portion thereof, or to contest the legal validity or amount of any real
property taxes, assessments, or charges that are to be paid by Tenant under
the provisions of this Lease, and may institute such proceedings as Tenant
considers necessary. Landlord shall not be required to join in any proceedings
or contest brought by Tenant unless the provisions of any law require that the
proceeding or
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contest be brought by or in the name of the Landlord, or any owner of the
Premises. In that case, Landlord shall join in the proceeding or contest or
permit it to be brought in Landlord's name, so long as Landlord is not
required to bear any cost. Tenant shall furnish to Landlord a surety bond,
cash deposit, or other security reasonably satisfactory to Landlord, in an
amount equal to one hundred twenty-five percent (125%) of the total amount of
real property taxes in dispute. The bond shall hold Landlord and the Premises
harmless from any damage arising out of the proceedings or contest and shall
insure the payment of any judgment that may be rendered. In the event the
building, other improvements, or land of which the Premises and Common Area
are a part is in immediate danger of being forfeited or sold because of
non-payment of any levy or assessment, Landlord may require immediate payment
from Tenant.
F. Substitute or Additional Taxes. If at any time during the
term of this Lease the law concerning the methods of real property taxation
prevailing at the commencement of the term hereof are changed so that a tax or
excise on rent or any other such tax, however described, is levied or assessed
against Landlord as a direct substitution in whole or in part for any real
property taxes, or in addition thereto, Tenant shall pay before delinquency
the substitute or additional tax or excise on rents. Tenant shall not,
however, be required to pay any municipal, county, state or federal income or
franchise taxes of Landlord, or any municipal, county, state or federal
estate, succession, inheritance or transfer taxes of Landlord.
6. USE
A. Limits on Use. Tenant hereby agrees to use the Premises for
any lawful activity of a branch bank or bank holding company and for no other
business. In its use of the Premises, Tenant shall comply with all laws,
statutes, ordinances, governmental rules and/or regulations, conditional use
permits, zoning variances and the like, now in force or which may hereinafter
be enacted, promulgated and/or granted with respect to the Premises and the
banking business, including but not limited to laws, statutes, ordinances,
rules or regulations pertaining to exterior signs. Further, Tenant shall bear
the entire cost and all expenses necessary to alter, maintain and/or restore
the Premises so as to remain in compliance and conformity with the laws
relating to the condition, use and/or occupancy of the Premises during the
term. Tenant shall not use the Premises nor permit any use of the Premises
which in any manner will cause or constitute waste, nuisance or unreasonable
annoyance to owners or occupants of adjacent properties. Tenant shall not do,
bring, keep or permit anything in or about the Premises that will cause a
cancellation of any insurance covering the Premises. Tenant
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shall keep the Premises under its control, including sidewalks adjacent to the
Premises and loading areas allocated for the use of Tenant, clean and free from
rubbish and dirt at all times.
B. Exclusive Use. Tenant shall have the right to control the
use of and access to the Premises at all hours of the day and night, except as
limited by Paragraph 17 of this Lease.
7. IMPROVEMENTS, ALTERATIONS AND ADDITIONS
A. In General. Tenant shall neither make nor permit any
destruction, alteration, improvement and/or addition to the Premises without the
consent of Landlord (which consent shall not be unreasonably withheld). Landlord
hereby consents to the initial remodeling of the interior and exterior of the
building of which the Premises are a part, including the construction of a
drive-up banking facility, provided that the plans shall be subject to
Landlord's reasonable approval and the approval of such governmental agencies as
are required by law. If any alterations, improvements and/or additions are
approved by Landlord during the term of this Lease, including the initial
remodeling, construction shall not commence until five (5) days after Landlord
has received written notice from Tenant stating the date that the installation
of such alterations, improvements and/or additions is to commence so that
Landlord can post and record an appropriate notice of nonresponsibility. Tenant
shall pay all costs for construction done by it or permitted by it to be done on
the Premises (as permitted by this Lease).
B. Mechanic's Liens and Lien Release Bond. Tenant shall keep the
Premises free and clear of all mechanic's liens resulting from construction done
by or for the Tenant or with the permission of Tenant. Tenant shall have the
right to test the correctness or the validity of any such lien if, immediately
on demand by Landlord, Tenant procures and records a lien release bond issued by
a corporation authorized to issue surety bonds in the State of California in an
amount equal to one and one-half (1 and 1/2) times the amount of the claim of
lien. The bond shall meet the requirements of Civil Code Section 3143 and shall
provide for the payment of any sum that the claimant may recover on the claim
(together with costs of suit, if any, if it recovers in the action).
8. COMMON AREA
A. Definition. The term Common Area means the area exterior
to the building in which the Premises are located which is denoted as Common
Area on Exhibit "A", including landscaping and parking area. Landlord gives to
Tenant and its authorized
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representatives and invitees the non-exclusive right to use the Common Area,
subject to Landlord's rights set forth in the following paragraph.
B. Maintenance. So long as Tenant is leasing fewer than all of
Xxxxxx 0, Xxxxxx 2 and Parcel 3, Landlord shall maintain the Common Area in
good condition, and shall have the right to:
(1) Close any of the Common Area to whatever extent required in
the opinion of Landlord's counsel to prevent a dedication of any of the
Common Area or the accrual of any rights of any person or of the public
to the Common Area;
(2) Close temporarily any of the Common Area for maintenance
purposes;
(3) Select a person to maintain and operate any of the Common
Area; and
(4) Make changes to the Common Area including, without
limitation, changes in the location of driveways, entrances, exits,
vehicular parking spaces, and direction of the flow of traffic. Tenant
shall have the right to reasonably approve any such changes.
As of such time as Tenant is leasing all of Xxxxxx 0, Xxxxxx 2 and
Parcel 3, Tenant shall assume direct responsibility for Common Area
maintenance, and shall make direct payment of all expenses thereby incurred.
C. Costs. Unless Tenant has assumed direct responsibility for
Common Area maintenance pursuant to Subparagraph B above, Tenant shall pay to
Landlord an amount estimated by Landlord to be Tenant's Proportionate Share of
Common Area costs on the first day of each month, commencing on the date the
term commences, and continuing during the term. Landlord can adjust the
monthly Common Area charges at the end of each quarter of the accounting
period on the basis of Landlord's reasonably anticipated costs for the
following accounting period. An accounting period is a calendar year except
that the first accounting period shall commence on the date the term commences
and the last accounting period shall end on the date the term expires or
terminates. Landlord shall furnish to Tenant a reasonably detailed statement
showing the total Common Area costs, Tenant's Proportionate Share of Common
Area costs for the accounting period, and the payments made by Tenant with
respect to each accounting period, within thirty (30) days after the end of
each accounting period, covering the accounting period just ended. Each
statement shall be prepared, signed, and certified
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to be correct by Landlord. Tenant shall have the right to audit each such
statement. If Tenant's share of Common Area costs for the accounting period
exceeds the payments made by Tenant, Tenant shall pay Landlord the deficiency
within ten (10) days after receipt of the statement. If Tenant's payments made
during the accounting period exceed Tenant's share of Common Area costs,
Landlord shall credit the excess against future payments by Tenant for Common
Area costs. Common area costs means all sums expended by Landlord for the
maintenance and operation of the Common Areas, and an allowance to Landlord for
Landlord's supervision of maintenance and operation in the Common Areas in an
amount equal to ten percent (10%) of the total Common Area costs.
9. MAINTENANCE
Tenant, at its sole cost, shall maintain the Premises in good condition,
including but not limited to windows, all heating, ventilating and
air-conditioning systems, and all electrical, lighting, and plumbing systems,
and shall deliver the same and surrender them to Landlord at the end of the term
hereof in the same condition as received at the commencement of this Lease, or
in such better condition as later improved, less the effects of normal wear and
tear. Landlord shall not have any responsibility to maintain the Premises or any
part thereof. Tenant hereby waives the provisions of California Civil Code
Sections 1941 and 1942 (with respect to Landlord's obligations for habitability
of the Premises and Tenant's right to make repairs and deduct the expenses of
such repairs from payments of rent due). Landlord shall maintain the exterior
and roof of the building, and Tenant shall reimburse Landlord its Proportionate
Share of the costs of such maintenance with ten (10) days after receipt of a
statement of such costs from Landlord. As of such time as Tenant is leasing all
of Xxxxxx 0, Xxxxxx 2 and Parcel 3, Tenant shall assume direct responsibility
for maintenance of the exterior and roof of the building, and shall make direct
payments of all expenses thereby incurred.
10. UTILITIES AND SERVICES
Tenant shall, at its sole cost and expense, make all arrangements for and
pay for all charges for utilities and services furnished to it or used by it and
any subtenants, including, without limitation, gas, electricity, water,
telephone service and trash collection. Tenant shall reimburse Landlord on a
monthly basis for Tenant's Proportionate Share of the costs of refuse disposal
and any other services furnished by Landlord, within ten (10) days after Tenant
receives an invoice from Landlord. Landlord shall not be liable for failure to
furnish
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refuse disposal or other services furnished by Landlord to the Premises when the
failure results from causes beyond Landlord's reasonable control, but in case of
the failure, Landlord will take all reasonable steps to restore the interrupted
disposal service. As of such time as Tenant is leasing all of Xxxxxx 0, Xxxxxx 2
and Parcel 3, Landlord shall no longer be responsible for furnishing any
services to Tenant, and Tenant shall arrange for and pay all charges for refuse
disposal and any other services previously furnished by Landlord.
11. INDEMNITY, EXCULPATION AND INSURANCE
A. Assumption of Risk. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons in, upon or about the Premises from any cause other than
Landlord's active negligence or omissions of Landlord's agents or employees, and
Tenant hereby waives all claims against Landlord in respect thereof. Landlord,
including its employees and agents, shall not be liable for any injury or damage
to persons or property within or around the Premises during the term of this
Lease, including agents, officers and employees of Tenant or their property, for
any cause whatsoever, including, without limitation, fire, explosion, falling
plaster, steam, gas, electricity, water or rain which may leak from any part of
the building or from the pipes, appliance or plumbing works therein, or from the
roof, street or subsurface or from any other place resulting from dampness or
any other cause whatsoever, unless caused by the active negligence or omission
of Landlord, its agents, servants or employees. Further, Landlord, its agents
and employees shall not be liable for interference with the light or other
incorporeal hereditaments or loss of business by Tenant, nor shall Landlord be
responsible for any latent defect in the Premises. Tenant shall give prompt
notice to Landlord in the case of fire or accidents or of defects within the
Premises or the fixtures or equipment therein.
B. Indemnity. Tenant hereby agrees to indemnify and hold Landlord
harmless against and from any and all claims arising from Tenant's use of the
Premises for the conduct of its business or from any activity, work or other
thing done, permitted or suffered by Tenant on or about the Premises except for
acts or omissions of Landlord, and shall further indemnify and hold harmless
Landlord against and from any and all claims arising from any breach or default
in the performance of any obligation on Tenant's part to be performed under the
terms of this Lease or arising from any act or negligence of Tenant or any
officer, agent, employee, guest or invitee of Tenant, and from and against all
cost, attorneys fees, expenses and liabilities incurred in or about any such
claim or any action or proceeding brought thereon; and if any case, action or
proceeding be brought
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against Landlord by reason of any such claim, Tenant, upon notice from
Landlord, shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord.
C. Liability and Property Damage Insurance. Tenant, at its sole
cost and expense, shall purchase and maintain public liability and property
damage insurance with limits of not less than $1,000,000 for injury to or
death of one or more persons and/or property damage arising out of a single
accident or occurrence, insuring against all liability of Landlord, Tenant,
its subtenants and its authorized representatives, arising out of and in
connection with Tenant's use and/or occupancy of the Premises, including the
use and/or occupancy of subtenants. All public liability insurance and
property damage insurance shall insure the performance of Tenant of the
indemnity provisions set forth hereinabove in this paragraph. Further, in all
such insurance required to be purchased and maintained by Tenant, Landlord and
Landlord's lender, if any, shall be named as co-insureds, and the policy shall
contain cross-liability endorsements. Not more frequently than every three (3)
years, if, in the opinion of Landlord's lender or insurance broker, the amount
of public liability and property damage insurance is inadequate, Tenant shall
increase such coverage as required by Landlord's lender or insurance broker.
D. Personal Property Insurance. Tenant, at its sole cost and
expense, shall maintain on all its personal property, Tenant improvements and
alterations, in, on, or about the Premises, a policy of standard fire and
extended coverage insurance with vandalism and malicious mischief endorsements
to the extent of at least one hundred percent (100%) of their full replacement
value. The proceeds from any such policy shall be used by Tenant for the
replacement of personal property or the restoration of Tenant's improvements
or alterations. Tenant may, at its cost, maintain full coverage plate glass
insurance on the Premises; provided, however, that whether or not Tenant
maintains such insurance, all glass is maintained at Tenant's risk.
E. Worker's Compensation Insurance. Tenant further agrees to
purchase and maintain in full force and effect such policies of worker's
compensation insurance as may be required to cover any employee of Tenant
during the term of this Lease in form and amount acceptable to Landlord.
F. General Insurance Provisions. All insurance required under
this Lease shall be issued by insurance companies authorized and licensed to
do business in the State of California with a financial rating of at least A+X
status as rated in the most recent of Best's Insurance Reports; be issued as a
primary coverage policy and non-contributing with any insurance which may be
carried by Landlord; contain an endorsement requiring thirty
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(30) days' written notice from the insurance company to both parties and the
Landlord's lender, if any, before cancellation or change in the coverage, scope
or amount of any policy. Tenant shall use its best efforts to deposit each
policy or certificate thereof, together with evidence of payment of each premium
as it becomes due, with Landlord at the commencement of the term and on renewal
of the policy not less than twenty (20) days before expiration of the term of
each such policy.
G. Landlord's Insurance. Landlord shall maintain on the building
and other improvements in which the Premises are located a policy of standard
fire and extended coverage insurance, with vandalism and malicious mischief
endorsements. Tenant shall reimburse Landlord for Tenant's Proportionate Share
of the premiums paid by Landlord for maintaining such insurance within ten (10)
days after Tenant receives a copy of the premium notice. If Landlord's lender
requires Landlord to impound insurance premiums on a periodic basis during the
term, tenant, on notice from Landlord, shall pay a sum of money towards its
liability under this paragraph to Landlord on a periodic basis in accordance
with the lender's requirements. Landlord shall impound the insurance premiums
received from Tenant in accordance with the requirements of the lender.
H. Waiver of Subrogation The parties release each other, and their
respective authorized representatives, from any claims for damage to any person
or to the Premises and the building and other improvements in which the Premises
are located, and to the fixtures, personal property, Tenant's improvements, and
alterations of either Landlord or Tenant in or on the Premises and the building
and other improvements in which the Premises are located that are caused by or
result from risks insured against under any insurance policies carried by the
parties and in force at the time of any such damage. Each party shall cause each
insurance policy obtained by it to provide that the insurance company waives all
right of recovery by way of subrogation against either party in connection with
any damage covered by any policy. Neither party shall be liable to the other for
any damage caused by fire or any of the risks insured against under any
insurance policy required by this Lease. If any insurance policy cannot be
obtained with a waiver of subrogation, or is obtainable only by the payment of
an additional premium charge above that charged by insurance companies issuing
policies without waiver of subrogation, the party undertaking to obtain the
insurance shall notify the other party of this fact. The other party shall have
a period of ten (10) days after receiving the notice either to place the
insurance with a company that is reasonably satisfactory to the other party and
that will carry the insurance with waiver of subrogation, or to agree to pay the
additional premium if such a policy is obtainable at additional cost. If the
insurance cannot
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be obtained or the party in whose favor a waiver of subrogation is desired
refuses to pay the additional premium charged, the other party is relieved of
the obligation to obtain a waiver of subrogation rights with respect to the
particular insurance involved.
12. DESTRUCTION
If, during the term of this Lease, the Premises or the building and
other improvements in which the Premises are located are totally or partially
destroyed from any cause, rendering the Premises totally or
practically inaccessible or unusable, Landlord shall restore the Premises or the
building and other improvements in which the Premises are located to
substantially the same condition as they were in immediately before destruction,
if the restoration can be made under the existing laws and can be completed
within one hundred eighty (180) working days after the date of the destruction.
Such destruction shall not terminate this Lease. If the restoration cannot be
made in the time stated in this paragraph, then within fifteen (15) days after
the parties determine that the restoration cannot be made in the time stated in
this paragraph, Tenant can terminate this Lease immediately by giving notice to
Landlord. If Tenant fails to terminate this Lease and if restoration is
permitted under the existing laws, Landlord, at its election, can either
terminate this Lease or restore the Premises or the building and other
improvements in which the Premises are located within a reasonable time and this
Lease shall continue in full force and effect. If the existing laws do not
permit the restoration, either party can terminate this Lease immediately by
giving notice to the other party.
If there is destruction of the building and other improvements in which
the Premises are located that exceeds thirty-three and one-third percent
(33 1/3%) of the then replacement value of the building and other improvements
from any cause, Landlord can elect to terminate this Lease whether or not the
Premises are rendered inaccessible or unusable, as long as Landlord terminates
the lease of the other tenant in the building.
In case of destruction there shall be an abatement or reduction of rent
between the date of destruction and the date of completion of restoration, based
on the extent to which the destruction interferes with Tenant's use of the
Premises, provided that Landlord shall be entitled to the proceeds of the
business interruption insurance required under Paragraph 11 (eleven), F. If
destruction to the Premises occurs during the last year of the term, Landlord
can terminate this Lease by giving notice to Tenant not more than fifteen (15)
days after the
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destruction. Tenant waives the provisions of Civil Code Section 1932(2) and
Civil Code Section 1933(4) with respect to any destruction of the Premises.
13. CONDEMNATION
If during the term of this Lease there is any taking of all or any part
of the Premises or any interest in this Lease by condemnation, the rights and
obligations of the parties shall be determined pursuant to this paragraph.
A. Definitions. For purposes of this paragraph, the following
definitions shall apply:
(1) "Condemnation" means (a) the exercise of any
governmental power, whether by legal proceedings or otherwise by a condemnor,
and (b) a voluntary sale or transfer by Landlord to any condemnor, either under
threat of condemnation or while legal proceedings for condemnation are pending.
(2) "Date of taking" means the date the condemnor has
the right to possession of the property being condemned.
(3) "Award" means all compensation, sums or anything
of value awarded, paid or received on a total or partial condemnation, less
attorneys fees and legal costs incurred in obtaining such award.
(4) "Condemnor" means any public or quasi-public
authority or private corporation or individual, having the power of eminent
domain.
B. Total Taking. If the Premises are totally taken by
condemnation, this Lease shall terminate as of the date of taking.
C. Partial Taking. If any portion of the Premises is taken by
condemnation, this Lease shall remain in effect, except Tenant can elect to
terminate this Lease if the taking is substantial; that is, if the remaining
portion of the Premises is rendered unsuitable for Tenant's continued use of the
Premises. Landlord shall notify Tenant that there is going to be a taking within
a reasonable time after receipt of service of summons and complaint. If Tenant
elects to terminate this Lease, Tenant must exercise its right to terminate
pursuant to this paragraph by giving written notice to Landlord within thirty
(30) days after receipt of notice of the taking. If Tenant elects to terminate
this Lease as provided in this paragraph, Tenant shall also notify Landlord of
the date of termination, which date shall not be earlier than thirty (30) days
following receipt of written
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notice nor later than sixty (60) days after receipt of such written notice by
Landlord. Except that this Lease shall terminate on the date of taking, if the
date of taking falls on a date before the date of termination as designated by
Tenant. If Tenant does not terminate this Lease within said 30-day period, this
Lease shall continue in full force and effect, except that monthly rent shall be
reduced pursuant to this paragraph.
If any portion of the Premises is taken by condemnation, and this Lease
remains in full force and effect, on the date of taking, monthly rent shall be
reduced by an amount that is in the same ratio to rent as the value of the area
of the portion of the Premises taken bears to the total value of the Premises
immediately before the date of the taking.
If within thirty (30) days after the date that the nature and extent of
the taking are finally determined Landlord notifies Tenant that Landlord, at its
cost, will add on to the remaining Premises so that the area and the approximate
layout of the Premises will be substantially the same after the date of taking
as they were before the date of taking, and Landlord commences the restoration
immediately and completes the restoration within one hundred twenty (120) days
after Landlord notifies Tenant, then the Lease shall not be subject to
termination by Tenant and shall continue in full force and effect. Rent shall be
abated or reduced during the period from the date of taking until the completion
of restoration based upon the extent to which the restoration interferes with
Tenant's use of the Premises; and, after completion of restoration, rent shall
be restored to precondemnation levels.
Notwithstanding any other provision contained in this paragraph,
Landlord shall not be responsible or obligated to, in the course of any
restoration work hereunder, replace or repair any Tenant improvements, fixtures
and/or equipment of Tenant or any subtenant.
Both Landlord and Tenant hereby waive the provisions of Code of Civil
Procedure Section 1265.130, which allow either party to petition the Superior
Court to terminate this Lease in the event of a partial taking of the Premises.
D. Award. Any award made pursuant to any condemnation of all or
part of the Premises shall belong to and be paid to Landlord. However, Tenant
shall receive from the award the following: A sum equal to the reasonable value
of Tenant's improvements or alterations made to the Premises by Tenant during
and in accordance with this Lease which Tenant has the right to remove from the
Premises but elects not to remove; or, if Tenant elects to remove such Tenant
improvements or alterations, a sum equal to the reasonable removable and
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relocation costs not to exceed the reasonable value of such improvements or
alterations less allowed or allowable depreciation.
E. Temporary Taking. The taking of the Premises or any part of the
Premises on a temporary basis shall be a taking of the Premises by condemnation
pursuant to this paragraph only when the use and occupancy by the condemnor has
continued for longer than one hundred eighty (180) consecutive days. During such
180-day period, all the provisions of this Lease shall remain in full force and
effect, except that rent shall be abated or reduced during such period of taking
based on the extent to which the taking interferes with Tenant's use of the
Premises, and Landlord shall be entitled to whatever award may be paid for the
use and occupation of the Premises for the period involved without any payment
at all to Tenant therefor.
F. Taking in Final Year. Any condemnation of the Premises or any
part thereof during the final year of this Lease shall, in the case of a
complete taking, terminate the Lease, notwithstanding any other provisions of
this paragraph and, in the case of a partial taking, shall merely xxxxx the
amount of rent paid pursuant to the provisions above of this paragraph with no
obligation on the part of either Landlord or Tenant to restore the Premises.
Tenant shall receive no part whatsoever of any award from such a condemnation
during the final year of the term.
14. DEFAULT
The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease:
A. Abandonment, vacating or surrender of the Premises or of the
leasehold estate by Tenant.
B. Failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder as and when due if such failure
continues for a period of ten (10) days after the giving of written notice
thereof by Landlord to Tenant.
C. The failure or refusal of Tenant to perform, as required or
conditioned, any covenant or condition of this Lease deemed to be substantive
and material.
D. The subjection of any right or interest of Tenant in the
Premises, or any subtenant, to attachment, execution or other levy, or seizure
under legal process, if not released within thirty (30) days.
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E. The appointment of a receiver and/or trustee to take possession
of the Premises or improvements either of Tenant or any subtenant, or of
Tenant's interest in the leasehold estate, or of Tenant's operations on the
Premises for any reason, including but not limited to, assignment for the
benefit of creditors, voluntary or involuntary proceedings commenced by or
against Tenant under the bankruptcy laws of the United States of America as the
same shall exist now or may be amended or modified in the future during the term
of this Lease. Included, without limitation, within the reference to a
proceeding commenced under the United States Bankruptcy Law, are all proceedings
for the purpose of adjudicating Tenant a bankrupt, for extending time of payment
adjustment or satisfaction of Tenant's liabilities to its creditors and/or for
reorganization, dissolution or arrangement on account of or to prevent a
bankruptcy or insolvency.
F. Any attempted assignment and/or sublease by Tenant of all or
any portion of the demised Premises to a third party without prior written
consent of Landlord.
G. Failure of Tenant to comply with any law, statute, ordinance,
rule or regulation pertaining to exterior signs on or adjacent to the Premises
or Common Area.
As a precondition to pursuing any remedy for an alleged default by
Tenant, Landlord shall give written notice of default to Tenant, which shall
specify the alleged event of default and the required remedy therefor.
Tenant shall have the right to cure defaults hereunder and be relieved
from the effects thereof if, in the case of a monetary default, Tenant remedies
such default by making the required payment(s) within fifteen (15) days of the
giving of notice by Landlord in writing, and in the case of non-monetary
defaults cures the default within thirty (30) days after the giving of notice by
Landlord, or such other time as is reasonable.
15. REMEDIES OF LANDLORD
If any default by Tenant continues uncured following notice of default
as required by the foregoing paragraph of this Lease and is not cured within the
grace period provided in said paragraph, Landlord shall have the following
remedies in addition to all other rights and remedies provided by law or equity
to which Landlord may resort, cumulatively or in the alternative:
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33
A. After expiration of the applicable time for curing a particular
default, or before the expiration of that time in the event of emergency,
Landlord may, at Landlord's election, but is not obligated to do so, make any
payment required of Tenant under this Lease or under any note or other document
pertaining to the financing of improvements or fixtures on the Premises, or
perform or comply with any covenant or condition imposed on Tenant under this
Lease or any such note or document, and the amount so paid plus the reasonable
cost of any performance or compliance (including without limitation attorneys
fees and costs actually paid by Landlord), plus interest at the rate of ten per
cent (10%) per annum from the date of payment, performance or compliance shall
be deemed to be added to and become additional rent payable by Tenant with the
next succeeding installment of rent. No such act shall constitute a waiver of
default or any remedy for default or render Landlord liable for any loss or
damage resulting from such act.
B. Landlord may, at its election, terminate this Lease by giving
Tenant written notice of termination. Promptly after notice of termination,
Tenant shall surrender and vacate the Premises and all improvements in
broom-clean condition, and Landlord may reenter and take possession of the
Premises and all remaining improvements and eject all parties in possession, or
eject some but not others, or eject none. Termination under this paragraph shall
not relieve Tenant from the payment of any sum then due to Landlord or from any
claim for damages previously accrued or then accruing against Tenant. No act by
Landlord other than giving written notice to Tenant shall terminate this Lease.
C. Landlord may, at its election, continue this Lease in full
force and effect, and the Lease will continue in effect as long as Landlord does
not terminate Tenant's right to possession; and Landlord shall have the right to
collect rent when due. During the period Tenant is in default, Landlord can
reenter the Premises and, without terminating this Lease at any time and from
time to time, relet the Premises and improvements or any part or parts of them
for the account and in the name of Tenant or otherwise. Tenant shall be liable
immediately to Landlord for all costs Landlord incurs in reletting the Premises,
including, without limitation, brokers' commissions, expenses of remodeling the
Premises required by reletting and like costs. Reletting can be for a period
shorter or longer than the remaining term of this Lease. Landlord may, at its
election, eject all persons, or eject some and not others, or eject none.
Landlord shall apply all rents from such reletting to the rent becoming due from
Tenant under the terms of the Lease. Landlord may execute any leases made under
this provision, in the Landlord's name, and shall be entitled to all rents from
the use, operation or occupancy of the Premises or improvements, or both.
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34
Tenant shall, nevertheless, pay to Landlord on the due date specified in this
Lease the equivalent of all sums required of Tenant under this Lease plus
Landlord's expenses (including, without limitation, actual attorneys fees and
legal costs) less the net proceeds of any reletting or attornment. No act by or
on behalf of Landlord under this provision shall constitute a termination of
this Lease unless Landlord gives Tenant written notice of such termination.
After Tenant's default and for as long as Landlord does not terminate Tenant's
right to possession of the Premises, if Tenant obtains Landlord's consent,
Tenant shall have the right to assign or sublet its interest in this Lease, but
Tenant shall not be released from liability. Landlord's consent to a proposed
assignment or subletting under this paragraph shall not be unreasonably
withheld.
D. Landlord may, at its election, use Tenant's personal property
and trade fixtures, or any of such property and fixtures, which are not removed
from or remain upon the leased Premises, without compensation and without
liability for use or damage, or store them for the account and at the cost of
Tenant.
E. Landlord shall be entitled, at its election, to each
installment of rent or to any combination of installments of rent and other
monetary payments due for any period before termination, plus interest at the
maximum rate per annum allowed under California law from the date each
installment shall have fallen due. Net proceeds of any reletting or attorned
subrents collected by Landlord pursuant to any remedy permitted under this
Paragraph 15 (fifteen), when received shall be applied first to any back rents
and other monetary sums not paid by Tenant for which Tenant is obligated by the
terms of this Lease, then to the current rents due from Tenant, with any
remaining proceeds after payment of the foregoing sums payable to Tenant.
F. On Landlord's termination of this Lease, Landlord shall be
entitled, at its election, to damages in the following sums: (1) The worth at
the time of award in any court action of unpaid rent which had been earned and
due and payable to Landlord as of the termination of this Lease; (2) The worth
at the time of award in any court action of the amount by which the unpaid rent
which would have been earned after termination of the Lease until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; (3) The worth at the time of award at any court proceeding
to recover it of an amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of such rental loss that Tenant
proves could reasonably have been avoided; (4) Any other amount necessary to
compensate Landlord for all detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom. The phrase "worth at the time of
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award" with respect to unpaid rent which shall have been earned at the time of
termination and with respect to unsaid rent which shall have been earned after
termination through the time of award, shall be computed by adding to each of
said sums interest at the rate of 10 per cent (10%) per annum from the
respective due dates for each increment of such rent. The phrase "worth at the
time of award" used in respect to rent for the balance of the term following the
time of award shall be computed by discounting such rent at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award, plus one per
cent (1%).
No waiver of any default shall constitute a waiver of any other breach
or default, whether of the same or any other covenant or condition. No waiver,
benefit, privilege or service voluntarily given or performed by either party
shall give the other any contractual right by custom, estoppel or otherwise to
receive the same at any other time. The subsequent acceptance of rent pursuant
to this Lease shall not constitute a waiver of any preceding default by Tenant
other than default in the payment of the particular rental payment so accepted,
regardless of Landlord's knowledge of the preceding breach at the time of
accepting the rent; nor shall acceptance of rent or any other payment after
termination constitute a reinstatement, extension or renewal of the Lease or
revocation of any notice or any other act previously given or done by Landlord.
Tenant hereby assigns to Landlord all subrents and other sums falling
due from any subtenants (whose tenancy has been previously approved in writing
by Landlord pursuant to this Lease), licensees and concessionaires (hereinafter
collectively referred to as subtenants) during any period in which Landlord has
the right under this Lease, whether exercised or not, to reenter the Premises
for Tenant's default. Tenant shall not have any right to such sums during that
period. Any collection of such sums during any such period by Tenant shall be
held in trust for Landlord and shall be paid over to Landlord immediately upon
demand therefor. Landlord may, at its election reenter the Premises and
improvements without or with process of law without terminating this Lease and
either or both collect these sums or bring action for recovery of these sums
directly from the subtenants.
16. ASSIGNMENT
Tenant shall have the right to assign or sublease its interest in this
Lease or in the Premises to THE BANK OF SAN DIEGO, a California banking
corporation (hereinafter referred to as "The Bank of San Diego"). If Tenant
assigns or subleases to The Bank of San Diego, Tenant shall guarantee this Lease
or sublease. Tenant shall not otherwise voluntarily assign or
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encumber its interest in this Lease or in the Premises or sublease all or any
part of the Premises or allow any other person or entity (except Tenant's
authorized representatives) to occupy or use all or any part of the Premises
without first obtaining Landlord's consent, which consent shall not be
unreasonably withheld. If Landlord unreasonably withholds its consent, Tenant
shall not be entitled to damages, but shall, as its sole remedy, have the option
to terminate this Lease without liability on the part of Tenant or Landlord.
"Reasonableness" under this paragraph shall be determined pursuant to Paragraph
23 of this Lease. Except for assignment or sublease to The Bank of San Diego,
any assignment, encumbrance or sublease concerning which the Landlord's consent
was not requested by Tenant or concerning which the Landlord reasonably withheld
its consent, shall be voidable and, at Landlord's election, shall constitute a
default. No consent to any assignment, encumbrance or sublease shall constitute
a further waiver of the provisions of this paragraph.
Any dissolution, merger, consolidation, or other reorganization of
Tenant, or the sale or other transfer of a controlling percentage of the capital
stock of Tenant, or the sale of fifty-one percent (51%) of the value of the
assets of Tenant, shall be deemed an assignment. The phrase "controlling
percentage" means the ownership of, and the right to vote, stock possessing at
least fifty-one percent (51%) of the total combined voting power of all classes
of Tenant's capital stock issued, outstanding and entitled to vote for the
election of directors.
17. ENTRY BY LANDLORD DURING THE TERM OF THE LEASE
Landlord and its authorized representatives shall have the right to
enter the Premises at all reasonable times for any of the following purposes: To
determine whether the Premises are in good condition and whether Tenant is
complying with its obligations under this Lease; to do any necessary maintenance
and to make any restoration to the Premises required to be made or which
Landlord, in its discretion, may make pursuant to this Lease; to serve, post or
keep posted any notices required or allowed under the provisions of this Lease;
to post "for sale" signs at any time during the term and to post "for rent" or
"for lease" signs during the last six (6) months of the term, or during any
period while Tenant is in default; to show the Premises to prospective brokers,
agents, buyers, tenants or persons interested in an exchange at any time during
the term; to shore the foundations, footings and walls of the building and other
improvements that are part of the Premises but not to prevent entry thereto, and
to do any other act or thing necessary for the safety or preservation of the
Premises or if any excavation or other construction is undertaken or is about to
be
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undertaken on any adjacent property or nearby street (at the sole election of
Landlord and when Landlord, if at any time, is obligated by the terms of this
Lease to do so). Landlord's rights under this provision extend to the owners of
adjacent property on which excavation or construction is to take place and
adjacent property owners' authorized representatives. Landlord shall not be
liable in any manner for any inconvenience, disturbance, loss of business or
other damage resulting from Landlord's entry onto the Premises as provided in
this paragraph, except damage or injury resulting from the negligence of
Landlord or its authorized representatives. Tenant shall not be entitled to an
abatement or reduction in rent if Landlord exercises any rights reserved in this
paragraph.
Landlord shall conduct its activities on the Premises as allowed in this
paragraph in a manner that will cause the least possible inconvenience,
annoyance or disturbance to Tenant.
18. SUBORDINATION
This Lease is and shall be subordinate to any encumbrance now of record
or recorded after the date of this Lease affecting the building, other
improvements, and the land of which the Premises are a part. Such subordination
is effective without any further act of Tenant. Tenant shall from time to time
on request from Landlord execute and deliver any documents or instruments that
may be required by a lender to effectuate any subordination. If Tenant fails to
execute and deliver any such documents or instruments, Tenant irrevocably
constitutes and appoints Landlord as Tenant's special attorney-in-fact to
execute and deliver any such documents or instruments.
19. NOTICES
Any notice, demand or request, consent, approval or communication that
either Landlord or Tenant desires or is required to give to the other or any
other person shall be in writing and either served personally or sent prepaid,
first-class mail, certified, return receipt requested. Any such writing mailed
shall be addressed to the other party at the address set forth hereinbelow.
Either party may change its address by notifying the other of a change of
address in writing pursuant to this paragraph. Notice shall be deemed
communicated upon delivery of such writing or, in the case of mailing, at the
time and as of the date of depositing such writing in the United
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States Mail. The addresses of Landlord and Tenant for purposes of this
paragraph are as follows:
Landlord: Grossmont Land Co.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xx Xxxx, Xxxxxxxxxx 00000
Tenant: President
BSD Service Company
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
20. RECORDATION OF MEMORANDUM OF LEASE
This Lease shall not be recorded; however, if either party requests the
other party to do so, the parties shall execute a Memorandum of Lease, which
shall be recorded in the Office of the San Diego County Recorder. Upon any
termination of this Lease, Tenant shall execute in recordable form and deliver
to Landlord a quitclaim deed concerning Tenant's terminated leasehold interest
in the Premises. If Tenant fails to do so, and Landlord brings an action to
remove the cloud on its title regarding Tenant's terminated leasehold interest
in the Premises, Tenant shall pay as liquidated damages Three Hundred Dollars
($300.00) per day from the date of termination, as well as Landlord's attorneys'
fees and costs in bringing said action.
21. SUCCESSORS
Subject to the provisions of this Lease on assignment and subletting,
each and all of the covenants and conditions of this Lease shall be binding upon
and shall inure to the benefit of the heirs, successors, executors,
administrators, assigns and personal representatives of the respective parties.
22. EXPIRATION, TERMINATION AND HOLDING OVER
At the expiration or earlier termination of the term of this Lease,
Tenant shall surrender to Landlord the possession of the Premises. Fixtures,
improvements, alterations and/or additions to or of the Premises, excepting only
movable and trade fixtures listed on Exhibit "B" (attached hereto and
incorporated herein by this reference), shall, upon the expiration of the term,
become a part of the Premises and the property of the Landlord and, as such,
shall be surrendered to Landlord. Tenant shall leave the surrendered Premises
and any other property in good and broom-clean condition and, except as provided
to the contrary in provisions of this Lease on maintenance and repair, in the
same
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condition as delivered to Tenant or as improved during the term hereof, less
normal wear and tear. Tenant shall remove all of its signs from the Premises, at
its expense. All property that Tenant is required to surrender shall become
Landlord's property as of the termination date of this Lease. All property that
Tenant is not required to surrender but that Tenant does not remove from the
Premises prior to the termination of this Lease shall, at Landlord's election,
be Landlord's property at termination.
If Tenant fails to surrender the Premises at the expiration or sooner
termination of this Lease, Tenant shall defend and indemnify Landlord from all
liability and expense resulting from Tenant's failure to surrender.
This Lease shall terminate without further notice at the expiration of
the term. Any holding over by Tenant after expiration with the consent of
Landlord shall not constitute a renewal or extension or give Tenant any right in
or to the Premises. During any such period of holding over, Tenant will be
deemed to be in possession of the Premises on a month-to-month basis, subject to
the covenants and conditions of this Lease, including, without limitation, the
obligation to pay the rent reserved to Landlord.
23. ARBITRATION
Any controversy arising out of this Lease or its breach shall be settled
by arbitration if, prior to the commencement of any legal proceedings dealing
with a controversy arising out of this Lease or its breach, any party to this
Lease demands that such controversy be arbitrated. After such demand, and within
ten (10) days from such demand, the parties shall attempt to designate a
mutually acceptable individual to arbitrate the controversy. If within said
ten-day period the parties are unable to designate such an individual, the
controversy shall be arbitrated under the rules of the American Arbitration
Association. Both parties shall be entitled to conduct discovery procedures in
the same manner provided by law as if a civil action had been instituted, and
judgment on the award, whether rendered by the arbitrator chosen by the parties
or the arbitrator used pursuant to the rules of the American Arbitration
Association, may be entered in any court having jurisdiction and shall be fully
binding on the parties.
24. LIMITED RIGHT OF FIRST REFUSAL
A. Notice. Landlord is currently the lessee, under the ground
lease described in Paragraph 25.N. below, of certain
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real property described as Xxx 0 xx Xxxxxxxxx Xxxx Xx., Xx Xxxx, Xxxxxxxxxx,
(hereafter referred to as "Lot 2"). Lot 2 is currently subleased and used for a
gas station and other commercial uses. In the event such subleases are all
terminated or expire during the term of this Lease, and Landlord determines to
develop the property with a building suitable for office and/or bank use, then
Landlord shall deliver written notice to Tenant, describing the proposed
development, and offering to Tenant the first right to lease space.
B. Negotiation. For a period of sixty (60) days after delivery of
said notice to Tenant, Landlord shall not enter into any agreement with any
entity or person other than Tenant concerning the leasing of the proposed
building on Lot 2. Landlord and Tenant shall negotiate in good faith for a
period of sixty (60) days after delivery of the notice, regarding the premises
to be leased by Tenant, and the terms and conditions of such lease. If Landlord
and Tenant are unable to reach an agreement at the end of such sixty (60) day
period, Tenant may present Landlord with an offer in writing, describing the
premises Tenant desires, and the terms and conditions upon which Tenant is
willing to lease such premises. Landlord shall have ten (10) days in which to
either accept or reject the offer. If Landlord elects to reject the offer,
Landlord shall be free to lease the premises described in Tenant's last written
offer to any third party, on terms and conditions more favorable to Landlord,
and the balance of Lot 2 not described in Tenant's offer, upon any terms and
conditions.
C. First Refusal Rights. During the term of this Lease, should
Landlord subsequently desire to offer the premises described in Tenant's last
written offer to a third party on the same terms and conditions as those
described in Tenant's last written offer, or on terms and conditions more
favorable to a tenant, Landlord shall first submit a written offer to Tenant
prior to offering the same to a third party. Tenant shall have ten (10) days in
which to either accept or reject said offer. If Tenant rejects said offer,
Landlord may lease such premises to any party upon any terms and conditions,
without any further notice to Tenant, and Tenant shall have no further rights
concerning Lot 2.
D. Termination of this Lease. At such time as Landlord and Tenant
consummate a lease of Lot 2 or any portion thereof, this Lease shall
automatically terminate without further action.
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25. MISCELLANEOUS PROVISIONS
A. Counterparts. This Lease may be executed in two or more
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
B. Time of the Essence. In the performance of all of the covenants
and conditions of this Lease, time shall be of the essence.
C. Authority. Each individual executing this Lease on behalf of
Tenant represents and warrants that he is duly authorized to execute and deliver
this Lease on behalf of Tenant and that this Lease is binding upon Tenant
pursuant to the terms of this Lease.
D. Estoppel Certificates. Each party hereto shall, at any time and
from time to time upon not less than ten (10) days' prior written notice from
the other party, execute, acknowledge and deliver to the other party a statement
in writing which shall set forth the following: (1) A certification 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 rental or other charges
have been paid in advance, if any; (2) An acknowledgement that there are not, to
the knowledge of said party making the acknowledgement, any uncured defaults on
the part of the other party hereunder or specifying such defaults, if any are
claimed; and (3) That said party making said statement is in full compliance
with all applicable statutes, ordinances, rules, regulations, zoning variances
and conditional use permits applicable to the Premises. Tenant hereby agrees
that any statement delivered pursuant to this paragraph may be relied upon by
any prospective purchaser or encumbrancer of the Premises.
E. Applicable Law. In interpreting the covenants and conditions of
this Agreement, the laws of the State of California shall apply.
F. Prior Agreements and Modification. No provision of this Lease
may be amended or added to except by a subsequent contract in writing signed by
the parties hereto or their respective successors in interest. Further, this
Agreement takes the place of all other oral and written agreements between
Landlord and Tenant made prior to the date first set forth hereinabove on the
first page of this Lease and contains the entire agreement of Landlord and
Tenant.
G. Sale of Premises by Landlord. In the event of any sale of the
Premises, Landlord shall be entirely free and
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relieved of all liability under any and all of Landlord's covenants and
obligations contained in or derived from this Lease; provided that Landlord
furnishes Tenant with a written agreement of the purchaser (who has reasonable
capacity to perform), in recordable form, to the effect that the purchaser
assumes and agrees to carry out any and all of the covenants and obligations of
Landlord under this Lease. Landlord agrees to comply with all requirements of
law regarding advance payments and deposits made by Tenant.
H. Captions, Table of Contents, Headings and Marginal Headings.
The captions, table of contents and marginal headings used throughout this Lease
agreement have been provided for the convenience of the parties and for
reference only. Such are not to be deemed a part of this Lease nor to be
considered in the construction or interpretation of any part hereof.
I. Attorney's Fees. In the event of any action or proceeding
brought by either party against the other under this Lease, the prevailing party
shall be entitled to recover all costs and expenses, including the fees of its
attorneys in such action or proceeding, in such amount as the court may deem
reasonable.
J. Provisions are Covenants and Conditions. All provisions whether
covenants or conditions on the part of Tenant, shall be deemed as both covenants
and conditions hereunder.
K. Severability. The unenforceability, invalidity or illegality of
any provision of this Lease shall not render any other provision unenforceable,
invalid or illegal.
L. Non-Merger of Fee and Leasehold Estates. If both Landlord's and
Tenant's estates in the Premises or the improvements, or both, become vested in
the same owner, this Lease shall nevertheless not be destroyed by application of
the doctrine of merger, except at the express election of the owner.
M. Rent Payable in United States Currency. Rent and all other sums
payable under this Lease must be paid in lawful money of the United States of
America.
N. Sublease. Landlord is the lessee of the Premises pursuant to a
ground lease and amendments (the "Master Lease"). Said Master Lease and all
amendments thereto are on file in the office of the Landlord and have been made
available to the Tenant at reasonable times and will continue to so be
available. Although this Lease is a sublease under the Master Lease, at all
times herein the use of the word "Lease" refers to this sublease
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to Tenant and the sublease relationship created hereby between Landlord (Master
Lessee) and Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
date first above written.
LANDLORD: GROSSMONT LAND CO., A Limited Partnership
By: Its General Partner, Denele Co., A
Limited Partnership
By: Its General Partner, Delen Management,
An Illinois Corporation
By: /s/ XXXXXX X. XXXXX
--------------------------------------------
Xxxxxx X. Xxxxx, President
TENANT: BSD Service Company, A California Corporation
By: /s/ XXXXX X. XXXXX
--------------------------------------------
Xxxxx X. Xxxxx, President
By: /s/
--------------------------------------------
Secretary
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The Bank of San Diego
INTER-OFFICE CORRESPONDENCE
TO: Xxxx Xxxxxx FROM: Xxxxxxx Xxxxx, Vice President
Bank Operations Administrator
cc: DATE: October 1, 1987
SUBJECT: GROSSMONT PROPERTY LEASE
================================================================================
The Bank of San Diego shall waive its right to lease additional, contiguous
space at its Grossmont Branch location for a period of three years (11/01/87
thru 10/31/90). The Bank reserves the right to exercise this option by providing
one year's written notice after the 24th month of the three year waiver period.
45
SUBLEASE
BSD SERVICE COMPANY
NO. 17
This SUBLEASE, is entered into on March 26, 1984, by and between BSD
SERVICE COMPANY ("Sublessor") and XXXXX X. XXXXXXX, M.D., A MEDICAL CORPORATION
("Subtenant"), with reference to the following facts:
A. Sublessor is the tenant under a Lease Agreement (the "Lease"),
executed on August 6, 1982, by Sublessor and Grossmont Land Co, (a California
Corporation), ("Lessor"), covering property (the "Premises") described as
follows:
1. Location
0000 Xxxxxx Xxxxx, Xx Xxxx. The southwest
corner of Center Drive and Grossmont Center
Drive, adjacent to The Bank of San Diego.
2. Size
Parcel One - Approximately 2,680 square feet of ground
level office space.
Parcel Two - approximately 640 square feet of ground
level office space.
Parcel Three - space currently occupied by The Bank of
San Diego.
A copy of the Lease is attached hereto as Exhibit "A" and made a part
hereof. Exhibit "B" is a schematic representing the Parcels as listed above.
B. Section 16 of the Lease provides that the Tenant may sublease the
Premises with the prior written consent of Lessor.
C. Sublessor desires to sublease the Premises, and Subtenant desires to
accept the Premises, subject to the provisions of this Sublease.
THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. AGREEMENT TO SUBLEASE. Sublessor hereby subleases the Premises to
Subtenant, and Subtenant hereby subleases the premises from Sublessor, subject
to the terms and conditions of this Sublease.
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2. TERM. The term of this Sublease shall commence on February 1, 1984,
and shall continue as follows:
Parcel One - 10 years commencing February 1, 1984.
Parcel Two - 10 years commencing February 1, 1984. Any time after
year 2 of the Lease term, either party may terminate this Sublease as it relates
to Parcel Two only, upon giving the other party one year's notice. Said notice
may only be given after year two of the Lease term. Recovery of the parcel by
The Bank of San Diego or its successors shall be the sole purpose of direct use
by the Sublessor and shall not be used by unrelated third party tenants.
3.A RENT - PARCEL ONE. Subtenant agrees to pay Sublessor rent in the
amount of $3,350.00 per month in advance, prior to the first day of each month
during the term, at the address for notice to Sublessor stated herein or at such
other place as Sublessor may direct. Rent for any fraction of a month at the
beginning of the term will be prorated and, paid at the commencement of the
term. Upon execution hereof, Subtenant shall pay Sublessor $3,350.00 to be
applied as rent for the first full month of the term.
3.B RENT - PARCEL TWO. Subtenant agrees to pay Sublessor rent in the
amount of $400 per month in advance, prior to the first day of each month during
the term, at the address for notice to Sublessor stated herein or at such other
place as Sublessor may direct.
3.C RENT ABATEMENT. Subtenant's obligation to pay rent shall commence
June 1, 1984.
3.D COST OF LIVING ADJUSTMENTS. Commencing June 1, 1985 and each year
thereafter, Subtenant's rent shall increase in accordance with the Consumer
Price Index. The Index to be used shall be San Diego - All Urban Consumers. In
the event this Index is no longer in use, a comparable Index chosen by the
Sublessor shall be used. Subtenant's rental increases shall be a minimum of 5%
per year and a maximum of 8% per year.
3.E OTHER CHARGES. The Sublease shall be a triple net Sublease with
Subtenant required to pay a full prorata share of all real estate taxes, common
area maintenance, and insurance for the Premises. All other expenses, including
but not limited to items such as liability insurance and janitorial service, are
to be paid by Subtenant. Subtenant shall only be responsible for these items
after the execution of the Sublease. Prior to that time, Sublessor shall
maintain Premises and pay all such expenses.
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3.F ADVANCE RENTAL. Subtenant shall pay the following as advance rent,
prior to June 1, 1984:
January, 1984: $3,750.00
February, 1984: 3,750.00
Xxxxx, 0000: 3,750.00
April, 1984: 3,750.00
May, 1984: 3,750.00
In the event Subtenant does not execute a Sublease, Subtenant shall
forfeit these advance rental payments on a prorata basis.
In the event Subtenant does execute a Sublease, any payments made shall
be applied, in proportion to the number of months paid, to the June, July,
August, September, and October, 1984 rents.
3.G PARKING. The parties recognize there may be a parking requirement
which will require additional time and expense. Subtenant shall provide for and
pay all expenses related to the addition of any required parking as a result of
this Sublease, subject to 4(c) below.
4. TENANT IMPROVEMENT ALLOWANCE.
(a) Upon Subtenant's opening for business and filing of a
Certificate of Occupancy, Sublessor shall pay to Subtenant the sum of
$78,360.00. This represents an allowance of $25.00 per square foot for the 2,680
square feet in Parcel One, $12.50 per square foot allowance for the 640 square
feet in Parcel Two, and $40.00 per lineal foot allowance for Subtenant's
storefront.
(b) An additional Subtenant allowance of up to $10,000.00, plus
parking expenses in 4(c) below, will be paid to Subtenant in the event Subtenant
shows Sublessor receipts for permanent improvements to be made to the Premises
in this amount. The amount of allowance over $78,360.00 will be repaid to
Sublessor at the rate of 2.5% per month over the term of the Sublease. Sublessor
shall prepare, as an addendum to the Sublease, a note to be executed by
Subtenant for the repayment of those monies.
(c) Any expenses related to the additional parking in 3.G above,
shall also be paid to Subtenant and repaid to Sublessor in accordance with 4(b)
above.
5. OBLIGATIONS TO SUBLESSOR. Sublessor shall maintain the Lease
throughout the entire original term and shall not commit any act which may
constitute a breach of the Lease or which may otherwise jeopardize Subtenant's
rights or obligations under the Lease. Sublessor does not assume the obligations
of Lessor under the Lease, but shall exercise due diligence in attempting to
cause Lessor to perform its obligations under the Lease for the benefit of
Subtenant.
-3-
48
6. OBLIGATIONS OF SUBLESSEE. Subtenant shall not commit any acts which
may constitute a breach of the Lease or which may otherwise jeopardize
Sublessor's rights or obligations under the Lease. Subtenant hereby expressly
assumes and agrees to perform all the obligations and covenants, including all
obligations to make monetary payments, required by the Lease to be kept or
performed by Sublessor as Tenant thereunder, except as follows:
(a) The obligation to pay rent to Lessor shall be considered
performed by Subtenant to the extent rent is paid to Sublessor
in accordance with Section 3 of this Sublease.
(b) ASSIGNMENT AND SUBLETTING. Sublessor acknowledges that by the
nature of the medical practice of Subtenant, Subtenant may
assign or sublet the premises after June 1, 1984, with the
consent of Sublessor, which shall not be unreasonably withheld,
however, paragraph 11 (Guarantee of Sublease) shall not be
waived.
7. INDEMNITY AND HOLD HARMLESS. Sublessor hereby agrees to indemnify and
hold Subtenant harmless from and against any and all liabilities, costs,
damages, and other expenses, including attorneys' fees, accruing with respect to
the Premises before the commencement of the term of this Sublease, and Subtenant
hereby agrees to indemnify and hold Sublessor harmless from and against any and
all liabilities, costs, damages, and other expenses, including attorneys' fees,
accruing with respect to the Premises on or after the commencement of the term
of this Sublease.
8. COVENANT OF QUIET ENJOYMENT. Sublessor represents that the Lease is
in full force and effect and that there are no defaults on Sublessor's part
thereunder as of the commencement of the term of this Sublease. Sublessor
represents that if Subtenant performs all the provisions in this Sublease, and
subject to the provisions of the Lease, Subtenant shall have and enjoy
throughout the term of this Sublease the quiet and undisturbed possession of the
premises.
9. OPTION. Subtenant shall have an option to extend the term of the
Sublease for six (6) years at the then-prevailing market rental for
medical/office facilities of a similar size in the La Mesa area.
10. RIGHT OF FIRST REFUSAL. Subtenant shall have the right of first
refusal on any or all of Parcel Three which Landlord decides it no longer
desires to use or which Landlord decides to assign or sublease.
-4-
49
11. GUARANTEE OF SUBLEASE. Although XXXXX X. XXXXXXX., M.D., A MEDICAL
CORPORATION, is the Tenant, XXXXX X. XXXXXXX M.D. will individually guaranty
said Sublease for the first five (5) years of the Sublease.
12. CONSENT OF LESSOR. This Sublease is contingent upon the written
consent of Lessor.
13. SUBJECT TO LEASE. This Sublease is subject to all of the provisions
of the Lease. If the Lease terminates, this Sublease shall terminate and the
parties shall be relieved of all liabilities and obligations hereunder.
SUBLESSOR: SUBTENANT:
BSD SERVICE COMPANY
By: /s/ By: /s/ XXXXX X. XXXXXXX, M.D.
-------------------------- ------------------------------
Title: Senior Vice President Title: President
Address for Notice: Address for Notice:
X.X. Xxx 00000 0000 Xxxxxxxx, Xxxxx X
Xxx Xxxxx, XX 00000 Xx Xxxx, XX 00000
-5-
50
That certain sublease dated March 26, 1984 by and between BSD Service Company
("Sublessor") and Xxxxx X. Xxxxxxx M.D., A Medical Corporation ("Subtenant"), is
hereby amended as follows:
Sublessor and Sublessee may not terminate the lease term as it relates
to parcel two only of said lease until October 31, 1990. Such
termination still requiring one year notification in advance of the
desired termination date. Either party has the right to exercise the one
year termination notice effective November 1, 1989.
Agreed and Accepted
Sublessor: Subtenant:
BSD Service Company Xxxxx X. Xxxxxxx M.D.
A Medical Corporation
By: /s/ J. XXXXXXXX XXXXXX By: /s/ XXXXX X. XXXXXXX
----------------------------- --------------------------------
J. Xxxxxxxx Xxxxxx Xx. Xxxxx X. Xxxxxxx
Chief Financial Officer President
51
EXTENSION OF SUBLEASE
THIS EXTENSION OF SUBLEASE ("Extension") is made and entered into this
2nd day of August, 1991 by and between BSD SERVICE COMPANY, a California
Corporation ("Sublessor"), and XXXXX X. XXXXXXX, M.D., a Medical Corporation
("Subtenant"), and is made with reference to the following facts:
A. On or about March 26, 1984, the parties entered into a Sublease
whereby Subtenant leases from Sublessor that portion of the premises located at
0000 Xxxxxx Xxxxx, Xx Xxxx, Xxxxxxxxxx commonly referred to as "Parcel 1" and
"Parcel 2", respectively (the "Premises").
B. Pursuant to the terms of the Sublease, Subtenant commenced occupancy
of the Premises and continues in possession of the Premises at this time.
Subtenant desires to extend the term of the Sublease to end concurrent with the
end of the term of the master lease ("Lease") to Sublessor.
C. The purpose of this Extension is to modify the Sublease to extend the
terms and to confirm certain other matters concerning with the Sublease.
52
IT IS AGREED:
1. It is agreed that the term of the Sublease is hereby Extended to
December 31, 1999 unless earlier terminated as otherwise provided under the
Sublease, the Lease or by operation of law.
2. It is acknowledged that the rent payable under the Sublease shall
continue on the same basis as provided in the Sublease with continuing annual
rent escalations through the extended term.
3. It is further acknowledged that pursuant to the provisions of
Paragraph 4 of the Sublease, additional tenant improvement expenses were
incurred under subparagraph (b) which were paid by Sublessor. These additional
expenses are being reimbursed to Sublessor at an rate of Two Hundred and Fifty
Dollars ($250.00) per month. The parties acknowledge that this reimbursement is
in addition to rent payable under the Sublease and shall continue on a monthly
basis through the end of the initial term of the Sublease on January 31, 1994.
4. It is acknowledged that this Extension of the Sublease is in lieu of
subsequent exercise of option rights as contained in Paragraph 9 of the
Sublease. Upon execution of this Extension Paragraph 9 of this Sublease shall be
of no further force and effect.
5. This Extension of the Sublease contingent upon the written consent of
the Lessor. The parties agree to immediately proceed to request approval from
the Lessor which approval shall be obtained within thirty (30) days of the
execution of this Extension.
6. The parties hereby reconfirm that all the remaining terms and
conditions of the Sublease, except as expressly modified herein shall remain in
full force and effect. The Sublease shall remain subject to all the terms and
conditions of the Sublease and shall terminate in the event of termination of
the Lease with the parties being relieved of all liabilities and obligations
hereunder in such event.
IN WITNESS WHEREOF, this Extension has been executed on the date first
above written.
BSD SERVICE COMPANY, XXXXX X. XXXXXXX, M.D.,
a California Corporation a Medical Corporation
By: /s/ XXXXXXX XXXXXX XXXXX By: /s/ XXXXX X. XXXXXXX
---------------------------- --------------------------------
Xxxxx X. Xxxxxxx, President
Its: Chief Financial Officer
53
CONSENT OF LESSOR
The undersigned the Lessor pursuant to that certain Lease between
Grossmont Land Co., a California Limited Partnership and BSD Service Company, a
California Corporation, dated August 6, 1982 hereby consents to the Extension of
the Sublease of a portion of the Lease premises to Xxxxx X. Xxxxxxx, M.D., a
Medical Corporation.
Grossmont Land, Co.
a California Limited Partnership
By: /s/ XXXXXX X. XXXXX
------------------------------
Authorized Agent
/s/ XXXXXX X. XXXXX
------------------------------
President
54
ACKNOWLEDGEMENT
It is hereby acknowledged, understood and agreed as follows:
On or about March 26, 1984, BSD Service Company, a California corporation
(herein after referred to as BSD) and Xxxxx X. Xxxxxxx, M.D., medical
corporation (herein after referred to as Xxxxxxx) entered into a sublease
whereby Xxxxxxx leased from BSD that portion of the premises located at 0000
Xxxxxx Xxxxx, Xx Xxxx, Xxxxxxxxxx, commonly referred to as "Parcel 1" and
"Parcel 2".
That original sublease authorized termination of the lease as to "Parcel 2" upon
one year written notice.
On or about August 2, 1991, BSD and Xxxxxxx entered into an extension of
sublease. Pursuant to the Extension of Sublease the term of the sublease between
BSD and Xxxxxxx was extended to December 31, 1999.
The extension applied to both "Parcel 1" and "Parcel 2" of that property located
at 0000 Xxxxxx Xxxxx, Xx Xxxx.
Any provision of any agreement between BSD and Xxxxxxx which may have authorized
the termination of the sublease as to "Parcel 2" occurred prior to the extension
and is of no force and effect whatsoever.
BSD and Xxxxxxx acknowledge that they both intended by any documents heretofore
signed that the sublease as to "Parcel 2" shall continue without restriction or
limitation to December 31, 1999.
It is so acknowledged, understood and agreed.
Dated: 8/18/92 BSD Service Company
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Dated: 9/4/92 Xxxxx X. Xxxxxxx, M.D., Medical Corp.
By: /s/ XXXXX X. XXXXXXX
----------------------------------------
Doctor Xxxxx X. Xxxxxxx,
President
55
SUBLEASE
THIS SUBLEASE is made effective this 1st day of November 1991, by and
between XXXXX X. XXXXXXX, M.D., A Medical Corporation hereinafter called
"Sublessor", and Xxxx X. Xxxxxx, D.D.S. hereinafter called "Sublessee."
ARTICLE 1. RECITALS
1:01 Sublessor is the Subtenant under that certain Sublease, dated
March 26, 1984, between Sublessor and BSD Service Company, hereinafter called
dated August 6, 1982, between BSD Service Company and Grossmont Land Company,
hereinafter called "Master Sublease". Both parties have reviewed the Master
Sublease and Master Lease and are aware of the terms and conditions contained
therein.
1:02 Sublessor desires to sublease to Sublessee a part of the property
described in the Master Sublease being leased by Sublessor under the terms of
the Master Sublease and Sublessee desires to lease such space from Sublessor.
This is not an assignment but is a Sublease.
THEREFORE, Sublessor and Sublessee agree as follows:
ARTICLE II DEMISE AND DESCRIPTION OF PROPERTY
2:02 Subleased Premises. Sublessor hereby subleases to Sublessee, and
Sublessee hereby subleases from Sublessor, on an subject to the terms,
conditions, and covenants hereinafter set forth, the property hereinafter
referred to as the "Subleased Premises," described as follows:
Approximately 640 square feet located at 0000 Xxxxxx Xxxxx, Xx Xxxx,
Xxxxxxxxxx, more particularly described on Exhibit "A" attached hereto.
ARTICLE III. TERM
3:01 Initial Term. The term of this Sublease shall be to December 31,
1999 unless earlier terminated as otherwise provided under the Sublease, the
Lease or by operation by law as stated in paragraph 1. of the Extension of
Sublease.
3.02 In the event sublessor obtains an extension of his sublease with
BSD Service Company beyond 12/31/99, Sublessee herein shall have the right and
option to extend this sublease for any or all of the period of time beyond
12/31/99 as available under the extension obtained by sublessor. The terms of
the extension shall be consistent with the terms of this sublease unless
otherwise agreed to by the parties.
56
3:02.1 Sublessor shall provide sublessee notice of the availability of
this option immediately after the extension has been obtained by after the
extension has been obtained by sublessor from BSD Service. Sublessee shall give
notice of exercising the option at any time prior to 12/31/99.
ARTICLE IV. RENT AND DEPOSIT
4:01. Rent and Cost of Living Adjustment. Sublessee shall pay to Sublessor
as rent for the Subleased Premises monthly rental in advance on the first day of
each calendar month during the term, commencing November 1, 1991 through
December 31, 1999. The rent shall increase on an annual basis in accordance with
the Consumer Price Index. The Index to be used shall be San Diego-All Urban
Consumers. In the event this Index is no longer in use, a comparable Index
chosen by Sublessor shall be used. In no event shall the rent fall below the
initial rent of $928.00.
4:01.1 On execution of this Lease, Sublessee shall deposit with Sublessor
$928.00 as a security deposit for the performance by Sublessee of the
provisions of this Sublease. If sublessee is in default, Sublessor can use the
security deposit, or any portion of it, to cure the default or to compensate
Sublessor for all damage sustained by Sublessor resulting from Sublessee's
default. Sublessee shall immediately on demand pay to Sublessor a sum equal to
the portion of the security deposit expended or applied by Sublessor as
provided in this paragraph so as to maintain the security deposit in the sum
initially deposited with Sublessor. If Sublessee is not in default at the
expiration or termination of this Sublease, Sublessor, shall return the
security deposit to Sublessee. Sublessor's obligations with respect to the
security deposit are those of a debtor and not a trustee.
4:02 Additional Expenses. This Sublease shall be a triple net Sublease
with Subtenant required to pay a full prorate share of all real estate taxes,
common area maintenance, insurance, water, electrical and outside lighting.
ARTICLE V. USE, SIGNAGE AND SUBLESSEE IMPROVEMENTS.
5:01 Use. the subleased premises shall be used by Sublessee for dental
practice only and for uses normally incident thereto and for no other purposes.
5:02 Signage. Signage shall be consistent with established signs subject
to the approval of the sublessor, subject to which such approval will not be
unreasonably withheld.
5:03 Sublessee Improvements. Sublessee shall be responsible for the cost
of any improvements. Prior to making any improvements, Sublessee shall obtain
approval for the
57
improvements from Sublessor.
5:03.1 It is specifically acknowledged, understood and agreed that
in the event plans for improvements as submitted by the sublessee to any party
to this agreement or to any governmental entity are rejected, or in any other
manner not approved for construction, then any and all obligations under this
sublease are terminated.
5:03.2 It is specifically understood that stained glass windows
installed by sublessee shall remain the personal property of sublessee, and
will not, at any time, be considered a fixture of demised premises.
5:03.3 It is further specified, that, at the time sublessee vacates
the premises, the sublessee will be responsible for removing the stained glass.
ARTICLE V. OBLIGATIONS OF SUBLESSEE
6:01 Obligations and Covenants. Sublessee hereby expressly assumes
and agrees to perform all the obligations and covenants required by this
Sublease, the Master Sublease and Master Lease. Sublessee shall not commit any
act which may constitute a breach of this Sublease, the Master Sublease or the
Master Lease or which may otherwise jeopardize Sublessor's right or obligations
thereunder.
6:02 Alterations. Sublessee shall not make any improvements or
modifications to the Subleased Premises without the express written consent of
the Sublessor which consent shall not be unreasonably withheld.
6:03 Assignment and Subletting. Sublessee may not assign or sublet
the Subleased Premises without the prior written consent of the Sublessor .
Which consent shall not be unreasonable withheld.
6:04 Indemnity and Hold Harmless. Sublessee shall indemnify and
hold Sublessor free and harmless from any and all liabilities, costs, damages
and other expenses, including attorney's fees, from any wrongful acts or
Sublessee in relation to his/her use of the Subleased Premises.
ARTICLE VII. GENERAL PROVISIONS
7:01 Attorney's Fees. Should any litigation be commenced between
the parties to this Sublease concerning said Subleased Premises, over the
rights and duties of either in relation thereto, the party prevailing in such
litigation shall be entitled, in addition to such other relief as may be
granted in the litigation, to a reasonable sum as and for his attorney's
58
fees and costs in such litigation which shall be determined by the Court.
7:02 Binding on Heirs and Successors. This Sublease shall be binding on
and shall enter into the benefit or the heirs, executors, administrators,
successors, assigns, shareholders, officers, and directors of the parties
hereto.
7:03 Partial Invalidity. Should any provision of this Sublease be held
by a Court of competent jurisdiction to be either invalid, void or
unenforceable, the remaining provisions of this Sublease shall remain in full
force and effect.
7:04 Not a Partnership. The parties hereto are not creating by this
Sublease any corporation, partnership, joint medical practice or joint venture
and neither party shall represent same to any other person.
7:05 Number and Gender. As used in this Sublease, the masculine
feminine or neuter gender and the singular or plural number shall be deemed to
include the others whenever the context so indicates.
SUBLESSOR:
XXXXX X. XXXXXXX, M.D.
A Medical Corporation
Date: By: /s/ XXXXX X. XXXXXXX, MD
---------------------- ---------------------------------
XXXXX X. XXXXXXX, MD
SUBLESSEE:
XXXX X. XXXXXX, D.D.S.
Date: 11//1/91 By: /s/ XXXX X. XXXXXX, DDS
---------------------- ---------------------------------
XXXX X. XXXXXX, DDS
SUBLESSEE'S SPOUSE'S
SIGNATURE
Date: 11/1/91 By: /s/ XXXXXXXX XXXXXX
---------------------- ---------------------------------
59
EXHIBIT D
SUBLEASE
1. PARTIES
This Sublease is entered into by and between BSD Service Co. ("Service"),
Sublessor and The Bank of San Diego ("TBSD") , Sublessee as a Sublease under the
Master Lease executed August 6, 1982, entered into by Grossmont Land Company
Lessor, and Sublessor under this Sublease as Lessee; a copy of the Master Lease
is attached hereto as Exhibit A.
2. PROVISIONS CONSTITUTING SUBLEASE
(a) This Sublease is subject to all of the terms and conditions of the Master
Lease in Exhibit A and Sublessee shall assume and perform the obligations of
Sublessor and Lessee in said Master Lease, to the extent said terms and
conditions are applicable to this Premises subleased pursuant to this Sublease.
Sublessee shall not commit or permit to be committed on the Premises any act or
omission which shall violate any term or condition of the Master Lease. In the
event of the termination of Sublessor's interest as Lessee under the Master
Lease for any reason, then this Sublease shall terminate coincidently
therewith without any liability of Sublessor to Sublessee.
(b) All of the terms and conditions contained in the Exhibit A Master Lease are
incorporated herein, as terms and conditions of this Sublease (with each
reference therein to Lessor and Lessee to be deemed to refer to Sublessor and
Sublessee) and, along with all of the following Sections set out in this
Sublease, shall be the complete terms and conditions of this Sublease.
3. PREMISES
Sublessor leases to Sublessee and Sublessee hires from Sublessor the following
described Premises together with the appurtenances situated in the City of La
Mesa, County of San Diego, State of California, located at 0000 Xxxxxx Xxxxx
consisting of 3 separate parcels: parcel 1 contains approximately 852.25 square
feet; parcel 2 contains approximately 4,442.5 square feet and parcel 3 contains
approximately 2,690 square feet.
4. RENTAL
Sublessee shall pay to Sublessor as rent for the Premises in advance on the
first day of each calendar month of the term of this Sublease without deduction,
offset, prior notice or demand, in lawful money of the United States, the sum of
$7,773.79 per month the rate in effect as of October 1988 to be adjusted in
accordance with paragraph 4(b) of Exhibit A.
60
Page 2
5. TERM
(a) The term of this Sublease shall commence on November 1982 and shall continue
for the entire unexpired term of the master lease.
(b) In the event Sublessor is unable to deliver possession of the Premises at
the commencement of the term, Sublessor shall not be liable for any damage
caused thereby, nor shall this Sublease be void or voidable but Sublessee shall
not be liable for rent until such time as Sublessor offers to deliver possession
of the Premises to Sublessee, but the term hereof shall not be extended by such
delay. If Sublessee, with Sublessor's consent, takes possession prior to the
commencement of the term, Sublessee shall do so subject to all of the covenants
and conditions hereof and shall pay rent for the period ending with the
commencement of the term at the same rental as that prescribed for the first
month of the term, prorated at the rate of 1/30th thereof per day.
6. USE
Sublessee shall use the Premises for the purpose of Banking and General office
purposes incidental thereto and for no other purpose without the prior written
consent of Sublessor.
Sublessee's business shall be established and conducted throughout the term
hereof in a first class manner. Sublessee shall not use the Premises for, or
carry on, or permit to be carried on, any offensive, noisy or dangerous trade,
business, manufacture or occupation nor permit any auction sale to be held or
conducted on or about the Premises. Sublessee shall not do or suffer anything to
be done upon the Premises which will cause structural injury to the Premises or
the building of which the Premises form a part. The Premises shall not be
overloaded and no machinery, apparatus or other appliance shall be used or
operated in or upon the Premises which will in any manner injure, vibrate or
shake the Premises or the building of which it is a part. No use shall be made
of the Premises which will in any way impair the efficient operation of the
sprinkler system (if any) within the building containing the Premises. Sublessee
shall not leave the Premises unoccupied or vacant during the term. No musical
instruments of any sort, or any noise making device will be operated or allowed
upon the Premises for the purpose of attracting trade or otherwise. Sublessee
shall not use or permit the use of the Premises or any part thereof for any
purpose which will increase the existing rate of insurance upon the building in
which the Premises are located, or cause a cancellation of any insurance policy
covering the building or any part thereof. If any act on the part of Sublessee
or use of the Premises by Sublessee shall cause, directly or indirectly, any
increase of Sublessor's insurance expense, said additional expense shall be paid
by Sublessee to Sublessor upon
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Page 3
demand. No such payment by Sublessee shall limit Sublessor in the exercise of
any other rights or remedies, or constitute a waiver of Sublessor's right to
require Sublessee to discontinue such act or use.
7. NOTICES
All notices or demands of any kind required or desired to be given by Sublessor
or Sublessee hereunder shall be in writing and shall be deemed delivered
forty-eight (48) hours after depositing the notice or demand in the United
States mail, certified or registered, postage prepaid, addressed to the Landlord
or Tenant respectively at the addresses set forth after their signatures at the
end of this Sublease. All rent and other payments due under this Sublease or the
Master Lease shall be made by Sublessee to Sublessor at the same address.
Dated: October 25, 1988
Sublessor: Sublessee:
By: /s/ [SIG] By: /s/ [SIG]
------------------------------ ----------------------------------
Address: 000 Xxxxxxxx Xxxxx 0000 Address: 000 Xxxxxxxx Xxxxx 0000
Xxxx: Xxx Xxxxx Xx: CA City: San Diego St: CA
Telephone: 000-0000 Telephone: 000-0000
62
EXHIBIT "E"
CONSENT OF MASTER LESSOR
Master Lessor hereby consents to that certain assignment set forth in
Section 2 of the Amendment No. 1 and Assignment Agreement dated as of January
29, 1993 by and among Grossmont Land Co., BSD Service Company and Xxxxx de Oro
Bank, to which this Consent of Master Lessor is attached, provided that Assignor
shall remain obligated for rental payments from the Assignment Date through
December 31, 1999, in the event of Assignee's default.
Dated: January __, 1993
Master Lessor: RAINBOW INVESTMENT CO., a
California limited partnership
By: __________________________, a
_______________________,
general partner
By:__________________________________
Its:_________________________________
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EXHIBIT "F"
SUBLEASE TERMINATION AGREEMENT
This SUBLEASE TERMINATION AGREEMENT (this "Agreement") is made and
entered into on January 29, 1993, by and between BSD Service Company, a
California corporation ("Sublessor") and THE BANK OF SAN DIEGO, a California
banking corporation ("Sublessee"), with reference to the Recitals below.
Recitals
A. Sublessor and Sublessee entered into that certain Sublease dated
October 25, 1988 (the "Sublease") pertaining to certain improved real property
located at 0000 Xxxxxx Xxxxx, Xx Xxxx, Xxxxxxxxxx (the "Premises").
B. Sublessor and Sublessee mutually desire to terminate the Sublease, on
the terms and conditions below.
Agreement
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Effective Date. The Sublease shall remain in full force and effect
until the Closing (as defined in Section 2 of this Agreement).
2. Termination. The Sublease shall terminate on the "Closing" as that
certain Branch Purchase Agreement dated June 30, 1992 (the "Purchase Agreement")
between Sublessee and Xxxxx de Oro Bank, N.A., a national banking association
("Xxxxx de Oro Bank"). Sublessee shall fully comply with all obligations under
the Sublease through the Closing, including those provisions relating to the
condition of the Premises. Sublessee shall vacate the Premises within fifteen
(15) days after the Closing. Upon termination, the Premises shall be left in its
then "as is" condition, including all improvements, fixtures and equipment to be
transferred to Xxxxx de Oro Bank pursuant to the Purchase Agreement. Sublessee
shall repair, at its sole cost and expense, any damage to the Premises caused by
removal of
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64
Sublessee's personal property, or by Sublessee's failure to leave the Premises
in a clean and orderly condition.
3. Payments. Sublessee shall continue to pay all rentals and other
charges under the Sublease through the Closing.
4. Miscellaneous. This Agreement may be executed in any number of
counterparts which together shall constitute the Agreement. If any party obtains
a judgment against any other party by reason of breach of this Agreement,
reasonable attorneys' fees as fixed by the court shall be included in such
judgment. This Agreement and the terms and provisions hereof shall inure to the
benefit of and be binding upon the heirs, successors and assigns of the parties.
This Agreement shall be construed and enforced in accordance with the laws of
the state of California.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Sublessor: BSD SERVICE COMPANY, a California
corporation
By:
-------------------------------------
Xxxxxxx X. Xxxxxx
Its: Chief Financial Officer
Sublessee: THE BANK OF SAN DIEGO, a California
banking corporation
By:
-------------------------------------
Xxxxxxx X. Xxxxxx
Its: Executive Vice President and
Chief Financial Officer
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65
EXHIBIT "G"
ESTOPPEL CERTIFICATE
Gentlemen:
The undersigned hereby certifies as follows:
1. __________________________________________________________ , as
"Tenant," and _________________________________________, as "Landlord," entered
into a written lease dated __________________ , 19__, ("Lease"), in which
Landlord leased to Tenant and Tenant leased from Landlord, certain "Premises"
described in said Lease and located in the City of La Mesa, County of San Diego,
California.
2. The Lease represents the entire agreement between Landlord and
Tenant. The Lease is in full force and effect and has not been amended,
modified, supplemented or assigned by Tenant except by written agreement(s)
dated, ___________________, 19__.
3. Tenant has accepted the Premises and presently occupies them, and is
paying rent on a current basis. Tenant has no setoffs, claims, or defenses to
the enforcement of the Lease.
4. As of the date of this certificate, Tenant is not in default in the
performance of any of its obligations under the Lease, and has not committed any
breach of the Lease. No notice of default has been given to Tenant, and no event
has occurred which, with the passage of time or the giving of notice, or both,
would constitute a breach of the Lease.
5. As of the date of this certificate, Landlord is not in default in the
performance of any of its obligations under the Lease, and has not committed any
breach of the Lease, no notice of default has been given to Landlord and no
event has occurred which, with the passage of time or the giving of notice, or
both, would constitute a breach of the Lease.
6. No rents have been prepaid, other than (if none, state so):
_____________________________________________________________________________
_____________________________________________________________________________.
The current base rent is _________________________________ ($________________)
per month. The amount of the security deposit paid to Landlord is
_____________________ ($_________________).
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7. Tenant has no claim against Landlord for any other security deposit,
prepaid fee or charge, or prepaid rent except as provided in Paragraph 6 of this
certificate.
8. The term of the Lease commenced on ____ 199__, and will terminate
on ____, __
9. No actions, whether voluntary or otherwise, are pending against
Tenant under the bankruptcy laws of the United States.
10. All tenant improvements to be constructed by Landlord under the
Lease have been satisfactorily completed, accepted by Tenant, and are in good
condition, reasonable wear and tear excepted.
11. Tenant has no options to extend or renew the term of the Lease, no
options or rights of first refusal or expansion with respect to the Premises or
other buildings owned by Landlord, and no option to purchase the Premises or any
part thereof, except as follows (if none, state so):___________________________
__________________________________________________________________.
12. The undersigned acknowledges that you are relying on this
certificate, and warrants, represents and declares, for your benefit and that of
your successors and assigns, that each of the foregoing certifications is true,
correct and complete.
IN WITNESS WHEREOF, the Tenant has executed this -Estoppel Certificate
as of 1993
TENANT:
___________________________________,
a___________________________________
By:_________________________________
Its: _______________________________
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[BUILDING DIAGRAM 8690 CENTER DRIVE]
68
SUBLEASE TERMINATION AGREEMENT
This SUBLEASE TERMINATION AGREEMENT (this "Agreement") is made and
entered into on January 29, 1993, by and between BSD Service Company, a
California corporation ("Sublessor") and THE BANK OF SAN DIEGO, a California
banking corporation ("Sublessee"), with reference to the Recitals below.
Recitals
A. Sublessor and Sublessee entered into that certain Sublease dated
October 25, 1988 (the "Sublease") pertaining to certain improved real property
located at 0000 Xxxxxx Xxxxx, Xx Xxxx, Xxxxxxxxxx (the "Premises").
B. Sublessor and Sublessee mutually desire to terminate the Sublease, on
the terms and conditions below.
Agreement
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Effective Date. The Sublease shall remain in full force and effect
until the Closing (as defined in Section 2 of this Agreement).
2. Termination. The Sublease shall terminate on the "Closing" as defined
in that certain Branch Purchase Agreement dated June 30, 1992 (the "Purchase
Agreement") between Sublessee and Xxxxx de Oro Bank, N.A., a national banking
association ("Xxxxx de Oro Bank"). Sublessee shall fully comply with all
obligations under the Sublease through the Closing, including those provisions
relating to the condition of the Premises. Sublessee shall vacate the Premises
within fifteen (15) days after the Closing. Upon termination, the Premises shall
be left in its then "as is" condition, including all improvements, fixtures and
equipment to be transferred to Xxxxx de Oro Bank pursuant to the Purchase
Agreement. Sublessee shall repair, at its sole cost and expense, any damage to
the Premises caused by removal of Sublessee's personal property, or by
Sublessee's failure to leave the Premises in a clean and orderly condition.
3. Payments. Sublessee shall continue to pay all rentals and other
charges under the Sublease through the Closing.
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4. Miscellaneous. This Agreement may be executed in any number of
counterparts which together shall constitute the Agreement. If any party obtains
a judgment against any other party by reason of breach of this Agreement,
reasonable attorneys' fees as fixed by the court shall be included in such
judgment. This Agreement and the terms and provisions hereof shall inure to the
benefit of and be binding upon the heirs, successors and assigns of the parties.
This Agreement shall be construed. and enforced in accordance with the laws of
the state of California.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Sublessor: BSD SERVICE COMPANY, a California
corporation
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Xxxxxxx X. Xxxxxx
Its: Chief Financial Officer
Sublessee: THE BANK OF SAN DIEGO, a California
banking corporation
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Xxxxxxx X. Xxxxxx
Its: Executive Vice President and
Chief Financial Officer
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CONSENT OF MASTER LESSOR
Master Lessor hereby consents to that certain assignment set forth in Section 2
of the Amendment No. 1 and Assignment Agreement dated as of January 29, 1993, by
and among Grossmont Land Co., BSD Service Company and Xxxxx de Oro Bank, to
which this Consent of Master Lessor is attached, provided that Assignor shall
remain obligated for rental payments from the Assignment date through December
31, 1999, in the event of Assignee's default.
Dated: April 26, 1993
MASTER LESSOR: RAINBOW INVESTMENT CO.,
a California limited partnership
by CHEL CO.,
Its general partner
By: /s/ [SIG]
------------------------------
71
ESTOPPEL CERTIFICATE
Gentlemen:
The undersigned hereby certifies as follows:
1. Grossmont Land Co., as "Tenant", and Rainbow Investment Co., as
"Landlord" entered into a written lease dated January 16, 1963, (the "Lease"),
in which Landlord leased to Tenant and Tenant leased from Landlord, certain
"Premises" described in said Lease and located in the City of La Mesa, County of
San Diego, California.
2. The Lease represents the entire agreement between Landlord and
Tenant. The Lease is in full force and effect and has not been amended,
modified, supplemented or assigned, except for an Amendment to Lease dated April
30, 1963.
3. Tenant has accepted the Premises and presently occupies them, and is
paying rent on a current basis. Tenant has no setoffs, claims, or defenses to
the enforcement of the Lease.
4. As of the date of this certificate, Tenant is not in default in the
performance of any of its obligations under the Lease, and has not committed any
breach of the Lease. No notice of default has been given to Tenant, and no event
has occurred which, with the passage of time or the giving of notice, or both,
would constitute a breach of the Lease.
5. Landlord has no claim against Tenant for any security deposit,
prepaid fee or charge, or prepaid rent.
6. The term of the Lease commenced on January 16, 1963, and will
terminate on January 10, 2015.
7. No actions, whether voluntary or otherwise, are pending against
Landlord under the bankruptcy laws of the United States.
8. All tenant improvements to be constructed by Tenant under the Lease
have been satisfactorily completed, accepted by Landlord, and are in good
condition, reasonable wear and tear excepted.
9. Tenant has no options to extend or renew the term of the Lease, no
options or rights of first refusal or expansion with respect to the Premises or
other buildings owned by Landlord, and no option to purchase the Premises or any
part hereof.
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10. The undersigned acknowledges that you are relying on this
certificate, and warrants, represents and declares, for your benefit and that of
your successors and assigns, that each of the foregoing certifications is true,
correct and complete.
IN WITNESS WHEREOF, the Landlord has executed this Estoppel Certificate
as of April 26, 1993.
RAINBOW INVESTMENT CO.
A limited partnership
By its General Partner CHEL, INC.
By /s/ [SIG]
---------------------------------
73
ESTOPPEL CERTIFICATE
Gentlemen:
The undersigned hereby certifies as follows:
1. BSD Service Company, as "Tenant", and Grossmont Land Co., at
"Landlord", entered into a written lease dated August 6, 1982, (the "Lease"),
in which Landlord leased to Tenant and Tenant leased from Landlord, certain
"Premises" described in said Lease and located in the City of La Mesa, County of
San Diego, California.
2. The Lease represents the entire agreement between Landlord and
Tenant. The Lease is in full force and effect and has not been amended,
modified, supplemented or assigned by Landlord.
3. Tenant has accepted the Premises and presently occupies them, and is
paying rent on a current basis. Tenant has no setoffs, claims, or defenses to
the enforcement of the Lease.
4. As of the date of this certificate, Tenant is not in default in the
performance of any of its obligations under the Lease, and has not committed any
breach of the Lease. No notice of default has been given to Tenant, and no event
has occurred which, with the passage of time or the giving of notice, or both,
would constitute a breach of the Lease.
5. No rents have been prepaid. The current base rent is One Thousand Six
Hundred Ninety and 65/100 Dollars ($1,690.65) per month. Landlord holds no
security deposit.
6. Landlord has no claim against Tenant for any other security deposit,
prepaid fee or charge, or prepaid rent except as provided in Paragraph 6 of this
certificate.
7. The term of the Lease commenced on November 15, 1982, and will
terminate on December 31, 1999.
8. No actions, whether voluntary or otherwise, are pending against
Landlord under the bankruptcy laws of the United States.
9. All tenant improvements to be constructed by Tenant under the Lease
have been satisfactorily completed, accepted by Landlord, and are in good
condition, reasonable wear and team excepted.
10. Tenant has no options to extend or renew the term of the Lease, no
options or rights of first refusal or expansion with respect to the Premises or
other buildings owned by Landlord, and no option to purchase the Premises or any
part hereof.
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11. The undersigned acknowledges that you are relying on this
certificate, and warrants, represents and declares, for your benefit and that of
your successors and assigns, that each of the foregoing certifications is true,
correct and complete.
IN WITNESS WHEREOF, the Landlord has executed this Estoppel Certificate
as of April 15, 1993.
GROSSMONT LAND CO.
A limited partnership
By its General Partner Denele Co.
A limited partnership
By its General Partner Delen Management Co.
An Illinois Corporation
By /s/ XXXXXX X. XXXXX
----------------------------------
Xxxxxx X. Xxxxx, President
75
BSD Service Company
ESTOPPEL CERTIFICATE
Grossmont Land Co.
0000 Xxxxxxxxx Xxxxxx Xx., Xxx. 000
Xx Xxxx, XX 00000
Gentlemen:
The undersigned hereby certifies as follows:
1. Grossmont Land Co., a California limited partnership ("Landlord") and
BSD Service Company, a California corporation ("Tenant") entered into a Lease
dated August 6, 1982 ("Lease"), in which Landlord leased to Tenant, and Tenant
leased from Landlord, certain "Premises" described in said Lease and located in
the City of La Mesa, County of San Diego, California.
2. The Lease represents the entire agreement between Landlord and
Tenant. The Lease is in full force and effect and has not been amended,
modified, supplemented or assigned by Tenant, except as follows (if none, state
so): none /s/ MKC
---------------------------------------------------------------------------
3. Tenant has sublet, with Landlord's prior consent, portions of the
Premises to The Bank of San Diego ("Bank of San Diego") and Xxxxx X. Xxxxxxx,
M.D. ("Xxxxxxx"), as "Sublessees." Tenant provided its prior consent to
Xxxxxxx'x sublease of a portion of the Premises to Xxxx X. Xxxxxx, D.D.S.
("Xxxxxx") as "Sub-Sublessee."
4. Tenant has accepted the Premises and presently occupies the same
(along with Sublessees and Sub-Sublessee), and is paying rent on a current
basis. Tenant has no setoffs, claims, or defenses to the enforcement of the
Lease.
5. As of the date of this certificate, Tenant is not in default in the
performance of any of its obligations under the Lease, and has not committed any
breach of the Lease. No notice of default has been given to Tenant, and no event
has occurred which, with the passage of time or the giving of notice, or both,
would constitute a breach of the Lease.
6. As of the date of this certificate, Sublessees are not in default in
the performance of any of their obligations under their respective subleases,
and have not committed any breach of their respective subleases. No notice of
default has been given to Sublessees, and no event has
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occurred which, with the passage of time or the giving of notice, or both, would
constitute a breach of their respective subleases. Tenant is not aware of any
default in the performance of the Xxxxxx sublease, and Tenant has approved of no
other subletting by Xxxxxxx other than to Xxxxxx.
7. As of the date of this certificate, Landlord is not in default in the
performance of any of its obligations under the Lease, and has not committed any
breach of the Lease. No notice of default has been given to Landlord and no
event has occurred which, with the passage of time or the giving of notice, or
both, would constitute a breach of the Lease.
8. No rents have been prepaid, other than (if none, state so): none.
Tenant's current base rent is FIFTEEN THOUSAND EIGHT HUNDRED FORTY FOUR AND
SIXTY-SIX CENTS ($15,844.66*) per month. The amount of Tenant's security
deposit paid to Landlord is none ($0) plus operating expense, which is
currently $34 per month.
9. Tenant has no claim against Landlord for any other security deposit,
prepaid fee or charge, or prepaid rent except as provided in Paragraph 8 of this
certificate.
10. The term of the Lease commenced on November 15, 1982, and will
terminate on December 31, 1999.
11. No actions, whether voluntary or otherwise, are pending against
Tenant under the bankruptcy laws of the United States.
12. All tenant improvements to be constructed by Landlord under the
Lease have been satisfactorily completed, accepted by Tenant, and are in good
condition, reasonable wear and tear excepted.
13. Tenant has no options to extend or renew the term of the Lease, no
options or rights of first refusal or expansion with respect to the Premises or
other buildings owned by Landlord, and no option to purchase the Premises or any
part thereof, except as follows (if none, state so): none.
14. The undersigned intends to assign its rights and obligations under
the Lease to Xxxxx de Oro Bank pursuant to that certain Amendment No. 1 and
Assignment Agreement dated January 29, 1993.
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15. The undersigned acknowledges that Landlord is relying upon this
certificate, and Tenant warrants, represents and declares, for Landlord's
benefit and that of its successors and assigns, that each of the foregoing
certifications is true, correct and complete.
IN WITNESS WHEREOF, the Tenant has executed this Estoppel Certificate as
of January 29, 1993.
TENANT:
BSD SERVICE COMPANY, a California
corporation
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Xxxxxxx X. Xxxxxx
Its: Chief Financial Officer
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Xxxxx Xxxxxxx
ESTOPPEL CERTIFICATE
BSD Service Company
000 Xxxxxxxx, Xxx. 0000
Xxx Xxxxx, XX 00000
Gentlemen:
The undersigned hereby certifies as follows:
1. BSD Service Company, a California corporation ("Sublessor") and Xxxxx
X. Xxxxxxx, M.D., a medical corporation ("Sublessee") entered into a Sublease
dated March 26, 1984 ("Sublease"), in which Sublessor leased to Sublessee, and
Sublessee leased from Sublessor, certain "Premises" described in said Sublease
and located in the City of La Mesa, County of San Diego, California.
2. The Sublease represents the entire agreement between Sublessor and
Sublessee. The Sublease is in full force and effect and has not been amended,
modified, supplemented or assigned by Sublessor except by that certain Extension
of Sublease dated August 2, 1991.
3. Sublessee has sublet, with Sublessor's prior consent, a portion of
the Premises to Xxxx X. Xxxxxx, D.D.S. ("Xxxxxx") as "Sub-Sublessee."
4. Sublessee has accepted the Premises and presently occupies the same
(along with Sub-Sublessee), and is paying rent on a current basis. Sublessee has
no setoffs, claims, or defenses to the enforcement of the Sublease.
5. As of the date of this certificate, Sublessee is not in default in
the performance of any of its obligations under the Sublease, and has not
committed any breach of the Sublease. No notice of default has been given to
Sublessee, and no event has occurred which, with the passage of time or the
giving of notice, or both, would constitute a breach of the Sublease.
6. As of the date of this certificate, Sub-Sublessee is not in default
in the performance of any of his obligations under the Xxxxxx sublease, and has
not committed any breach of the Xxxxxx sublease. No notice of default has been
given to Sub-Sublessee, and no event has occurred which, with the passage of
time or the giving of notice, or both, would constitute a breach of the Xxxxxx
sublease.
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7. As of the date of this certificate, Sublessor is not in default in
the performance of any of its obligations under the Sublease, and has not
committed any breach of the Sublease, no notice of default has been given to
Sublessor and no event has occurred which, with the passage of time or the
giving of notice, or both, would constitute a breach of the Sublease.
8. No rents have been prepaid, other than (if none, state so): none.
Sublessee's current base rent is Five Thousand Five Hundred Sixty Two and
Thirteen* Dollars ($5,562.13*) per month. The amount of the security deposit
paid to Sublessor is zero** Dollars $0. *plus $250/mo tenant improvement
repayment until January 31, 1994 plus direct expenses which vary.
9. Sublessee has no claim against Sublessor for any other security
deposit, prepaid fee or charge, or prepaid rent except as provided in Paragraph
8 of this certificate.
10. The term of the Sublease commenced on February 1, 1984, and will
terminate on December 31, 1999.
11. No actions, whether voluntary or otherwise, are pending against
Sublessee under the bankruptcy laws of the United States.
12. All tenant improvements to be constructed by Sublessor under the
Sublease have been satisfactorily completed, accepted by Sublessee, and are in
good condition, reasonable wear and tear excepted.
13. Sublessee has no options to extend or renew the term of the
Sublease, no options or rights of first refusal or expansion with respect to the
Premises or other buildings owned by Sublessor, and no option to purchase the
Premises or any part thereof, except as follows (if none, state so): None.
14. The undersigned acknowledges that it has been informed that
Sublessor intends to assign its rights and obligations under the Sublease to
Xxxxx de Oro Bank pursuant to that certain Amendment No. 1 and Assignment
Agreement dated January 29, 1993.
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15. The undersigned acknowledges that Sublessor is relying on this
certificate, and Sublessee warrants, represents and declares, for Sublessor's
benefit and that of your successors and assigns, that each of the foregoing
certifications is true, correct and complete.
IN WITNESS WHEREOF, the Sublessee has executed this Estoppel Certificate
as of January 29, 1993
SUBLESSEE:
XXXXX X. XXXXXXX, M.D., a Medical
Corporation
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Xxxxx X. Xxxxxxx, President
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AGREEMENT RE RESTORATION
OF LEASED PREMISES
This Agreement Re Restoration of Leased Premises ("Agreement") is
entered into as of January 30, 1996, by and between Grossmont Land Company, a
California limited partnership ("Landlord") and Xxxxx de Oro Bank, N.A., a
national banking association ("Tenant"). Landlord and Tenant may be referred to
individually or collectively as a "Party" or the "Parties," respectively.
STATEMENT OF BACKGROUND INFORMATION
A. Landlord and BSD Service Company, a California corporation ("BSD")
entered into that certain Lease dated August 6, 1982 ("Lease") in certain real
property, improved with a two-story, office building, located at 0000 Xxxxxx
Xxxxx, Xx Xxxx, Xxxxxxxxxx ("Premises"). BSD and Xxxxx X. Xxxxxxx, M.D., a
medical corporation ("Xxxxxxx") entered into a sublease of a portion of the
Premises pursuant to a sublease dated March 26, 1984, as extended ("Xxxxxxx
Sublease") . Xxxxxxx and Xxxx X. Xxxxxx, DDS ("Xxxxxx"), entered into a further
sublease of a portion of the Premises, dated November 1, 1991 ("Xxxxxx
Sublease").
B. Pursuant to that certain Branch Purchase and Assumption Agreement
between BSD and Tenant, dated June 30, 1992, Tenant agreed, among other things,
to acquire BSD's interest in the Lease. Pursuant to that certain Amendment
Number One and Assignment Agreement, entered into as of January 29, 1993
("Assignment Agreement"), Landlord BSD and Tenant agreed to assign the Lease to
Tenant, and to certain modifications and amendments to the Lease.
C. From on or about February 1, 1993, the Tenant has occupied a portion
of the Premises as a retail banking establishment. Xxxxxxx and Xxxxxx have
occupied a portion of the Premises for medical office facilities, from on or
about the dates of the Xxxxxxx Sublease and the Xxxxxx Sublease, respectively.
The Lease is in full force and effect and there are no uncured defaults by
Landlord or Tenant presently existing thereunder.
D. On the evening of December 30, 1995, a fire occurred on the Premises,
resulting in the total destruction of the improvements thereon and rendering the
Premises unusable for the tenancy of Tenant, Xxxxxxx or Xxxxxx. As of the date
of this
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Agreement, Tenant has undertaken and completed the demolition of the damaged
Premises.
E. The Parties have determined to restore the Premises and have agreed
that Tenant will assume responsibility with respect to the restoration of the
Premises, and agreed to the respective rights and duties of the Parties with
respect thereto, on the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Mutual covenants and agreements
contained herein, and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. RESTORATION OF PREMISES.
a. Undertaking to Restore. The Parties acknowledge and agree that the
Premises have been destroyed and are unsuitable for any use whatsoever. The
Parties agree that the Lease shall not terminate as a result of the destruction
and that Tenant agrees to undertake all responsibility for the expeditious
restoration of the Premises, in accordance with the provisions of this
Agreement. Tenant agrees that it will use its best efforts to complete the
restoration in a prompt manner and will apply for and prosecute to completion
all necessary governmental approvals or permits as expeditiously as possible.
Landlord agrees to cooperate with Tenant in any manner reasonably necessary to
the prompt and proper completion of the restoration. The Parties agree that if a
building permit for the restoration has not been issued by the City of La Mesa
on or before July 31, 1996, Tenant may terminate the Lease on ten (10) days
notice delivered to Landlord thereafter.
b. Insurance Coverage. Tenant has maintained a Financial Institutions
Insurance Coverage policy of insurance issued by the Federal Insurance Company
of the Chubb Group of Insurance Companies (Policy No. 3524-87-22), including
fire and extended coverage insurance covering the building and its components
comprising the Premises. Landlord has maintained a Commercial General Public
Liability and Property policy of insurance issued by the Reliance Insurance
Company (Policy No. QB 8580502 00), including fire and extended coverage
insurance covering the building and its components comprising the Premises.
Tenant and Landlord have each advised their respective insurance carrier of the
occurrence of the loss, in accordance with the provisions of the applicable
policy. Tenant and Landlord shall cooperate to make the loss adjustment with the
insurance companies insuring the loss and to claim and obtain the proceeds
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83
of the relevant insurance policies to fund the complete restoration of the
Premises, any proceeds payable pursuant to rent, business interruption or other
expense coverage and proceeds payable pursuant to any other losses of Landlord,
Tenant, or others claiming through Tenant. Tenant shall reimburse Landlord the
sum of $2,500.00, representing one-half (1/2) of the deductible payable under
Landlord's business interruption insurance.
c. Insurance Proceeds. Upon receipt by it of insurance proceeds
pertaining to the restoration of the Premises, Tenant shall hold such proceeds
in a separate, insured, interest-bearing account as a fiduciary for the benefit
of Tenant and Landlord, to be disbursed with respect to the restoration of the
Premises in accordance with this Agreement. Upon receipt by it of insurance
proceeds pertaining to the restoration of the Premises, Landlord shall deposit
such proceeds in the separate fiduciary account established by Tenant for the
benefit of Tenant and Landlord. Upon receipt of insurance proceeds pertaining to
any loss or damage to Landlord for lost rent, business interruption or other
loss sustained by Landlord, Tenant shall hold such proceeds as a fiduciary for
the benefit of Landlord and shall promptly disburse such proceeds to Landlord.
Pursuant to a written agreement to be entered into by Tenant, subject to
Landlord's reasonable consent, all proceeds pertaining to restoration of the
Premises shall be disbursed pursuant to a fund control established at Dixieline
Lumber Company ("Fund Control"). Tenant shall from time to time advance the
necessary funds from the fiduciary account to Fund Control for the purpose of
funding the restoration.
d. Duties of Fund Control. All sums deposited with Fund Control shall
be held for the following purposes and Fund Control shall have the following
powers and duties:
(1) The sums shall be paid in installments by Fund Control to the
contractor retained by Tenant as construction progresses, for payment of the
cost of restoration. A retention fund of not less than Five Percent (5%) shall
be established that will be paid to the contractor on completion of restoration,
payment of all costs, expiration of all applicable lien periods, and proof that
the Premises are free of all mechanics' liens and lienable claims.
(2) Payments shall be made on presentation of certificates or
vouchers showing the amount due from the architect or engineer retained by
Tenant and empowered pursuant to the standard fund control agreement to
authorize disbursements. If Fund Control, in its reasonable discretion,
determines that the certificates or vouchers are being improperly
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84
approved by the architect or engineer retained by Tenant, Fund Control shall
have the right to appoint an architect or an engineer to supervise construction
and to make payments on certificates or vouchers approved by the architect or
engineer retained by Fund Control. The reasonable expenses and charges of the
architect or engineer retained by Fund Control shall be paid by Fund Control out
of the trust fund.
(3) If the sums held by Fund Control are not sufficient to pay the
actual cost of restoration, both Parties shall bear equally any shortfall and
shall deposit with Fund Control their respective contributions toward the amount
of the deficiency with Fund Control within twenty (20) days after request by
Fund Control indicating the amount of the deficiency. For purposes of this
Agreement, the "cost of restoration," in addition to construction fees and
costs, shall include without limitation the fees and charges of Fund Control,
all supervision charges imposed by third parties, all reasonable design fees and
charges, and all permit fees and other similar charges imposed by the City of La
Mesa or any other municipal agency. "Cost of construction" shall include charges
or allocations of cost pertaining to personnel employed by Tenant for
construction coordination or other similar functions only to the extent such
costs are reimbursable from insurance proceeds and shall be paid fully by Tenant
to the extent not so reimbursed.
(4) Landlord's undisbursed insurance proceeds pertaining to the
restoration held by Tenant or Fund Control upon the completion of the
restoration, the recordation of notice of completion and the satisfaction of all
liabilities arising from the restoration, shall be delivered to Grossmont Bank
in reduction of Landlord's outstanding indebtedness with respect to the
Premises. Undisbursed funds held by Tenant or Fund Control shall be deemed to be
deposits by the Parties to Fund Control pursuant to Paragraph 1.d.(3) to the
extent thereof, and shall be reimbursed to the Parties in proportion to their
respective deposits.
(5) Both Parties shall promptly execute all documents and perform
all acts reasonably required by Fund Control to perform its obligations under
this paragraph.
e. Rental Abatement. Monthly rent under Paragraph 4.B. of the Lease
shall be abated during the period from December 31, 1995, through the date a
certificate of occupancy is issued by the City of La Mesa with respect to the
Premises, subject to Landlord's right to recover any rent or business
interruption insurance payable; provided, however, that in no event shall the
period of rental abatement extend beyond January 1, 1997. Charges under the
Lease for real property taxes will not be
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85
abated, and Tenant will continue to perform landscape and parking area
maintenance during the period of restoration. Tenant and Landlord will cooperate
to claim a reduction in ad valorem real property taxes during the period of
destruction and restoration.
2. PROCEDURE FOR RESTORING PREMISES
a. Plans and Specifications. Within seventy-five (75) days after
execution of this Agreement, Tenant shall cause to be prepared final plans and
specifications and working drawings complying with applicable laws that will be
necessary for restoration of the Premises. The plans and specifications and
working drawings must be approved by Landlord. The Parties agree generally that
the Premises will be restored with a building at least equal in value to the
building existing immediately prior to the fire and as nearly similar in
character, appearance and functionality as is reasonable and practicable, but
that the Premises may contain up to ten percent (10%) greater square footage
(subject to applicable parking availability restrictions). Landlord shall not be
required to make additional parking available to the Premises for purposes of
the restoration. Landlord shall have fifteen (15) days after receipt of the
plans and specifications and working drawings to either approve or disapprove
the plans and specifications and working drawings and return them to Tenant. If
Landlord reasonably disapproves the plans and specifications and working
drawings,, Landlord shall notify Tenant of its objections and Landlord's
proposed solution to each objection. Tenant acknowledges that the plans and
specifications and working drawings shall be subject to approval of the
appropriate government bodies and that they will be prepared in such a manner as
to obtain that approval,.
b. Change Orders. Tenant in its sole discretion may initiate and
approve a change order to the plans and specifications, as approved by Landlord,
in those instances in which the change (i) does not materially alter the
character, appearance or functionality of the Premises, (ii) increases the cost
of the restoration by an amount less than $5,000 or, when combined with other
change orders approved by Tenant under this paragraph, increases the aggregate
cost of the restoration by an amount less than $50,000, and (iii) is reasonably
necessary to expedite the completion of the restoration. Tenant shall promptly
provide Landlord with a copy of any change order approved by Tenant under this
paragraph. In the event that Landlord's approval of a change order is required
under this paragraph, Landlord shall approve or disapprove such change orders
within three (3) working days of receipt.
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c. Procedure. The restoration shall be accomplished as follows:
(1) Tenant shall complete the restoration within two hundred forty
(240) working days after final plans and specifications and working drawings
have been approved by the appropriate government bodies and all required permits
have been obtained (subject to a reasonable extension for delays resulting from
causes beyond Tenant's reasonable control).
(2) Tenant shall retain a licensed contractor that is bondable.
The contractor shall be required to carry public liability and property damage
insurance, standard fire and extended coverage insurance, with vandalism and
malicious mischief endorsements, during the period of construction. Such
insurance shall contain waiver of subrogation clauses in favor of Landlord and
Tenant in accordance with the provisions of paragraph 11(H) of the Lease.
(3) Tenant shall notify Landlord of the date of commencement of
the restoration not later than two (2) days before commencement of the
restoration to enable Landlord to post and record notices of nonresponsibility.
The contractor retained by Tenant shall not commence construction until a
completion bond has been delivered to Landlord to insure completion of the
construction and evidence of the bond has been recorded.
(4) Tenant shall accomplish the restoration in a commercially
reasonable manner that will cause the least inconvenience, annoyance, and
disruption in and to adjoining and adjacent areas of Grossmont Shopping Center.
(5) On completion of the restoration, Tenant shall immediately
record a notice of completion in the County of San Diego.
(6) The restoration shall not be commenced until sums sufficient
to cover the cost of restoration are placed with Fund Control as provided in
Paragraph 1.c.
3. INSURANCE.
a. Fire and Extended Coverage Insurance. Tenant shall provide or
cause to be provided and shall keep in full force and effect a valid fire and
extended coverage insurance policy insuring the Premises and the improvements
located on the Premises, against loss or damage by fire or other hazards, in an
amount sufficient to provide for a full replacement of the improvements, with a
course of construction endorsement and a standard loss payable endorsement
naming Landlord as payee. The
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obligation of Tenant to obtain insurance under this Agreement shall be in
addition to its obligations to obtain insurance required by the Lease but shall
be considered a cost of construction of the restoration under this Agreement.
b. Other Insurance Coverage. Tenant shall provide or cause to be
provided by Tenant's contractor, and shall keep in full force and effect all
other insurance coverage reasonably required by Landlord, issued by companies
satisfactory to Landlord, including, without limitation: (a) worker's
compensation insurance; (b) builder's risk completed value hazard insurance,
with the standard loss payable endorsement naming Landlord and Tenant as payees,
as their interests may appear; and (c) contractor's liability, property damage
and personal injury insurance in amounts and with insurance companies
satisfactory to Landlord, with standard loss payable endorsements naming
Landlord and Tenant as payees as their interests may appear.
c. Proof of Coverage. Immediately upon demand of Landlord, Tenant
shall submit schedules, certificates of insurance, declarations or duplicate
policies evidencing the coverage required by this Agreement. All such insurance
policies shall contain a clause giving Landlord a minimum of thirty (30) days'
notice if such insurance policy is canceled.
4. RIGHTS AND REMEDIES.
a. Right to Enter. Landlord or its designated agent shall have the
right at all reasonable times to enter upon the Premises during the period of
construction and inspect the work. Landlord is under no obligation to construct
or supervise construction of the restoration. Inspection by Landlord of the
Premises is for the sole purpose of protecting Landlord's interest under the
Lease and is not to be construed as a representation by Landlord that there will
be compliance on anyone's part with the plans and specifications or that the
construction will be free from faulty material or workmanship. Tenant shall rely
entirely upon its own supervision and inspection in determining the quality and
suitability of the plans and specifications, materials and workmanship,
conformity of the work to the plans and specifications, and performance of
architects, contractors, subcontractors and materialmen.
b. Cessation; Completion. If the construction of the Premises is at
any time discontinued (unless such discontinuance is due to a force of nature or
other cause beyond Tenant's reasonable control) or abandoned for a period of
fifteen (15) days, then Landlord may at its option, upon ten (10) days prior
written notice to Tenant, declare Tenant to be in default under this Agreement
and may then, if Landlord elects, take possession
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of the Premises together with all materials, equipment and improvements on the
Premises, whether affixed to the Premises or not, and perform, cause to be
performed, or let contracts for, the completion of the improvements
substantially according to the plans and specifications referred to in this
Agreement.
c. Mechanic's Liens and Notices to Withhold. If a notice to withhold
is filed with or served on Landlord, or if a mechanic's lien pursuant to
Division 3, Part 4, Title 15 of the California Civil Code is recorded, Tenant
shall indemnify and hold harmless from any damage or liability arising
therefrom, including reasonable attorney's fees and costs.
d. Tenant's Indemnification. Tenant, at its sole cost, shall
indemnify and defend Landlord against any action, claim, damages, losses or
liabilities of any nature whatsoever, arising out of, or related to the
subtenancies of Xxxxxxx or Xxxxxx or to the construction of the restoration,
including, without limiting the generality of the foregoing, any claim for
non-payment of construction work, labor, services, equipment or materials, any
claim of bodily injury, or any claim of property damage.
e. Landlord's Indemnification. Landlord, at its sole cost, shall
indemnify and defend Tenant against any action, claim, damages, losses or
liabilities of any nature whatsoever, arising out of the restoration, legally
caused by any act or omission of Landlord, Landlord's agents, employees, or
contractors, during the period of construction of the restoration, including,
without limiting the generality of the foregoing, bodily injury or property
damage of any person.
5. MISCELLANEOUS.
a. Attorneys' Fees and Costs. In the event of litigation relating to
or arising from this Agreement, or brought to enforce the terms of this
Agreement or any of the documents executed in connection therewith, the
prevailing party shall be entitled to reasonable attorneys' fees and costs. Each
Party shall bear its own costs and attorneys' fees related to the negotiation
and preparation of this Agreement.
b. Dispute Resolution. The Parties shall make a good faith effort to
settle any dispute or claim arising under this Agreement. If the Parties fail to
resolve such disputes or claims, the Parties agree first to try in good faith to
settle the dispute by mediation under the Commercial Mediation Rules of the
American Arbitration Association, before resorting to arbitration. Thereafter,
any remaining unresolved controversy or claim arising out of or relating to
this Agreement, or the breach
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thereof, shall be settled by arbitration in San Diego county, California, in
accordance Section 23 of the Lease.
c. Entire Agreement. This Agreement contains the entire agreement of
the Parties pertaining to the restoration of the Premises, and supersedes any
prior written or oral agreements between them concerning the subject matter
contained herein, including the provisions of Section 12 of the Lease, except to
the extent the Lease is not clearly inconsistent with the provisions of this
Agreement. Both Parties expressly waive any rights or obligations contained in
Section 12 of the Lease which are inconsistent with the terms and conditions of
this Agreement, including the right to terminate the Lease upon destruction of
the Premises. There are no representations, agreements, arrangements, or
understandings, oral or written, between the Parties hereto, relating to the
subject matter contained in this Agreement which are not fully expressed herein.
The provisions of this Agreement may only be waived, altered, amended or
repealed, in whole or in part, upon the written consent of all Parties to this
Agreement.
d. Partial Invalidity. In the event that any term, covenant,
condition or provision of this Agreement shall be held by a court of competent
jurisdiction to be invalid or against public policy, the remaining provisions
shall continue in full force and effect.
e. No Waiver. The waiver by one Party of the performance of any
covenant, condition or promise shall not invalidate this Agreement, nor shall it
be considered as a waiver by such Party of any other (or the enforcement for
subsequent breaches or failures of the same) covenant, condition, or promise.
The delay in pursuing any remedy or in insisting upon full performance for any
breach or failure of any covenant, condition or promise shall not prevent a
Party from later pursuing remedies or insisting upon full performance for the
same or similar breaches or failures.
f. Headings. The headings, subheadings and numbering of the different
paragraphs of this Agreement are inserted for convenience or reference only and
are not to be taken as part of this Stipulation or to control or affect the
meaning, construction or effect of the same.
g. Governing Law. This Agreement shall be deemed to have been
executed and delivered within the State of California, and the rights and
obligations of the Parties hereto shall be construed and enforced in accordance
with, and governed by, the laws of the State of California.
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h. Successors in Interest. Subject to any restrictions against
assignment contained herein, and to any legal limitations on the power of the
signatories to bind nonsignatories to this Agreement, this Agreement shall inure
to the benefit of, and shall be binding upon, the assigns, successors in
interest, personal representatives, executors, estate, heirs, legatees, agents
and related entities of each of the Parties hereto.
i. Time Is of the Essence. Time is of the essence in the performance
of all obligations under this Agreement.
j. Necessary Acts. Each Party to this Agreement agrees to perform any
further acts and execute and deliver any further documents that may be
reasonably necessary to carry out the provisions of this Agreement.
k. Construction. Each Party has cooperated in the drafting and
preparation of this Agreement. In any construction to be made of this Agreement,
or any of its terms and provisions, the same shall not be construed against any
Party. If there are any inconsistencies between the terms of this Agreement and
any attached exhibits, the terms of the attached exhibits shall govern.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement Re
Reconstruction of Leased Premises as of the date first above written.
LANDLORD: GROSSMONT LAND CO., a California
limited partnership
By: Denele Co., an Illinois
limited parnership, general
partner
By: /s/ [SIG]
--------------------------------------
Its: President
-------------------------------------
TENANT: XXXXX DE ORO BANK, N.A., a national
banking association
By: /s/ XXXXXXX X. XXXXX
---------------------------------------
Xxxxxxx X. Xxxxx
Its: President and Chief Executive
Officer
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