EXHIBIT 10.4
L E A S E A G R E E M E N T
THIS LEASE ("Lease") made and entered into this 29th day of April,
1998, by and between XXXXXXX X. XXXXXXX, XXXXXX XXXXXXX, XXXXXXX X. XXXXXXX and
XXXXX X. XXXXXXX as Co-Trustees of the Testamentary Trust Established Under the
Will of Xxxxxx X. Xxxxxxx ("Landlord") and CALIFORNIA CENTER BANK, a California
Corporation ("Tenant").
R E C I T A L S
A. Landlord is the owner of certain land, buildings, and improvements
located in the City of Gardena, County of Los Angeles, State of California,
("Premises") and more particularly described in paragraph 2 below.
B. Landlord desires to lease to Tenant and Tenant desires to lease from
Landlord the Premises on the terms and conditions in this Lease.
C. Tenant is currently in possession of, and occupying, the Premises under
a sublease.
For good and valuable consideration, the parties agree as follows:
1. LEASE
Landlord leases to Tenant and Tenant leases from Landlord the Premises.
Said letting is upon and subject to the terms, covenants, and conditions herein
set forth; and Landlord and Tenant each covenant as a material part of the
consideration for this Lease to keep and perform each and all of said terms,
covenants and conditions required by it to be kept and performed.
2. PREMISES; CONDITION OF PREMISES.
The Premises shall be those certain premises containing approximately
34,848 square feet of land and a building of approximately 8,578 square feet
constructed thereon situated in the City of Gardena, County of Los Angeles,
State of California, commonly known as 0000 X. Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxx,
Xxxxxxxxxx, and more particularly described in Exhibit "A" attached hereto and
incorporated herein by reference.
Tenant has occupied the Premises for many years and accepts the Premises in
its current condition AS IS WITH ALL FAULTS.
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3. TERM
The term of this Lease shall be for a period of ten (10) years. Said term
shall commence on the 1st day of May, 1998, and end on the 30th day of April,
2008.
4. RENTALS
Tenant agrees to pay and Landlord agrees to accept fixed rental for the
Premises as follows:
a. The sum of One Hundred Fifty Two Thousand Six Hundred Seventy Six and
no/100 Dollars ($152,676.00) per annum, payable in equal monthly
installments of Twelve Thousand Seven Hundred Twenty Three and no/100
Dollars ($12,723.00) on the first day of each month during the first
five (5) years of the term of this Lease.
b. Beginning on May 1, 2003 and continuing thereafter through the
remainder of the Term of this Lease, the fixed rent shall be changed
to an amount equal to the product obtained by multiplying the rent
stated above, Paragraph 4.a, by a fraction, the numerator of which is
the Index, as defined below, published nearest but prior to May 1,
2003 and the denominator of which is the Index published nearest but
prior to May 1, 1998. In no event, however, shall the fixed rental be
adjusted higher than Fifteen Thousand Two Hundred Sixty Seven and
60/100 Dollars ($15,267.60) per month ($183,211.20 per annum) or lower
than the amount stated in Paragraph 4a.
c. The term "Index" as used in this Lease shall mean the Consumer Price
Index (All Urban Consumers) for the Los Angeles-Anaheim-Riverside
Consolidated Metropolitan Statistical Area (base years 1982-1984 =
100), published by the Bureau of Labor Statistics of the United States
Department of Labor. If the Bureau of Labor Statistics revises the
Index, the parties agree that the Bureau of Labor Statistics will be
the sole judge of the comparability of successive indexes. If that
agency, however, fails to supply indexes that it deems comparable, or
if no succeeding index is published, the parties shall then negotiate
to determine an appropriate alternative published price index. If they
are unable to agree on an alternative index within thirty (30) days
after the request to do so is made by one party to the other, then
either party may request that each appoint a person, within fifteen
(15) days after the request, to select an alternative published price
index. The two persons so appointed, within fifteen (15) days after
the later of them is appointed, shall appoint a third person to act
with them in the selection of an alternative price index. If either of
the first two fails to appoint the third, of if Landlord or Tenant
fails to appoint one of the first two, then, upon the
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request of either Landlord or Tenant, the vacancy shall be filled by
an impartial person appointed by the presiding judge of the court of
general jurisdiction for the county in which the Premises are located,
with that judge acting in the judge's individual rather than judicial
capacity. If any appointee declines or is unable to serve, the
appointee shall be replaced by another person appointed in the same
manner. Within thirty (30) days after the appointment process is
completed, and on the basis of all pertinent facts, the appointees, by
majority vote, shall select an alternative published price index and
advise Landlord and Tenant in writing of the selection. All fees and
expenses incurred in the appointment of the persons shall be shared
equally by Landlord and Tenant.
d. All rental shall be paid in lawful money of the United States in
advance on the first (1st) day of each calendar month during said term
at the office of Landlord or at such other place as Landlord from time
to time shall designate in writing. Said rent shall be paid without
deduction of offset.
e. Tenant hereby acknowledges that the late payment by Tenant to Landlord
of rent and other sums due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will
be extremely difficult to ascertain. Accordingly, if any installment
of rent or any other sum due from Tenant shall not be actually
received by Landlord or Landlord's designee within fifteen (15) days
after the date due, then Tenant shall pay to Landlord, in addition to
the interest provided for in this Lease, a late charge in the amount
of six percent (6%) of the delinquent installment as liquidated
damages. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue
amount, nor prevent Landlord from exercising any of the other rights
and remedies granted hereunder.
5. SECURITY DEPOSIT
Concurrently with Tenant's execution of this Lease, Tenant shall deposit
with Landlord the sum of Thirteen Thousand Five Hundred and no/100 Dollars
($13,500.00). Said sum shall be held by Landlord as a Security Deposit for the
faithful performance by Tenant of all of the terms, covenants, and conditions of
this Lease to be kept and performed by Tenant during the term hereof. If Tenant
defaults with respect to any provision of this Lease, including but not limited
to the provisions relating to the payment of rent and any of the monetary sums
due herewith, Landlord may (but shall not be required to) use, apply or retain
all or any part of this Security Deposit for the payment of any other amount
which Landlord may spend by reason of Tenant's default or to compensate Landlord
for any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said Deposit is so used or applied, Tenant shall,
within ten (10) days after written demand thereof, deposit cash with Landlord in
an amount sufficient to restore the Security Deposit to its original amount.
Tenant's failure to do
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so shall be a material breach of this Lease. Landlord shall not be required to
keep this Security Deposit separate from its general funds, and Tenant shall not
be entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by Tenant, the Security
Deposit or any balance thereof shall be returned to Tenant (or, at Landlord's
option, to the last assignee of Tenant's interests hereunder) at the expiration
of the Lease term and after Tenant has vacated the Premises. In the event of
termination of Landlord's interest in this Lease, Landlord shall transfer said
Deposit to Landlord's successor in interest whereupon Tenant agrees to release
Landlord from liability for the return of such Deposit.
6. TRIPLE NET LEASE
Notwithstanding anything to the contrary as set forth in this Lease, it is
expressly understood and agreed that Tenant and Landlord are entering into a
triple net (NNN) Lease and that Landlord has no responsibility or obligation for
any maintenance of the Premises.
7. PURPOSE
Tenant shall be limited in its use of the Premises to the operation of a
general banking business.
8. TAXES AND ASSESSMENTS
a. In addition to the fixed rental payments hereinabove provided, Tenant
shall pay before delinquency, all taxes, assessments, and charges
levied, imposed or charged against the land and upon the building of
which the Premises are a part. Tenant shall also pay all taxes
assessed, without limitation, for or during the term hereof against
and on any or all property and improvements (including, without
limitation, equipment, trade and business fixtures, merchandise and
inventory) in possession of Tenant, or installed by or for Tenant upon
or about the Premises. Said obligations are assumed by Tenant although
such assessment may be made against Landlord as the owner of said
building.
b. Any tax or assessment relating to a fiscal period at the end of the
lease term, a part of which is not included within the term of this
Lease, shall be prorated so that Tenant shall pay only that portion
thereof which relates to the tax period included within the term of
this Lease. In the event any assessment may be paid in periodic
installments, Tenant shall be responsible only for those installments
relating to the period included within the term of this Lease.
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c. Nothing contained in this Lease shall require Tenant to pay any net
income, franchise, estate, inheritance, capital levy or transfer tax
of Landlord.
d. Landlord agrees that Tenant shall have the right to contest the
legality or validity of any of the taxes or assessments provided to be
paid by Tenant, but no such contest shall be carried on or maintained
by Tenant after the time limit for the payment of such taxes and
assessments, unless Tenant shall have duly paid the amount involved
under protest or shall procure and maintain a stay of all proceedings
to enforce any obligation thereof or shall have furnished to Landlord
its letter agreeing to indemnify Landlord against any loss or penalty.
Landlord agrees to cooperate with Tenant in any tax or assessment
protest.
9. UTILITIES AND MAINTENANCE EXPENSE
a. Tenant shall, during the term hereof, at its sole cost and expense,
keep and maintain in good order, condition and repair, and replace
when necessary, all portions of the Premises, both inside and outside,
including, without limitation, appurtenances, heating and air
conditioning equipment, sidewalks, landscaped areas, exterior walls,
roofs and parking areas. All maintenance shall be done in a timely and
professional workmanlike manner. Tenant shall also pay all air
conditioning, water, gas, lights and power, telephone services, and
other utilities used in or on the Premises.
b. Exterior remodeling of the buildings located on the Premises shall be
provided and made by Tenant at Tenant's sole expense, and shall become
the legal property of Landlord free and clear of liens or any other
type of encumbrances.
c. Any improvements to the Premises including, without limitation,
resurfacing of parking lot shall be provided and made by Tenant at its
sole expense, subject to the Landlord's prior written consent thereto
and in accordance with plans and specifications first approved by the
Landlord.
d. Tenant shall have the right, at its own expense, to install in the
Premises, all of the fixtures, equipment, furnishings, and other
personal property which Tenant shall require in the Premises in
addition to the Tenant improvements, in accordance with plans and
specifications first approved by the Landlord.
e. Landlord agrees not to unreasonably withhold any consent provided for
in this section.
10. SIGNS
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a. Throughout the term of this Lease, Tenant shall have the sole right to
erect and maintain signs on the Premises in accordance with plans
submitted to Landlord for Landlord's written approval prior to
commencement of sign work. All of the signs Tenant is authorized to
locate on the exterior of the Premises shall remain the property of
Tenant; provided that all sign posts or supporting structures on the
Premises as of the date of this Lease shall remain the property of
Landlord. Any and all signs erected on Premises shall conform to all
requirements, codes and regulations of governmental agencies.
b. Within fifteen (15) days following the date of termination of this
Lease, Tenant, at its expense, may, at its option, remove from the
Premises any signs which are the property of Tenant hereunder. Tenant,
at its expense, shall repair any damage to the Premises caused by the
installation or removal of such signs, notices or displays.
11. INDEMNITY
a. Tenant and Landlord agree to hold the other, its agents, contractors,
and employees harmless and to indemnify the other party against all
claims, liability and costs (including, but not limited to attorneys'
fees and costs) for injuries to all persons and for damage to or the
theft, misappropriation or loss of all property occurring in or out of
the Premises due to the acts or omissions of such indemnifying party,
its agents, servants or employees.
b. Subject to the provisions in Xxxxxxxxx 00.x, xxxxx, Xxxxxxxx shall not
be liable for any injury or damage which may be sustained by the
person, goods, wares, merchandise or property of Tenant, its
employees, invitees or customers, or any other person in or about the
Premises caused by or resulting from any cause whether it be by fire,
steam, electricity, gas, water or rain, which may leak or flow from or
into any part of the premises or for breakage, leakage, obstruction or
other defects of the pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures of the same, whether the said
damage or injury results from conditions arising upon the Premises or
from other sources.
12. INSURANCE
a. Tenant shall, at Tenant's sole cost and expense, but for the mutual
benefit of Landlord and Tenant, maintain throughout the term of this
Lease general public liability insurance against claims for personal
injury, death or property damage occurring in, or about the Premises,
and in, on, or about the sidewalks directly adjacent to the Premises
and such other areas as Tenant, its officers, agents,
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employees, contractors and invitees shall have the right to use
pursuant to this Lease. Such insurance shall have a combined single
limit of not less than Two Million and no/100 Dollars ($2,000,000.00).
b. Tenant shall, at Tenant's sole cost and expense, take out and keep in
force during the term of this Lease, fire and extended coverage
insurance, including vandalism and malicious mischief coverage in an
amount equal to the full replacement value of the Premises, exclusive
of Tenant's fixtures, personal property and equipment.
c. The policies required by Paragraphs 12.a and 12.b shall be in a form
reasonably satisfactory to Landlord. A certificate as to such
insurance shall be presented to Landlord. Each such certificate shall
name Landlord (and any mortgage lender designated by Landlord) as an
additional insured/loss payee. Tenant shall have the right to provide
the required insurance coverage under blanket policies obtained by
Tenant, provided such blanket policies expressly afford coverage to
the Premises and to Landlord as required by this Lease. Tenant shall
obtain a written obligation on the part of any such insurance company
to notify Landlord in writing of any delinquency in premium payments
and at least fifteen (15) days prior thereto of any cancellation of
any such policy. Tenant agrees that if Tenant does not take out such
insurance or keep the same in full force and effect, Landlord may take
out the necessary insurance and pay the premium therefore, and Tenant
shall repay to Landlord the amount so paid promptly after demand.
d. Landlord and Tenant each hereby waive any and all rights of recovery
against the other or against the officers, employees, agents and
representatives of the other, on account of loss or damage occasioned
to such waiving party or its property or the property of others under
its control to the extent that such loss or damage is insured against
under any fire and extended coverage insurance policy which either may
have in force at the time of such loss or damage.
13. LAWS AND INSURANCE STANDARDS
Tenant shall, at Tenant's sole cost and expense, promptly comply in every
respect with all laws, ordinances, rules, and regulations of all federal, state,
county, and municipal governments now in force or that may be enacted hereafter,
with such standards established from time to time by the National Board of Fire
Underwriters, the National Fire Protective Association, or any similar bodies,
which require the making of correction, repairs, additions, or alterations to
the Premises or to Tenant's fixtures, furnishings, signs, or equipment which are
or hereafter may be required in order to comply with any of the foregoing, even
if such compliance requires capital expenditures or additions to the Premises.
Tenant expressly covenants and agrees to indemnify and save Landlord harmless
from any penalties, damages, or charges imposed for any violation of any and all
laws, ordinances, rules, regulations, or
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violations of the covenants herein expressed, whether occasioned by the
particular use of the Premises by Tenant, or by neglect, omission, or willful
act of Tenant or any person upon said Premises by license or invitation of
Tenant or holding or occupying the same or any part thereof under or by right of
Tenant. In the event Landlord or Tenant does or suffers to be done or permits
any act to be done in or about the Premises which will increase any insurance
rate with respect thereto, the party responsible for same agrees to pay
therefore.
14. DAMAGE TO PREMISES
a. In the event of damage causing a partial destruction of the Premises
during the term of this Lease and there is made available to Landlord
pursuant to Paragraph 12.b insurance proceeds in the amount of the
full replacement cost of the damaged improvements, Landlord shall
utilize all such insurance proceeds and pay any additional cost and
cause the Premises to be repaired promptly to a condition existing
immediately prior to such damage, with this Lease to continue in full
force and effect.
b. In the event of damage causing a partial destruction of the Premises
during the term of this Lease and there are no insurance proceeds
available, or the insurance proceeds available are less than one
hundred percent (100%) of the cost of repairing such damage, then
Landlord shall have the option for a period of forty (40) days after
the unavailability to elect to terminate this Lease and to retain all
insurance proceeds or to repair the damage at Landlord's expense. The
failure of Landlord to take any actions within the forty (40) day
period shall be deemed to be an election to terminate the Lease. In
the event Landlord elects to repair such damage, such work shall be
completed promptly restoring the Premises to the condition existing
immediately prior to such damage, and this Lease shall continue in
full force and effect. Landlord shall notify tenant, in writing, of
its decision to terminate the lease. In the event Landlord elects to
terminate the Lease, Tenant shall have thirty (30) days thereafter to
elect to pay for the cost of such repair to the extent insurance
proceeds are not available. In the event Tenant elects to do so,
coincidentally therewith Tenant shall deposit with Landlord or make
available to Landlord on terms acceptable to Landlord, the amount
required in addition to any available insurance proceeds to complete
the repairs. Landlord shall cause such repair work to be completed
promptly thereafter restoring the Premises to the condition existing
immediately prior to such damage, and this Lease shall continue in
full force and effect.
c. In the event the Premises are totally destroyed or the Premises cannot
be repaired as required herein under applicable laws and regulations,
notwithstanding the availability of insurance proceeds or
contributions from Tenant, this Lease shall be terminated effective 60
days after the date of the damage. In the event the
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Premises can under applicable laws and regulations be restored to a
condition which in Tenant's sole discretion are suitable for Tenant's
continued occupancy and use, this Lease shall, at the option of Tenant
not be terminated pursuant to this Paragraph 14.c. In the event the
Tenant elects to exercise its option pursuant to this Paragraph,
Tenant shall have thirty (30) days after such destruction to so elect
and shall thereafter pay for the cost of such repair to the extent
insurance proceeds are not available. In the event Tenant elects to do
so, concurrently therewith, Tenant shall deposit with Landlord or make
available to Landlord on terms acceptable to Landlord, the amount
required in addition to any available insurance proceeds to complete
the repairs. Landlord shall cause such repair work to be completed
promptly thereafter restoring the premises to the condition
permissible under applicable laws and regulations and this Lease shall
continue in full force and effect.
d. In the event of any partial destruction of the Premises representing
thirty percent (30%) or more of the replacement costs of the building
during the last one (1) year of the term or any extension thereof,
notwithstanding the provisions of Paragraphs 14.a and 14.b, Landlord
shall have the right for a period of thirty (30) days after
determination of the availability of insurance proceeds to retain all
insurance proceeds and to terminate this Lease.
e. In the event of any partial destruction which is repaired by Landlord,
for the period between the date of damage until the repairs are
completed, and in the event of the termination of this Lease, for the
period between the date of damage and the date of termination, the
rent payable by Tenant shall be reduced in the proportion which the
area of the Premises with improvements that are not useable bears to
the total area of the Premises containing improvements. This right to
a partial abatement of rent shall be Tenant's sole remedy as a result
of any such damage and repair. Landlord shall not be required to make
any repair or restoration of injury or damage to any improvement or
property installed on the Premises by or at the expense of Tenant;
such items shall be replaced by Tenant at Tenant's sole cost and
expense.
15. MECHANIC'S LIENS
a. Tenant shall at all times hold Landlord harmless from and shall
promptly pay and discharge all claims for work or labor done, supplies
furnished or services rendered in or to the Premises; and shall keep
the Premises free and clear of all mechanic's and materialmen's liens
in connection therewith. This covenant to pay promptly such claims
shall not preclude Tenant from contesting such claims in good faith,
provided that Tenant shall, if so requested by Landlord, bond removal
of such lien, and otherwise at all times perform and continue to
perform
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its covenant herein to hold Landlord harmless herefrom. Landlord may
post and keep posted on the Premises or in the immediate vicinity
thereof, in a conspicuous place which satisfies applicable statutory
requirements and which shall be reasonably satisfactory to Tenant, any
notice of non-responsibility for any construction, alteration or
repair of the Premises by Tenant.
b. Should any claims of mechanic's or materialmen's liens be filed
against the Premises or any action affecting the title to such
property be commenced, the party receiving notice of such lien or
action shall forthwith give the other party written notice thereof. If
Tenant shall fail to discharge such lien within such period or fail to
furnish such security, then in addition to any other right or remedy,
the Landlord may, but shall not be obligated to discharge the same
either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit in court or by giving security or in
such other manner as is or may be prescribed by law. If Tenant fails
to discharge the lien, it shall repay to Landlord on demand all sums
disbursed or deposited by Landlord pursuant to the foregoing
provisions hereof, including costs, expenses, and reasonable
attorneys' fees incurred by such party in connection therewith.
Nothing contained herein shall imply any consent or agreement on the
part of either party to subject its estate to liability under any
mechanic's or other lien law.
16. CONDEMNATION
a. In the event of any taking of or damage to all or any part of the
Premises including any interest therein, or appurtenant thereto, by
reason of any exercise of the power of eminent domain, whether by a
condemnation proceeding, inverse condemnation, or otherwise, or in the
event of any transfer, conveyance, or sale of all or any part of the
Premises, including any interest therein, or appurtenant thereto made
in lieu of an exercise of the power of eminent domain (all of the
foregoing being hereinafter referred to as "Condemnation Proceedings")
prior to or during the Lease Term, the rights and obligations of
Landlord and Tenant shall be governed by the provisions of this
Paragraph 16.
b. For the purposes of this Paragraph 16, the date of taking in
Condemnation Proceedings shall be the date upon which the condemning
authority takes possession of all or any part of the Premises or any
interest therein, or appurtenant thereto, or the date upon which
Tenant is required by the condemning authority to commence vacating
the Premises or any portion thereof, or any interest appurtenant
thereto as a result of such appropriation, whichever date shall first
occur.
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c. In the event of a taking of all of the Premises, this Lease, subject
to all provisions of this Paragraph 16 pertaining to payments to be
made, shall terminate as of the date of such taking.
d. Partial Taking:
(1) General. In the event of taking of less than all of the Premises
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subject to the provisions of Paragraph 16.d(2), this Lease shall
continue in full force and effect, except as to the portion of
the Premises so taken; as to the portion taken, this Lease shall
terminate as of the date title shall vest in the condemning
authority.
(2) Right to Terminate. If during the term of this Lease the
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following property or any interest therein is taken in
condemnation proceedings:
(a) more than fifty percent (50%) of the floor area of the
improvements; or
(b) a portion of the Premises, which in the reasonable judgment
of Landlord is sufficient to render the balance thereof
unsuitable for its continued use or occupancy.
(3) Abatement of Rent. The total rent due for the Premises for the
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remainder of the Lease term shall be reduced in proportion to a
weighted average ratio of the respective ratios of valuations of
land and building area (improvements) taken as compared to total
valuations of land and building areas prior to the taking.
(4) Restoration. If this Lease is not terminated pursuant to
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Paragraph 16.d(2), and if the award or awards are sufficient for
the purpose, Landlord will make any restoration of the remainder
of the Premises necessitated by reason of the taking of less than
all of the Premises as promptly as reasonably practicable to as
close to the same value, condition and character (as
circumstances permit) as existed immediately prior to such
taking, and so as to constitute a complete and tenantable
Building and Improvements, and if by reason of such work Tenant
cannot, in the reasonable opinion of Landlord, conduct business
in the Premises, the rent shall xxxxx during the period that
Tenant is unable to conduct business in the Premises. If the
award or awards are not sufficient for the purpose of restoration
as provided above, then Landlord and Tenant shall agree upon an
increase in rent to be paid by Tenant hereunder. Said increase
will be calculated so as to provide Landlord with a fair rate of
return on monies required to be paid by Landlord for restoration
of the Premises in
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excess of the award or awards. Upon agreement between the parties
as to the amount of the rent increase, Landlord will, at its
expense, make the restoration of the Premises as described above.
Notwithstanding the foregoing, Tenant may, at its option, deposit
with Landlord, or make available to Landlord on terms acceptable
to Landlord the amount required in excess of any award or awards
for the restoration of the Premises, and in such event there
shall be no increase in the rent required to be paid by Tenant
hereunder. Nothing contained herein shall be deemed to modify or
abridge Tenant's right to an abatement of rent with respect to
that portion of the Premises which are taken in condemnation
proceedings, as provided in Paragraph 16.d(2), and any rental
increase hereunder shall be only with respect to that portion of
the Premises not so taken.
e. Upon the termination of this Lease pursuant to Paragraph 16.c or 16.d,
in connection with any award paid by a condemning authority with
respect to the land or improvements, Tenant reserves unto itself the
right to claim and prosecute its claim in all appropriate courts and
agencies for an award or damages for such taking based upon its
leasehold interest, interruption of business, moving expenses,
anticipated or lost profits, injury to leasehold improvements made or
added by Tenant, furniture, furnishings, trade fixtures, installations
and equipment installed in the premises by Tenant at its expense and
other damages available under applicable law, without impairing any
rights of Lessor for the taking of or injury to the reversion. In the
event the condemning authority does not make separate awards as
provided above and in Paragraph 16.f hereafter, then the parties shall
equitably divide the award or awards made by the condemning authority
in accordance with the principles stated in this Paragraph 16 and with
respect to all relevant facts existing at the time of such
condemnation proceedings.
f. If, following condemnation proceedings, this Lease does not terminate,
then all awards paid by the condemning authority shall be used by the
parties hereto for the restoration of the Premises as provided in this
Paragraph. Any balance of any such award or awards remaining after
such restoration shall belong solely to Landlord. In the event there
is a condemnation of the Premises and this Lease does not terminate,
then the rent payable hereunder shall xxxxx in proportion to the
portion of the Premises rendered untenantable, in the manner set forth
in Paragraph 16.d.
g. If the temporary use of all or any portion of the Premises is taken by
a condemning authority, then this Lease shall not terminate but shall
continue in full force and effect, except that rent shall xxxxx in
proportion to the portion of the Premises rendered untenantable in the
manner set forth in Paragraph 16.d. Landlord shall be entitled to
claim, prove, receive and retain the entire award
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payable as compensation for such temporary use or occupancy, except
that any amount awarded for the value of any furniture, furnishings,
trade fixtures, installations and equipment installed in the Premises
by Tenant, at its expense. Tenant reserves unto itself the right to
claim and prosecute its claim in all appropriate courts and agencies
for an award or damages for such taking. Upon the cessation of such
use, the Premises shall be restored pursuant to the provisions of
Paragraph 16.d(4).
h. If this Lease is terminated pursuant to this Paragraph 16, the rental
and all other monetary obligations of Tenant hereunder shall be
prorated to the date of termination. Landlord shall repay to Tenant
any rental and other payments hereunder paid by Tenant for any period
beyond the date of termination to the extent same are in excess of
amounts then owed by Tenant to Landlord. All payments due Tenant from
Landlord by reason of taking shall be paid to Tenant without prior
notice or demand and on or before the expiration of a period of ten
(10) days from the date on which the amount of the award is finally
determined and Landlord obtains, or has the right to obtain, whichever
shall first occur, such award. Landlord and Tenant shall respectively
at their own expense pursue any litigation they respectively deem
appropriate with respect to any taking.
17. TRADE FIXTURES
Upon the expiration or sooner termination of the Lease, provided Tenant is
not in default hereunder, Tenant may at its sole cost and expense remove all
trade fixtures installed in the Premises. Tenant shall pay for any damages
caused to the Premises by the removal of said items so that after the removal of
said items the Premises will be in the same condition as at the time prior to
the said installations, reasonable wear and tear excepted. If Tenant shall
abandon, vacate, or surrender said Premises, or be dispossessed by process of
law, or otherwise, any personal property belonging to Tenant and left on the
Premises shall be deemed to be abandoned, at the option of Landlord, except such
property as may be mortgaged to Tenant.
18. ASSIGNMENT; SUBLEASE
a. Prohibition and Consent.
-----------------------
(1) Landlord's Consent. Tenant shall not voluntarily or by operation
------------------
of law, assign, sublet, sell, encumber, pledge or otherwise
transfer all or any part of the Premises or Tenant's leasehold
estate hereunder, or permit the Premises to be occupied by anyone
other than Tenant or Tenant's employees, without Landlord's prior
written consent in each instance, which consent shall not be
unreasonably withheld. Any assignment or subletting which is not
in compliance with this Section 18 shall be void
Page 13 of 23
and, at the option of Landlord, shall constitute a material
default by Tenant under this Lease. Consent by Landlord to one or
more assignments of this Lease or to one or more sublettings of
the Premises shall not operate to exhaust Landlord's rights under
this Section 18. The voluntary or other surrender of this Lease
by Tenant or a mutual cancellation hereof shall not work a
merger, and shall, at the option of Landlord terminate all or any
existing subleases or subtenancies. If Tenant is a corporation or
is an unincorporated association, limited liability company or
partnership, the transfer, assignment or hypothecation of any
stock or interest in such corporation, association or partnership
in the aggregate in excess of twenty-five percent (25%) of the
amount then outstanding shall be deemed as assignment within the
meaning and provisions of this Section.
(2) Required Information. If Tenant desires at any time to assign
--------------------
this Lease or to sublet the Premises or any portion thereof, it
shall first notify Landlord of its desire to do so and shall
submit in writing to Landlord (i) the name of the proposed
subtenant or assignee; (ii) the nature of the proposed
subtenant's or assignee's business to be carried on in the
Premises; (iii) the terms and provisions of the proposed sublease
or assignment; (iv) such financial information as Landlord may
reasonably request concerning the proposed subtenant or assignee;
and (v) such information as Landlord may reasonably request
regarding the business experience of the proposed subtenant or
assignee during the preceding five (5) years.
(3) No Release of Tenant. Regardless of Landlord's consent, no
--------------------
subletting or assignment shall relieve Tenant of its obligation
to pay the rent and to perform all of the other obligations to be
performed by Tenant hereunder. No assignment shall be binding on
Landlord unless such assignee or Tenant shall deliver to Landlord
a counterpart of such assignment which contains a covenant of
assumption by the assignee satisfactory in substance and form to
Landlord consistent with the requirements of this Section 18, but
the failure or refusal of the assignee to execute such instrument
of assumption shall not release or discharge the assignee from
its liability as set forth above. The acceptance of any payment
due hereunder by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision of this Lease
or to be a consent to any assignment or subletting.
(4) Fee to Landlord. In the event Landlord shall consent to an
---------------
assignment under this Xxxxxxxxx 00, Xxxxxx shall pay Landlord's
reasonable
Page 14 of 23
attorney's fees not to exceed One Thousand Five Hundred
($1,500.00) Dollars incurred in connection with giving such
consent.
19. NOTICES
a. Whenever under this Lease provision is made for notice or demand, it
shall be in writing and signed by or on behalf of the party giving the
notice or making the demand and served by registered or certified mail
or by telegraph. If served by registered or certified mail, it shall
be deposited in the United States mail, postage prepaid, with return
receipt requested, addressed to the party to whom such notice or
demand is to be given as provided in Paragraph 19.b, and shall be
conclusively deemed served two (2) days after mailing in California or
four (4) days after mailing in another state. If served by telegraph,
service to the addressee shall be conclusively deemed made as
confirmed by the telegraphic agency making delivery.
b. Any notice or demand to either party may be given to it at the address
appearing below its signature on the signature page of this Lease. The
address of either party may be changed for the purpose of this
paragraph by notice to the other party.
20. SURRENDER OF POSSESSION
a. At the expiration of the tenancy created hereunder, whether by lapse
of time or otherwise, Tenant shall surrender the Premises broom clean
and in good condition and repair except ordinary wear and tear
excepted.
b. If Tenant holds the Premises after the expiration of the term hereof
with the consent of Landlord, express or implied, such holding over
shall, in the absence of a written agreement on the subject, be deemed
to have created a tenancy from month to month, terminable on thirty
(30) days' written notice by either party to the other, at a minimum
monthly rental equal to one point two-five (1.25) times one-twelfth
(1/12) of the fixed rental as per Paragraph 4 herein, paid by Tenant
to Landlord during the immediately preceding twelve (12) month period,
and otherwise subject to all terms and conditions of this Lease.
21. QUIET ENJOYMENT
Subject to the provisions of this Lease and conditioned upon performance of
all of the provisions to be performed by Tenant hereunder, Landlord shall secure
to Tenant during the Lease term the quiet and peaceful possession of the
Premises and all rights and privileges
Page 15 of 23
appertaining thereto. Landlord covenants and represents that Landlord has the
legal right to enter into this Lease and to lease the Premises to Tenant.
Landlord further covenants and represents that of the date hereof there are no
restrictive covenants, agreements, zoning regulations, ordinances, statutes or
land regulations which will prevent Tenant from conducting business in the
Premises pursuant to this Lease.
22. SUBORDINATION, ATTORNMENT, AND ESTOPPEL CERTIFICATE
a. This Lease may, at the option of Landlord, be made subordinate to any
mortgage or deed of trust now or hereafter placed upon or affecting
the real property of which the Premises form a part; and to all
renewals, modifications, replacements and extensions thereof, provided
that as a condition of such subordination, and only if:
(1) such mortgage or deed of trust shall contain a covenant which
shall permit the proceeds of all insurance policies or
condemnation awards, as the case may be, covering the building,
improvements, equipment and/or appurtenances constituting the
Premises, whether such proceeds are to be held by Landlord or the
first mortgagee or beneficiary, to be paid and/or made available
for repair, replacement and rebuilding as provided in this Lease;
(2) a written agreement is entered into by the mortgagee named in any
such mortgage, or by the trustee and the beneficiary named in any
such deed of trust, providing that notwithstanding any default in
the mortgage or deed of trust and any foreclosure thereof, or the
enforcement by the holder thereof of any rights or remedies,
including sale thereunder, or otherwise, the Tenant shall be
permitted to remain in quiet and peaceful possession of the
Premises throughout the term hereof, and any extension or renewal
hereof, as long as Tenant shall not be in default under this
Lease, or, if Tenant is in such default, as long as Tenant's time
to cure such default shall not have expired. Tenant shall upon
request by Landlord execute and deliver such instruments as may
be reasonably necessary or convenient to evidence such
subordination. Landlord shall upon request by Tenant deliver to
it the instrument or instruments between Landlord and its lessor
or lender which contain the covenants of such lessor or lender
contemplated hereunder.
b. Within twenty (20) days after the request therefore by Landlord, or in
the event that upon any sale, assignment, or hypothecation of the
Premises or the land thereunder by Landlord, an offset statement shall
be required from Tenant, Tenant agrees to deliver in recordable form,
a certificate addressed to any such
Page 16 of 23
proposed mortgagee or purchaser or to the Landlord, certifying that
this Lease is in full force and effect (if such be the case), that
there are no differences or offsets thereto or stating those claimed
by Tenant, and further containing such other provisions as may be
reasonably requested by such mortgagee or purchaser. Any such
statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the real property of which the
Premises are a part.
23. ENTRY BY LANDLORD
Subject to Tenant's reasonable security requirements, Landlord and its
agents shall have the right at any reasonable time to enter upon all portions of
the Premises so long as entry does not interfere with the business activities of
the Tenant on the Premises, for the purpose of inspection, maintaining the
Premises, installing improvements, making any necessary repairs, alterations or
additions to any portion of the Premises complying with applicable laws,
ordinances, and regulations, protecting the Premises, or for any lawful purpose,
including during the last twelve (12) months of the term, on 24 hour notice,
showing the Premises to prospective purchasers or tenants. Landlord's entry
shall not interfere with Tenant's quiet enjoyment of the Premises.
24. DEFAULT
a. If the rental payments under this Lease or other charges to be paid
hereunder by Tenant, or any part thereof, are not paid when due and
remain unpaid for a period of fifteen (15) days after notice thereof
in writing to Tenant, if Tenant vacates the Premises without the
intention to reoccupy the same, or abandons the Premises, or if Tenant
fails to perform with diligence any other covenants or conditions to
be performed by it under this Lease within thirty (30) days after
receipt of written notice from Landlord specifying the nature of such
failure, or if such failure requires more than thirty (30) days to
correct, within such further period as is necessary using due
diligence at all times, Tenant shall be deemed to be in default and in
breach of this Lease and Landlord, without further notice of any kind,
may at its option:
(1) Terminate Tenant's right to possession of the Premises because of
such breach and recover from Tenant all damages allowed
including, without limitations, the worth at the time of the
award by a court of competent jurisdiction of the amount by which
the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss for the same period
that Tenant proves could be reasonably avoided subject to
Paragraph 24.g below, or;
Page 17 of 23
(2) Not terminate Tenant's right to possession because of such
breach, but continue this Lease in full force and effect, and in
that event Landlord may enforce all rights and remedies under
this Lease. The Landlord has the remedy described in California
Civil Code Section 1951.4 (Landlord may continue lease in effect
after Tenant's breach and abandonment and recover rent as it
becomes due, if Tenant has right to sublet or assign, subject
only to reasonable limitations).
b. In the event of any reentry, Landlord may remove all persons from the
Premises, and Landlord may remove all property and any signs located
in or about the Premises and place such property in storage in a
public warehouse at the cost and risk of Tenant.
c. No reentry or reletting of the Premises shall be construed as an
election by Landlord to terminate Tenant's right to possession and
this Lease unless a written notice of such intention is given by
Landlord to Tenant; and notwithstanding any such reletting without
such termination, Landlord may at any time thereafter elect to
terminate Tenant's right to possession and this Lease in the event
that at such time Tenant remains in default hereunder.
d. If the Tenant is required to comply with any governmental regulation
or order within a period less than that to which Tenant would
otherwise be entitled to notice hereunder, Tenant shall not be
entitled to notice from Landlord beyond the period within which such
compliance may be required by such regulations or order; provided that
Landlord shall use its best efforts to give Tenant the amount of
notice to which it would otherwise be entitled hereunder and if the
Premises require emergency repair which Tenant would otherwise be
obligated to make under this Lease, but which Tenant is then unable or
unwilling to make, Landlord may, after notice of such repairs and the
granting of a reasonable opportunity for Tenant to cure same, elect to
make such repairs for the account and at the expense of Tenant.
e. Any sum accruing to Landlord under the terms and provisions of this
Lease which is not paid when due shall bear interest at one and one
half percent (1 1/2 %) per month from the date the same becomes due
and payable by the terms and provisions of this Lease until paid,
unless otherwise specifically provided in this Lease.
f. Nothing contained in this Lease shall limit Landlord to the remedies
set forth in this Paragraph 24, and upon Tenant's default Landlord
shall be entitled to exercise any right or remedy then provided by
law.
Page 18 of 23
g. In the event Landlord exercises its right to terminate Tenant's right
to possession as a result of a default by Tenant, Landlord shall be
entitled to recover from Tenant: (i) the worth at the time of the
award of the unpaid rent which had been earned at the time of
termination; (ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss that
the Tenant proves could have been reasonably avoided; (iii) the worth
at the time of award of the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of such
rental loss that the Tenant proves could be reasonably avoided; and
(iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by the Tenant's failure to perform its
obligations under the Lease or which in the ordinary course of things
would be likely to result therefrom, including but not limited to the
cost of recovery possession of the Premises, expenses of reletting,
including necessary renovation and alteration of the Premises,
reasonable attorneys fees, and that portion of the leasing commission
paid by Landlord applicable to the unexpired term of this Lease. The
worth at the time of award of the amount referred to in provision
(iii) of the prior sentence shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%). Efforts by
Landlord to mitigate damages caused by Tenant's default or breach of
this Lease shall not waive Landlord's right to recover damages under
this Paragraph. If termination of this Lease is obtained through the
provisional remedy of unlawful detainer, Landlord shall have the right
to recover in such proceeding the unpaid rent and damages as are
recoverable therein, or Landlord may reserve therein the right to
recover all or any part thereof in a separate suit for such rent
and/or damages. If a notice and grace period required under
subparagraph 24(a) was not previously given, a notice to pay rent or
quit, or to perform or quit, as the case may be, given to Tenant under
any statute authorizing the forfeiture of leases for unlawful detainer
shall also constitute the applicable notice for grace period purposes
required by subparagraph 24(a). In such case, the applicable grace
period under subparagraphs 24(a) and under the unlawful detainer
statute shall run concurrently after the one such statutory notice,
and the failure of Tenant to cure the default within the greater of
the two such grace periods shall constitute both an unlawful detainer
and a breach of this Lease entitling Landlord to the remedies provided
for in this Lease and/or said statute.
25. INSOLVENCY
a. The filing of any petition by or against Tenant under any chapter of
the Bankruptcy Act, or any successor statute thereto or the
adjudication of Tenant as bankrupt or insolvent, or the appointment of
a receiver or trustee to take possession of all or substantially all
of the assets of Tenant, or a general
Page 19 of 23
assignment by Tenant for the benefit of creditors, or any other action
taken or suffered by Tenant under any state or federal insolvency or
bankruptcy act, and the continuance of any of the foregoing events for
sixty (60) days shall constitute a default under the breach of this
Lease by Tenant, regardless of Tenant's compliance with the other
provisions of this Lease, and Landlord at its option by written notice
to Tenant may exercise all rights and remedies provided for in
Paragraph 24, including the termination of this Lease, effective on
service of such notice, without the necessity of further notice under
Paragraph 24.
b. Neither this Lease, nor any interest herein, nor any estate created
hereby, shall pass by operation of law under any state or federal
insolvency or bankruptcy act to any trustee, receiver, assignee for
the benefit of creditors, or any other person whomsoever without the
prior written consent of Landlord. Any purported transfer in violation
of the provisions of this Paragraph 25.b shall constitute a default
under and breach of this Lease, regardless of Tenant's compliance with
the other provisions of this Lease; and Landlord at its option by
written notice to Tenant may exercise all rights and remedies provided
for in Paragraph 24, including the termination of this Lease,
effective on service of such notice without the necessity of further
notice under Paragraph 24.
c. The acceptance of rent at any time and from time to time by Landlord
from Tenant as debtor in possession or from a transferee of the type
mentioned in Paragraph 25.b, shall not preclude Landlord from
exercising its rights under this Paragraph 25 at any time thereafter.
26. REMEDIES CUMULATIVE
The various rights, elections, and remedies of Landlord and Tenant
contained in this Lease shall be cumulative, and no one of them shall be
construed as exclusive of any of the others, or of any right, priority, or
remedy allowed or provided for by law.
27. ATTORNEYS' FEES
If either party (hereinafter called "nondefaulting party") is reasonably
required to incur attorney's fees to enforce or declare or litigate any
provision or right hereunder, the other party (hereinafter called "defaulting
party") shall be required to pay such fees in a reasonable amount, provided that
the position of the nondefaulting party prevails in the matter for which the
attorneys' fees were incurred, provided further that unless ordered by the
court, written demand for such attorneys' fees is made upon the defaulting party
not later than thirty (30) days after the date when it has been determined that
such party has prevailed.
Page 20 of 23
28. WAIVER OF DEFAULT
The waiver by either party of any default in the performance by the other
of any covenant contained herein shall not be construed to be a waiver of any
preceding or subsequent default of the same or any other covenant contained
herein. The subsequent acceptance of rent or other sums hereunder by Landlord
shall not be deemed a waiver of any preceding default other than the failure of
Tenant to pay the particular rental or other sum or portion thereof so accepted,
regardless of Landlord's knowledge of such preceding default at the time of
acceptance of such rent or other sum.
29. NO PARTNERSHIP
Landlord shall not in any way or for any purpose be deemed a partner, joint
venturer, or member of any joint enterprise with Tenant.
30. SUCCESSORS
a. Each and every covenant and condition of this Lease shall bind and
shall inure to the benefit of the parties hereto and their successors.
The term "successors" is used herein in its broadest possible meaning
and includes, but is not limited to, executors and administrators, and
every person, partnership, association, or corporation succeeding to
any interest in this Lease or the Premises, of Landlord or Tenant
herein, whether such succession results from the act or omission of a
party, occurs by operation of law, or as the effect of the operation
of law together with the act or omission of such party. Every covenant
and condition of this Lease shall be binding upon all assignees,
licensees, and concessionaires of Tenant. The foregoing is not
intended to derogate from the effect of the provisions of Article 18
hereof.
b. In the event of a sale or conveyance by Landlord of Landlord's
interest in the Premises or in any building of which the Premises may
be a part other than a transfer for security purposes only, Landlord
shall be relieved from and after the date of such sale or conveyance
of all obligations and liabilities accruing thereafter on the part of
Landlord, provided that any funds in the hands of Landlord at the time
of transfer in which Tenant has an interest, shall be delivered to the
successor of Landlord. Tenant agrees to be bound with the purchaser or
assignee provided all Landlord's obligations hereunder are assumed in
writing by the transferee.
Page 21 of 23
c. In the event of the sale or transfer of the Premises by Landlord, this
lease shall be binding on Landlord's successors and assigns who shall
take the Premises subject to this leasehold.
31. INTERPRETATION
The captions by which the paragraphs of this Lease are identified are for
convenience only and shall have no effect upon the interpretation of this Lease.
Wherever the context so requires, the singular number shall include the plural,
the plural shall refer to the singular, the neuter gender shall include the
masculine and feminine genders, and the words "Landlord", "Tenant", and "person"
shall include corporations, partnerships, associations, other legal entities and
individuals. If either party consists of more than one person, each person shall
be jointly and severally liable hereunder. If any provision of this Lease shall
be held to be invalid by a court the remaining provisions shall remain in effect
and shall in no way be impaired thereby.
32. ENTIRE INSTRUMENT
All of the agreements heretofore and contemporaneously made by the parties
are contained in this Lease, and this Lease cannot be modified in any respect
except by a writing executed by Landlord and Tenant.
33. CORPORATE AUTHORITY
If Tenant is a corporation, each individual executing this Lease on behalf
of said corporation represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation in accordance with
a duly adopted resolution of the Board of Directors of said corporation or in
accordance with the By-laws of said corporation, and that this Lease is binding
upon said corporation in accordance with its terms. If Tenant is a corporation
Tenant shall, within thirty (30) days after execution of this Lease, deliver to
Landlord a certified copy of a resolution of the Board of Directors of said
corporation authorizing or ratifying the execution of this Lease.
34. SUBMISSION OF FINANCIAL STATEMENTS; COOPERATION WITH MORTGAGE LENDER
At the request of Landlord, the Tenant shall submit to Landlord yearly
financial statements and/or otherwise cooperate in satisfying the reasonable
requests of any mortgage lender for information concerning Tenant.
Page 22 of 23
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the
date and year first above written.
LANDLORD:
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
XXXXXXX X. XXXXXXX
/s/ Xxxxxx Xxxxxxx
-------------------------------------------------
XXXXXX XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
XXXXXXX X. XXXXXXX
Co-Trustee of the Testamentary Trust Established
Under The Will of Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
-------------------------------------------------
XXXXX X. XXXXXXX
Co-Trustee of the Testamentary Trust Established
Under The Will of Xxxxxx X. Xxxxxxx
LANDLORD ADDRESS:
0000 X. Xxxxxxx Xxxxx Xxxx., Xxxxx 00
Xxxxxxx, XX 00000
TENANT:
CALIFORNIA CENTER BANK, a California corporation
By: /s/ Jong Il Xxx
---------------------------------------------
JONG IL XXX, President & Chief Executive Officer
TENANT ADDRESS:
0000 X. Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Page 23 of 23
[GRAPHIC]
XXXXXX'X SUBDIVISION
OF LOT Illegible OF Illegible
EXHIBIT A
[GRAPHIC]
