EXHIBIT 10.60
SHOPPING CENTER SUBLEASE
BETWEEN
PANORAMA TOWNE CENTER, L.P., AS LANDLORD
AND
PAN AMERICAN BANK OF SAN MATEO, FSB, AS TENANT
SHOPPING CENTER SUBLEASE
This Shopping Center Sublease (the "Lease" herein), dated September
25, 1995 for reference purposes only, is made by and between Panorama Towne
Center, L.P., a California Limited Partnership, as Landlord, and Pan American
Bank of San Mateo, FSB, a Federally-chartered savings bank, as Tenant.
1. LEASE OF PREMISES.
In consideration of the Rent (as defined in Article 9) to be paid by Tenant and
the performance of the covenants and agreements to be performed by Tenant under
this Lease, Landlord agrees to sublease to Tenant and Tenant agrees to sublease
from Landlord, the Premises shown by diagonal lines on Exhibit "A" attached
hereto, and further described at Section 3.h. The Premises are located within
the shopping center described in Section 3.j. Tenant shall have the non-
exclusive right (unless otherwise provided herein) in common with Landlord and
other tenants, subtenants and invitees of the Shopping Center, to use of the
Common Areas (as defined at Section 3.c.).
2. LEASE REVIEW OBLIGATIONS OF LANDLORD AND TENANT.
Landlord and Tenant acknowledge and agree that each has the responsibility to
personally review and approve the contents of this Lease and to have this Lease
reviewed, approved, and modified as needed by its attorneys before the Lease is
signed.
3. DEFINITIONS.
As used in this Lease, the following terms have the following meanings:
a. BROKER: CB Commercial Real Estate Group, Inc.
b. COMMENCEMENT DATE: The earliest of the following dates:
(i) The date Tenant initially opens for business
in the Premises; or
(ii) 60 days after substantial completion of
Landlord's Work (as defined in Exhibit "C" to
the Lease) in the Premises.
The date of such substantial completion is the
date the Premises are substantially complete
to the extent of Landlord's Work, except for
such work that Landlord cannot complete until
Tenant performs necessary portions of Tenant's
Work (as defined in Exhibit "C"). Substantial
completion of Landlord's work shall be
evidenced by notice to Tenant from Landlord's
architect or designated representative that
substantial completion has occurred.
Tenant shall commence Tenant's Work promptly upon substantial completion of
Landlord's Work and shall diligently complete Tenant's Work so that Tenant
can promptly open for business in the Premises.
c. COMMON AREAS: All areas, structural portions, facilities and equipment of
the Shopping Center outside the Premises and the premises of other tenants,
but within the exterior boundaries of the Shopping Center that are provided
and designated by Landlord from time to time for the general use, benefit
and/or convenience of Tenant and/or other tenants of the shopping Center
and/or their respective authorized representatives and invitees. Common
Areas include without limitation, pedestrian walkways and patios,
landscaped areas, sidewalks, service corridors, public restrooms,
stairways, roofs, walls, plazas, malls (including any enclosed malls where
climate control is provided), throughways, loading areas, parking areas,
and roads, all as generally shown on Exhibit "A." Landlord shall have the
right to regulate or restrict the use of the Common Areas, provided the use
and occupancy of the Premises by Tenant and its employees, agents and
invitees is not materially adversely affected thereby, and further provided
that Landlord may designate a portion or portions of the Common Areas for
Tenant's employees' parking.
d. FLOOR AREA: As to both the Premises and the Shopping Center, the
respective measurements of floor area as are from time to time subject to
lease by Tenant and all tenants of the Shopping Center, respectively, as
determined and applied by Landlord on a consistent basis throughout the
Shopping Center.
e. LANDLORD'S MAILING ADDRESS: Panorama Towne Center, L.P.
0000 Xxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxx Xxxxxxxxx
TENANT'S MAILING ADDRESS: Pan American Bank, FSB
0000 X. Xx Xxxxxx Xxxx
Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx Seipser
f. MINIMUM ANNUAL RENT (INITIAL) (SECTION 9.1:): $84,264.00 per year, payable
in twelve (12) equal monthly installments each year, and subject to
adjustment based on the actual Floor Area of the Premises as determined by
Landlord multiplied by $2.00 per square foot per month. SEE ADDENDUM,
Paragraph 1.
g. INTENTIONALLY DELETED.
h. PREMISES: That portion of the Shopping Center containing approximately
3,511 square feet of Floor Area, shown by diagonal lines on Exhibit "A," It
and the improvements constructed thereon.
i. SECURITY DEPOSIT: None.
j. SHOPPING CENTER: The shopping center of which the Premises are a part
including any other buildings and improvements on the real property
(collectively, the "Building" or "Property")located at the northwest corner
of Van Nuys and Chase and further described on Exhibit "A." The Shopping
Center is to be known as "Panorama Towne Center".
k. TENANT'S FIRST ADJUSTMENT DATE (ADDENDUM, PARAGRAPH 1): The first day of
the calendar month following the Commencement Date plus 36 months.
l. TENANT'S PROPORTIONATE SHARE (INITIAL): 3.68% (estimated). Such share is a
fraction, the numerator of which is the Floor Area of the Premises, and the
denominator of which is the Floor Area of the buildings in the Shopping
Center available for exclusive use and occupancy by tenants. As of the
date of this Lease, it is contemplated that the Shopping Center will
contain a total Floor Area of approximately 95,520 square feet.
m. TENANT'S TRADE NAME: Pan American Bank of San Mateo, FSB.
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n. TENANT'S USE CLAUSE (ARTICLE 10): During the first five (5) years of the
Term, the Premises shall be used and occupied only for the purpose of
operating a bank or financial institution as defined by state and/or
federal banking regulations, and for no other use or purpose. During the
remainder of the Term and the option periods, if any, the Premises shall be
used and occupied for the purpose of operating a bank or financial
institution as defined by state and/or federal banking regulation or for
any other purposes so long as such use does not violate an exclusive use
right granted to another tenant of the Shopping Center (or proposed to be
granted to a prospective tenant with whom Landlord is in active
negotiations with at such time) or constitute a use that may be prohibited
pursuant to the terms of any other tenant's lease or violate any
restrictions that may be contained in any other tenant's lease.
o. TERM: The Term of this Lease shall begin as of the date hereof and shall
continue thereafter for a period of ten (10) years (plus any partial month)
following the Commencement Date. The Commencement Date and expiration date
of the Lease shall be set forth in Landlord's Notice of Lease Term Dates
(the "Notice"). The Notice shall be served on Tenant promptly following
determination of the Commencement Date under Section 3.b; provided,
however, Landlord's or Tenant's failure to serve or execute such Notice
shall not affect the determination of the Commencement Date or expiration
date of this Lease.
4. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
a. Exhibit "A" - Premises and Shopping Center
b. Exhibit "B" - (Intentionally Deleted)
c. Exhibit "C" - Landlord's - Work and Tenant's Work
d. Exhibit "D" - Sample Form of Tenant Estoppel Certificate
e. Exhibit "E" - Shopping Center Sign Criteria
f. Exhibit "F" - Landlord's Notice of Lease Term Dates
g. Exhibit "G" - Guaranty of Lease (the "Guaranty")
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h. Addendum to Shopping Center Sublease
5. SHOPPING CENTER PLAN.
The plan of the Shopping Center attached as Exhibit "A" shows, among other
things, the principal improvements which initially comprise or will initially
comprise the Shopping Center. Tenant agrees that Landlord may at any time and
from time to time, change the shape, size, location, number, and extent of the
improvements now shown on Exhibit "A" and may eliminate or add any improvements
to any portion of the Shopping Center, but Landlord agrees (i) not to materially
change the size or location of the Premises prior to construction of Tenant's
building on the Premises without Tenant's consent, which consent shall not be
unreasonably withheld and (ii) that any such changes will not materially and
adversely affect ingress to and egress from the Premises, visibility of the
Premises or parking availability for Tenant or its customers in the shopping
Center. Following delivery of possession of the Premises to Tenant, Landlord
shall not materially change the size or location of the Premises without
Tenant's consent, which consent may be withheld in Tenant's sole discretion.
6. OTHER TENANCIES.
Landlord reserves the absolute right to effect such other tenancies and uses in
the Shopping Center as Landlord, in its sole business judgment, determines best
promotes the interests of the Shopping Center. Landlord and Broker do not
represent, and Tenant does not rely on the possibility, that any specific tenant
or number of tenants will occupy space in the Shopping Center during the Term.
Except as provided in the following sentence, Landlord shall not lease space to
another bank, savings and loan, thrift and loan, or other financial institution
regulated by a state or federal banking regulation in the Shopping Center during
Tenant's occupancy of the Premises, or permit the installation of automatic
teller machines (except for use at points of purchase). Tenant acknowledges
and, agrees that notwithstanding anything to the contrary in this Lease, Food 4
Less and/or a proposed drug store tenant, or any occupant of the leased premises
of Food 4 Less or such drug store, will have the right to place in their
premises a bank, savings and loan, thrift and loan or other financial
institution, and/or to install automatic teller machines in, or on the exterior
walls of, their leased premises.
7. DELIVERY OF POSSESSION.
Landlord agrees to deliver to Tenant and Tenant agrees to accept from Landlord
possession of the Premises promptly upon substantial
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completion of Landlord's Work. If for any reason Landlord does not deliver
possession of the Premises to Tenant with Landlord's Work substantially complete
on or before February 28, 1996, Landlord shall not be subject to any liability
for such failure, and the validity of this Lease shall not be impaired, but
Tenant shall have the right, as its sole remedy for Landlord's failure to
deliver the Premises as aforesaid, to take all reasonable action necessary to
diligently complete Landlord's Work at Tenant's cost and to offset such cost
against the Minimum Annual Rent to be paid hereunder. If Tenant elects to
exercise such right, Tenant shall so notify Landlord in writing on or before
March 20, 1996. If Tenant fails to so notify Landlord in writing, Tenant shall
be deemed to have waived such right.
8. TENANT'S WORK.
Tenant shall commence construction of Tenant's Work as defined in Exhibit "C" no
later than five (5) business days after the date of substantial completion of
Landlord's Work in the Premises and shall diligently complete Tenant's Work.
Landlord shall give Tenant not less than 10 days' advance written notice of such
anticipated date of substantial completion of Landlord's Work. Tenant shall, at
any time requested by Landlord or Landlord's architect, construct those portions
of Tenant's Work necessary to enable Landlord to proceed with Landlord's Work
hereunder.
9. RENT.
9.1 PAYMENT OF MINIMUM ANNUAL RENT. Beginning on the Commencement Date,
Tenant agrees to pay the Minimum Annual Rent during the Term for its use and
occupancy of the Premises. Minimum Annual Rent shall be payable in advance on
the first day of each calendar month of the Term without notice, set-off or
deduction except as expressly provided herein, in twelve (12) equal monthly
installments during each year of the Term. If the period for which Minimum
Annual Rent is due and payable begins (or ends) on other than the first (or
last) day of a calendar month, the Minimum Annual Rent for the partial month
shall be prorated on a daily basis, based on a 30 day month. Tenant shall pay
Landlord the first installment of Minimum Annual Rent when such installment is
due hereunder.
9.2 PROPERTY TAXES.
a. Beginning on the commencement Date, and for the balance of the
Term, Tenant shall pay to Landlord as additional rent the amount of taxes and
assessments levied and assessed for any year ("Property Taxes") against the
Premises, including both
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the underlying real property and the improvements thereon. Such sum shall be
prorated for any partial year of the Term on a daily basis, based on a 360-day
year. Subject to Tenant's compliance with the preceding provisions of this
Section 9.2.a., Landlord shall pay all Property Taxes assessed against the
Shopping Center prior to delinquency.
If the Premises are not separately assessed, but are assessed as part of
the land and improvements on a larger parcel (hereinafter the "Larger Parcel"),
Tenant's sharp of Property Taxes shall be a fractional portion of the property
taxes on the Larger Parcel, the numerator of which is the Floor Area of the
Premises and the denominator of which is the Floor Area of all the areas
available for exclusive use and occupancy by tenants of the Larger Parcel.
Tenant shall pay Property Taxes to Landlord as part of Common Area Costs at the
times and in the manner provided for the payment of Common Area Costs at Section
24.3 of this Lease. Subject to Tenant's compliance with the preceding provisions
of this paragraph, Landlord shall pay all Property Taxes assessed against the
Shopping Center owned by Landlord prior to delinquency. For purposes hereof, an
equitable adjustment shall be made for buildings which are only partially
completed on the date such property taxes become a lien.
If any Property Taxes (including any assessments which may be evidenced by
improvement or other bonds) due hereunder may be paid in annual installments,
only the amount of such annual installment (with an appropriate proration for
any partial year) and statutory interest (if any) shall be included in the
Computation of annual Property Taxes.
b. The term "Property Taxes" shall mean: (i) any fee, license fee,
license tax, business license fee, commercial rental tax, levy, charge,
assessment or tax imposed by any taxing authority against or relating to the
Premises or the Shopping Center; (ii) any tax on Landlord's right to receive, or
the receipt of, rent or income from the Premises or the Shopping Center or
against Landlord's business of leasing space in the Shopping Center; (iii) any
tax or charge for fire protection, streets, sidewalks, road maintenance, refuse
or other services provided to the Premises or the Shopping Center by or through
any governmental agency; (iv) any tax imposed upon this transaction and (v) any
charge or fee replacing any tax previously included within the definition of
real property tax. "Property Taxes" do not, however, include (1) Landlord's
federal or state income, franchise, inheritance or estate taxes, or (2) except
as otherwise provided below, any tax imposed based upon a change in ownership of
the Premises or the Shopping Center. Notwithstanding the preceding
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sentence, "Property Taxes" shall include any tax imposed based upon a change in
ownership of the Premises or the Shopping center caused by (1) the first
transfer of all or part of Landlord's interest in all or part of the Premises or
the Shopping Center to an unrelated third party following the Commencement Date,
and (2) the first transfer of Landlord's interest in all or part of the Premises
---
or the Shopping Center to family members of the general or limited partners of
Landlord or to the family members of the shareholders, officers or directors of
such general or limited partners, whether by gift, devise, testamentary transfer
or intestate succession, or to or from a trust for the benefit of an heir at law
(or an heir at law of any such partner or shareholder, officer or director) or
for the benefit of Landlord, following the Commencement Date.
9.3 ADDITIONAL RENT. All sums of money required to be paid pursuant to
the terms of this Article 9, and all other sums of money or charges required to
be paid by Tenant under this Lease, whether or not such sums are specifically
designated as additional rent, shall constitute rent. All amounts required to
be paid by Tenant hereunder are sometimes collectively referred to as "Rent."
9.4 INTEREST AND LATE CHARGES. If Tenant fails to pay within five (5)
business days of the date due and payable, any Rent, additional rent, or other
sums due from Tenant under this Lease, the unpaid amounts shall bear interest at
the rate of ten percent (10%) per annum from the date due to the date of
payment.
Tenant acknowledges that its late payment of any monthly installment of
Minimum Annual Rent will cause Landlord to incur certain costs and expenses not
contemplated under this Lease, the exact amount of which is extremely difficult
or impractical to fix. Such costs and expenses will include, without limitation,
loss of use of money, administrative and collection costs, and processing and
accounting expenses. Therefore, if any installment of Minimum Annual Rent is
not received by Landlord from Tenant by the fifth (5th) day of the month for
which such installment is due, Tenant shall immediately pay to Landlord a late
charge equal to four percent (4%) of such installment. Such late charge is in
addition to any interest due pursuant to the preceding paragraph of this Section
9.4 Landlord and Tenant agree that this late charge represents a reasonable
estimate of costs and expenses incurred by Landlord from, and is fair
compensation to Landlord for its loss suffered by, such nonpayment by Tenant.
Acceptance of this late charge shall not constitute a waiver of Tenant's default
with respect to such nonpayment by Tenant nor prevent Landlord from exercising
any other rights and remedies available to Landlord under this Lease.
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9.5 PAYMENT OF RENT. All Rent and other payments due under this Lease
shall be paid by Tenant to Landlord at the address set forth in Section 3.e.
above or at such place as may from time to time be designated by Landlord in
writing at least 10 days prior to the next ensuing payment date.
10. POSSESSION AND USE.
10.1 PERMITTED USES AND PROHIBITED CONDUCT. Possession of the Premises
shall be delivered to Tenant free and clear of all tenants and occupants and the
rights of either. Tenant shall use the Premises solely for the purposes set
forth in Section 3.n. (Tenant's Use Clause) and this Article 10. Tenant shall
not use or permit all or any part of the Premises to be used for any other
purposes. Tenant shall not, without the prior written consent of Landlord, sell
merchandise from vending machines or allow any coin operated vending or gaming
machines on the Premises, except for vending machines located inside Tenant's
Building and used exclusively by Tenant's employees for on Premises consumption.
Tenant shall not use or permit any person to use the Premises for conducting a
second-hand store, auction, distress or fire sale or bankruptcy or going-out-of-
business sale, or for any use or purpose in violation of the laws, ordinances,
regulations and requirements of the United States or the State, County and City
where the Shopping Center is located, or any other lawful authority. Tenant
shall, during the Term, keep the Premises in a clean condition, free of any
objectionable noises, odors or nuisances, and shall comply with all health and
police regulations. All trash and rubbish of Tenant shall be deposited only in
receptacles provided by Tenant and no other trash receptacles shall be permitted
to remain outside the Premises or Building. Landlord shall cause such
receptacles to be emptied and trash removed at Tenant's expense. Tenant shall
not cause or permit waste to occur in the Premises and shall not overload any
floor or abuse the plumbing in the Premises.
Tenant may not display or sell merchandise or allow carts, devices or any
other objects to be stored or, to remain outside the defined exterior walls,
roof or permanent doorways of the Premises. No aerials, antennae or satellite
equipment shall be erected on the roof or exterior walls of the Premises or
Building without first obtaining, in each instance, the written consent of
Landlord, which consent shall not be unreasonably withheld. Any aerial or
antenna so installed without Landlord's written consent may be removed without
notice at any time, at Tenant's expense. Tenant shall not solicit or distribute
materials in any manner in any of the Common Areas (including automobile parking
facilities) in the event any other tenant of the Shopping Center reasonably
objects.
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10.2 INSURANCE COVERAGE USE RESTRICTIONS. Tenant shall not do anything in
or about the Premises which increases the insurance rates on the Shopping center
or any part thereof or impairs the ability to maintain insurance coverage on the
Shopping Center, or any part thereof. Tenant agrees to pay to Landlord promptly
upon demand the amount of any increases in Landlord's insurance premiums caused
by Tenant's violation of these restrictions, whether or not Landlord has
consented to such act(s) by Tenant. If Tenant installs any electrical equipment
in the Premises which overloads the electrical lines of the Premises, Tenant
shall, at its expense, make any changes and install any fire extinguishing
equipment required by Landlord's insurance underwriters or applicable fire,
safety and building codes and regulations. Nothing herein contained constitutes
Landlord's consent to such overloading.
10.3 DELIVERIES. Tenant shall use its best efforts to complete all
deliveries, loading, unloading and services to the Premises before 10:00 a.m.
each day. Tenant shall attempt to prevent any delivery trucks or other vehicles
servicing the Premises from parking or standing in front of, or at the rear of,
the Premises from 10:00 a.m. to 9:00 p.m. of each day. Landlord reserves the
right to further regulate the activities of Tenant in regard to deliveries to
and servicing of the Premises, and Tenant agrees to abide by such further non-
discriminatory regulations of Landlord. This clause shall not apply to armored
vehicles.
11. UTILITIES SERVICES.
11.1 UTILITIES INSTALLATION. Landlord agrees that to the extent provided
for in Exhibit "C" hereof, it will initially bring up to the interior walls of
Tenant's Premises (i) facilities for the removal of sewage and the delivery to
and distribution within the Premises of water, electricity, telephone and
natural gas (these facilities are collectively referred to in this Article 12 as
"utilities"), and (ii) a heating, ventilation and air conditioning system (the
"HVAC system"). Unless Landlord agrees otherwise, Tenant shall use only those
utilities provided for under Exhibit "C" to serve the Premises. If required
under Exhibit "C", a separate meter shall measure the consumption of utilities
and/or the HVAC system.
If not required to be furnished by Landlord under Exhibit "C", Tenant shall
be responsible for obtaining any utilities and/or HVAC system required for
Tenant's business operations in the Premises.
11.2 UTILITIES AND HVAC SYSTEM CHARGES. Tenant shall pay for all utilities
used by Tenant on the Premises from and after substantial completion of
Landlord's Work in the Premises.
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Landlord, at Landlord's cost, shall cause separate meters for the Premises to be
installed as part of Landlord's Work. Tenant shall pay directly to the
appropriate utility company the cost of all such utilities used on the Premises.
11.3 NO LANDLORD LIABILITY. Landlord shall not be liable in damages or
otherwise for any failure or interruption of (i) any utility service being
furnished to the Premises, or (ii) operation of the HVAC system, unless due to
Landlord's gross negligence or willful misconduct. No such failure or
interruption shall entitle Tenant to terminate this Lease or stop paying any
Rent or other payments due hereunder. If such failure or interruption is caused
by Landlord's gross negligence or willful misconduct and as a result thereof
Tenant cannot conduct its business from the Premises, then, following 48 hours'
prior notice to Landlord, Tenant shall have the right to make any necessary
repairs or take any other reasonable action necessary to restore such utility
service or operation of the HVAC system, without being required to comply with
the provisions of Paragraph 26 hereof, and Tenant shall have the right to
recover from Landlord all costs reasonably incurred by Tenant in restoring such
service.
12. INDEMNITIES.
12.1 Tenant shall indemnify and hold Landlord harmless from any and all
costs, claims or liability of any kind arising out of: (a) Tenant's use and
occupancy of the Premises, (b) the conduct of Tenant's business or any work,
activity or other things allowed or permitted by Tenant to be done in or on the
Premises; (c) any breach or default in the performance of any of Tenant's
obligations under this Lease; (d) any misrepresentation or breach of warranty by
Tenant under this Lease; and/or (e) any other acts or omissions of Tenant, its
agents, employees, invitees, or contractors, except to the extent caused by
Landlord's gross negligence or willful misconduct. Tenant shall, at Tenant's
expense, and by counsel reasonably satisfactory to Landlord, defend Landlord in
any action or proceeding arising from any such claim or liability and shall
indemnify Landlord from and against all costs, attorney's fees, expert witness
fees and any other expenses incurred in such action or proceeding. As a
material part of the consideration for Landlord's execution of this Lease,
Tenant hereby assumes all risk of damage to property or injury to persons in, on
or about the Premises from any cause, and Tenant hereby waives all claims in
respect thereof against Landlord, except for any claim arising out of Landlord's
gross negligence or willful misconduct.
12.2 Landlord shall indemnify and hold harmless Tenant from any and all
costs, claims or liability suffered by Tenant as a
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direct result of Landlord's gross negligence or willful misconduct in connection
with the performance of its agreements and obligations under this Lease.
13. INSURANCE - WAIVER OF SUBROGATION.
13.1 TENANT'S INSURANCE OBLIGATIONS. Tenant shall, from and
after the earlier of (a) substantial completion of Landlord's Work in the
Premises, or (b) commencement of any of Tenant's Work in the Premises, and for
the reminder of the Lease Term maintain, at its expense, the following types of
insurance coverage, in the amounts specified and in the forms hereinafter
provided for:
(i) LIABILITY INSURANCE. Commercial general liability insurance
insuring Tenant against liability for bodily injury, property damage (including
loss of use of property) and personal injury arising out of the operation, use
or occupancy of the Premises. Such policy shall be an occurrence form and shall
include owner's and Contractor's Protective Liability with respect to
construction of improvements by Tenant on the Premises. Tenant shall name
Landlord as an additional insured under such policy. The initial amount of such
insurance shall be not less than $3,000,000 per occurrence. The liability
insurance obtained by Tenant under this Section 13.1 (i) shall (1) be primary
and non contributing; (2) contain cross-liability endorsements; and (3) insure
Landlord against Tenant's performance under Article 12.1(a), (b) and (e) if the
matters giving rise to the indemnity under Article 12 result from the negligence
of Tenant. The amount and coverage of such insurance shall not limit Tenant's
liability nor relieve Tenant of any other obligation under this Lease.
(ii) PLATE GLASS. Insurance covering the full replacement cost of all
plate glass on the Premises, including without limitation any plate glass walls.
Tenant shall have the option to self-insure this risk.
(iii) TENANT IMPROVEMENTS. Insurance covering all of the items
specified as "Tenant's Work" in Exhibit "C", Tenant's leasehold improvements,
alterations, additions or improvements permitted under Article 15, and Tenant's
trade fixtures, merchandise and personal property from time to time in, on or
upon the Premises. Such insurance shall cover not less than 100% of the full
replacement cost of the foregoing from time to time during the Term, and shall
provide protection against any peril included within the classification of fire,
extended coverage, sprinkler leakage, vandalism, theft, malicious mischief and
special extended perils (all risk), except earthquake and flood. Any policy
shall
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name Landlord as loss-payee and policy proceeds shall be used for the repair or
replacement of the property damaged or destroyed unless this Lease is terminated
under the provisions of Article 22 hereof.
(iv) GENERAL INSURANCE PROVISIONS.
a. Any insurance required to be maintained by Tenant hereunder
shall include a provision which requires the insurance carrier to give Landlord
not less than thirty (30) days' written notice prior to any cancellation or
modification of such coverage.
b. A certificate of the insurer or the insurer's legal
representative evidencing the existence and amount of each insurance policy
required of Tenant hereunder shall be delivered to Landlord before the date
Tenant is first given the right of possession of the Premises, and thereafter at
least 30 days prior to the expiration of any such policy. Landlord may, at any
time and from time to time, inspect and/or copy any insurance policies required
to be maintained by Tenant hereunder. No such policy shall be cancelable except
after 30 days' written notice to Landlord. If Tenant fails to deliver any such
evidence of insurance to Landlord required under this Lease within the
prescribed time period or if any such policy is cancelled or modified during the
Lease Term without Landlord's consent, Landlord may obtain such insurance
coverage, in which case Tenant shall reimburse Landlord for the cost of such
insurance within fifteen (15) days after receipt of a statement therefor.
c. All insurance shall be maintained with companies holding a
"General Policy Rating" of A-VIII or better, as set forth in the most current
issue of "Best's Key Rating Guide." Landlord and Tenant acknowledge the
insurance markets are rapidly changing and that insurance in the form and
amounts described in this Section 13.1 may not be available in the future.
Tenant acknowledges that the insurance described in this Section 13.1 is for the
primary benefit of Landlord. If at any time during the Lease Term, Tenant is
unable to maintain the insurance required under the Lease, Tenant shall
nevertheless maintain insurance coverage which is customary and commercially
reasonable in the insurance industry for Tenant's type of business, as that
coverage may change from time to time. Landlord makes no representation as to
the adequacy of such insurance to protect Landlord's or Tenant's interests.
13.2 LANDLORD'S INSURANCE OBLIGATIONS. Landlord shall, in connection with
its ownership and operation of the Shopping center,
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at all times from and after commencement of Landlord's Work in the Premises,
maintain or cause to be maintained in effect policies of insurance providing
protection against the following liabilities and/or risks: (a) commercial
general liability insurance in an amount not less than $3,000,000 combined
single limit for bodily injury and property damage, and (b) fire and extended
coverage insurance (including coverage for Common Area sprinkler damage,
vandalism and malicious mischief, and, if required by any lender holding a
security interest in the Shopping Center or if deemed necessary by Landlord,
flood and earthquake insurance) on the Shopping Center in an amount not less
than the full replacement cost (exclusive of the cost of excavations,
foundations and footings) from time to time during the Term. The types and
coverages of insurance maintained by Landlord hereunder shall be subject to such
further requirements as may be imposed by Landlord's lender. Landlord shall also
have the right to maintain such additional types and coverages of insurance
(including business interruption insurance) as are customary, prudent or
reasonable for shopping centers similar to the Shopping Center. Landlord's
obligation to carry the insurance provided for herein may be satisfied by
blanket policies carried by Landlord or, maintained by one or more tenants of
the Shopping Center so long as the coverage required hereunder is satisfied.
13.3 WAIVER OF SUBROGATION. Landlord and Tenant (for themselves and their
insurers) each hereby waive all rights of recovery against the other and against
the officers, employees, agents and representatives of the other, against any of
the parties to the REA referred to in Article 14 hereof (the "Parties") and
against other tenants of the Shopping Center (provided such Parties and other
tenants have waived such rights against Landlord and Tenant), on account of any
loss by or damage to the waiving party or its property or the property of others
under its control (including as to Tenant the Premises and its contents, and as
to Landlord the other portions of the Shopping Center), to the extent such risk
is covered by insurance; provided that nothing contained in the preceding
sentence shall be deemed to relieve either party of its obligation to carry the
insurance required of such party under this Lease. The foregoing waivers of
subrogation shall be required hereunder only if (a) then available in the State
where the Shopping Center is located, and (b) such waiver does not invalidate
the applicable policy.
14. TITLE OF LANDLORD.
Landlord's estate in the Shopping Center and Tenant's leasehold estate in the
Premises is subject to the liens or restrictions of (a) any matters or documents
of record (the "Matters of Record"),
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including the effect of any covenants, conditions, restrictions, easements,
mortgages or deeds of trust, ground leases, rights of way or any construction,
operation and reciprocal easement agreement (the "REA"); and (b) the effect of
any zoning laws of the City, County and State where the Shopping Center is
located. Tenant agrees that (i) Tenant and all persons in possession of Tenant's
leasehold estate or holding under Tenant will conform to and will not violate
the terms of any REA or any other Matters of Record, and (ii) this Lease is
subordinate to the REA, if any, and any amendments or modifications thereto. If
the REA, if any, is not of record as of the date of this Lease, then this Lease
shall automatically become subordinate to the REA upon recordation of the REA,
provided Tenant has approved such REA, in the exercise of Tenant's reasonable
discretion. Tenant agrees to execute and return to Landlord within 10 days after
written demand therefor by Landlord, an agreement in recordable form
satisfactory to Landlord subordinating this Lease to the REA. Any REA shall not
prevent Tenant from using the Premises for the purposes set forth in Tenant's
Use Clause.
15. TENANT'S RIGHT TO MAKE ALTERATIONS.
15.1 PERMITTED IMPROVEMENTS. Subject to the terms of this Article 15,
Tenant may from time to time after completion of Tenant's Work and at its own
expense, make alterations, additions, improvements and changes (individually and
collectively referred to in this Article 15 as "improvements") in and to the
interior of the Premises after first giving notice to Landlord of the
improvement work proposed to be done and providing Landlord with all plans for
such proposed improvement work. Tenant may "not make any improvement which
reduces the value of the Premises or is of a structural nature. No single
improvement costing more than $2,500, and no improvements in the aggregate
costing more than $10,000 may be made without first obtaining the written
approval of Landlord, which approval shall not be unreasonably withheld. In
addition, no improvement shall be made to any storefront, mechanical system, or
exterior wall or to the roof of the Premises, nor shall Tenant erect any
mezzanine or increase the size of an existing mezzanine, unless and until the
written consent and approval of Landlord is first obtained.
No penetration into or through the roof or floor of the Premises may be
made without Landlord's prior written approval of the reason for such
penetration and the method by which it is to be done. If Landlord approves any
such penetration, Landlord shall have the absolute right to select and supervise
the contractor performing such penetration. Tenant shall be liable for any
damage
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caused by any such penetration, whether or not so approved by Landlord.
Tenant shall reimburse Landlord for all out-of-pocket costs incurred by
Landlord (including architect's and/or engineer's fees) in approving Tenant's
plans for improvements, provided such costs do not exceed $2,500.
15.2 CONSTRUCTION REQUIREMENTS. All improvements to be made to the
Premises which require the approval of Landlord shall be performed under the
supervision of a competent architect or competent licensed structural engineer
and shall be made in accordance with plans and specifications first approved in
writing by Landlord before the commencement of work. All improvements shall be
constructed in a good and workmanlike manner in accordance with all applicable
laws (including any laws relating to the use of hazardous materials, such as
asbestos-containing materials) and diligently completed. Before commencement of
any construction, Tenant shall deliver a copy of any required building permit to
Landlord and shall provide Landlord with a list of all contractors or
subcontractors being used. Upon completion of such improvements, Tenant shall
file a Notice of Completion for record in the office of the County Recorder
where the Shopping Center is located, as required or permitted by law. Tenant
shall provide Landlord with "as built" plans, copies of all construction
contracts, and proof of payment of all labor and materials in connection with
any improvements made to the Premises. Upon expiration or earlier termination
of this Lease, such improvements shall become a part of the Premises and shall
---
not be removed by Tenant, unless Landlord has otherwise agreed in writing.
Without limiting the foregoing, Landlord hereby approves the removal by Tenant
of its portable vault and all contents thereof, its exterior signage and all
non-attached personal property at the end of the Lease Term, provided that
Tenant shall be required to repair all damage caused thereby and to install
finished wall surfaces in accordance with Landlord's specifications. In
constructing such improvements, Tenant shall have the work performed in such a
manner as not to obstruct access to the Premises of any other tenant in the
Shopping Center.
15.3 INSURANCE REQUIREMENT. If Tenant makes any permitted improvements to
the Premises under the provisions of this Article 15, Tenant shall carry
insurance covering any such improvements satisfying the requirements of Section
13.1(iii). It is expressly understood and agreed that no such improvements will
be insured by Landlord under the insurance it may carry upon the Building or
Shopping Center, nor shall Landlord be required to
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reinstall any such improvements made by Tenant under any provision of Article 22
for reconstruction of the Premises.
16. MECHANICS' LIENS.
16.1 TENANT'S COVENANTS. Tenant shall pay all costs for work done by or
for Tenant in the Premises (other than Landlord's Work), and Tenant shall keep
the Premises, Building and Shopping Center free of all mechanics' liens and
other liens on account of work done for Tenant. Tenant shall indemnify, defend
and hold Landlord harmless from and against any and all liability, loss, damage,
costs, attorneys' fees and all other expenses on account of claims of lien of
laborers or materialmen or others f or work performed or materials or supplies
furnished to or for Tenant or persons claiming under Tenant. In addition,
Tenant shall keep Tenant's leasehold interest and any of those improvements to
the Premises which are or become property of Landlord pursuant to this Lease
free of all attachment or judgment liens.
16.2 TENANT'S CONTEST OF LIEN. If Tenant desires to contest any claim of
lien arising from work done by or for Tenant in the Premises, Tenant shall first
furnish Landlord adequate security in the amount of the claim, plus estimated
costs and interest, or a bond of a responsible corporate surety in such amount,
conditioned on the discharge of the lien. If a final judgment establishing the
Validity or existence of any such lien for any amount is entered, Tenant shall
immediately pay and satisfy such judgment.
16.3 LANDLORD'S RIGHT TO CURE. If Tenant is in default in paying any
charge for which a lien claim and suit to foreclose the lien have been filed,
and Tenant has not given Landlord adequate security to protect the Premises, the
property therein, and the Building, Shopping Center and Landlord from liability
for such claim of lien, Landlord may (but shall not be required to) pay the
claim and any associated costs, and the amount so paid, together with reasonable
attorneys' fees incurred in connection with such payment shall be immediately
due and owing from Tenant to Landlord. Tenant shall pay the amounts so owed to
Landlord with interest at the rate of ten percent (10%) per annum from the date
of Landlord's payment.
16.4 NOTICE OF LIEN. If any claim of lien is fired against the Premises or
any action affecting the title to the Premises or the property therein is
commenced, the party receiving notice of such lien or action shall immediately
give the other party written notice thereof.
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16.5 NOTICE OF NON-RESPONSIBILITY. During construction of improvements by
Tenant, Landlord or its representatives shall have the right to enter and
inspect the Premises, upon reasonable advance notice to Tenant, at all
reasonable times and shall have the right to post and keep posted thereon
notices of non responsibility, or such other notices which Landlord deems
proper for the protection of Landlord's interest in the Premises. Tenant shall,
before commencing any work which might result in the filing of a lien, give
Landlord written notice of its intention to so commence work in sufficient time
to enable Landlord to post such notices.
17. ADVERTISING MEDIA.
Tenant shall not affix or maintain upon the glass panes or supports of the show
windows (or within 24 inches of any show window), doors or exterior walls of the
Premises, any signs, advertising placards, names, insignia, trademarks,
descriptive material or any other like item(s) (collectively, "signs") without
having first received the written approval of Landlord (which approval shall not
be unreasonably withheld) as to the size, type, color and location of such item.
Notwithstanding the foregoing, Tenant may affix advertising posters and banners
upon the glass panes of the show windows of a type that are usual and customary
for financial institutions so long as such materials do not constitute a
nuisance and do not violate the terms of any other lease of space in the
Shopping Center. Tenant shall not affix any sign to the roof of the Premises.
Tenant shall not utilize any advertising medium which can be seen or heard
outside the Premises, including without limitation, flashing lights,
searchlights, loudspeakers, phonographs, radios or television. Tenant shall not
display, paint or place any bumper stickers or other advertising devices (other
than handbills) on any vehicle parked in the parking area of the Shopping
Center, nor shall Tenant distribute any advertising devices (other than
handbills) in the Shopping Center.
Prior to initially opening for business in the Premises Tenant, shall erect
its storefront sign(s) in accordance with the provisions of the sign criteria
attached hereto as Exhibit "E". Tenant shall not install, erect or maintain any
sign in violation of any applicable law, ordinance or use permit of any
governmental authority. Upon termination of the Lease, Tenant shall, at
Tenant's sole expense, remove any and all of its signs and repair damage
resulting from such removal, including patching all holes and repainting walls
to match the existing color to the reasonable
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satisfaction of an independent architect and/or designer selected by Landlord.
Tenant shall have the right to maintain or replace a sign upon the free
standing pylon sign to be constructed by Landlord in the location shown on the
Site Plan, subject to Landlord's approval of the size, materials, color, design,
type and location of such sign. Landlord shall secure the approval of all
governmental authorities for the pylon sign, provided it is understood that
Tenant shall be responsible for obtaining approval of its sign face. It is
further understood that Landlord shall have no obligation to construct such
pylon sign in the event Landlord is unable to obtain governmental approval.
Tenant shall share the cost of maintaining and operating such pylon sign with
the other tenants represented on such pylon sign. Tenant shall also pay its pro
rata share of the initial cost of the construction of the pylon sign based on
its share of the sign space represented on said pylon sign. Within 10 business
days after Landlord's submission of the pylon sign design to Tenant, Tenant
shall notify Landlord in writing if it wishes to maintain a place on the pylon
sign on the terms and conditions contained herein. If Tenant fails to notify
Landlord in writing within such 10 business day period that it wishes to
maintain a place on the pylon sign on the terms and conditions contained herein,
Tenant shall have no further right under this Lease to maintain a sign on the
pylon sign.
Subject to obtaining the approval of all other tenants of the Shopping
Center, Tenant shall have the right to construct a monument sign in a location
in front of the Premises to be approved by Landlord. Tenant shall pay all of
the costs of constructing and maintaining such sign to a standard consistent
with the standards, of the Shopping Center. The size, materials, design, color,
type and location of such sign shall be subject to approval by Landlord, which
approval shall not be unreasonably withheld or delayed.
18. FIXTURES AND PERSONAL PROPERTY.
18.1 REMOVAL AND REPLACEMENT. All of Tenant's trade fixtures, furnishings,
furniture, signs and other personal property not permanently affixed to the
Premises (Collectively referred to as "Personal Property") shall be in good
condition when installed in or attached to the Premises by Tenant and shall
remain the property of Tenant. If Tenant is not then in default under the terms
of this Lease, Tenant shall have the right to remove its Personal Property from
the Premises, including without limitation, counters, shelving, showcases,
mirrors and other movable Personal Property, but prior to the expiration of the
Term Tenant may not remove so much of its Personal Property without immediately
replacing it with
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comparable or better quality Personal Property, as to render the Premises
unsuitable for conducting the business specified in Tenant's Use Clause. Tenant
shall, at its expense, immediately repair any damage to the Premises resulting
from removal of its Personal Property, and on the expiration or earlier
termination of the Term shall leave the Premises in a neat and clean condition,
free of debris, reasonable wear and tear and damage from casualty or
condemnation (so long as Tenant assigns any and all proceeds and awards payable
with respect thereto to Landlord) excepted.
18.2 FIXTURES. All improvements to the Premises made by or for Tenant,
excluding Tenant's Personal Property, but including mechanical systems, light
fixtures, floor coverings and partitions and all other items comprising Tenant's
Work pursuant to Exhibit "C" (collectively referred to as "Fixtures"), shall
become the property of Landlord upon expiration or earlier termination of this
Lease, unless Landlord has otherwise agreed in writing.
18.3 PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency all
taxes (including sales and use taxes), assessments, license fees and public
charges levied, assessed or imposed upon its business operations, merchandise,
trade fixtures and/or Personal Property. If any such items of property are
assessed with any other property owned or controlled by Landlord and relating to
the Shopping Center, Tenant shall pay Landlord the taxes attributable to
Tenant's personal property within 15 days after Tenant's receipt of a written
statement from Landlord setting forth such personal property taxes. Landlord
shall reasonably determine the basis of prorating any such assessments and such
determination shall be binding on Landlord and Tenant, absent manifest error.
No taxes, assessments, fees or charges referred to and billed to Tenant under
this paragraph shall be considered to be taxes under the provisions of Section
9.2 hereof.
19. ASSIGNING, MORTGAGING, SUBLETTING, CHANGE IN OWNERSHIP.
19.1 ONE YEAR PROHIBITION AGAINST TRANSFER. Landlord and Tenant
acknowledge that the Shopping Center is an interdependent enterprise and that
each party's realization of the benefits of this Lease depends upon Tenant's
creating and maintaining a successful and profitable retail operation in the
Premises. Landlord and Tenant further acknowledge that the character and quality
of Tenant's operation, and of the Shopping Center, will be enhanced by Tenant's
use of its best efforts, for a reasonable period of time, to establish a
successful business and business image. Landlord and Tenant further agree that
one year is a reasonable period of time to attempt to achieve this goal.
Accordingly, Tenant agrees that for a period of one year from the
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date Tenant initially opens to the public for business in the Premises (the
"Occupancy Period"), Tenant shall not, and shall not have the power to, transfer
or assign this Lease, sublet the Premises, enter into license or concession
agreements, or change ownership (such transactions are hereinafter individually
and collectively referred to as a "Transfer"), without first procuring the
written consent of Landlord, which may be given or withheld in Landlord's sole
and absolute discretion. Notwithstanding the foregoing, a merger, stock sale or
other corporate reorganization of Tenant shall not constitute a "Transfer" for
purposes of this Paragraph 19.1 only. After the expiration of the Occupancy
Period, Landlord's consent to any Transfer shall not be unreasonably withheld,
subject to the terms, covenants and conditions contained below.
19.2 RESTRICTIONS ON TRANSFER. If after expiration of the Occupancy Period
Tenant desires to effect a Transfer to anyone (a "Transferee") other than a
successor, subsidiary, affiliated or controlling corporation of Tenant (an
"Affiliate"), Tenant shall give written notice ("Transfer Notice") to Landlord
at least 30 days before the effective date of any such proposed Transfer. The
Transfer Notice shall state (a) whether Tenant proposes to assign the Lease,
sublet the Premises, enter into a license or concession agreement or change
ownership, (b) the proposed effective date of the Transfer, (c) the identity of
the proposed Transferee, (d) all other material terms of the proposed Transfer,
and (e) in detail the type of business operation the proposed Transferee intends
to conduct on the Premises. The Transfer Notice shall be accompanied by a copy
of the proposed agreement documenting the Transfer, or if none, a copy of any
offers, draft agreements, letters of commitment or intent and other documents
pertaining to the proposed Transfer. In addition, the Transfer Notice shall be
accompanied by the proposed Transferee's income statements and balance sheets
covering the preceding 36-month period, and each shall be certified as accurate
by the Transferee. Landlord may, at any time within 30 days after its receipt
of Transfer Notice, grant or withhold consent to such proposed Transfer (which
consent shall not be unreasonably withheld under thee business judgment
standards set forth in Section 19.3 below) by mailing written notice to Tenant
of its decision ("Decision Notice"). If Landlord consents to the proposed
Transfer, Tenant may thereafter promptly effect a Transfer in accordance with
the terms of Tenant's Transfer Notice.
If Landlord consents to the proposed Transfer and Tenant does not
consummate the proposed Transfer within 30 days after receipt of the Decision
Notice, the provisions of the first paragraph of this Section 19.2 shall again
apply.
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19.3 GROUNDS FOR WITHHOLDING CONSENT. Landlord may withhold consent to a
proposed Transfer if, in Landlord's reasonable business judgment, any of the
following is the case: (i) the proposed Transfer may result in deterioration in
the quality of operation conducted in the Premises, as compared to the
operation, conducted by Tenant prior to the date of Transfer Notice; (ii) the
proposed Transferee lacks a good business reputation or sufficient relevant
business experience in Landlord's reasonable judgment; (iii) the financial worth
of the proposed Transferee as of the date of the Transfer Notice is (x) less
than the financial worth of Tenant as of the date of this Lease, if the date of
the Transfer Notice is during the original term of this Lease, or (y) less than
$5,000,000 (as adjusted for changes in the Consumer Price Index, Los
Angeles/Anaheim/Riverside area, All Urban Wage Earners), if the date of the
Transfer Notice is during an option period; (iv) the proposed Transferee's
proposed use of the Premises conflicts with Tenant's Use Clause and/or Article
10; or (vi) the proposed Transfer would breach any covenant of Landlord
respecting restrictions, use or exclusivity rights in any other lease, or any
financing or other agreement relating to the Shopping Center. Any attempted or
purported Transfer without Landlord's written consent shall be void and of no
force or effect.
19.4 NO RELEASE FROM LIABILITY. No Transfer, whether with or without
Landlord's consent, shall relieve Tenant or any guarantor of Tenant's
obligations under this Lease, if any, from its covenants and obligations
hereunder during the Term. Tenant shall, promptly upon demand, reimburse
Landlord for Landlord's reasonable attorneys' fees incurred in conjunction with
the processing and documentation of any requested Transfer, up to $2,500.
19.5 TRANSFEREE'S OBLIGATIONS. Each Transfer to which Landlord has
consented shall be evidenced by a written instrument in form reasonably
satisfactory to Landlord, and executed by Tenant and the Transferee. Each such
Transferee shall agree in writing for the benefit of Landlord to assume, be
bound by, and perform the terms, covenants and conditions of this Lease to be
performed, kept or satisfied by Tenant, including the obligation to pay to
Landlord all amounts coming due under this Lease. One fully executed copy of
such written instrument shall be delivered to Landlord. Failure to obtain in
writing Landlord's prior consent or otherwise comply with the provisions of this
Article 19 shall prevent any Transfer from becoming effective.
19.6 DIVISION OF PROFIT BETWEEN LANDLORD AND TENANT. Any sums or other
economic consideration received by Tenant as a result of a Transfer, however
denominated, which exceed, in the aggregate, (i) the total sums which Tenant is
obligated to pay Landlord under
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this Lease (prorated to reflect obligations allocable to any portion of the
Premises subleased), plus (ii) the unamortized value of leasehold improvements
to the Premises paid for by Tenant prior to the date of Transfer Notice,
depreciated on a straight-line basis over the Term, plus (iii) any real estate
brokerage commissions or fees payable by Tenant in connection with such
Transfer, plus (iv) costs of renovation or construction of improvements to the
Premises for the benefit of the Transferee required to be paid for by Tenant as
a part of the Transfer, shall be divided equally between Landlord and Tenant.
Landlord's share of such profit shall be paid to Landlord promptly following its
receipt, as additional rent under this Lease. Such payments shall not affect or
reduce any other obligations of Tenant hereunder.
19.7 FURTHER RESTRICTIONS. Tenant shall not, without the prior written
consent of Landlord (which consent shall not be unreasonably withheld), mortgage
or hypothecate this Lease or any interest herein. Tenant shall not permit the
Premises to be used by any party other than Tenant or a permitted Transferee.
Any of the foregoing acts without such consent shall be void and shall, at the
option of Landlord, constitute an uncurable default under this Lease. For
purposes of this Article 19, if Tenant is a partnership, any withdrawals or
change(s) of partners cumulatively owning a 50% or more interest in the
partnership, or if Tenant is a corporation, any transfer(s) cumulating 50% or
more of its stock, shall constitute a voluntary Transfer and shall be subject to
the provisions hereof. This Lease shall not, nor shall any interest of Tenant
herein, be assignable by operation of law without the written consent of
Landlord.
20. TENANT'S CONDUCT OF BUSINESS.
20.1 TENANT'S OPERATING COVENANTS. Tenant agrees that from and after its
initial opening for business it shall, subject to the provisions of Section 22.5
hereof, operate and conduct its business in the Premises during normal and usual
banking hours. Tenant shall at all times keep Premises in a neat, clean and
orderly condition.
20.2 Tenant recognizes that it is in the interests of both Tenant and
Landlord to regulate the minimum hours of business for all tenants of the
Shopping Center and Tenant agrees that commencing with its opening for business
in the Premises and for the remainder of the Term, it shall continuously open
for business during normal and usual banking hours.
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21. REPAIR AND MAINTENANCE OF THE PREMISES.
21.1 TENANT'S OBLIGATIONS. Tenant shall, at its expense and at all times
from and after substantial completion of the Premises, repair, replace and
maintain in good and tenantable condition, the Premises and every part thereof
(except portions of the Premises to be maintained by Landlord under Section
21.2), including without limitation, the utility meters, pipes and conduits
serving the interior of the Premises all fixtures, the storefront, plate glass,
all signs, locks and closing devices, all window sashes, casements or frames,
doors and door frames, security grilles or similar enclosures, floor coverings,
including carpeting, terrazzo or other special flooring, all other equipment
installed in the Premises, and all such items of repair, maintenance, alteration
and improvement or reconstruction to the Premises as may at any time or from
time to time be required by any governmental agency having jurisdiction thereof.
All exterior and interior glass in the Premises shall be maintained by Tenant
and any glass broken shall be promptly replaced by Tenant at its expense with
glass of the same kind, size and quality.
Tenant shall, at Tenant's expense, contract with a qualified service
company for the monthly maintenance of the HVAC system serving the Premises.
Upon surrender of the Premises, Tenant shall deliver the Premises to
Landlord in good order, condition and repair, but Tenant shall not be
responsible for ordinary wear and tear to the Premises, damage due to insured
casualty losses covered by Article 22 or for any items of repair which are
Landlord's obligation under Section 21.2.
21.2 LANDLORD'S OBLIGATIONS. Subject to Sections 21.1 and 24.2, Landlord
shall, at the sole expense of Landlord, repair and maintain in good and
tenantable condition the roof, exterior walls, building systems (except as
otherwise provided in Paragraph 21.1 above) structural parts of the Premises
(including the foundation and structural floor) serving the Premises. Subject
to Section 24.2, no expenses incurred by Landlord in performing its obligations
under this Section 21.2 shall be included as Rent under this Lease.
Notwithstanding anything to the contrary contained herein, Tenant shall be
responsible for the cost of general maintenance and repairs to the HVAC system
serving the Premises, and Tenant shall be responsible at its expense for making
any repairs necessitated by reason of the negligence of Tenant, or by reason of
the failure of Tenant to perform or observe any of its obligations under this
24
Lease or by reason of alterations, additions, or improvements to the Premises
made by tenant. Notwithstanding the foregoing, Landlord shall have the right
(but shall not be required) to make such repairs so necessitated by Tenant. If
Landlord elects to make such repairs on Tenant's behalf, Tenant shall pay to
Landlord any such costs incurred by Landlord promptly following receipt of a
xxxx therefor. Landlord shall assign to Tenant for Tenant's benefit during the
Term of this Lease all manufacturers' warranties relating to the HVAC system.
It is understood and agreed that Landlord is under no obligation to make
any repairs, alterations, replacements or improvements to the Premises or the
mechanical equipment exclusively serving the Premises at any time except as
expressly set forth in this Lease.
Notwithstanding anything to the contrary contained in this Lease, Landlord
shall not be liable to Tenant for failure to make repairs required of Landlord
hereunder unless Tenant has previously notified Landlord in writing of the need
for such repairs and Landlord has failed to commence and complete those repairs
within a reasonable period of time following receipt of Tenant's notice.
21.3 TENANT'S FAILURE TO MAINTAIN PREMISES. If Tenant fails to repair or
maintain the Premises, or any part thereof, as required by this Lease, Landlord
shall have the right (in addition to all other rights and remedies provided
herein for breach of this Lease), upon giving Tenant reasonable written notice
of its election to do so (and reasonable opportunity to cure), to make such
repairs or perform such maintenance on behalf of and for the account of Tenant.
In such event the cost of such work shall be paid to Landlord by Tenant promptly
following receipt of a xxxx therefor.
21.4 LANDLORD'S RIGHT OF ENTRY. Landlord or its authorized
representatives, upon reasonable prior notice to Tenant may enter the Premises
at reasonable times during business hours to inspect the Premises, make repairs
to the Premises authorized hereunder or perform any work therein (i) needed to
comply with any laws, ordinances, rules or regulations of any public authority
or the insurance services office or any similar body, (ii) that Landlord deems
necessary to prevent waste or deterioration in or to the Premises if Tenant
fails to make repairs or perform required work promptly after receipt of written
demand from Landlord, or (iii) that Landlord deems necessary in connection with
the expansion, reduction, remodeling, or renovation of any portion of the
Shopping Center. During such entry by Landlord and its authorized
representatives, Landlord and its authorized representatives shall
25
comply with Tenant's security requirements and shall at all times be accompanied
by Tenant. Nothing herein implies any duty of Landlord to do any such work
which, under any provision of this Lease, Tenant is required to do, nor shall
Landlord's performance of any repairs on behalf of Tenant constitute a waiver of
Tenant's default in failing to do such work. No exercise by Landlord of any
rights hereunder shall entitle Tenant to any compensation, damages or abatement
of Rent for any injury or inconvenience occasioned by such exercise, unless
caused by Landlord's gross negligence or willful misconduct. If Landlord makes
or performs any repairs provided for in (i) or (ii) above, Tenant shall pay the
cost thereof to Landlord as additional rent promptly upon receipt of xxxx
therefor.
22. CASUALTY DAMAGE AND RECONSTRUCTION.
22.1 INSURED CASUALTY. If the Premises are damaged by fire or other perils
covered by Landlord's fire and extended coverage insurance, then within 45 days
after the insurer's and Landlord's written approval of the insurer's proposed
insurance payment, Landlord shall commence repair, reconstruction and
restoration of the Premises and diligently complete such repairs, in which event
this Lease shall continue in full force and effect. Notwithstanding the
foregoing, if there is partial or total destruction of the Premises during the
last three (3) years of the Term, Landlord and Tenant shall each have the option
to terminate this Lease by written notice to the other given 30 days after such
destruction; provided, however, Tenant may negate Landlord's election to
terminate this Lease under this paragraph by notifying Landlord in writing
within 30 days thereafter that Tenant agrees to extend the term of the Lease for
an additional five (5) years following the scheduled expiration of the Term, on
the same terms and conditions as would be in effect during the last year of the
Term except that the initial Minimum Annual Rent for the first year of the
extension term shall be the Fair Rental Value of the Premises, as determined in
accordance with Paragraph 2 of the Addendum, and such Minimum Annual Rent shall
increase three percent (3%) per year at the beginning of the second and each
subsequent year of such extension term. If Tenant so elects, Landlord shall
commence repair, reconstruction and restoration of the Premises and diligently
complete same. During the period of reconstruction or repair by Landlord,
Tenant shall have the right to operate its business from a trailer situated at a
place in the Common Area to be designated by Landlord so long as such operation
does not violate the terms of applicable law or the terms of any other lease of
space in the Shopping Center. Notwithstanding anything to the contrary
contained in Section 22.2, the provisions of this Section 22.1 shall also apply
in the event of a casualty due to
26
earthquake if (a) Tenant maintains earthquake insurance for such risk and
Landlord receives and approves the insurer's insurance payment, and (b) Landlord
determines, in its reasonable discretion, that it is economically feasible for
Landlord to repair or reconstruct the Shopping Center.
22.2 UNINSURED CASUALTY. If the Premises are damaged by act of war,
nuclear reaction, nuclear radiation or radioactive contamination, or from any
other casualty not covered by Landlord's fire and extended coverage insurance
(including flood or earthquake damage if not covered under insurance maintained
by Landlord) and the cost of repairing or restoring the Premises exceeds Twenty
Five Thousand Dollars ($25,000), Landlord may following the date of such damage,
either (a) commence repair, reconstruction or restoration of the Premises and
diligently complete it, in which event this Lease shall continue in full force
and effect, or (b) elect not to repair, reconstruct or restore the Premises, in
which event this Lease shall cease and terminate as of the date of destruction.
In either such event Landlord shall give Tenant written notice of its election
hereunder within 90 days. If Landlord elects to reconstruct the Premises,
Tenant shall have the right to operate its business from a trailer situated at a
place in the Common Area to be designated by Landlord so long as such operation
does not violate applicable law or the terms of any other lease of space in, the
Shopping Center.
22.3 RECONSTRUCTION RESPONSIBILITIES. Any reconstruction of the Premises
under this Article 22 shall conform to the provisions of Exhibit "C" and shall
cover all work set forth therein as "Landlord's Work" and "Tenant's Work".
Landlord shall reconstruct the Premises only to the extent of Landlord's Work.
Tenant, at its expense, shall reconstruct all items set forth as Tenant's Work,
and shall replace its merchandise, trade fixtures, furniture, furnishings and
equipment. Tenant shall commence reconstruction of Tenant's Work promptly upon
delivery to it of possession of the Premises by Landlord with Landlord's Work
substantially completed and shall diligently complete Tenant's Work, replace its
merchandise, trade fixtures, furniture, furnishings and equipment, and resume
normal business operations in the Premises.
22.4 RELEASE FROM LIABILITY. Upon any termination of this Lease under any
of the provisions of this Article 22, each party shall be released from further
obligations to the other party under this Lease, except for any obligations
which have previously accrued. In the event of termination of this Lease, all
proceeds from Tenant's fire and extended coverage insurance under Section 13.1
covering the items set forth as "Tenant's Work" in Exhibit "C" and Tenant's
leasehold improvements, but excluding
27
proceeds for trade fixtures, furnishings, furniture, merchandise, signs and
other personal property, shall be paid to Landlord.
22.5 ABATEMENT OF RENT. In the event of reconstruction of the Premises
under this Article 22, the Minimum Annual Rent otherwise payable under this
Lease shall be abated proportionately with the degree to which Tenant's use of
the Premises is impaired. Such abatement shall commence on the date of
destruction and continue during any period of reconstruction and replacement
provided for in Section 22.3. Tenant shall continue to operate its business on
the Premises during any such abatement period to the extent practical as a
matter of prudent business management, and the obligation of Tenant to pay Rent
hereunder shall remain in full force and effect. Tenant shall not be entitled to
any compensation or damages from Landlord for loss of the use of the whole or
any part of the Premises, Building, Shopping Center or Tenant's personal
property, or for any inconvenience or annoyance suffered by reason of damage or
destruction thereto, or the reconstruction or replacement thereof, unless caused
by Landlord's gross negligence or willful misconduct.
22.6 WAIVER OF STATUTORY RIGHTS OF TERMINATION. Tenant hereby waives any
statutory rights of termination which may arise by reason of any partial or
total destruction of the Premises, Building or Shopping Center which Landlord is
obligated to restore or may restore under any of the provisions of this Lease.
23. EMINENT DOMAIN.
23.1 TAKINGS RESULTING IN TERMINATION. If the entire Premises is
appropriated or taken (a "taking") under the power of eminent domain by any
public or quasi-public authority (an "authority"), this Lease shall terminate as
of the date of such taking.
If 25% or more of the Floor Area of the Premises is taken under the power
of eminent domain by any authority, or if such taking renders the Premises
unusable as a bank, either Landlord or Tenant may terminate this Lease as of the
date Tenant is required to vacate a portion of the Premises, upon giving notice
in writing of such election within 30 days after receipt by Tenant from Landlord
of written notice that the Premises have been so taken. Landlord shall promptly
give Tenant notice in writing of any taking after learning of it.
If this Lease is terminated as provided in this Section 23.1 Landlord and
Tenant shall each be released from any further obligations to the other party
under this Lease, except for any obligations which have previously accrued.
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23.2 TAKINGS NOT RESULTING IN TERMINATION. If both Landlord and Tenant
elect not to exercise any right granted hereunder to terminate this Lease in
connection with a taking, or the Lease is not terminable in connection with a
taking, Tenant shall continue to occupy that portion of the Premises which was
not taken, and (a) at Landlord's cost and expense and as soon as reasonably
possible, Landlord will restore the Premises on the land remaining to a complete
unit of like quality and character as existed prior to such taking; and (b) the
Minimum Annual Rental provided for in Section 3.f. and Article 9 shall be
reduced on an equitable basis, taking into account the relative value of the
portion of the Premises taken as compared to the portion remaining. Tenant
hereby waives any statutory rights of termination which may arise by reason of
any partial taking of the Premises under the power of eminent domain.
23.3 AWARD. If this Lease is terminated under Section 23.1, or modified
under Section 23.2, Landlord shall be entitled to receive the entire
condemnation award for the taking of all real property interests in the
Premises. The Rent and other charges for the last month of Tenant's occupancy
shall be prorated and Landlord shall refund to Tenant any Rent or other charges
paid in advance. Notwithstanding the foregoing and provided Tenant's award does
not reduce Landlord's award, Tenant's right to receive a condemnation award for
the taking of its merchandise, Personal Property, goodwill, relocation expenses
and/or interests in other than the real property taken shall not be affected in
any manner by the provisions of this Section 23.3.
23.4 TRANSFER UNDER THREAT OF TAKING. For the purposes of this Article 23,
a voluntary sale or conveyance under threat of and in lieu of condemnation shall
be deemed a taking under the power of eminent domain.
24. COMMON AREAS.
24.1 USE OF COMMON AREAS. Tenant and its employees and invitees, except as
otherwise specifically provided in this Lease or the Shopping Center rules and
regulations or as otherwise designated from time to time by Landlord, are
authorized to use the Common Areas in common with other persons during the Term.
Landlord agrees that the Common Areas shall be initially constructed on the
areas generally shown on Exhibit "A," and, subject to the preceding sentence,
shall be maintained and operated at all times following completion thereof for
the benefit and/or use of the customers and patrons of Tenant and of other
tenants, owners and occupants of the Shopping Center. The original
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construction and installation of the Common Areas shall be at Landlord's
expense.
24.2 LANDLORD'S MAINTENANCE RESPONSIBILITIES; COMMON AREA COSTS. Landlord
shall keep the Common Areas and Shopping Center neat, clean and orderly,
property lighted and landscaped, and shall repair any damage to Common Area and
Shopping Center facilities, unless caused by Tenant's negligence or intentional
acts. Notwithstanding the foregoing, all expenses incurred by Landlord in
connection with the operation, repair, cleaning and maintenance of the Common
Areas and the Shopping Center ("Common Area Costs") shall be charged and
prorated in the manner set forth in this Article 24.
Common Area Costs shall include, without limitation., all sums expended in
connection with the Common Areas and Shopping Center for: general maintenance
and repairs; resurfacing; painting (including graffiti removal); re-striping;
cleaning; trash removal; snow and ice removal; sweeping and janitorial services;
lighting, and other utility expenses; maintenance, repair, cleaning and
replacement of public toilets, music program equipment and loudspeakers,
sidewalks, stairways, curbs, Shopping Center signs, sprinkler systems, planting
and landscaping, floors, walls, ceilings, roofs, skylights, windows, directional
signs, markers and bumpers, fire protection systems and equipment (including
fire sprinklers), security systems, lighting systems and fixtures (including
replacement of tubes and bulbs), storm drainage systems, plumbing, electrical,
and other utility systems which do not exclusively serve the interior of
tenants' premises, and all mechanical equipment (including automatic door
openers, escalators and elevators); personnel to implement the foregoing
services, including, if Landlord deems necessary, the cost of security guards;
all on-site costs and personnel expenses of Landlord incurred to manage the
Shopping Center (which may be contracted for with third parties) but excluding
time spent managing other property owned or leased by Landlord; all Property
Taxes on the improvements and land comprising the Common Areas and Shopping
Center or any personalty in use on the Common Areas or shopping Center; any sums
paid to third parties for the purpose of seeking reduction of Property Taxes;
any governmental imposition or surcharge imposed upon Landlord or assessed
against any portion of the Common Areas or Shopping Center; depreciation on
maintenance and operating machinery and equipment (if owned) and rental paid for
such machinery and equipment (if rented); and premiums for adequate
comprehensive general liability and property damage insurance covering
Landlord's ownership and operation of the Common Areas and Shopping Center,
including without limitation, fire and extended coverage insurance on the Common
Areas and the Shopping
30
Center (which may include earthquake and flood damage endorsements) and
vandalism and plate glass insurance covering the Common Areas and Shopping
Center. In addition, Common Area Costs shall include a sum to be payable to
Landlord for supervision of the Common Areas and for accounting, bookkeeping and
collection of Common Area Costs, in an amount equal to 10% of the total of all
of the foregoing Common Area Costs incurred in each calendar year. Landlord may
have any or all services and management performed in connection with the Common
Areas and Shopping Center provided by an independent contractor(s). In the event
Food 4 Less exercises its option to provide security for its control area, the
pro-rata share for determining Tenant's share of security is to be based on the
Shopping Center containing approximately 42,198 square feet of Floor Area.
If Landlord acquires, constructs or makes available for Common Area
purposes land or improvements not shown as part of the Shopping Center on
Exhibit "A", then Common Areas Costs shall also include all of the expenses
itemized above incurred and paid in connection with such additional land or
improvements.
24.3 METHOD OF PAYMENT.
(i) From and after the date Rent has commenced, and thereafter during
the Term, Tenant shall pay to Landlord, on the first day of each calendar month,
an amount estimated by Landlord to be Tenant's Proportionate Share of Common
Area Costs for the period covered by such estimate. This estimated monthly
charge may be adjusted by Landlord at the end of any calendar month on the basis
of Landlord's experience and reasonably anticipated Common Area Costs.
(ii) Within 60 days following the end of each calendar year (or as
soon thereafter as possible), Landlord shall furnish Tenant with a statement
showing the actual total of Common Area Costs for the preceding year, the actual
amount of Tenant's Proportionate Share of Common Area Costs for that year and
the payments made by Tenant for that year under subparagraph (i) above. If
Tenant's Proportionate Share of Common Area Costs exceeds the, estimated
payments made by Tenant under subparagraph (i) above, Tenant shall pay Landlord
the deficiency within 30 days after receipt of such statement. If Tenant's
estimated payments exceed Tenant's Proportionate Share of Common Area Costs,
Tenant may offset the excess against payments thereafter coming due under
subparagraph (i) above or receive a refund following the expiration of the Term.
There shall be an appropriate adjustment of Tenant's Proportionate Share of
Common Area Costs as of the commencement of
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Rent and expiration of the Term. Landlord's and Tenant's obligations hereunder
shall survive expiration of the Term.
Tenant's failure to pay any sums due hereunder shall constitute a default
under this Lease equivalent to a failure to pay Minimum Annual Rent when due.
Tenant shall have the right to audit the Common Area costs and the Property
Taxes and Tenant's Proportionate Share of Common Area Costs for a period of one
(1) year after the year to which such Common Area Costs and Property Taxes
relate. Upon Tenant's request and at Tenant's expense, Landlord shall provide
Tenant with copies of all books, supporting documents and other information
reasonably requested by Tenant to assist Tenant in its audit. The costs and
expenses of any audit shall be borne by Tenant, unless the audit shows a
discrepancy of at least three percent (3%) of Common Area Costs (inclusive of
Property Taxes) stated by Landlord, in which case Landlord shall reimburse
Tenant for all of the costs and expenses of the audit. If requested by Tenant,
Landlord shall provide adequate work space within Landlord's offices for
Tenant's authorized representatives to review such books, supporting documents
and other information.
24.4 CONTROL OF COMMON AREAS. Landlord shall have the right at all times
to determine the nature and extent of the Common Areas and to make changes from
time to time which in Landlord's opinion are desirable and in the best interests
of all persons using the Common Areas. Landlord's rights hereunder include
without limitation, the right to install, remove, relocate and change driveways,
entrances, exits, automobile parking spaces, the direction and flow of traffic,
prohibited areas, landscaped areas, utilities and all facilities of the
foregoing, provided Landlord does not materially change the size or location of
the Premises or the principal means of ingress to or egress from the Premises or
reduce the parking space availability below the City of Los Angeles'
requirements.
Landlord shall have exclusive control of the Common Areas, and may, without
limitation, lease space within the Common Areas to tenants for the sale of
merchandise or services, and permit advertising displays, educational displays
and entertainment in the Common Areas: provided, however, none of the foregoing
shall materially adversely affect the visibility or accessibility of the
Premises. Landlord may at any time and from time to time during the Term
exclude and restrain any person from use or occupancy of the Common Areas,
except for bona fide employees, customers, patrons and service suppliers of
Tenant and other tenants and occupants of the Shopping Center who use the Common
Areas in
32
accordance with the rules and regulations then established by Landlord. The
rights of Tenant under this Article 25 shall at all times be subject to the
rights of Landlord, the other tenants of Landlord and the other owners and
occupants of the Shopping Center to use the Common Areas in common with Tenant.
Tenant shall not create or permit any obstructions in the Common Areas and shall
permit its customers, patrons and service suppliers to use the Common Areas only
for normal parking and ingress and egress to and from the Building occupied by
Tenant.
24.5 RULES AND REGULATIONS. Landlord shall have the right to establish,
and from time to time change, alter and amend, and to enforce against Tenant and
the other users of the Common Areas, such reasonable and nondiscriminatory rules
and regulations (including the exclusion of employees parking from common Areas
from November 15 through and including January 4 of each year) as Landlord may
deem necessary or advisable for the proper and efficient operation and
maintenance of the Common Areas and Shopping Center. The rules and regulations
may including without limitation, the hours during which the Common Areas,
including any enclosed mall, shall be open for use.
24.6 EMPLOYEE PARKING. Landlord shall at all times have the right to
designate a particular parking area to be used by employees of Tenant and other
occupants of the Shopping Center and any such designation may be changed by
Landlord from time to time. Tenant and its employees shall park their cars only
in those portions of the Common Areas, if any, designated for that purpose by
Landlord. Tenant shall furnish Landlord from time to time with an accurate
current list of its employees' automobile license plate numbers within 15 days
after taking possession of the Premises and thereafter within 5 days after any
change in the accuracy of the list. If Tenant or its employees fail to park
their cars in designated parking areas, Landlord may charge Tenant $25.00 per
day per car for each such violation after notice to Tenant and shall have the
right to have any such car towed away. All amounts due under the provisions of
this Section 24.6 shall be payable by Tenant within 10 days after demand by
Landlord. Subject to Section 24.5 above, Tenant shall be entitled to ten (10)
single parking spaces for its employees, at no cost, for the term of the Lease
and options, if exercised.
25. DEFAULTS BY TENANT.
25.1 EVENTS OF DEFAULT. Each of the following shall constitute a material
default and breach under this Lease:
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a. If Tenant is at any time in default of its obligation to pay any
Rent or other charges, and such default continues for more than 10 days after
written notice of such default;
b. If Tenant is in default in the prompt and full performance of any
other of its obligations under this Lease and such default continues more than
30 days after written notice specifying the particulars of such default or if
such default is not capable of cure within 30 days, Tenant fails to commence
such cure within 30 days and thereafter diligently prosecute such cure to
completion.
c. If Tenant vacates or abandons the Premises or otherwise fails to
occupy and operate the Premises in accordance with Article 21;
d. (i) If Tenant or any guarantor of this Lease makes a general
assignment or general arrangement for the benefit of creditors; or (ii) if a
petition for adjudication of bankruptcy or for reorganization or rearrangement
is filed by or against Tenant or any guarantor and is not dismissed within sixty
(60) days; or (iii) if a trustee or receiver is appointed to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease and possession is not restored to Tenant within sixty
(60) days; or (iv) if substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease is subjected to attachment,
execution or other judicial seizure which is not discharged within sixty (60)
days. If a court of competent jurisdiction determines that any of the acts
described in this subparagraph (d) is not a default under this Lease, and a
trustee or receiver is appointed to take possession of Tenant's assets or if
Tenant remains a debtor in possession and such trustee or Tenant transfers
Tenant's interest in this Lease, then Landlord shall receive, as additional
rent, the excess, if any, of the rent (or any other consideration) paid in
connection with such assignment or sublease over the Rent payable by Tenant
hereunder; or
e. If any guarantor of the Lease revokes or otherwise terminates, or
purports to revoke or otherwise terminate, any guaranty of all or any portion of
Tenant's obligations under the Lease. Unless otherwise expressly provided, no
guaranty of the Lease is revocable.
25.2 REMEDIES UPON BREACH OF LEASE. On the occurrence of any breach of
this Lease by Tenant, Landlord may at any time thereafter, with or without
notice or demand and without limiting
34
Landlord in the exercise of any right or remedy which Landlord may have:
a. Terminate Tenant's right to possession of the Premises and
reenter the Premises by any lawful means, in which case this Lease shall
terminate. In such case Tenant shall immediately surrender possession of the
Premises to Landlord; or
b. Maintain Tenant's right to possession of the Premises, in which
case this Lease shall continue in effect whether or not Tenant has abandoned the
Premises. In such event Landlord shall be entitled to enforce all Landlord's
rights and remedies under this Lease, including the right to recover the Rent as
it becomes due and Landlord shall have the right to occupy or re-let the whole
or any part of the Premises for the account of Tenant; or
c. Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Shopping Center
is located.
If Landlord reenters the Premises under the provisions of subparagraph (b)
above, Landlord shall not be deemed to have terminated this Lease, or the
liability of Tenant to pay any Rent or other charges that are due or thereafter
accruing, or Tenant's liability for damages under any of the provisions hereof.
In the event of any entry or taking possession of the Premises as aforesaid,
Landlord shall have in addition to its rights under Section 25.4 hereof, the
right, but not the obligation, to remove from the Premises any personal property
located therein and to place it in storage at a public warehouse at the expense
and risk of Tenant.
Notwithstanding any other term or provision hereof to the contrary, this
Lease shall terminate in accordance with applicable law on the occurrence of any
act which affirms Landlord's intention to terminate this Lease as provided in
Section 25.2, including the filing of unlawful detainer action against Tenant.
On such termination, Landlord's damages for default shall include all costs and
fees, including reasonable attorneys' fees, incurred by Landlord in connection
with the filing, commencement, pursuing or defending of any action in any
bankruptcy court or other court with respect to the Lease, the obtaining of
relief from any stay in bankruptcy restraining any action to evict Tenant, or
the pursuing of any action with respect to Landlord's right to possession of the
Premises. All such damages suffered (apart from Minimum Annual Rent and other
Rent payable hereunder shall constitute pecuniary damages which must be
reimbursed to Landlord prior to assumption of
35
the Lease by Tenant or any successor to Tenant in any bankruptcy or other
proceeding.
Landlord's exercise of any right or remedy shall not prevent it from
exercising any other right or remedy.
It is understood and agreed that this Lease is a lease of real property in
a shopping center within the meaning of 11 U.S.C. Section 365(b)(3) of the
Bankruptcy Code.
25.3 LANDLORD'S DAMAGES. If Landlord elects to terminate this Lease and
Tenant's right to possession of the Premises in accordance with the provisions
of this Lease, Landlord may recover from Tenant as damages, all of the
following:
(i) The worth at the time of award of any unpaid Rent and other
charges which has been earned at the time at such termination; plus
(ii) The worth at the time of award of the amount by which the unpaid
Rent and other charges which would have been earned after termination until the
time of award exceeds the amount of such rental loss Tenant proves Landlord
could have reasonably avoided; plus
(iii) The worth at the time of award of the amount by which the unpaid
Rent and other charges which Tenant would have paid for the balance of the Term
after the time of award exceeds the amount of such rental loss that Tenant
proves Landlord could have reasonably avoided; plus
(iv) Any other amount necessary to compensate Landlord for all the
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, including without limitation, any costs or expenses incurred
by Landlord in (a) maintaining or preserving the Premises, after such default,
(b) recovering possession of the Premises, including reasonable attorneys' fees
therefor, (c) expenses of re-letting the Premises to a new tenant, including
necessary renovations or alterations of the Premises, reasonable attorneys' fees
incurred, and customary leasing commissions incurred; plus
(v) Such other amounts in addition to or in lieu of the foregoing as
may be permitted from time to time by the laws of the State where the Shopping
Center is located.
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As used in subparagraphs (i) and (ii) above, the "worth at the time of
award" is computed by allowing interest on unpaid amounts at the rate of 10% per
annum. As used in subparagraph (iii) above, the "worth at the time of award" is
computed by discounting such amount at the discount rate of the Federal Reserve
Bank located nearest to the Shopping Center in effect at the time of award, plus
1%.
For purposes of this Article 25, all Rent other than Minimum Annual Rent,
shall, for purposes of calculating any amount due under the provisions of
subparagraph (iii) above, be computed on the basis of the average monthly amount
of Rent payable by Tenant during the immediately preceding 36 month period,
except that if it becomes necessary to compute such rental before such 36 months
of the Term has expired, then such Rent shall be computed on the basis of the
average monthly amount of Rent payable during such shorter period.
The rights and remedies given to Landlord in this Article shall be in
addition and supplemental to all other rights or remedies which Landlord may
have under the laws in force when the default occurs.
25.4 NO WAIVER. The waiver by Landlord of any breach by Tenant of any
term, covenant or condition contained in this Lease shall not be deemed to be a
waiver of such term, covenant or condition, of any subsequent breach thereof, or
of any other term, covenant or condition of this Lease. The subsequent
acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of
any preceding breach by Tenant of any term, covenant or condition of this Lease
or of any right of Landlord to a forfeiture of the Lease by reason of such
breach, regardless of Landlord's knowledge of such preceding breach at the time
of acceptance of such Rent. No term, covenant or condition of this Lease shall
be deemed to have been waived by, Landlord unless such waiver is in writing and
signed by Landlord.
26. DEFAULTS BY LANDLORD.
If Landlord fails to perform any covenant, condition, or agreement contained in
this Lease within 30 days after receipt of written notice from Tenant specifying
such failure (or if such failure cannot reasonably be cured within 30 days, if
Landlord does not commence to cure the failure within that 30 day period and
thereafter diligently prosecute such cure to completion), then such failure
shall constitute a default hereunder and Landlord shall be liable to Tenant for
any damages sustained by Tenant as a result of Landlord's default; provided,
however, it is expressly understood
37
and agreed that if Tenant obtains a money judgment against Landlord resulting
from any default or other claim arising under this Lease, that judgment shall be
satisfied only out of the rents, issues, profits, and other income actually
received on account of Landlord's right, title and interest in the Premises,
Building and/or Shopping Center, and no other real, personal or mixed property
of Landlord (or of any of the partners which comprise Landlord, or of partners
or principals of such partners comprising Landlord, if any, or of Landlord's
Officers, shareholders or directors, if any) wherever situated, shall be subject
to levy, attachment or execution, or otherwise used to satisfy any such
judgment. Tenant hereby waives any right to satisfy a judgment against Landlord
except from the rents, issues, profits and other income actually received on
account of Landlord's right, title and interest in the Premises, Building and/or
Shopping Center.
Tenant shall not have the right to terminate this Lease or to withhold,
reduce or offset any cost of such cure against any payments of Rent or any other
charges due and payable to Landlord under this Lease, except as otherwise
specifically provided in this Lease. Tenant shall have the right to offset the
amount of any money judgment obtained by Tenant against Landlord resulting from
a default by Landlord under this Lease against payment of the minimum Annual
Rent.
Tenant agrees to send by certified or registered mail to any mortgagee or
deed of trust beneficiary of the Shopping Center whose address has been
furnished to Tenant, a copy of any notice of default served by Tenant on
Landlord. Subject to the provisions of Paragraph 11.3 above, Tenant agrees that
if Landlord fails to cure such default within the time provided for in this
Lease, Tenant shall provide any such mortgagee or beneficiary with notice of
such failure and such mortgagee or beneficiary shall have an additional 30 days
following receipt of such notice to cure such default; provided that if such
default cannot reasonably be cured within that additional 30 day period, then
such mortgagee or beneficiary shall have such additional time to cure the
default as is reasonably necessary under the circumstances. If neither Landlord
nor any such mortgagee or beneficiary cures such default within the time periods
provided above, then Tenant shall have the right to cure the default and recover
the cost thereof, with interest thereon at the rate of ten percent (10%) per
annum, as provided in this Article 26.
27. ATTORNEYS' FEES.
If at any time after the date hereof either Landlord or Tenant institutes any
action or proceeding against the other relating to
38
the provisions of this Lease or any default hereunder, the losing party in such
action or proceeding shall reimburse the winning party for its reasonable
expenses of attorneys' fees and all costs and disbursements incurred, including,
without limitation, any such fees, costs or disbursements incurred on any appeal
from such action or proceeding. Subject to the provisions of local law, the
winning party shall recover all such fees, costs or disbursements as costs
taxable by the court or arbiter in the action or proceeding itself without the
necessity for a cross-action by the winning party.
28. SUBORDINATION - ATTORNMENT.
28.1 SUBORDINATION. Within 10 days after receipt of a written request from
Landlord any first mortgagee or first deed of trust trustee or beneficiary of
Landlord (collectively, "Lender"), or any lessor of Landlord, Tenant shall, in
writing, subordinate its rights under this Lease to the lien or security
interest of the first mortgage or deed of trust (including all future advances
made thereunder subsequent to the effective date of this Lease), the interest of
any lease in which Landlord is the lessee, or any REA that may burden the
Premises, Building, Shopping Center, the underlying real property or any future
improvements made to the underlying real property, provided such Lender or
ground lessor delivers to Tenant a reasonably satisfactory nondisturbance and
attornment agreement. In addition, as a condition to Tenant's obligations under
this Lease, Landlord shall deliver to Tenant within 30 days following execution
of this Lease, a reasonably satisfactory nondisturbance and attornment agreement
from any existing lenders and ground lessors.
28.2 ATTORNMENT. If Landlord's interest in the Premises is acquired by any
ground lessor, beneficiary under a deed of trust, mortgagee or purchaser at a
foreclosure sale, then Tenant shall upon request, attorn to such transferee of
or successor to Landlord's interest in the Premises and recognize such
transferee or successor as Landlord under this Lease, provided such transferee
or successor accepts the Premises subject to this Lease.
28.3 ESTOPPEL CERTIFICATE. Tenant shall, at any time and from time to
time, upon not less than 10 business days' prior written notice from Landlord,
execute, acknowledge and deliver to Landlord a written statement substantially
in the form of Exhibit "D" certifying (i) that this Lease represents the entire
agreement between Landlord and Tenant, and 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), (ii) the dates to
which the Rent and other
39
charges are paid in advance, if any; (iii) the Commencement Date and expiration
date of the Lease Term, (iv) whether Tenant has assigned or transferred this
Lease or any interest of Tenant therein; and,(v) that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder and that
Tenant has no right of offset, counterclaim or deduction against Rent, or
specifying such defaults if any are claimed together with the amount of any
offset, counterclaim or deduction alleged by Tenant. Any such statement may be
relied upon by any prospective purchaser or lender upon the security of the real
property of which the Building and the Premises are a part. Tenant's failure to
deliver such statement within the time required shall be conclusive and binding
upon Tenant that (a) this Lease is in full force and effect, without
modification except as may be represented by Landlord, (b) there are no uncured
defaults in Landlord's performance and that Tenant has no right of offset,
counterclaim or deduction against Rent, and (c) no more than one month's Rent
has been paid in advance.
29. QUIET POSSESSION.
Landlord agrees that Tenant, upon paying the Rent and timely performing its
obligations under this Lease, may quietly have, hold and enjoy the Premises
during the Term or any extension thereof; subject, however, to any rights of
entry specifically granted to Landlord hereunder, any REA of which Tenant has
been provided a copy or to which Tenant consents, and any mortgages, deeds of
trust, ground or underlying leases, agreements, encumbrances and/or other
Matters of Record to which this Lease is subordinate.
30. CAPTIONS; JOINT AND SEVERAL LIABILITY.
30.1 CAPTIONS. The captions of the Articles and Sections of this Lease are
for convenience only, are not operative parts of this Lease and do not in any
way limit or amplify the terms and provisions of this Lease.
30.2 JOINT AND SEVERAL LIABILITY. If two or more persons or entities
execute this Lease as Landlord or Tenant then such persons or entities shall be
jointly and severally liable for compliance with and performance of all the
terms, covenants and provisions of this Lease.
31. NOTICES.
Whenever this Lease requires or permits notice or demand to be given by either
party to the other, such notice or demand shall be in writing and given or
served either personally or in writing
40
forwarded by certified mail, return receipt requested, addressed to the parties
at the addresses specified in Section 3.d. hereof. Either party may change such
address by written notice to the other as herein provided.
32. OBLIGATIONS OF SUCCESSORS.
Except as otherwise provided herein, all of the provisions of this Lease shall
bind and fit of the parties hereto, and their respective heirs, legal
representatives, successors and assigns.
33. CONSENT OF LANDLORD AND TENANT.
Wherever in this Lease consent or approval is required from either party to any
action by the other, such consent or approval shall be given in writing and
shall not be unreasonably withheld, unless otherwise expressly permitted in this
Lease. Landlord shall not be deemed to have withheld its consent unreasonably
where Landlord's right to give its consent is dependent on Landlord obtaining
the consent of any other person, agency or authority having the right to
withhold its consent pursuant to any agreement or law and such person, agency or
authority does withhold its consent.
If Landlord or Tenant unreasonably fails to give any such consent, the
other party shall be entitled to specific performance in equity and shall have
such other remedies as are reserved to it under this Lease, but in no event
shall Landlord or Tenant be responsible in monetary damages for failure to give
consent unless such consent is withheld maliciously or in bad faith.
34. MISCELLANEOUS.
34.1 RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease shall be
deemed or construed to create a partnership or joint venture between Landlord
and Tenant or between Landlord and any other party, or cause Landlord to be
responsible in any way for the debts or obligations of Tenant or anyone else.
34.2 SEPARABILITY. If any provision of this Lease is determined to be void
by any court of competent jurisdiction, such determination shall not affect any
other provision of this Lease and all such other provisions shall remain in full
force and effect. It is the intention of the parties that if any provision of
this Lease is capable of two constructions, one of which would render the
provision void and the other of which would render the provision valid, then the
provision shall have the meaning which renders it valid.
41
34.3 CORPORATE AUTHORITY; PARTNERSHIP AUTHORITY. If Tenant is a
corporation, each person signing this Lease on behalf of Tenant represents and
warrants that he has full authority to do so and that this Lease binds the
corporation. Within thirty (30) days after this Lease is signed, Tenant shall
deliver to Landlord a certified copy of a resolution of Tenant's Board of
Directors authorizing the execution of this Lease or other evidence of such
authority reasonably acceptable to Landlord. If Tenant is a partnership, each
person or entity signing this Lease for Tenant represents and warrants that he
or it is a general partner of the partnership, that he or it has full authority
to sign for the partnership and that this Lease binds the partnership and all
general partners of the partnership. Tenant shall give written notice to
Landlord of any general partner's withdrawal or addition. If Tenant is a
partnership, within thirty (30) days after this Lease is signed, Tenant shall
deliver to Landlord a copy of Tenant's recorded statement of partnership,
certificate of limited partnership or other evidence of partnership satisfactory
to Landlord.
34.4 ENTIRE AGREEMENT. It is understood that there are no oral or written
agreements or representations between the parties hereto affecting this Lease,
and that this Lease supersedes and cancels any and all previous negotiations,
arrangements, representations, brochures, displays, projections, estimates,
agreements and understandings, if any, made by or between Landlord and Tenant
with respect to the subject matter thereof, and none thereof shall be used to
interpret, construe, supplement or contradict this Lease. This Lease, and all
amendments hereto, are the only agreement between the parties hereto. All
negotiations and oral agreements acceptable to both parties have been merged
into and are included in this Lease.
There are no other representations, covenants or warranties between the
parties and any reliance on representations of a party is based solely upon the
express representations, covenants and warranties contained in this Lease. In
construing this Lease, the parties agree that there shall be no presumption,
canon of construction or implication favoring the position of either Landlord or
Tenant.
34.5 GOVERNING LAW. The laws of the state where the Shopping Center is
located shall govern the validity of performance and enforcement of this Lease.
34.6 WAIVER OF CONSENT LIMITATIONS. A waiver of any breach or default
under the Lease shall not be a waiver of any other breach or default.
Landlord's consent to or approval of any act by Tenant
42
requiring Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent similar act by
Tenant.
34.7 FORCE MAJEURE. The occurrence of any of the following events shall
excuse performance of such obligation of Landlord or Tenant as are rendered
impossible or reasonably impracticable to perform while such event continues:
strikes; lockouts; labor disputes; acts of God; inability to obtain labor,
materials or reasonable substitutes therefor; governmental prohibitions or
restrictions; judicial orders; enemy or hostile governmental action; civil
commotion; fire or other casualty; and other causes beyond the reasonable
control of the party obligated to perform (collectively, "Force Majeure").
Notwithstanding the foregoing, the occurrence of such events shall not excuse
Tenant's obligations to pay Minimum Annual Rent and additional rent (unless the
provisions of Articles 22 or 23 apply) or excuse such obligations as this Lease
may nevertheless otherwise impose on the party to obey, remedy or avoid, despite
such event.
34.8 WAIVER OF REDEMPTION RIGHTS. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future laws in the
event Tenant is evicted from or dispossessed of the Premises for any cause, or
in the event Landlord obtains possession of the Premises by reason of the
violation by Tenant of any of the covenants and conditions of this Lease or
otherwise. The rights given to Landlord herein are in addition to any rights
that may be given to Landlord by any statute or otherwise.
34.9 AMENDMENTS. To be effective and binding on Landlord and Tenant, any
amendment, modification, addition or deletion to the provisions of this Lease
must be in writing and executed by both parties in the same manner as the Lease
itself.
34.10 DEFINITION OF LANDLORD. As used in this Lease, the term "Landlord"
means only the current owner of the fee title to the Shopping Center or the
leasehold estate under a ground lease of the Shopping Center at the time in
question, as appropriate. Each Landlord is obligated to perform the obligations
of Landlord under this Lease only during the time such Landlord owns such
interest or title. Any Landlord who transfers its title or interest in the
Shopping Center is relieved of all liabilities for the obligations of Landlord
under this Lease to be performed on or after the date of transfer, provided the
new owner expressly assumes in writing all future obligations of Landlord under
this Lease.
43
34.11 TENANT'S FINANCIAL CONDITION. Within ten (10) days after written
request from Landlord, Tenant shall deliver to Landlord such financial
statements as Landlord reasonably requires to verify the net worth of Tenant or
any guarantor of Tenant. In addition, Tenant shall deliver to any lender
designated by Landlord any financial statements required by such lender to
facilitate the financing or refinancing of the Shopping Center. Tenant
represents and warrants to Landlord that each such financial statement is a true
and accurate statement as of the date of such statement. All financial
statements shall be confidential and shall be used only for the purposes set
forth in this Lease.
35. BROKERS.
Landlord and Tenant represent and warrant to each other that the Broker
named in Section 3.a of this Lease is the only agent, broker, finder or other
party with whom either party has dealt who is or may be entitled to any
commission or fee with respect to this Lease. Landlord agrees to pay the
commission payable to the Broker named in Section 3.a. pursuant to the terms of
a separate agreement entered into by and between Landlord and Broker.
44
36. COMPLIANCE.
The parties hereto agree to comply with all applicable federal, state and local
laws, regulations, codes ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of this Agreement.
LANDLORD AND TENANT have signed this Lease on the dates set forth below.
Date: September 22, 1995 Date: September 22, 1995
Landlord: Tenant:
Panorama Towne Center L.P., Pan American Bank of San
a California Limited Mateo, FSB, a Federally
Partnership Chartered Savings Bank
By: Panorama Towne Center, Inc. By: /s/ XXXXXXXX X. GRILL
---------------------------
a California corporation, Xxxxxxxx X. Grill,
its General Partner President
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ [SIGNATURE ILLEGIBLE]
--------------------------- ---------------------------
Its: Its: CFO
--------------------- ---------------------
By:
---------------------------
Its:
---------------------
45
ADDENDUM TO SHOPPING CENTER LEASE BETWEEN PANORAMA TOWNE CENTER, A CALIFORNIA
LIMITED PARTNERSHIP ("LANDLORD") AND PAN AMERICAN BANK OF SAN MATEO, FSB
("TENANT") DATED _______________, 1995.
1. MINIMUM ANNUAL RENT: The Minimum Annual Rent for the Term of the Lease
shall be:
MONTHS MONTHLY ANNUALLY
------------------------- ---------- -----------
Months 1 through 36 $7,022.00 $ 84,264.00
Months 37 through 60 $7,549.00 $ 90,588.00
Months 61 through 72 $8,115.00 $ 97,380.00
Months 73 through 84 $8,358.00 $100,296.00
Months 85 through 96 $8,609.00 $103,308.00
Months 97 through 108 $8,867.00 $106,404.00
Months 109 through 120 $9,133.00 $109,596.00
2. TERM: Options and Option Rent -
In addition to the Term as set forth above, and provided Tenant is not in
default of any provisions of the Lease, Tenant shall have three (3) five-year
options to extend the Term, as follows:
a. Tenant shall provide not less than six (6) months nor more than twelve
(12) months written notice to Landlord of exercise of each option to
extend;
b. The Minimum Annual Rent for the first year of the first option period,
if exercised, shall be at the then Fair Rental Value, as hereinafter
defined. The "Fair Rental Value" of the Premises shall be determined
in the following manner.
(i) Not later than 120 days prior to the first day of the respective
option period, Landlord and Tenant shall meet in an effort to
negotiate, in good faith, the Fair Rental Value of the Premises
as of such date. If Landlord and Tenant have not agreed upon the
Fair Rental Value of the Premises at least
1
90 days prior to the applicable date, the Fair Rental Value shall
be determined by appraisal, by one or more appraisers or brokers
(herein called "Appraiser(s)"), as provided below. If
appraiser(s) are used, such appraiser(s) shall have at least five
(5) years' experience in the appraisal of commercial real
property in the area in which the Premises is located and shall
be members of professional organizations such as MAI or
equivalent. If broker(s) are used, such broker(s) shall have at
least five years' experience in the sales and leasing of
commercial real property in the area in which the Premises is
located and shall be members of professional organizations such
as the Society of Industrial and Office Realtors or equivalent.
(ii) If Landlord and Tenant are not able to agree upon the Fair Rental
Value of the Premises within the prescribed time period, then
Landlord and Tenant shall attempt to agree in good faith upon a
single Appraiser not later than 75 days prior to the applicable
date. If Landlord and Tenant are unable to agree upon a single
appraiser within such time period, then Landlord and Tenant shall
each appoint one Appraiser not later than 65 days prior to the
applicable option term commencement date. Within 10 days
thereafter, the two appointed Appraisers shall appoint a third
Appraiser. If either Landlord or Tenant fails to appoint its
Appraiser within the prescribed time period, the single Appraiser
appointed shall determine the Fair Rental Value of the Premises.
If both parties fail to appoint Appraisers within the prescribed
time periods, then the first Appraiser thereafter selected by a
party shall determine the Fair Rental Value of the Premises. Each
party shall bear the cost of its own Appraiser and the parties
shall share equally the cost of the single or third Appraiser, if
applicable .
(iii) For the purposes of such appraisal, the term "Fair Rental Value"
shall mean the price that a ready and willing tenant would pay,
as of the applicable date, as monthly rent to a ready and willing
landlord of property comparable to the Premises if such property
were exposed for lease on the open market for a reasonable period
of time and taking
2
into account all of the purposes for which such property may be
used. If a single Appraiser is chosen, then such Appraiser shall
determine the Fair Rental Value of the Premises. Otherwise, the
Fair Rental Value of the Premises shall be the arithmetic average
of the two of the three appraisals which are closest in amount,
and the third appraisal shall be disregarded. Landlord and Tenant
shall instruct the Appraiser(s) to complete the determination of
the Fair Rental Value not later than 30 days prior the applicable
option term commencement date. If the Fair Rental Value is not
determined prior to the applicable option term commencement date,
then Tenant shall continue to pay to Landlord the Minimum Annual
Rent for the previous year until the Fair Rental Value is
determined. When the Fair Rental Value of the Premises is
determined, Landlord shall deliver notice thereof to Tenant, and
Tenant shall pay to Landlord, within 10 days after receipt of
such notice or Landlord shall pay to Tenant, as appropriate, the
difference between the Minimum Annual Rent actually paid by
Tenant to Landlord and the new Minimum Annual Rent determined
hereunder.
Rent for each subsequent year of the first option period commencing
with the second year shall increase three percent (3%) over the rent
for the immediately preceding year.
c. If exercised, the Minimum Annual Rent for the second (2nd) and third
(3rd) option periods shall increase three percent (3%) over the rent
for the last year of the preceding option term, and Minimum Annual
Rent for each subsequent year of the respective option periods shall
increase three percent (3%) per annum over the Minimum Annual Rent for
the immediately preceding year.
3. EARLY TERMINATION: Tenant shall have the right to cancel this Lease during
the ninety (90) day period preceding the end of the fifth lease year by giving
Landlord at least ninety (90) days prior written notice of Tenant's intent to
cancel. Tenant shall reimburse Landlord for unamortized costs, prorated over
ten (10) years, of tenant improvements paid for by Landlord as part of the
tenant improvement allowance described in Paragraph 4 below in the event Tenant
exercises its early termination rights.
3
4. TENANT'S WORK: Tenant shall have the right to utilize a reputable
contractor of its choice for its tenant improvement work. Landlord shall provide
temporary power to the Premises sufficient for Tenant's construction purposes
and shall provide access for Tenant's construction workers, along with a space
for a construction debris container. Landlord and Landlord's employees, agents
and contractors, shall use their best efforts to avoid interfering with Tenant's
construction work at the Premises. Landlord shall provide Tenant with a tenant
improvement allowance of Twenty-Five Dollars ($25) per square foot above
"Landlord's Work," as defined in Exhibit "C" attached hereto. Said allowance
shall be paid monthly during the performance of Tenant's work upon delivery to
Landlord of a certificate from Tenant's architect certifying that the work for
which Tenant is seeking reimbursement has been performed at the Premises.
5. ADDITIONAL PROVISIONS:
ADA: Landlord represents that Landlord's Work, and Tenant represents that
Tenant's Work, at the Premises shall be in compliance with all codes and laws,
including fire safety, physical handicap, earthquake safety, hazardous material
and the Americans with Disabilities Act ("ADA").
HAZARDOUS MATERIALS: As used in this Lease, the term "Hazardous Material" means
any flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials" or "toxic substances" now or subsequently
regulated under any applicable federal, state or local laws or regulations,
including without limitation petroleum-based products, paints, solvents, lead,
cyanide, DDT, printing inks, acids, pesticides, ammonia compounds and other
chemical products, asbestos, PCBs and similar compounds, and including any
different products and materials which are subsequently found to have adverse
effects on the environment or the health and safety of persons. Tenant shall not
cause or permit any Hazardous Materials in excess of permitted levels or
reportable quantities under applicable environmental laws to be generated,
produced, brought upon, used, stored, treated or disposed of in or about the
Premises by Tenant, its agents, employees, contractors, sublessees or invitees
without the prior written consent of Landlord. Landlord shall be entitled to
take into account such other factors or facts as Landlord may reasonably
determine to be relevant in determining whether to grant or withhold consent to
Tenant's proposed activity with respect to Hazardous Material. In no event,
however, shall Landlord be required to consent to the installation or use of any
storage tanks
4
on the Premises. Tenant shall indemnify Landlord and its successors and assigns
against and hold Landlord and its successors and assigns harmless from any and
all costs, claims or liability arising from the conduct of Tenant's business or
anything else done or permitted by Tenant to be done in or about the Premises,
including any contamination of the Premises or any other property resulting from
the presence or use of Hazardous Material caused or permitted by Tenant.
Landlord shall indemnify Tenant and its successors and assigns and hold Tenant
and its successors and assigns harmless from any and all costs, claims or
liability arising from any contamination of the Premises (a) caused or permitted
by Landlord, or (b) arising prior to the date of this Lease.
SIGNAGE: Landlord hereby grants to Tenant the right to install illuminated
signage on the building to the maximum extent permitted by the City of Los
Angeles, subject to (i) the signage restrictions contained in any other lease of
space in the Shopping Center which are applicable to the Shopping Center
generally, (ii) the Shopping Center Sign Criteria, described in Exhibit "E"
hereto, and (iii) Landlord's prior approval, which shall not be unreasonably
withheld.
ARCHITECTURAL DRAWINGS: Landlord and Tenant shall work with a mutually
agreeable architect for the design of the building shell. Landlord shall be
responsible for all costs associated with such architect and design of the
building shell. Tenant shall have the right to select its own architect and
space planner to design and to oversee construction of Tenant's Work.
5
