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EXHIBIT 10.4
THE IRVINE COMPANY
LEASE
THIS LEASE is made this 20th day of March, 1980, between THE IRVINE
COMPANY, a Michigan corporation, hereinafter called "Lessor," and TORONTO
DOMINION BANK OF CALIFORNIA, a California banking corporation, hereinafter
called "Lessee."
BASIC LEASE PROVISIONS
1. LESSEE'S TRADE NAME: TORONTO DOMINION BANK OF CALIFORNIA
2. LOCATION OF PREMISES: Ground floor of building to be
constructed at SE Corner of
Main and Redhill Avenues
Irvine, California
3. USE OF PREMISES: Commercial retail bank, including
drive-up teller facilities, and
general office
4.(a) INITIAL LEASE TERM: Twenty-five (25) Lease Years
(b) OPTIONS TO EXTEND: One ten (10) year period, and one
five (5) year period.
5. INITIAL ANNUAL
MINIMUM RENT: (a) Retail bank space- $21.60 per
net rentable sq. ft. per year
(b) Office space- $12.96 per net
rentable sq. ft. per year
6. FURTHER RENTAL
ADJUSTMENT: Adjustment at expiration of every
5th Lease Year: Retail bank space
rent adjusted to fair rental value;
Office space rent adjusted to
fair rental value.
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7. PREMISES REAL PROPERTY TAXES, MAINTENANCE AND INSURANCE, AND
COMMON FACILITIES MAINTENANCE
CHARGES: Pro rata share as provided in the
Lease, Sections 4.01, 6.03, 8.01,
8.02, 9.01 and 10.01.
8. INITIAL DEPOSIT: Irrevocable Letter of Credit in
amount of $60,000.00 upon execution
of Lease.
9. ESTIMATED ACTUAL FLOOR
AREA OF PREMISES: (a) Retail bank space - Approximately
8,000 net rentable square feet
(b) Office space - Approximately
14,570 net rentable square feet.
10. BROKER: J. Harold Street, Coldwell Banker
Brokerage
11. LEASE EXECUTION AND ADDRESS FOR
PAYMENTS AND NOTICES:
THE IRVINE COMPANY TORONTO DOMINION BANK OF CALIFORNIA
000 Xxxxxxx Xxxxxx Xxxxx 000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have executed this Lease,
consisting of the foregoing provisions And Articles I through XXIII which
follow, as of the date first above written.
THE IRVINE COMPANY TORONTO DOMINION BANK OF CALIFORNIA
By_____________________ By_________________________________
By_____________________ By_________________________________
"Lessor" "Lessee"
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ARTICLE X. XXXXX AND TERM
SECTION 1.01. LEASED PREMISES. Lessor, in consideration of the rent to
be paid and the covenants to be performed by Lessee, does hereby lease to
Lessee, and Lessee hereby rents from Lessor those certain premises (the
"Premises"), containing approximately 22,570 net rentable square feet, to be
located on the ground floor of an office building (the "Building") of not less
than two (2) stories in height, which Lessor is to construct for the occupancy
of Lessee and other tenants. The Building shall be situated on a parcel (the
"Building Parcel") generally shown as the area outlined in red on Exhibit A
attached hereto and more particularly described in Exhibit B hereto, lying
within a certain development (the "Development") as outlined in green on Exhibit
A hereto, all located at the intersection of Main Street and Redhill Avenue in
the City of Irvine, County of Orange, State of California.
The annual Minimum Rent payable hereunder is based on the assumption
that no less than 8,000 net rentable square feet of space within the Premises
shall be devoted to the operation of Lessee's retail branch banking business
(hereinafter "Bank Space"), and shall be subject to the rental rate shown in
Item 5(a) of the Basic Lease Provisions, notwithstanding the amount of net
rentable square feet actually devoted to Bank Space at any given time; and that
the balance of the space within the Premises, consisting of approximately 14,570
net rentable square feet, shall be devoted to general office use (hereinafter
"Office Space") and shall be subject to the rental rate shown in Item 5(b) of
the Basic Lease Provisions. Any additional space within the Premises used for
the operation of Lessee's retail branch banking business in excess of 8,000 net
rentable square feet shall also be considered as Bank Space and shall be subject
to the rental rate set forth in Item 5(a) of the Basic Lease Provisions. Space
within the Premises shall be deemed to be "used for the operation of Lessee's
retail branch banking business" and therefore "Bank Space" only if such space is
used exclusively or principally for the conduct of Lessee's retail branch
banking business on the Premises. "Bank Space" shall include areas open to the
use and enjoyment of customers of the Bank, such as lobbies, safety deposit box
areas and conference rooms, and areas used for Lessee's branch banking
operations, such as staff offices, lounges and other areas, vault areas and
storage and file rooms.
As an illustration of the foregoing, assume first that upon taking
possession of the Premises Lessee was to actually use only 4,000 net rentable
square feet of space within the Premises for the operation of Lessee's retail
branch banking business, i.e., Bank Space; and the remaining 18,570 net rentable
square feet for general office purposes, i.e., Office Space (such as space for
offices, for escrow and loan services, and for storage and file rooms not used
for branch banking operations). Lessee's rent would nonetheless be based on
8,000 net rentable square feet of Bank Space, with the balance of the net
rentable area of the Premises
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being considered Office Space. If Lessee were to later add another 5,000 net
rentable square feet of Bank Space, then its total Bank Space would consist of
9,000 net rentable square feet (the first 4,000 square feet plus the newly added
5,000 square feet) and would be subject to the rental set forth in Item 5(a) of
the Basic Lease Provisions; and the remaining net rentable area of the Premises
would be considered Office Space and would be subject to the rental set forth in
Item 5(b) of the Basic Lease Provisions. If Lessee later were to add still more
net rentable square feet of Bank Space, Lessee would thereafter continue (until
the next rental adjustment period as provided in Section 2.02 below) to pay
rental at the rate shown in Item 5(a) of the Basic Lease Provisions on the
expanded Bank Space, even if that space were later used or sublet by Lessee for
general office use. At any time after the commencement of the next such rental
adjustment period, however, Lessee shall have the right to reduce the net
rentable square feet of Bank Space and thereby reduce the amount of rent payable
for Bank Space, but only if written notice, showing the amount of any proposed
reduction in Bank Space to a minimum of 8,000 net rentable square feet, has been
given to Lessor at least twelve (12) months prior to the commencement of such
rental adjustment period.
Exhibit "C-1" hereto represents a preliminary floor layout of the
Premises. On or before completion of Lessor's and Lessee's Improvements as
provided under Article III hereof, Lessor shall have prepared a new Exhibit
"C-1" showing the exact dimensions and net rentable square footage of the Bank
Space and Office Space, and the parties hereto shall enter into an amendment to
this Lease for the purposes of adding such new Exhibit "C-1". Said amendment
shall revise, if necessary, the net rentable square footage of the Bank Space
and Office Space as shown in Item 9 and the respective Initial Annual Minimum
Rent for each (but only if actual Bank Space exceeds 8,000 net rentable square
feet) as shown in Item 5 of the Basic Lease Provisions. For purposes of this
Lease, the dimensions and floor area of the total Premises shall be shown on
said Exhibit "C-1" and the failure or refusal of either party to execute such
amendment shall not affect the validity of this Lease in any manner whatsoever.
Lessor hereby reserves all rights to the exterior walls and the roof
of the Premises and the area above and beneath the Premises (together with the
right to locate, both vertically and horizontally, install, maintain, use,
repair and replace pipes, utility lines, ducts, conduits, flues, refrigerant
lines, drains, sprinkler mains and valves, access panels, wires and structural
elements leading through the Premises and serving other parts of the
Development, provided that the exercise of any such right shall not unreasonably
interfere with Lessee's use and enjoyment of the Premises).
SECTION 1.02. COMMENCEMENT AND EXPIRATION OF TERM. The initial term of
this Lease ("Initial Term"), subject to extension as provided in Section 1.03
hereof, shall be for a period of twenty-five (25) full Lease Years, commencing
as of the date of
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completion of the Premises as provided in Section 3.05 hereof (which
commencement date shall be hereinafter referred to as "Commencement Date"), plus
any partial month following the Commencement Date if that date is other than the
first day of a month.
The term "Lease Year" as used herein is defined as a period consisting
of twelve (12) consecutive calendar months, the first of which shall commence on
the first day of the calendar month immediately succeeding the Commencement
Date, if such Commencement Date is other than the first day of a month.
Within thirty (30) days following the Commencement Date, Lessor and
Lessee shall execute and acknowledge an Addendum in the form attached hereto as
Exhibit D, setting forth the Commencement Date and the expiration date of this
Lease, and the rental commencement date provided; however, that failure of
Lessee to execute such Addendum shall not affect the commencement or duration of
the actual term of this Lease in accordance with the provisions of this Section
1.02.
SECTION 1.03. OPTIONS TO EXTEND TERM.
(a) Provided Lessee is not then in default, Lessee shall have the
right to extend the term of this Lease for two (2) successive periods, the first
of which shall be for ten (10) full Lease Years commencing on the day following
the expiration date of the Initial Term of this Lease, and the second of which
shall be for five (5) full Lease Years commencing on the day following the
expiration of the first extended term, in the event such first option has been
exercised by Lessee.
(b) Each such option shall be exercised, if at all, by written notice
given by Lessee to Lessor no earlier than twelve (12) months and no later than
six (6) months prior to the commencement date of each respective option period.
Within thirty (30) days after the exercise of any such option by Lessee, Lessor
shall provide Lessee with Lessor's initial determination of the rental
adjustment to be effective during the extension period as provided in Section
2.02 below, subject to the arbitration provisions of Section 2.06 below if
Lessee disagrees with such initial determination within thirty (30) days after
receipt thereof. Within thirty (30) days after final determination of such
rental adjustment (whether by mutual agreement or by arbitration), Lessee may
elect to terminate this Lease and thereby cancel its exercise of such option to
extend by giving written notice to Lessor, said termination to be effective on
(i) the day the Initial Term or first extended term, as the case may be, expires
or (ii) on the 180th day following the giving of said notice, whichever last
occurs. Pending the determination of the rental adjustment and, in the event
Lessee exercises its right to terminate after final determination of the rental
adjustment, prior to the effective date of such termination, the monthly rent
being paid by Lessee immediately before the rental adjustment shall continue to
be paid
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by Lessee to Lessor, and any difference in the monthly rent actually paid and
that due for any period subsequent to the expiration of the Initial Term or
first extended term, as the case may be, shall, when determined, be paid
promptly to Lessor. In the event this Lease shall have expired or been
terminated, Lessee shall thereafter have no right or privilege of extending this
Lease, and notwithstanding anything to the contrary contained in this Section
1.03, the failure of Lessee to exercise the option for the first extension
period shall be conclusively presumed to be a waiver by Lessee of its rights to
exercise the option for any subsequent extension period.
(c) All of the terms, covenants and conditions provided herein with
respect to the Initial Term shall apply during each such extension period,
including without limitation, the adjustment of the annual Minimum Rent upon the
expiration of each fifth (5th) Lease Year as provided in Section 2.02 below.
SECTION 1.04. DEPOSIT. IN CONSIDERATION OF THE COVENANTS TO BE
PERFORMED BY LESSOR WITH RESPECT TO THE CONSTRUCTION OF "LESSOR'S
IMPROVEMENTS" AND ANY OTHER IMPROVEMENTS AS PROVIDED IN ARTICLE III OF THIS
LEASE, LESSEE HAS DEPOSITED WITH LESSOR UPON EXECUTION OF THIS LEASE AN
IRREVOCABLE LETTER OF CREDIT, PAYABLE TO LESSOR IN THE SUM OF $60,000.00. UPON
RECEIPT BY LESSOR OF WRITTEN NOTICE FROM LESSEE TERMINATING THE LEASE AS
PROVIDED IN SECTION 3.04(c)(i) HEREOF, LESSOR MAY AND SHALL PRESENT FOR
NEGOTIATION DRAFTS FOR THE FULL $60,000.00, AND SAID SUM SHALL BE RETAINED BY
LESSOR AS LIQUIDATED DAMAGES FOR ALL COSTS, EXPENSES, FEES, CHARGES AND
LIABILITIES PAID OR INCURRED BY LESSOR IN CONNECTION WITH THE PREPARATION OF
CONSTRUCTION DRAWINGS AND SPECIFICATIONS FOR THE BUILDING AND PREMISES.
THEREAFTER, NEITHER LESSOR NOR LESSEE SHALL HAVE ANY FURTHER LIABILITY TO THE
OTHER BY REASON OF THIS LEASE.
SUBJECT TO THE PROVISIONS OF SECTION 1.05 BELOW, IF LESSOR SHALL NOT
HAVE DRAWN OR MADE CLAIM ON THE LETTER OF CREDIT IN ACCORDANCE WITH THE
FOREGOING PROVISIONS WITHIN FIVE (5) DAYS FOLLOWING THE 15-DAY NOTICE PERIOD
PROVIDED FOR IN SECTION 3.04 (c) HEREOF, THEN THE LETTER OF CREDIT SHALL DULY
EXPIRE AND SHALL BE RETURNED BY LESSOR TO LESSEE ON SUCH DATE, AND LESSOR'S
REMEDIES FOR ANY DEFAULT UNDER THIS LEASE THEREAFTER SHALL BE AS SET FORTH
ELSEWHERE IN THIS LEASE.
----------------- -----------------
LESSEE'S INITIALS LESSOR'S INITIALS
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SECTION 1.05. UPSET DATE. Notwithstanding anything to the contrary
contained herein, either Lessee or Lessor may, at its option, terminate this
Lease without liability in the event that Lessor is unable to commence the
construction of Lessor's Improvements (as defined in Section 3.01 hereof) prior
to December 31, 1980, such right of termination to be exercised by giving the
other party written notice thereof within twenty (20) days after December 31,
1980. Upon any such termination, Lessor shall promptly return to Lessee the
letter of credit deposited under Section 1.04 hereof in consideration of such
early termination. Lessor shall have the right to extend such date for
commencement of construction for a period not to exceed three (3) months, up to
and including March 31, 1981, on account of delays caused by reason of matters
of force majeure described in Section 22.04 hereof, provided that prior to
December 31, 1980, Lessor gives Lessee written notice of such extension together
with reasonable details of those matters causing such delays. Lessor shall
exercise due diligence in obtaining the construction bids required under Section
3.03 hereof and all applicable governmental permits and approvals necessary to
commence construction of Lessor's Improvements, and in performing all other
requirements on Lessor's part to be performed hereunder. For purposes of this
Section 1.05, "commencement of construction" shall mean the completion of
substantial grading and the pouring of all or a substantial portion of the
footings and foundations for the Building (which need not necessarily include
the ground floor slab).
In addition to the foregoing, Lessee may terminate this Lease without
liability if construction of the Premises is not completed, as provided in
Section 3.05 hereof, prior to March 31, 1982.
SECTION 1.06. COMMENCEMENT OF RENTAL AND TAXES. Lessee's obligation
for payment of rent as set forth in Section 2.01 hereof, taxes as provided in
Section 4.01 hereof, common facilities expenses as provided in Section 6.03
hereof, and all other payments required hereunder, shall commence upon the later
of (i) ninety (90) days following the Commencement Date, as defined in Section
1.02 hereof, or (ii) substantial completion of that portion of the
"common-facilities" described in Section 6.01 hereof located within or upon the
Building Parcel.
ARTICLE II. RENT
SECTION 2.01. ANNUAL MINIMUM RENT. Lessee shall pay to Lessor for each
full Lease Year the annual Minimum Rent as specified in Item 5 of the Basic
Lease Provisions, subject to adjustment as provided below. The annual Minimum
Rent shall be payable in twelve (12) equal monthly installments in advance on
the first day of each calendar month whether or not Lessor makes any demand
therefor, and without any deductions or offset whatsoever commencing as provided
in Section 1.06 hereof. The Minimum Rent for any fractional part of a calendar
month from the rental commencement date to the first day of the next succeeding
calendar
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month or at the end of the Lease term shall be prorated daily on the basis of
1/360th of the annual Minimum Rent per day.
SECTION 2.02. RENTAL ADJUSTMENT. Upon the expiration of each fifth
(5th) Lease Year during the entire term of this Lease, and any extension
thereof, the annual Minimum Rent payable with respect to the Bank Space and
Office Space for the following five (5) lease year period ("Adjustment Period"),
shall be adjusted as follows:
(a) Bank Space: The annual Minimum Rent for the Bank Space shall be
adjusted to the fair rental value thereof, as initially determined by Lessor
using as comparables the current rentals for retail bank space in the so-called
"Airport Area," located in the general vicinity immediately surrounding Campus
Drive and MacArthur Boulevard in the Cities of Irvine and Newport Beach.
(b) Office Space: The annual Minimum Rent for the Office Space shall
be adjusted to the fair rental value thereof, as initially determined by Lessor
using as comparables Lessor's scheduled rental rate then in effect for office
space located within the boundaries of the Development shown on Exhibit A and
also within Lessor's development of an area located at the intersection of Main
Street and MacArthur in the City of Irvine; provided, however, in the event that
the total office space within the above two developments shall be less than
200,000 square feet of rentable office space, the current rentals for office
space in the so-called "Airport Area", located in the general vicinity
immediately surrounding Campus Drive and MacArthur Boulevard in the Cities of
Irvine and Newport Beach, shall be used as comparables for purposes of
determining the fair rental value of the Office Space.
(c) Preceding Annual Minimum Rent. Subject to any decrease in the net
rentable square footage of Bank Space pursuant to Section 1.01 hereof, the
annual Minimum Rent for any Adjustment Period, determined under subsections (a)
and (b) above, shall not be less than the annual Minimum Rent payable during the
immediately preceding five (5) lease year period.
(d) Notice of Adjustment; Arbitration. Lessor shall promptly give
Lessee written notice of Lessor's initial determination of the adjustment of
annual Minimum Rent in accordance with subsections (a) and (b) above. If Lessee
disagrees with Lessor's initial determination of the adjustment of annual
Minimum Rent for any Adjustment Period and gives Lessor written notice thereof
within sixty (60) days after receipt of such notice of initial determination
from Lessor, then the annual Minimum Rent shall be determined by arbitration as
provided in Section 2.06 hereof. In determining the fair rental value of the
Bank Space and Office Space, whether by mutual agreement or by arbitration,
Lessee's Improvements and any additional leasehold improvements made during the
term of this Lease at the cost and expense of
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Lessee (exclusive of any allowance or contribution of Lessor), shall not be
considered a part of or included within said Space.
SECTION 2.03. ADDITIONAL PAYMENTS. All sums of money or charges
whatsoever (other than rent, which shall be payable in the manner elsewhere
provided in this Lease) required to be paid by Lessee under this Lease shall be
due and payable fifteen (15) days after demand, without any deductions or offset
whatsoever. Lessee's direct payment obligations (other than the payment of rent)
include, but are not limited to, those provided in Section 4.01 (taxes and
assessments), Section 6.03 (common facilities expenses, including reimbursement
to Lessor for maintenance provided under Section 8.01 and for insurance provided
under Section 9.02), and Section 10.01 (utility charges). Lessee's failure to
pay any such amounts or charges when due shall carry with it the same
consequences as Lessee's failure to pay rent.
SECTION 2.04. PLACE OF PAYMENT; LATE PAYMENTS. Lessee agrees to pay
the rental and other charges herein reserved to Lessor at the address specified
in Item 11 of the Basic Lease Provisions or to such other person and/or at such
other place as Lessor may from time to time designate in writing. For each
payment of rent or additional charges not paid when due regardless of any grace
period allowed under Section 17.01 hereof, Lessee shall pay to Lessor a lease
administration charge in the amount of Fifty Dollars ($50.00) to reimburse
Lessor for its actual costs and expenses in processing such delinquent payment.
All payments hereunder shall be made in lawful money of the United States. All
payments requiring proration shall be prorated on the basis of thirty (30) day
months.
SECTION 2.05. INTEREST ON PAST DUE OBLIGATIONS. Any amount due from
Lessee to Lessor hereunder which is not paid when due (including, without
limitation, amounts due as reimbursement to Lessor for costs incurred by Lessor
in performing obligations of Lessee hereunder upon Lessee's failure to so
perform) regardless of any grace period allowed under Section 17.01 hereof,
shall bear simple interest at the rate of ten percent (10%) per annum, but in no
event in excess of the highest rate then allowed under the usury laws of the
State of California, accruing from and after the due date thereof until paid,
unless otherwise specifically provided herein, but the payment of such interest
shall not excuse or cure any default by Lessee under this Lease.
SECTION 2.06. ARBITRATION OF RENTAL ADJUSTMENT.
If arbitration proceedings are required to determine the annual
Minimum Rent for any Adjustment Period, the same shall be conducted in
the following manner:
(a) Within sixty (60) days prior to the expiration of the initial rent
period and any succeeding Adjustment Period thereafter, Lessor shall appoint in
writing, as an arbitrator, a qualified independent MAI appraiser with at least
ten years experience, and give written notice thereof to Lessee, and within
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ten (10) days after the service of such notice, Lessee may in like manner
appoint such an arbitrator and give written notice thereof to Lessor, or in case
of the failure of Lessee so to do, Lessor shall have the right to cause its
appointed arbitrator to proceed alone to determine such rental. If two
arbitrators are thus appointed, they shall select and appoint in writing a third
such arbitrator and give written notice thereof to Lessor and Lessee, or if
within ten (10) days after the appointment of said second arbitrator, the two
arbitrators shall fail to appoint a third, then either party hereto shall have
the right to make application to the Superior Court of Orange County, California
to appoint such third arbitrator. Lessor and Lessee shall each be entitled to be
present and heard respecting any such appointment of the third arbitrator.
(b) The three arbitrators so appointed (in either manner) shall
promptly fix a convenient time and place in the County of Orange, California,
for hearing the matter to be determined and shall give written notice thereof to
each party hereto at least ten (10) days prior to the date so fixed, and said
arbitrators shall with reasonable diligence hear and determine the matter in
accordance with the provisions hereof and of the statutes and judicial
decisions of the State of California at the time applicable thereto, and shall
execute and acknowledge their determination thereof in writing and cause a copy
thereof to be delivered to each of the parties hereto.
(c) The determination of a majority of said arbitrators (or, if a
majority cannot agree as to amount, then the average of the two determinations
nearest in amount) shall determine the question, and a judgment may be rendered
by said Superior Court confirming said determination, or the same may be
vacated, modified or corrected by said court, at the instance of either of the
parties hereto, in accordance with the then existing statutes of the State of
California applicable to arbitrations, the provisions of which shall apply
hereto as fully as though incorporated herein.
(d) Each of the parties hereto shall pay for the services of its
arbitrator and one-half of the fee charged by the third arbitrator and of all
other proper costs of reaching a determination, with the exception of attorney's
fees and witness' fees.
ARTICLE III. CONSTRUCTION OF LEASED PREMISES
SECTION 3.01. DESCRIPTION OF IMPROVEMENTS. The following
described improvements shall be constructed in accordance with the
provisions set forth below:
(a) Lessor's Improvements. Lessor agrees to and shall construct on the
Building Parcel described in Section 1.01 hereof (i) the Building Shell as
defined in Exhibit C hereto, but excluding Lessee's specialized requirements
affecting structural work as provided in Section 3.02(a) below, and (ii) all
common
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facilities and on-site improvements as described in Section 6.01 hereof, but
excluding drive-up teller facilities as provided in Section 3.02(a) below. A
description of the items of work to be performed by Lessor (hereinafter
collectively "Lessor's Improvements") is contained in Exhibit C attached
hereto and made a part of this Lease.
(b) Lessee's Improvements. Lessee shall be responsible for the
acquisition, installation and construction of (i) all additional improvements to
be made by Lessee within the Premises and (ii) any structural work in the
Building Shell specifically required by Lessee and shown on plans and
specifications approved by Lessor and Lessee in accordance with the provisions
of Section 3.02 hereof (whether or not such work is done by Lessor or Lessee as
provided in Section 3.03 hereof). A description of the improvements to be
acquired, installed and constructed by or for Lessee (hereinafter referred to as
"Lessee's Improvements") is set forth in Exhibit C attached hereto.
SECTION 3.02. PLANS AND SPECIFICATIONS
(a) Lessee's Requirements. Within forty (40) days after the later of
(i) execution of this Lease or (ii) receipt from Lessor of full and complete
preliminary site and floor plans for the Building Shell, Lessee shall cause its
architect to communicate and submit to Lessor's architect Lessee's general
design criteria and requirements for the Premises, including but not limited to
(i) rough-in mechanical, plumbing and electrical requirements and structural
requirements for the vault envelope and related security devices, and (ii)
drive-up teller facilities, including ingress and egress lanes therefor. Within
ninety (90) days after receipt from Lessor's architect of working drawings for
the Building Shell, Lessee shall cause its architect to communicate and submit
to Lessor's architect Lessee's general design criteria and requirements for
proposed interior partitions, lighting and electrical outlets and all other
pertinent data with respect to the proposed interior layout of the Premises, but
not including any trade fixtures, equipment, personal property, or specialized
Lessee improvements not affecting structural construction of the Building Shell
or the interior of the Premises.
(b) Approval of Plans and Specifications. Before Lessor commences with
the preparation of construction contract documents for Lessor's Improvements and
Lessee's Improvements or any part thereof, Lessor shall deliver to Lessee for
its approval two (2) complete sets of preliminary plans and specifications
showing each of the categories of work described in Section 3.02(a) above,
architectural treatment, materials and color palette, location of the Building
Shell on the site, and such other detail as is necessary to define and
illustrate the scope of such work. Small or trivial deviations from the design
or plans and specifications shall not be subject to Lessee's approval.
Lessor shall control the exterior design, elevation and
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architectural style of the Building Shell to insure that such is in good taste
and of a quality and style befitting the area.
Approval of preliminary plans and specifications shall in each case be
endorsed by Lessee upon the documents submitted within thirty (30) days from the
receipt thereof, one (1) set of which shall be retained by it; provided that if
Lessee has neither approved or disapproved said documents within said thirty
(30) day period, the same shall be deemed approved. If Lessee disapproves such
documents, Lessee shall within thirty (30) days from the receipt thereof notify
Lessor of its reasons for disapproval; Lessor shall within thirty (30) days of
such notice of disapproval submit to Lessee for its approval documents
incorporating such modifications as are mutually acceptable to Lessor and
Lessee.
SECTION 3.03. CONSTRUCTION COST BIDS. As soon as it is reasonably
possible following approval of the preliminary plans and specifications, Lessor
shall prepare construction contract documents, including working drawings and
specifications based on the approved preliminary plans and specifications, and
shall call for two or more separate firm bids thereon (from independent
contractors and based on plans and specifications approved by Lessor and Lessee
as provided in Section 3.02 above) for all direct costs of construction of (i)
the Building Shell ("Shell Costs" under Exhibit C hereto) including a separate
breakdown of costs for structural work specifically required by Lessee and
identified on such drawings and specifications, (ii) Lessee's Improvements
within the Premises, (iii) the drive-up teller facilities, including the ingress
and egress lanes therefor, and (iv) all improvements within the common
facilities as described in Section 6.01 below, other than the drive-up teller
facilities described in item (iii) above ("On-Site Costs" under Exhibit C
hereto).
Lessor shall promptly submit to Lessee separate construction bid
breakdowns for each of the foregoing items, and failure by Lessee to disapprove
items (i), (ii) and (iii) above within twenty (20) days after the receipt
thereof shall be deemed approval. If Lessee disapproves the bid submitted as to
item (i), its only recourse shall be to submit to Lessor along with such
disapproval revised specific requirements relating to the Building Shell
construction. Thereafter, Lessor and Lessee shall each use its best efforts and
good faith to prepare and resubmit mutually acceptable revised construction
documents for a new firm construction bid as provided above, but within
forty-five (45) days after Lessee's receipt of the first such bid. If the
parties are unable to so agree on such revisions, then Lessor shall be entitled
to proceed with construction based on the first bid.
If Lessee disapproves the bid submitted as to either (ii) or (iii)
above within such twenty (20) day period, then Lessee may submit revised
requirements to Lessor and proceed to request a new construction bid within the
same forty-five (45) day period and in the manner provided above as to item (i).
If the parties are unable to so agree on such revisions or if Lessee is still
not
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satisfied with the new construction bid, or if Lessee does not wish to obtain a
new bid from Lessor's contractor, then Lessee may obtain its own separate bid or
bids from another contractor or contractors and proceed with its own
construction, subject to prior approval by Lessor of such contractor and of any
further revisions in the construction plans and specifications to be used (which
approval shall not be unreasonably withheld or delayed).
Lessee shall have no right to approve or disapprove item (iv) above,
but shall receive the same for its information and review.
Lessor shall furnish Lessee with properly substantiated evidence of
the estimated total costs after the contracts have been bid. For the purposes of
calculating the estimated costs of Lessor's Improvements as shown on Exhibit C
attached, the costs of construction for each of the categories of work shall
include all direct and indirect costs including, but not limited to, the amount
of all contracts for work as set forth above, a construction supervision fee to
be charged by Lessor equal to five percent (5%) of all construction costs
(including without limitation legal and accounting fees, general overhead and
office administration cost), all outside construction, architectural,
engineering and other consultant fees, plan check and permit fees, excise taxes,
utility meters and hookup charges, cost of materials and performance bonds, cost
of insurance and of taxes and assessments levied by governmental agencies
during the course of construction, cost of inspection and testing, cost of
reproduction of plans, specifications and other contract documents, applicable
charges or assessments levied by public utility companies or districts, the then
prevailing cost of obtaining construction financing, and all other costs
directly or indirectly attributable to the applicable category of such work.
SECTION 3.04. PAYMENT OF CONSTRUCTION COSTS.
(a) Lessor's Improvements. Lessor shall construct all of Lessor's
Improvements, as described on Exhibit C hereto, and shall pay all costs and
expenses incurred in the construction of Lessor's Improvements, subject only to
Lessee's payment obligations provided in subsection (c) below.
(b) Lessee's Improvements. Lessor shall contribute an amount equal to
$14.00 for each square foot within the Premises towards the cost of Lessee's
Improvements as described in Exhibit C attached. In addition, if the total costs
of Lessor's Improvements are less than $66.00 per square foot, then the
difference between such costs and $66.00 shall be added to Lessor's contribution
towards Lessee's Improvements. All other costs of Lessee's Improvements shall be
paid by Lessee.
(c) Payment of Estimated Excess Costs and Option to Terminate. If the
total estimated costs of Lessor's Improvements shall exceed $66.00 per square
foot, Lessee shall within fifteen (15) days following receipt of adequate cost
evidence from Lessor,
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notify Lessor, in a writing executed and acknowledged by the President and any
Vice- President of Lessee, of Lessee's election to do one of the following:
(i) Lessee may cancel and terminate this Lease, in which event Lessee
shall pay to Lessor as liquidated damages the sum evidenced by the letter of
credit deposited with Lessor under Section 1.04 hereof, unless the total
estimated costs of Lessor's Improvements shall exceed $78.50 per square foot in
which event the letter of credit shall be returned promptly to Lessee, and
Lessee shall be released from any and all liability hereunder; or
(ii) Lessee may request that Lessor proceed with construction of
Lessor's Improvements on the basis of the figures submitted to Lessee, in which
event Lessee shall, upon demand, pay to Lessor in cash its prorata share, as
shown on Exhibit C, of the total estimated costs of Lessor's Improvements in
excess of $66.00 per square foot; or
(iii) Lessee may request that Lessor proceed with construction of
Lessor's Improvements on the basis provided in subsection (ii) above, except
that payment by Lessee of its prorata share, as shown on Exhibit C, of the total
estimated costs of Lessor's Improvements in excess of $66.00 per square foot (up
to a maximum of $78.50 per square foot) shall be payable over the Initial Term
of this Lease at a constant annual rate of $0.200281 per square foot for each
dollar of excess costs so payable by Lessee, and shall be payable as additional
rental by Lessee to Lessor at the time and in the manner provided for (but in
addition to) payment of annual Minimum Rental; provided, however, such
additional rental payable under the terms of this subsection (iii) shall not be
subject to adjustment as provided in Section 2.02 hereof with respect to annual
Minimum Rent. In the event such estimated total costs shall exceed $78.50 per
square foot and Lessee elects to utilize the payment mechanism provided for in
this subsection (iii), then Lessee shall immediately pay to Lessor in cash, upon
demand, its prorata share, as shown on Exhibit C hereto, of the excess of such
estimated total costs of construction over $78.50 per square foot.
If Lessee should fail to make any of the foregoing written elections
within the fifteen (15) day period provided above, then Lessee shall be deemed
to have elected the option set forth in subsection (iii) above. Failure to pay
Lessor any amount as required above shall be a breach under this Lease,
providing Lessor with the same rights and remedies that would result from
Lessee's nonpayment of annual Minimum Rent.
(d) Changes in Documents. After approval by Lessor and Lessee of the
preliminary plans and specifications and the construction bid breakdowns under
Sections 3.02(b) and 3.03 hereof, no substantial changes shall be made to the
same by Lessor without the written approval of Lessee. In the event Lessee
shall, during the course of construction, request changes to be made to the
15
preliminary plans and specifications and construction bid breakdowns previously
approved by Lessor and Lessee, such changes shall be subject to the approval of
Lessor. Any additional costs incurred on account of such requested and approved
changes, together with architectural and other indirect and directly related
costs, shall be added to the total estimated costs of Lessor's Improvements
under subsection (c) above, and Lessee's liability for payment, if any, shall be
in accordance with the provisions set forth in subsection (c)(ii) or (iii)
above, as elected by Lessee.
(e) Excess or Reduced Construction Costs. In the event the actual
costs of constructing Lessor's Improvements shall, for any reason whatsoever,
other than changes requested by Lessee under subsection (d) above, exceed the
total estimated costs thereof under subsection (c) above, Lessor shall pay any
and all such excess costs it being understood that Lessee shall not have any
obligation or liability with respect thereto. If such actual costs should be
less than such total estimated costs, however, Lessee shall have no claim or
rights whatsoever against Lessor by reason thereof (including but not limited to
any claim for refund or reduction in rent).
SECTION 3.05. COMPLETION. The Premises shall be deemed completed when
(i) Lessor has substantially completed construction of the Building Shell,
Lessee's vault envelope and security devices, and any Lessor's Improvements
within the Premises (other than any such work which Lessor determines cannot be
performed by Lessor until such time as Lessee completes work in its Premises
which has not been included in Lessor's Improvements) and (ii) Lessor gives
Lessee written notice of such completion setting forth the date thereof. Until
such time as such notification is provided Lessee by Lessor, the right of Lessee
to enter upon the Premises shall be solely for the purpose of inspection,
measurement and obtaining information necessary for construction of Lessee's
work, if any, and the right of possession by Lessee shall not occur until the
date upon which Lessor notifies Lessee that it has completed construction of
Lessor's Improvements as provided hereinabove. It is agreed that by occupying
the Premises as a tenant following completion of all work to be performed
therein by Lessor, Lessee formally accepts the same and acknowledges that the
Premises are in the condition called for hereunder, except for defects in
workmanship or materials. Lessee shall cause Lessee's work, if any, to be
performed by a licensed general contractor, or contractors, approved by Lessor,
in accordance with working drawings and specifications approved by Lessor.
ARTICLE IV. TAXES AND ASSESSMENTS.
SECTION 4.01. LESSEE'S OBLIGATION FOR TAXES AND ASSESSMENTS.
(a) Lessee shall be responsible for, and agrees to pay, prior
to delinquency, any and all taxes, assessments, levies, fees and other
governmental charges of every kind or nature (hereinafter collectively called
"taxes") levied or assessed by municipal,
16
county, state, federal or other taxing or assessing authority upon, against or
with respect to (i) the Premises or any leasehold interest therein, (ii) all
furniture, fixtures, equipment and any other personal property of any kind owned
by Lessee placed, installed or located within, upon or about the Premises, (iii)
all alterations, additions or improvements of whatsoever kind of nature, if any,
made to the Premises, and (iv) rentals or other charges payable by Lessee to
Lessor (such taxes, assessments, levies, fees and other charges being measured
as though such rentals and charges were the only income of Lessor subject
thereto), irrespective of whether any of the items described in clauses (i)
through (iv) above are assessed as real or personal property, and irrespective
of whether any of such items are assessed to or against Lessor or Lessee, but
expressly excluding any general net income, franchise, inheritance or ad valorem
tax levied upon or payable by Lessor. If at any time during the term of this
Lease any of such taxes are not levied and assessed separately and directly to
Lessee (for example, if the same are levied or assessed to Lessor, or upon or
against the Building containing the Premises and the land underlying said
Building), Lessee shall pay to Lessor Lessee's proportionate share of all taxes
levied or assessed against or with respect to all buildings and land thereunder
from time to time constituting the Development; and Lessee's proportionate share
shall be that portion thereof which the number of square feet of net rentable
area within the Premises bears to the total number of square feet of net
rentable area of all buildings from time to time constituting the Development.
In the event the ultimate development of the balance of the Development shall
consist of substantial industrial, retail or other uses dissimilar to office
use, then Lessee shall pay to Lessor Lessee's proportionate share of all taxes
levied or assessed against or with respect to all buildings and land thereunder
located within the Building Parcel; and Lessee's proportionate share shall be
that portion thereof which the number of square feet of net rentable area in the
Premises bears to the total number of square feet of net rentable area of the
buildings located within the Building Parcel. To the extent that taxes in common
facilities are the obligation of Lessee under Section 6.03 hereof, the same
shall not be includable in Lessee's proportionate share of taxes levied or
assessed against or with respect to buildings and land constituting the
Development pursuant to this Section 4.01. The taxes payable by Lessee pursuant
to this subsection (a) which are levied or assessed for the fiscal tax year in
which the term of this Lease commences and for the fiscal tax year in which the
term of this Lease ends shall be prorated.
(b) Should the United States of America, State of California or any
political subdivision thereof or any other governmental authority having
jurisdiction (by way of substitution for all or any part of the "taxes"
otherwise required to be paid in whole or in part by Lessee pursuant to this
Section 4.01 or Section 6.03, or in addition thereto), either (i) impose a
capital levy or a tax, assessment and/or surcharge of any kind or nature upon,
against, in connection with or with respect to the rentals or other
17
charges payable to Lessor by Lessee or other tenants in or occupants of the
Development or on Lessor's ownership of the Development or any portion thereof
or interest therein, other than on the value of real and personal property
comprising the Development (but in computing any such levy, tax, assessment or
surcharge, the same shall be measured as though said rentals, charges and
ownership interest were the only income or property subject thereto) and/or (ii)
impose a tax or surcharge of any kind or nature upon, against or with respect to
the parking area or the number of parking spaces in the Development, but
expressly excluding from either (i) or (ii) above any general net income,
franchise, inheritance or ad valorem tax levied upon or payable by Lessor, then,
in any such case, such tax, assessment and/or surcharge shall be deemed to
constitute a tax and/or assessment against the buildings constituting the
Development and Lessee shall pay to Lessor its proportionate share thereof
pursuant to this Section 4.01, as billed by Lessor.
(c) In the event Lessor contests any taxes levied or assessed during
the term hereof upon, against or with respect to the Development, or any portion
thereof or interest therein, Lessee agrees to pay to Lessor that proportion of
all costs incurred by Lessor in connection therewith computed in the manner
provided in Section 4.01(a) above.
(d) Upon Lessor's receipt of assessment notices and/or tax statements
or bills covering any or all of the taxes payable by Lessee hereunder for any
fiscal tax year, Lessor shall xxxx Lessee for its proportionate share. The
failure of Lessee to pay any tax or other amount payable directly to the taxing
authority or to Lessor under this Section 4.01 either prior to delinquency (in
the case of taxes payable by Lessee directly to the taxing authority) or within
ten (10) days after receipt by Lessee from Lessor of a statement therefor (in
all other cases) shall carry with it the same consequences as Lessee's failure
to pay rent.
ARTICLE V. CONDUCT OF BUSINESS BY LESSEE.
SECTION 5.01. USE OF PREMISES. Lessee shall use the Premises for the
purpose of conducting and carrying on a banking business, for general office
purposes, and for uses normally incident to the foregoing, and for no other
purpose without the prior written consent of Lessor. Lessee may not, however,
sublet the Bank Space for non-banking purposes without the prior consent of
Lessor under Section 12.01 hereof.
SECTION 5.02. OPERATION OF BUSINESS. Lessee agrees to use its best
efforts to keep substantially all of the Premises open and occupied during the
entire term of this Lease following completion of Lessor's and Lessee's
Improvements, unless prevented from doing so because of fire, accident or acts
of God, and agrees to conduct its business in a first class and reputable
manner. Nothing contained in this Lease shall be construed as implying a
covenant on the part of Lessee to maintain its banking business
18
within the Premises during the term of this Lease or any portion thereof, or to
keep any portion of the Premises open as a bank during any particular hours or
days; it being expressly understood and agreed that such matters shall be
determined solely by Lessee.
Lessee, at Lessee's expense, shall promptly comply with all present
and future laws, ordinances, orders, rules, regulations and requirements of all
governmental authorities having jurisdiction affecting or applicable to the
Premises or the cleanliness, safety, occupancy or use of the same, whether or
not any such law, ordinance, order, rule, regulation or requirement is
substantial, or foreseen or unforeseen, or ordinary or extraordinary, provided
Lessee shall not be required to make any structural alterations or changes to
the Premises, except as may be required because of Lessee's operations within
the Premises under this Lease. Lessee shall not do or permit anything to be done
in or about the Premises, nor bring anything therein, which will in any way
conflict with any such law, ordinance, order, rule, regulation or requirement
affecting the occupancy or use of the Premises or the Development which is or
may hereafter be enacted or promulgated by governmental authorities, or in any
way obstruct or interfere with the rights of others, nor shall Lessee use or
allow the Premises to be used for any improper, immoral or objectionable
purposes. No auction, liquidation, going out of business, fire or bankruptcy
sales may be conducted in the Premises. Lessee shall have absolute freedom to
determine its own prices and business practices. Lessee will conduct its
business in good faith so as not to tend, in Lessor's opinion, to injure the
reputation of the Development. Lessee shall not permit noise or odors in the
Premises which are objected to by Lessor or by any tenant or occupant of the
Development and, upon written notice from Lessor, Lessee shall immediately cease
and desist from causing such noise or odor, and failing of which Lessor may deem
the same a material breach of this Lease. Lessee shall not permit the operation
of any coin operated or vending machines or pay telephones on the Premises,
other than in the areas reserved solely for the use of Lessee's employees.
Except as to drive-up and walk-up teller facilities, Lessee shall not use the
areas adjacent to the Premises for business purposes. Lessee shall not store
anything in service or exit corridors. Lessee agrees that all receiving and
delivery of goods and merchandise, and all removal of merchandise, supplies,
equipment, trash and garbage, and all storage of trash and garbage, shall be
made only by way of or in the areas provided therefor by Lessor. Lessee shall
not use or permit the use of any portion of the Premises as sleeping quarters,
lodging rooms, or for any unlawful purposes. Lessee shall not install any radio
or television or other similar device exterior to the Premises and shall not
erect any aerial on the roof or exterior walls of any building within the
Development.
SECTION 5.03. CARE OF PREMISES. Lessee, at Lessee's expense, shall at
all times keep the Premises (including windows and signs) orderly, neat, safe,
clean and free from rubbish and dirt, and shall store all trash, garbage and
other solid waste
19
within the Premises. Lessee shall not burn any trash or garbage at any time in
or about the Development. Lessor may require the use of solid waste disposal
contractors and of pest extermination contractors, at such intervals as Lessor
deems appropriate. If Lessor shall provide any services or facilities for solid
waste pickup, then Lessee shall be obligated to use the same and shall pay a
proportionate share of the cost thereof within ten (10) days after being billed
therefor. If Lessor does not provide such services, Lessee shall arrange for the
regular pickup of all solid waste.
ARTICLE VI. COMMON FACILITIES
SECTION 6.01. OPERATION AND MAINTENANCE OF COMMON FACILITIES. Lessor
agrees to cause to be constructed all common facilities for the Development and,
during the term of this Lease, to operate and maintain the same in a good, clean
and safe condition and manner, normal wear and tear excepted. Lessee's
obligation for its prorata share of operating and maintenance costs for the
common facilities shall be as provided in Section 6.03 below. All areas within
the exterior boundaries of the Development which are not now or hereafter held
for exclusive use by persons entitled to occupy floor space in the Development,
shall be deemed "common facilities", including, without limiting the generality
of the foregoing, parking areas, driveways, truckways, delivery passages,
loading docks, sidewalks, ramps, open and enclosed courts and malls, landscaped
and planted areas, central identification signs, bus stops, retaining walls, and
other areas and improvements provided by Lessor for the common use of Lessor and
tenants and their respective employees and invitees. Lessor may make changes at
any time and from time to time in the size, shape, location, number and extent
of the common facilities or any of them, and no such change shall entitle Lessee
to any abatement of rent; provided, however, that such changes or alterations
shall not unreasonably interfere with Lessee's reasonable use and enjoyment of
the Premises, and provided further that Lessee shall have the right of prior
approval of any changes in the size or shape of the Building Parcel described in
Exhibit "B", which approval shall not be unreasonably withheld.
SECTION 6.02. USE OF COMMON FACILITIES.
(a) The use and occupancy by Lessee of the Premises shall include the
use of the common facilities in common with Lessor and with all others for which
convenience and use the common facilities have been or may hereafter be provided
by Lessor, subject, however, to reasonable rules and regulations for the use
thereof as prescribed from time to time by Lessor. Lessor shall operate, manage,
equip, light, repair, clean and maintain the common facilities in a good, clean
and safe condition and manner, except for normal wear and tear. Nothing
contained herein shall be deemed to create liability upon Lessor for any damage
to motor vehicles of customers or employees or from loss of property from within
such motor vehicles. Lessor may temporarily close any common facility for
repairs or alterations, to prevent a dedication
20
thereof or the accrual of prescriptive rights therein, or for any other reason
deemed sufficient by Lessor.
(b) Except for those eight parking spaces designated for Lessee's
visitors within the areas outlined in blue on Exhibit "A" and such additional
spaces and in such locations as Lessee may reasonably determine to be necessary
for its banking operations and mutually agreed upon (as to which Lessee may post
signs for such use, provided that Lessor shall not be responsible for preventing
or supervising any conflicting uses), Lessor shall at all times during the term
of this Lease have the sole and exclusive control of the automobile parking
areas now or hereafter made available by Lessor for the Building, or the
Premises, all exterior stairways, elevators, and all other building areas
provided by Lessor for the common use of Lessor and tenants, their employees and
invitees, driveways, entrances and exits and the sidewalks, pedestrian
passageways and other common facilities, and may at any time and from time to
time during the term hereof restrain or restrict any use or occupancy thereof,
and may impose reasonable parking charges upon Lessee and its employees with
respect thereto, all in accordance with reasonable rules and regulations for the
use of such areas established by Lessor from time to time. The rights of Lessee
in and to the common facilities shall at all times be subject to the rights of
Lessor and the other tenants of Lessor to use the same in common with Lessee,
and Lessee shall keep said facilities free and clear of any obstructions created
or permitted by Lessee or resulting from Lessee's operations in the Premises. If
in the opinion of Lessor, unauthorized persons are using any of said facilities
by reason of the presence of Lessee in the Development, Lessee, upon demand of
Lessor, shall restrain such unauthorized use by appropriate proceedings. Nothing
herein shall affect the right of Lessor at any time to remove any such
unauthorized person from the common facilities nor to prohibit the use of any
said facilities by unauthorized persons. Lessee and its employees shall park
their vehicles only in those portions of the parking areas from time to time
designated for that purpose by Lessor. Lessee shall furnish Lessor with a list
of its and its employees' vehicle license numbers within fifteen (15) days after
taking possession of the Premises and Lessee shall thereafter notify Lessor of
any change in such list within five (5) days after such change occurs. Lessee
agrees to assume responsibility for compliance by its employees with the parking
provisions contained herein. If Lessee or its employees park in other than such
designated parking areas then Lessor may charge Lessee, as an additional charge,
Ten Dollars ($10.00) per day for each day or partial day each such vehicle is
parked in any part of the common facilities other than that designated. Lessee
hereby authorizes Lessor to tow away from the Development any vehicle belonging
to Lessee or Lessee's employees parked in violation of these provisions, and/or
to attach violation stickers or notices to such vehicle. In the event Lessor
elects or is required to limit or control parking by customers or invitees of
the Development, whether by validation of parking tickets, parking meters or any
other method of assessment, or any program for free or reduced cost
21
transportation, Lessee agrees to participate in such validation, assessment or
transportation program (as the same pertains to its employees) under such
reasonable rules and regulations as are from time to time established by Lessor
with respect hereto.
SECTION 6.03. LESSEE'S PRO RATA SHARE OF EXPENSES.
(a) Lessee shall pay to Lessor during the term of this Lease,
in the manner and at the time provided below, Lessee's proportionate share, as
defined below, of all costs and expenses incurred by Lessor in the operation and
maintenance of the common facilities described in Section 6.01 hereof, other
than those contained within or as part of any building within the Development,
including Lessor's costs and expenses of providing the insurance described in
Section 9.02 below as to such common facilities. Such costs and expenses shall
include, without limiting the generality of the foregoing, gardening,
landscaping, repaving, cost of public liability, property damage, vandalism and
malicious mischief, and other insurance, real property taxes (as defined in
Section 4.01 but applicable to the common facilities), repairs, painting,
lighting, cleaning, trash removal, depreciation of equipment, security, fire
protection, and similar items, and an amount equal to fifteen percent (15%) of
all such costs and expenses to cover Lessor's administrative and overhead
expense. Such costs and expenses shall not include any allowance for
depreciation of common facilities, but shall include replacements and all
charges, surcharges and other levies of whatsoever nature imposed by, and all
costs (whether or not capital in nature) of compliance with the requirements of
any federal, state or local governmental agency regulating the environmental,
health and safety aspects of the Development.
(b) The proportionate share of such common facilities, costs and
expenses to be paid by Lessee with respect to the developed portion of the total
Development from time to time shall be 60% of that proportion thereof which the
number of square feet contained in the Building Parcel described in Exhibit "B"
attached bears to the total number of square feet in the developed portion of
the total Development shown on Exhibit "A". In the event the ultimate
development of the balance of the Development shall consist of substantial
industrial, retail or other uses dissimilar to general office use, then Lessee
shall only be required to pay its proportionate share of the costs and expenses
of operating, repairing and maintaining common facilities within the Building
Parcel, such proportionate share to be 60% of such costs and expenses.
Lessee shall pay its proportionate share of such common facilities,
costs and expenses as estimated and billed therefor by Lessor, in advance, from
time to time, but not more often than monthly. The failure of Lessee to pay any
such amount to Lessor within ten (10) days after receipt by Lessee from Lessor
of a xxxx therefor shall carry with it the same consequences as failure to pay
rent. Subsequent to the end of each calendar or fiscal year (at Lessor's
option), Lessor shall furnish Lessee with a statement
22
of the actual amount of Lessee's proportionate share of such costs and expenses
for such period. If the total amount paid by Lessee under this Section 6.03 for
any year shall be less than the actual amount due from Lessee for such year as
shown on such statement, Lessee shall pay to Lessor the difference between the
amount paid by Lessee and the actual amount due, such deficiency to be paid
within ten (10) days after the furnishing of such statement, and if the total
amount paid by Lessee hereunder for any such year shall exceed such actual
amount due from Lessee for such year, such excess shall be credited against the
next billing by Lessor of estimated costs and expenses due by Lessee under this
Section 6.03, provided that if such billing is not received within eighty-five
(85) days after the end of such period, then Lessee may thereafter credit such
excess against the next installment of rent becoming due from Lessee to Lessor
under this Lease.
ARTICLE VII. ALTERATIONS, CHANGES AND ADDITIONS
SECTION 7.01. INSTALLATION BY LESSEE. Lessee shall not make or cause
to be made any structural or other substantial alterations, additions or
improvements to the Premises, including but not limited to the installation of
any signs, partitions, interior or exterior lighting, plumbing fixtures, shades,
canopies or awnings, electronic detection devices, antennas, mechanical,
electrical or sprinkler systems, or make any changes to the exterior of the
Premises without the prior written approval of Lessor, which approval shall not
be unreasonably withheld. Lessee shall present to Lessor complete plans and
specifications for such work at the time approval is sought. As used herein,
"substantial" shall mean an alteration, addition or improvement exceeding in
cost the sum of $10,000.
SECTION 7.02. REMOVAL BY LESSEE. All alterations, decorations,
additions and improvements made by Lessee shall be deemed to have attached to
the realty and to have become the property of Lessor upon the expiration of the
term hereof or upon the expiration of any renewal of the term hereof or upon
sooner termination. Lessee shall not remove any of such alterations,
decorations, additions and improvements, except that Lessee may designate by
written notice to Lessor those removable improvements, trade fixtures, equipment
and furnishings (including, but not limited to vault doors, bank counters,
safety deposit boxes, bank night depositories, walk-up and drive-up teller
facility equipment and fixtures, security devices, and equipment), which Lessee
desires to remove at Lessee's expense at the expiration or termination of the
Lease, and Lessee shall promptly remove the same and repair any damage to the
Premises caused by such removal.
SECTION 7.03. CHANGES AND ADDITIONS BY LESSOR. Lessor hereby reserves
the right at any time, and from time to time, to make alterations or additions
to any building in the Development, to construct other buildings and
improvements in the Development, to enlarge or reduce the Development and to
make alterations therein or additions thereto, to build additional stories on
any
23
building or buildings within the Development, to construct decks or elevated
parking facilities, and to sell or lease any part of the land comprising the
Development for the construction thereon of buildings which may or may not be
part of the Development. Lessor reserves the right at any time to relocate any
building, parking areas and common facilities, and to add or delete buildings
and areas to or from the Development as defined for purposes of this Lease,
provided that Lessor shall not unreasonably interfere with Lessee's reasonable
use and enjoyment of the Premises except as to temporary inconvenience caused
during the course of such work.
ARTICLE VIII. MAINTENANCE OF LEASED PREMISES
SECTION 8.01. LESSOR'S OBLIGATIONS FOR MAINTENANCE. Lessor shall keep
and maintain in good repair the roof (including the structural integrity
thereof), the exterior surfaces of the exterior walls and structural elements of
all buildings (exclusive of doors, door frames, door checks, other entrances,
windows and window frames which are not part of common facilities, and
suitefronts), exterior stairways, elevators, restrooms within a building but not
within the premises of any tenant, subject to Section 8.02 below, and the
structural, electrical and mechanical systems (including sprinkler systems,
heating, ventilation and air-conditioning) serving the Premises, whether located
inside or outside the Premises, and other building areas and improvements
provided by Lessor for the common use of Lessee and tenants, their employees and
invitees, except that Lessor shall not be called upon to make any such repairs
occasioned by the act or negligence of Lessee, its agents, employees, invitees,
licensees or contractors. Lessor shall not be called upon to make any other
improvements or repairs of any kind upon the Premises and appurtenances, except
as may be required under Articles XV and XVI hereof, and nothing contained in
this Section 8.01 shall limit Lessor's right to reimbursement from Lessee for
maintenance, repair costs and replacement costs conferred elsewhere in this
Lease. Except for those costs and expenses to be paid solely by Lessee as
provided in Section 8.02(a) below, Lessee shall reimburse Lessor for Lessee's
pro rata share of all expenses incurred by Lessor under this Section 8.01.
Lessee's pro rata share shall be that proportion of such total expenses which
the net rentable area of the Premises bears to the net rentable area of all
premises within the Building, and shall be paid upon receipt of Lessor's
periodic invoices therefor. Lessor shall have the right to employ or designate
any reputable person or firm to perform the service, repair and maintenance
functions described in this Section 8.01, and the fees and charges of any person
or firm so employed or designated shall be reimbursed to Lessor as above
provided.
SECTION 8.02. LESSEE'S OBLIGATIONS FOR MAINTENANCE.
(a) Except as provided in Section 8.01 of this Lease and
except for normal wear and tear, Lessee, at Lessee's expense, shall keep and
maintain in first-class appearance and in good order,
24
condition and repair as determined by Lessor (including replacement of parts and
equipment, if necessary) the Premises and every part thereof and any and all
appurtenances thereto wherever located, including, but without limitation, the
interior surfaces of the exterior walls, the exterior and interior portion of
all doors, door frames, door checks, other entrances, windows, window frames,
plate glass, suitefronts, signs, walls, floors and ceilings, and all other work
performed by or on behalf of Lessee pursuant to Section 3.01 and Section 7.01
hereof, and all other repairs, replacements, renewals and restorations thereof.
In addition, Lessee shall reimburse Lessor or otherwise pay for the costs of
repair and maintenance of all sprinkler systems, heating, ventilation, air
conditioning and electrical systems, and plumbing and sewage facilities located
within the Premises, including free flow up to the main sewer line.
(b) Lessee shall keep and maintain the Premises in a clean, sanitary
and safe condition in accordance with the laws of the State of California and in
accordance with all directions, rules and regulations of the health officer,
fire xxxxxxxx, building inspector, or other proper officials of the governmental
agencies having jurisdiction, and Lessee shall comply with all requirements of
laws, ordinances and regulations pertaining to Lessee's use of and operations
within the Premises, all at the sole cost and expense of Lessee (but excluding
compliance with any laws, ordinances or regulations requiring structural
alterations to the Premises). At the time of the expiration of the tenancy
created herein, Lessee shall surrender the Premises in good order, condition and
repair, reasonable wear and tear excepted.
(c) Lessee shall keep the Premises and all other parts of the
Development free from any and all liens arising out of any work performed,
materials furnished or obligations incurred by or for Lessee, and agrees to bond
against or discharge any mechanic's or materialmen's lien within ten (10) days
after written request therefor by Lessor. Lessee shall give Lessor at least
fifteen (15) days notice prior to commencing or causing to be commenced any work
on the Premises (whether prior or subsequent to the commencement of the lease
term), so that Lessor shall have reasonable opportunity to file and post notices
of non-responsibility for Lessee's work. Lessee shall reimburse Lessor for any
and all costs and expenses which may be incurred by Lessor by reason of the
filing of any such liens and/or the removal of same, such reimbursement to be
made within ten (10) days after receipt by Lessee from Lessor of a statement
setting forth the amount of such costs and expenses.
(d) Lessee, at its own expense, shall install and maintain fire
extinguishers and other fire protection devices as may be required from time to
time by any agency having jurisdiction and/or by the insurance underwriters
insuring the building in which the Premises are located.
25
(e) Lessee expressly waives all rights to make repairs at the expense
of Lessor as provided for in any statute or law in effect during the term of
this Lease.
(f) In the event that Lessee fails, refuses or neglects to commence
and complete repairs promptly and adequately, to remove any lien, to pay any
cost or expense, to reimburse Lessor, or otherwise to perform any act or fulfill
any obligation required of Lessee pursuant to this Section 8.02, Lessor may, but
shall not be required to do so, make or complete any such repairs, remove such
lien, pay such cost or perform such act or the like without prior notice to, but
at the sole cost and expense of, Lessee; Lessee shall reimburse Lessor for all
costs and expenses of Lessor thereby incurred within ten (10) days after receipt
by Lessee from Lessor of a statement setting forth the amount of such costs and
expenses. The failure by Lessee so to reimburse Lessor within such ten-day
period shall carry with it the same consequences as failure to pay rent.
Lessor's rights and remedies pursuant to this subsection (f) shall be in
addition to any and all other rights and remedies provided under this Lease or
at law.
ARTICLE IX. INSURANCE AND INDEMNITY
SECTION 9.01. LESSEE'S INSURANCE.
(a) Lessee, at its sole cost and expense, shall, commencing on the
date Lessee is given access to the Premises for any purpose, and continuing for
the balance of term hereof, procure, pay for and keep in full force and effect:
(i) comprehensive general liability insurance with respect to the Premises and
the operations of or on behalf of Lessee in, or on about the Premises,
specifically including owned and non-owned automobile liability, personal
injury, blanket contractual, owner's protective, broad form property damage and
product/completed operations liability coverage (if applicable) for not less
than One Million Dollars ($1,000,000.00) combined single limit for bodily
injury, death, and property damage liability per occurrence; (ii) worker's
compensation coverage as required by law, together with employers liability
coverage; (iii) with respect to improvements, alterations, and the like required
or permitted to be made by Lessee hereunder, contingent liability and builder's
risk insurance, in amounts satisfactory to Lessor; (iv) insurance against fire,
vandalism, malicious mischief and such other additional perils as now are or
hereafter may be included in a standard special extended coverage endorsement
insuring Lessee's leasehold improvements, trade fixtures, furnishings, equipment
and other items of personal property of Lessee located on or in the Premises, in
an amount equal to not less than ninety percent (90%) of the actual replacement
cost thereof; and (v) plate glass insurance, at full replacement value.
(b) All policies of insurance required to be carried by Lessee
pursuant to this Section 9.01 shall be written by responsible insurance
companies authorized to do business in the State of California. Any such
insurance required of Lessee
26
hereunder may be furnished by Lessee under any blanket policy carried by it or
under a separate policy therefor. A copy of each paid up policy evidencing such
insurance (appropriately authenticated by the insurer) or a certificate of the
insurer, certifying that such policy has been issued, providing the coverage
required by this Section and containing provisions specified herein, shall be
delivered to Lessor prior to the date Lessee is given the right of possession of
the Premises, and upon renewals, not less than thirty (30) days prior to the
expiration of such coverage. Lessor may, at any time, and from time to time,
inspect and/or copy any and all insurance policies required to be procured by
Lessee hereunder.
(c) Each policy evidencing insurance required to be carried by Lessee
pursuant to this Section 9.01 shall contain the following provisions and/or
clauses: (i) a cross-liability clause; (ii) a provision that such policy and the
coverage evidenced thereby shall be primary and that any coverage carried by
Lessor shall be excess insurance and non-contributing with respect to any
policies carried by Lessor; (iii) a provision including Lessor and any other
parties in interest designated by Lessor as an additional insured; (iv) a waiver
by the insurer of any right to subrogation against Lessor, its agents, employees
and representatives which arises or might arise by reason of any payment under
such policy or by reason of any act or omission of Lessor, its agents, employees
or representatives; (v) a severability clause; (vi) a provision that the insurer
will not cancel or change the coverage provided by such policy without first
giving Lessor thirty (30) days prior written notice.
(d) Lessee may satisfy any or all of the insurance obligations
contained herein by self-insurance; provided, however, that:
(i) Lessee shall at all times maintain a net worth
in excess of Five Million Dollars ($5,000,000);
(ii) Lessee shall at all times maintain sufficient funds available
to provide the same coverages, protection and payments by way of
self-insurance as would be provided if Lessee were to obtain the types of
insurance pursuant to all other insurance provisions set forth above;
(iii) Lessee shall provide Lessor at least once annually or
whenever reasonably required by Lessor, with certificates of compliance
executed by a responsible financial officer of Lessee setting forth the
types of coverage or protection then being provided by self-insurance and
assuring Lessor of the existence and maintenance of such required net worth
and the continuing availability of funds during the full period of any
self-insurance;
(iv) All funds maintained for self-insurance purposes shall be
subject to all provisions contained in this
27
Lease with respect to the use, application, distribution or other
disposition of insurance proceeds; and
(v) All indemnity, hold harmless and defense provisions contained
in this Lease shall be cumulative and in addition to all self-insurance
provisions hereof, for the protection of Lessor, its officers, directors,
employees, agents and representatives.
Without the prior written consent of Lessor, the right to self-insure
given to Lessee under this subsection (d) shall not be available to any
successor or assign of Lessee, other than a parent, subsidiary or surviving
corporation to which an assignment of this Lease may be made under Section
12.01(a)(i) and (ii) hereof.
(e) In the event that Lessee fails to procure, maintain and/or pay for
at the times and for the durations specified in this Section 9.01, any insurance
required by this Section (including self-insurance as provided above), or fails
to carry insurance as required by law or governmental regulation, Lessor may
(but without obligation to do so) at any time or from time to time, and without
notice, procure such insurance and pay the premiums therefor, in which event
Lessee shall repay Lessor all sums so paid by Lessor, together with interest
thereon as provided elsewhere herein and any costs or expenses incurred by
Lessor in connection therewith, within ten (10) days following Lessor's written
demand to Lessee for such payment.
(f) Lessee shall not carry any stock of goods or do anything in or
about the Premises which will in any way tend to increase the insurance rates on
the Development, the Premises and/or the building of which they are a part
and/or the contents thereof.
SECTION 9.02. LESSOR'S INSURANCE. Lessor shall, with respect to the
Development, keep in full force and effect comprehensive general liability
insurance and owner's broad form property damage liability coverage for bodily
injury, death and property damage in an amount not less than One Million Dollars
($1,000,000) combined single limit for bodily injury, death and property damage
liability per occurrence; and Lessor shall, with respect to the Building of
which the Premises are a part, keep in full force and effect insurance against
fire, vandalism, malicious mischief and such other additional perils as now are
or hereafter may be included in a standard fire and special extended coverage
endorsement, in an amount equal to the full insurable value of the Building.
Each policy evidencing insurance required to be carried by Lessor pursuant to
this Section 9.02 shall contain a waiver by the insurer of any right of
subrogation against Lessee, its agents, employees and representatives which
arises or might arise by reason of any payment under such policy or by reason of
any act or omission of Lessee, its agents, employees or representatives. In
28
addition, Lessor shall have the right, but shall not be required, to provide
such other insurance for the Building (if any), with or without deductible and
in such amounts and coverages as may be determined by Lessor in Lessor's sole
judgment and discretion.
SECTION 9.03. COVENANT TO HOLD HARMLESS. Lessee covenants to indemnify
Lessor, and save it harmless from and against any and all claims, actions,
damages, liability and expenses, including attorneys' fees, in connection with
loss of life, bodily injury and/or damage to property arising from or out of any
occurrence in, upon or at the Premises, or the occupancy or use by Lessee of the
Premises or any part thereof, or arising from or out of Lessee's failure to
comply with any provision of this Lease or otherwise occasioned wholly or in
part by any act or omission of Lessee, its agents, representatives, contractors,
employees, servants, customers or licensees; provided, however, that Lessee
shall not indemnify Lessor against any loss of life, bodily injury and/or damage
to property arising from Lessor's willful acts or active negligence. For the
purpose of this Section 9.03, the Premises shall include the common areas
adjacent to the same. In case Lessor shall, without fault on its part, be made a
party to any litigation commenced by or against Lessee, then Lessee shall
protect and hold it harmless and shall pay all costs, expenses and reasonable
attorney's fees incurred or paid by Lessor in connection with such litigation.
Lessor may, at its option, require Lessee to assume Lessor's defense in any
action covered by this Section through counsel satisfactory to Lessor.
SECTION 9.04. EXEMPTION OF LESSOR. Lessor shall not be liable for
injury or damage which may be sustained by the person, goods, wares, merchandise
or property of Lessee, its employees, invitees or customers or any person in or
about the Premises caused by or resulting from fire, steam, electricity, gas,
water or rain, which may leak or flow from or into any part of the Premises, or
from the breakage, leakage, obstruction or other defects of the pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures
of the same, whether the said damage or injury results from conditions arising
upon the Premises or upon other portions of the Building of which the Premises
are a part, or from other sources, except as to Lessor's willful acts or active
negligence. Lessor shall not be liable for any damages arising from any act or
neglect of any other tenant of the Development.
SECTION 9.05. WAIVER OF SUBROGATION. Each party hereto does hereby
waive, remise, release and discharge the other party hereto and any officer,
agent, employee or representative of such other party, of and from any liability
whatsoever hereafter arising from loss, damage or injury caused by fire or other
casualty for which insurance (permitting waiver of subrogation) is carried or
required to be carried by such party under the provisions of this Lease.
ARTICLE X. UTILITY CHARGES
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SECTION 10.01. UTILITY CHARGES. Lessee shall pay all charges for gas,
water, sewer, electricity, telephone and other utility services used in the
Premises during the term of this Lease. If any such charges are not paid when
due Lessor may pay the same, and any amount so paid by Lessor shall thereupon
become due to Lessor from Lessee as additional rent. To the extent that any such
utility service to the Premises is not separately metered or billed to Lessee,
Lessee shall reimburse Lessor monthly for Lessee's proportionate share of the
total charge for such utility service to all premises served in common with the
Premises as provided in Section 8.02 above. If Lessor reasonably determines that
Lessee's usage of any utility service so provided in common with other premises
is excessive, whether due to longer than normal hours of operation, equipment
other than normal office machines, or otherwise, then Lessor may establish an
additional charge to be paid by Lessee for such excessive use. If Lessor shall
elect to furnish any utility services to the Premises, Lessee shall purchase its
requirements thereof from Lessor so long as the rates charged therefor by Lessor
do not exceed those which Lessee would be required to pay if such services were
furnished it directly by a public utility. Lessor shall not be liable in damages
or otherwise for any failure or interruption of any utility service being
furnished the Premises, except where such failure or interruption is due to
Lessor's willful acts or active negligence, and no such failure or interruption
shall entitle Lessee to terminate this Lease, or to an abatement of the annual
Minimum Rent, additional rent or other charges due hereunder.
ARTICLE XI. OFF-SET STATEMENT, ATTORNMENT
AND SUBORDINATION
SECTION 11.01. OFF-SET STATEMENT. Lessee shall, at any time and from
time to time upon not less than ten (10) days' prior written notice from Lessor,
execute, acknowledge and deliver to Lessor a statement in writing (i) certifying
that this Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease, as so
modified, is in full force and effect) and the dates to which the annual Minimum
Rent and other charges are paid in advance, if any, and (ii) acknowledging that
there are not, to Lessee's knowledge, any uncured defaults on the part of Lessor
hereunder, or specifying such defaults if any are claimed. Any such statement
may be relied upon by any prospective purchaser or encumbrancer of the Premises
or of all or any portion of the real property of which the Premises are a part.
Lessee's failure to deliver such statement within such time shall be conclusive
upon Lessee (i) that this Lease is in full force and effect, without
modification except as may be represented by Lessor, (ii) that there are not
uncured defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance.
SECTION 11.02. ATTORNMENT. In the event any proceedings are brought
for the foreclosure of, or in the event of the
30
conveyance by deed in lieu of foreclosure of, or in the event of exercise of the
power of sale under, any mortgage and/or deed of trust made by Lessor, covering
the Premises, or in the event Lessor sells, conveys or otherwise transfers its
interest in the Premises, Lessee hereby attorns to, and covenants and agrees to
execute an instrument in writing reasonably satisfactory to the new owner
whereby Lessee attorns to, such successor in interest and recognizes such
successor as the Lessor under this Lease.
SECTION 11.03. SUBORDINATION. Lessee agrees that this Lease shall, at
the request of the Lessor, be subordinate to any mortgages or deeds of trust
that may hereafter be placed upon the Premises and to any and all advances to be
made thereunder, and to the interest thereon, and all renewals, replacements and
extensions thereof, provided the mortgagees or beneficiaries named in said
mortgages or trust deeds shall agree to recognize the interest and rights of
Lessee under this Lease and not to disturb Lessee's possession of the Premises
in the event of foreclosure, whether by judicial proceeding or by exercise of
power of sale, if Lessee is not then in default hereunder. Lessee also agrees
that any mortgage or beneficiary may elect to have this Lease constitute a prior
lien to its mortgage or deed of trust, and, in the event of such election and
upon notification by such mortgagee or beneficiary to Lessee to that effect,
this Lease shall be deemed prior in lien to such mortgage or deed of trust,
whether this Lease is dated prior to or subsequent to the date of said mortgage
or deed of trust. Lessee agrees that upon the request of Lessor, or any
mortgagee or beneficiary, Lessee shall execute whatever instruments may be
required to carry out the intent of this Section 11.03.
SECTION 11.04. REMEDIES. Failure of Lessee to execute any statements
or instruments necessary or desirable to effectuate the foregoing provisions of
Section 11.03 within ten (10) days after written request so to do by Lessor,
shall constitute a breach of this Lease. In the event of such failure, Lessor,
in addition to any other rights or remedies it might have, shall have the right,
by not less than ten (10) days notice to Lessee to declare this Lease terminated
and the term ended, in which event this Lease shall cease and terminate on the
date specified in such notice; upon such termination Lessee shall vacate and
surrender the Premises, but shall remain liable as provided in this Lease by
reason of said breach.
ARTICLE XII. ASSIGNMENT AND SUBLETTING
SECTION 12.01. ASSIGNMENT AND SUBLETTING.
(a) Prohibition and Exceptions.
Notwithstanding any provision herein to the contrary or reference
herein to concessionaires or subtenants or otherwise, neither Lessee nor any
trustee, receiver or other successor to Lessee may assign or in any manner
transfer this Lease or any
31
estate or interest therein, or sublet the Premises or any part or parts thereof
or any right or privilege appurtenant thereto, or allow anyone to conduct
business at, upon or from the Premises (whether as franchisee, licensee,
permittee, subtenant, operator or otherwise), or to come in, by, through or
under it, in all cases either by voluntary or involuntary act or by operation of
law or otherwise, without the prior written consent of Lessor. Lessor has
entered into this Lease with Lessee in order to obtain for the benefit of the
entire Development the unique attraction of Lessee's trade name set forth in
Item 1 of the Basic Lease Provisions and the services associated with Lessee's
business as described in Item 3 of the Basic Lease Provisions, and the foregoing
restriction on assignment or subletting is expressly agreed to by Lessee in
consideration of that fact. If Lessee is a corporation which, under the then
current guidelines published by the Commissioner of Corporations of the State of
California, is not deemed a public corporation, or is an unincorporated
association or partnership, the transfer, assignment or hypothecation of any
stock or interest in such corporation, association or partnership in the
aggregate in excess of twenty-five percent (25%) (other than by transfer (i) to
the parent of Lessee or any subsidiary of Lessee or Lessee's parent or (ii) to a
corporation into which Lessee may merge or consolidate provided that the
surviving corporation shall have a net worth at least equal to Lessee), whether
in one transaction or a series of transactions, shall be deemed an assignment
within the meaning and provisions of this Article XII. Lessee agrees to
reimburse Lessor for Lessor's reasonable costs and attorney's fees incurred in
connection with the processing and documentation of any such requested
assignment, subletting, transfer, change of ownership or hypothecation of this
Lease or Lessee's interest in and to the Premises.
(b) Required Information.
If Lessee desires at any time to assign this Lease or to sublet the
Premises or any portion thereof, Lessee shall first notify Lessor of its desire
to do so and shall submit in writing to Lessor: (i) the name of the proposed
subtenant or assignee; (ii) the nature of the proposed subtenant's or assignee's
business to be carried on in the Premises; (iii) the terms and provisions of the
proposed sublease or assignment; and (iv) such reasonable information as Lessor
may request concerning the proposed subtenant or assignee, including, but not
limited to, a balance sheet of the proposed subtenant or assignee as of a date
within ninety (90) days of the request for Lessor's consent, statements of
income or profit and loss of the proposed subtenant or assignee for the two-year
period preceding the request for Lessor's consent and a written statement in
reasonable detail as to the business experience of the proposed subtenant or
assignee during the five (5) years preceding the request for Lessor's consent.
(c) Elections of Lessor.
At any time within thirty (30) days after Lessor's receipt of the
information specified in Section 12.01 (b) above, Lessor may, by written notice
to Lessee, elect to (i) consent to
32
the subletting or assignment upon the terms and to the subtenant or assignee
proposed; (ii) refuse to give its consent, specifying in reasonable detail the
reason(s) therefor; (iii) sublease the Premises or the Lessee's leasehold estate
hereunder or such part thereof as shall be specified in said notice upon the
same financial terms (excluding terms relating to merchandise, inventory, supply
contracts, the use of Lessee's name or the continuation of Lessee's business) as
those offered to the proposed subtenant or assignee, as the case may be; or (iv)
terminate this Lease as to the portion (up to all) of the Premises so proposed
to be subleased or assigned with a proportionate abatement in the rent payable
hereunder. Unless Lessor exercises its rights under clauses (iii) or (iv) above,
Lessor shall not unreasonably withhold its consent provided that the occupancy
resulting therefrom will not violate any rights theretofore given to any other
tenant of the Development and that substantially the same class and quality of
management and financial soundness is maintained and will continue to be
furnished in a manner compatible with the high standards contemplated under this
Lease, and, provided, further, at each and every covenant, condition or
obligation imposed upon Lessee by this Lease and each and every right, remedy or
benefit afforded Lessor by this Lease, is not thereby impaired or diminished. If
Lessor consents to such assignment or subletting, Lessee may thereafter within
ninety (90) days after the expiration of said thirty (30) day period enter into
a valid assignment or sublease of the Premises or portion thereof, upon the
terms and conditions described in the information required to be furnished by
Lessee to Lessor pursuant to Section 12.01(b) above or other terms not less
favorable to Lessee, provided, however, that any material change in the terms of
such subletting or assignment from those approved by Lessor shall be subject to
Lessor's consent as provided in this Section 12.01.
(d) No Release From Liability.
No subletting or assignment, even with the consent of Lessor, shall
relieve Lessee of its obligation to pay the rent and to perform all of the other
obligations to be performed by Lessee hereunder. The acceptance by Lessor of any
payment due hereunder from any other person shall not be deemed to be a waiver
by Lessor of any provision of this Lease or to be a consent to any assignment or
subletting. Consent by Lessor to one or more assignments of this Lease or to one
or more sublettings of the Premises shall not operate to exhaust Lessor's rights
under this Article XII.
(e) Right to Sublease Office Space.
Notwithstanding the provisions set forth above in this Article XII,
Lessee may sublease all or any portion of the Office Space (but not the Bank
Space) contained within the Premises from time to time, without the prior
written approval of Lessor, provided that each sublease meets the following
criteria:
(i) The sublease is upon a standard form approved in advance in
writing by Lessor, or any changes or deviations from such standard form
have been approved in advance in
33
writing by Lessor;
(ii) Each sublease provides rent on a proportionate square footage
basis at least equal to rent hereunder or, if such rent on a proportionate
square footage basis is not at least equal to the rent hereunder, Lessor
approves the proposed use to which the Premises would be put and quality of
tenant (exclusive of financial suitability) after Lessee has provided the
information described in (v) below. In no event shall any such sublease relieve
Lessee of responsibility of full performance as to all terms, covenants and
conditions of this Lease with respect to such subleased area, including, without
limitation, full payment by Lessee to Lessor of the applicable annual Minimum
Rental then existing as provided herein;
(iii) Each sublease shall contain a provision that all plans and
specifications for tenant improvements within the interior of the subleased
area, and all structural alterations, modifications or repairs, shall be subject
to the prior approval of Lessor;
(iv) Each sublease shall include a provision permitting Lessor, at
its option, either to require attornment by sublessee or termination of the
sublease in the event of default by Lessee hereunder;
(v) Prior to executing any such sublease, Lessee shall identify
in reasonable detail, on a form submitted or approved by Lessor, the name of the
prospective sublessee, its principal place of business and mailing address, the
nature and extent of its business, and its principals; and
(vi) Promptly upon such subletting, Lessee shall provide Lessor
with a copy of the fully executed sublease.
ARTICLE XIII. WASTE
SECTION 13.01. WASTE OR NUISANCE. Lessee shall not commit or suffer to
be committed any waste upon the Premises, and shall not place a load upon any
floor of the Premises which exceeds the floor load per square foot which such
floor was designed to carry. Lessee shall not commit or suffer to be committed
any nuisance or other act or thing which may disturb the quiet enjoyment of any
other tenant of the Development. Lessee shall not use or permit to be used any
medium that might constitute a nuisance, such as loud speakers, sound
amplifiers, phonographs, radios, televisions, or any other sound producing or
other device which will carry sound or odors outside the Premises. Lessee agrees
that business machines and mechanical equipment used by Lessee which cause
vibration or noise that may be transmitted to the Building or buildings
comprising the Development, to such a degree as to be reasonably objectionable
to Lessor or to any tenant shall be placed and maintained by Lessee at its
expense in setting
34
of cork, rubber or spring-type vibration isolators sufficient to eliminate such
vibrations or noise.
ARTICLE XIV. SIGNS; ADVERTISING
SECTION 14.01. SIGNS, ADVERTISING. Lessee shall have the right to
affix a sign to the exterior surface of the Premises and to place a monument
sign on the Building Parcel, which signs Lessee shall maintain in good condition
and repair during the entire term of this Lease. Said signs shall be in
substantially the location and of substantially the character, design and size
depicted on Exhibit F hereto, and shall otherwise conform to the general
criteria for signs established by Lessor. Except as hereinabove mentioned,
Lessee shall not, without the prior consent of Lessor, which consent will not be
unreasonably withheld, place or cause to be placed, erected or maintained on any
exterior door, wall, window or the roof of the Premises, or on the glass of any
window or door of the Premises, or on any sidewalk or other location outside the
Premises, or within any display window space in the Premises , or within twelve
(12) inches of the front of the leaseline of the Premises, whether or not there
is display window space in the Premises, or within any entrance to the Premises,
any sign, decal, placard, decoration, flashing, moving or hanging lights,
lettering or any other advertising matter of any kind or description; if Lessee
places or causes to be placed or maintained any of the foregoing without the
required consent of Lessor, the same may be removed by Lessor or Lessor's
representative without notice and without such removal constituting a breach of
this Lease or entitling Lessee to claim damages on account thereof. Lessor
acknowledges that Lessee intends to place on entrance doors to the Premises, on
walk-up facilities and night depositories, and on or in the location of drive-up
teller facilities, signs pertaining to (i) identification of entrances and
exits, (ii) hours of operation, (iii) instructions with respect to operation of
walk-up and drive-up teller facilities and night depositories and (iv)
information required by state and federal regulatory authorities; and Lessor
agrees that it will not unreasonably withhold its consent to such signs.
No symbol, design, name, xxxx or insignia adopted by Lessor for the
Development shall be used by Lessee without the prior written consent of Lessor.
No illuminated sign located in the interior of the Premises and which is visible
from the outside thereof shall be permitted without the prior written approval
of Lessor. All signs located in the interior of the Premises shall be in good
taste so as not to detract from the general appearance of the Premises and
Development. Lessee shall not, without the prior written approval of Lessor,
display or sell merchandise in, or otherwise obstruct, any area outside of the
Premises, nor solicit business in the parking or other common areas, nor
distribute any hand bills or other advertising matter in the parking area or in
other common areas.
35
SECTION 14.02. ADVERTISED NAME AND ADDRESS. Lessee shall use the name
of the Development as its advertised business address. Lessee shall not use the
name of the Development for any purpose other than as the address of the
business to be conducted by Lessee in the Premises, and Lessee shall not acquire
any property right in or to any name which contains said word combination as a
part thereof. Any permitted use by Lessee of the name of the Development during
the term of this Lease shall not permit Lessee to use, and Lessee shall not use,
such words either after the termination of this Lease or at any other location.
ARTICLE XV. DESTRUCTION OF LEASED PREMISES
SECTION 15.01. RECONSTRUCTION OF DAMAGED PREMISES.
(a) If the Premises shall be partially or totally destroyed by
fire or other casualty, then the damage to the Premises shall be promptly
repaired by Lessor (unless Lessor shall elect not to rebuild as hereinafter
provided), whereupon, until the damage is so repaired, the annual Minimum Rent
shall be abated based on the extent to which such damage deprives Lessee of or
interferes with Lessee's reasonable use and enjoyment of the Premises or any
portion thereof. In no event shall Lessor be required to repair or replace
Lessee's merchandise, trade fixtures, furnishings or equipment.
(b) If (i) more than thirty-five percent (35%) of the Floor Area of
the Building in which the premises are located shall be damaged or destroyed by
fire or other casualty, (ii) during the last three (3) years of the term hereof,
more than fifteen percent (15%) of the Floor Area of the Premises or of the
Building in which the Premises are located shall be damaged or destroyed by fire
or other casualty, or (iii) all or any part of the Development or said Building
or the Premises are damaged or destroyed at any time by the occurrence of any
risk not fully insurable against under the standard form of fire and extended
coverage insurance policy in use in Orange County, California, then Lessor may
elect either to repair or restore the Building and/or Premises, as the case may
be, or, at its sole option, to terminate this Lease by giving written notice to
Lessee of Lessor's election to so terminate, such notice to be given within
ninety (90) days after the occurrence of such damage or destruction. If Lessor
is required or elects to repair or restore, Lessee, at Lessee's sole cost, shall
repair or replace Lessee's leasehold improvements, trade fixtures, furnishings
and equipment in a manner and to at least a condition equal to that prior to the
damage or destruction thereof. During the making of such repairs and restoration
by Lessor, the annual Minimum Rent shall be equitably abated based on the extent
to which such damage or destruction deprives Lessee of the reasonable use and
enjoyment of all or any portion of the Premises.
ARTICLE XVI. EMINENT DOMAIN
SECTION 16.01. TOTAL CONDEMNATION OF PREMISES. If the
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whole of the Premises shall be taken by any public authority under the power of
eminent domain or sold to public authority under threat or in lieu of such a
taking, then the term of this Lease shall cease as of the day possession shall
be taken by such public authority, and the rent shall be paid up to that day
with a proportionate refund by Lessor of such rent and other charges as may have
been paid in advance for a period subsequent to the date of the taking.
SECTION 16.02. PARTIAL CONDEMNATION. (a) If less than the whole but
more than twenty percent (20%) of the Premises or more than twenty percent (20%)
of the common facilities shall be so taken under eminent domain, or sold to
public authority under threat or in lieu of such a taking, Lessee shall have the
right either to terminate this Lease and declare the same null and void as of
the day possession is taken by public authority, or, subject to Lessor's right
of termination as set forth in Section 16.02(b), to continue in the possession
of the remainder of the Premises. Lessee shall notify Lessor in writing within
ten (10) days after such taking of Lessee's intention either to terminate this
Lease or to continue in possession of the remainder of the Premises. In the
event Lessee elects to remain in possession, all of the terms herein provided
shall continue in effect, except that as of the day possession is taken by
public authority, the annual Minimum Rent shall be reduced in proportion to the
amount of the Premises taken. Thereafter, Lessor shall, at its own cost and
expense, make all the necessary repairs or alterations to the Building and
Premises, so as to constitute the remaining Premises a complete architectural
unit, and Lessee, at Lessee's sole cost, shall similarly act with respect to
Lessee's improvements, trade fixtures, furnishings and equipment.
(b) If twenty percent (20%) or less of the Premises shall be so taken,
the Lease term shall cease only with respect to the part so taken as of the day
possession shall be taken by such public authority, and Lessee shall pay rent up
to that day, with appropriate refund by Lessor of such rent and other charges as
may have been paid in advance for a period subsequent to the date of the taking;
and thereafter the annual Minimum Rent shall be reduced in proportion to the
amount of the Premises taken. Lessor shall, at its expense, make all necessary
repairs or alterations to the Building and Premises, so as to constitute the
remaining Premises a complete architectural unit, and Lessee, at Lessee's sole
cost, shall similarly act with respect to Lessee's improvements, trade fixtures,
furnishings and equipment.
(c) If more than fifty percent (50%) of the Building in which the
Premises are located, or more than fifty percent (50%) of the Premises, or more
than fifty percent (50%) of the common facilities, shall be taken under power of
eminent domain, or sold to public authority under threat or in lieu of such a
taking, Lessor may, by written notice to Lessee delivered on or before the tenth
(10th) day following the date of surrendering possession to the public
authority, terminate this Lease as of the day possession
37
is taken by public authority. The rent shall be paid up to the day possession is
taken by the public authority, with an appropriate refund by Lessor of such rent
and other charges as may have been paid in advance for a period subsequent to
that date.
SECTION 16.03. LESSOR'S AND LESSEE'S DAMAGES. All damages awarded for
such taking under the power of eminent domain or sale under threat or in lieu of
such a taking, whether for the whole or in a part of the Premises, shall belong
to and be paid to Lessor, except that Lessee shall be entitled to receive from
the award the following:
(a) A sum attributable to improvements or alterations made to the
Premises by or at the cost of Lessee;
(b) A sum attributable to any excess of the market value of the
Premises, exclusive of improvements or alterations for which
Lessee is compensated under this Section 16.03, for the remainder
of the term, over the present value at the date of taking of the
annual Minimum Rent payable for the remainder of the term of this
Lease; and
(c) A sum attributable to that portion of the award constituting
severance damages for the restoration of any improvements,
alterations and trade fixtures made to the Premises by or at the
cost of Lessee.
ARTICLE XVII. DEFAULTS; REMEDIES
SECTION 17.01. DEFAULTS. The occurrence of any one or more
of the following events shall constitute a default hereunder by Lessee:
(a) The abandonment of the Premises by Lessee. Abandonment shall
mean any absence by Lessee from the Premises for five (5) days or longer while
in default of any provision of this Lease.
(b) The failure by Lessee to make any payment of rent, additional rent
or other payment required to be made by Lessee hereunder, as and when due, where
such failure continues for at least ten (10) days after written notice thereof
by Lessor to Lessee; provided however, that any such notice shall be in lieu of,
and not in addition to, any notice required under California Code of Civil
Procedure, Section 1161, et seq., as amended.
(c) The failure by Lessee to observe or perform any of the express or
implied covenants or provisions of this Lease to be observed or performed by
Lessee, other than as specified in (a) or (b) above, where such failure shall
continue for a period of thirty (30) days after written notice thereof from
Lessor to Lessee; provided, however, that any such notice shall be in lieu of,
and not in addition to, any notice required under California Code of Civil
Procedure Section 1161 as amended;
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provided further, that if the nature of Lessee's default is such that more than
thirty (30) days are reasonably required for its cure, then Lessee shall not be
deemed to be in default if Lessee shall commence such cure within said thirty
(30) day period and thereafter diligently prosecute such cure to completion.
(d) Lessee's (i) application for, consent to, or suffering of, the
appointment of a receiver, trustee or liquidator or all or for a substantial
portion of its assets; (ii) making a general assignment for the benefit of
creditors; (iii) admitting in writing its inability to pay its debt or its
willingness to be adjudged a bankrupt; (iv) becoming unable to or failing to pay
its debts as they mature; (v) being adjudged a bankrupt; (vi) filing a voluntary
petition or suffering an involuntary petition under any bankruptcy, arrangement,
reorganization or insolvency law (unless in the case of involuntary petition,
the same is dismissed within thirty (30) days of such filing); (vii) convening a
meeting of its creditors or any class thereof for purposes of effecting a
moratorium, extension or composition of its debts; or (viii) suffering or
permitting to continue unstayed and in effect for ten (10) consecutive days any
attachment, levy, execution or seizure of all or a substantial portion of
Lessee's assets or of Lessee's interest in this Lease.
SECTION 17.02. REMEDIES.
(a) In the event of any default by Lessee as defined herein, Lessor
may exercise the following remedies:
(1) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee:
(i) The worth at the time of award of the unpaid rent and
additional rent which had been earned at the time of termination;
(ii) The worth at the time of award of the amount by which the
unpaid rent and additional rent which would have been earned after
termination until the time of award exceeds the amount of such loss that
Lessee proves could have been reasonably avoided;
(iii) The worth at the time of award of the amount by which the
unpaid rent and additional rent for the balance of the term after the time
of award exceeds the amount of such loss that Lessee proves could be
reasonably avoided; and
(iv) Any other amount necessary to compensate Lessor for all the
detriment proximately caused by Lessee's failure to perform its obligations
under this Lease or which, in the ordinary course of things, would be
likely to result therefrom, including, but not limited to, the cost of
recovering possession of the Premises, expenses of reletting, including
necessary repair, renovation and alteration of the
39
Premises, reasonable attorneys' fees, and any other reasonable costs.
The "worth at the time of award" of the amounts referred to in
subparagraphs (i) and (ii) above shall be computed by allowing interest at ten
percent (10%) per annum from the dates such amounts accrued to Lessor. The worth
at the time of award of the amount referred to in subparagraph (iii) above shall
be computed by discounting such amount at one (1) percentage point above the
discount rate of the Federal Reserve Bank of San Francisco at the time of award.
(2) Without terminating or affecting a forfeiture of this Lease
or otherwise relieving Lessee of any obligation hereunder, in the absence of
express written notice of Lessor's election to do so, Lessor may, but need not,
relet the Premises or any portion thereof at any time or from time to time and
for such terms and upon such conditions and rental as Lessor in its sole
discretion may deem proper. Whether or not the Premises are relet, Lessee shall
pay to Lessor all amounts required by Lessee hereunder up to the date that
Lessor terminates Lessee's right to possession of the Premises. Such payments by
Lessee shall be due at the times provided in this Lease, and Lessor need not
wait until the termination of this Lease to recover them by legal action or in
any other manner. If Lessor relets the Premises or any portion thereof, such
reletting shall not relieve Lessee of any obligation hereunder, except that
Lessor shall apply the rent or other proceeds actually collected by it for such
reletting against amounts due from Lessee hereunder to the extent such proceeds
compensate Lessor for non-performance of any obligation of Lessee hereunder.
Lessor may execute any lease made pursuant hereto in its own name, and the
Lessee thereunder shall be under no obligation to see to the application by
Lessor of any proceeds to Lessor, nor shall Lessee have any right to
collect any such proceeds. Lessor shall not by any re-entry or other act be
deemed to have accepted any surrender by Lessee of the Premises or Lessee's
interest therein, or be deemed to have terminated this Lease, or to have
relieved Lessee of any obligation hereunder, unless Lessor shall have given
Lessee express written notice of Lessor's election to do so as set forth herein.
(3) Lessor may terminate this Lease by express written notice to
Lessee of its election to do so. Such termination shall not relieve Lessee of
any obligation hereunder which has accrued prior to the date of such
termination. In the event of such termination, Lessor shall be entitled to
recover from Lessee the amounts determined pursuant to paragraph (1) above.
(b) Lessor shall be under no obligation to observe or perform any
covenant of this Lease on its part to be observed or performed which accrues
after the date of any default by Lessee hereunder.
(c) In any action for unlawful detainer commenced by Lessor against
Lessee by reason of any default hereunder, the
40
reasonable rental value of the Premises for the period of the unlawful detainer
shall be deemed to be the amount of rent, additional rent and other charges
reserved in this Lease for such period, unless Lessor or Lessee shall prove to
the contrary by competent evidence.
(d) The rights and remedies reserved to Lessor herein, including those
not specifically described, shall be cumulative, and, except as provided by
California statutory law in effect at the time, Lessor may pursue any or all of
such rights and remedies at the same time or otherwise.
(e) No delay or omission of Lessor to exercise any right or remedy
shall be construed as a waiver of any such right or remedy or of any default by
Lessee hereunder. The acceptance by Lessor of rent or any additional rent
hereunder shall not be a waiver of any preceding breach or default by Lessee of
any provision hereof, other than the failure of Lessee to pay the particular
rent or any additional rent accepted, regardless of Lessor's knowledge of such
preceding breach or default at the time of acceptance of such rent or any
additional rent, or a waiver of Lessor's right to exercise any remedy available
to Lessor by virtue of such breach or default. The acceptance of any payment
from a debtor in possession, a trustee, a receiver or any other person acting on
behalf of Lessee of Lessee's estate shall not waive or cure a default under
Section 17.01(d) hereof.
SECTION 17.03. LEGAL EXPENSES. If either party incurs any expense,
including reasonable attorneys' fees, in connection with any action or
proceeding instituted by either party by reason of any default or alleged
default of the other party hereunder, the party prevailing in such action or
proceeding shall be entitled to recover its reasonable expenses from the other
party. For purposes of this Section 17.03, in any unlawful detainer or other
action or proceeding instituted by Lessor based upon any default or alleged
default by Lessee hereunder, Lessor shall be deemed the prevailing party if (a)
judgment is entered in favor of Lessor or (b) prior to trial or judgment Lessee
shall pay all or any portion of the rent and charges claimed by Lessor,
eliminate the condition(s), cease the act(s) or otherwise cure the omission(s)
claimed by Lessor to constitute a default by Lessee hereunder.
ARTICLE XVIII. ACCESS BY LESSOR
SECTION 18.01. RIGHT OF ENTRY. Lessor and its agents shall have free
access to the Premises (other than vaults or similar high security areas
therein) during all reasonable hours for the purposes of examining the same to
ascertain if they are in good repair, making reasonable repairs or installations
which Lessor may be required or permitted to make hereunder and exhibiting the
same to prospective purchasers or tenants.
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ARTICLE IX. HOLDING OVER
SECTION 19.01. HOLDING OVER. Any holding over after the expiration of
the term hereof with the consent of Lessor shall be construed to be a tenancy
from month to month (at 150% of the highest monthly rental herein specified,
including adjustments applicable at the date of expiration), and shall otherwise
be on the same terms and conditions herein specified.
ARTICLE XX. RULES AND REGULATIONS
SECTION 20.01. RULES AND REGULATIONS. Lessee agrees to comply with and
observe the rules and regulations set forth in Exhibit "E" attached hereto, as
well as such reasonable rules and regulations as may hereafter be established by
Lessor from time to time, provided the same shall apply uniformly to all tenants
of the Building. Lessee's failure to keep and observe said rules and regulations
shall constitute a breach of the terms of this Lease in the same manner as if
the rules and regulations were contained herein as covenants. In the case of any
conflict between said rules and regulations and this Lease, this Lease shall be
controlling.
ARTICLE XXI. QUIET ENJOYMENT
SECTION 21.01. LESSOR'S COVENANT. Upon payment by Lessee of the rents
herein provided, and upon the observance and performance of all the covenants,
terms and conditions on Lessee's part to be observed and performed, Lessee shall
peaceably and quietly hold and enjoy the Premises, for the term hereby demised
and subject to all of the terms and conditions hereof, without hindrance or
interruption by Lessor or any other person or persons lawfully or equitably
claiming by, through or under Lessor.
ARTICLE XXII. MISCELLANEOUS
SECTION 22.01. WAIVER. One or more waivers of any covenant or
condition by Lessor shall not be construed as a waiver of any subsequent breach
of the same covenant or condition, and the consent or approval by Lessor to or
of any act by Lessee requiring Lessor's consent or approval shall not be deemed
to render unnecessary Lessor's consent or approval to or of any subsequent
similar act by Lessee. No breach by Lessee of a covenant or condition of this
Lease shall be deemed to have been waived by Lessor unless such waiver is in
writing signed by Lessor. The rights and remedies of Lessor under this Lease
shall be cumulative and in addition to any and all other rights and remedies
which Lessor has or may have.
SECTION 22.02. ENTIRE AGREEMENT. This Lease and the Exhibits hereto
cover in full each and every agreement of every kind or nature whatsoever
between the parties hereto concerning the
42
Premises, the Building and the Development, and all preliminary negotiations and
agreements of whatsoever kind with respect to the Premises, the Building and the
Development, except those contained herein, are superseded and of no further
force or effect; no person, firm or corporation has at any time had any
authority from Lessor to make any representations or promises on behalf of
Lessor and Lessee expressly agrees that if any such representations or promises
have been made by Lessor or others, Lessee hereby waives all right to rely
thereon. No verbal agreement or implied covenant shall be held to vary the
provisions hereof, any statute, law, or custom to the contrary notwithstanding.
No provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
SECTION 22.03. RELATIONSHIP OF PARTIES, USE OF PRONOUNS. Nothing
contained herein shall be deemed or construed by the parties hereto, nor by any
third party, as creating the relationship of principal and agent or of
partnership or of joint venture between the parties hereto, it being understood
and agreed that neither the method of computation of rent, nor any other
provision contained herein, nor any acts of the parties herein, shall be deemed
to create any relationship between the parties hereto other than the
relationship of Lessor and Lessee. Whenever herein the singular number is used
the same shall include the plural, and the masculine gender shall include the
feminine and neuter genders.
SECTION 22.04. DELAYS. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any work or in
performance any act required hereunder by reason of: strikes; lockouts; labor
troubles; inability to procure materials, labor or energy; failure of power;
disruption, reduction, interruption, curtailment or failure of utility, solid
waste disposal or other services; restrictive governmental laws or regulations
or other actions; court injunctions; voluntary or involuntary participation, at
the request of a governmental agency or otherwise, in any plan or program
involving allocations, priorities, limitations or restraints regarding water,
fuel or other energy, or otherwise; riots; insurrection; war; fires; floods;
earthquakes; storms; droughts; other acts of God; or any other reason of a
similar or dissimilar nature not the fault of the party delayed in performing
work or doing acts required under the terms of this Lease, then the performance
of such work or the doing of such act shall be excused for the period of the
delay, and the period for the performance of any work or the doing of such act
shall be extended for a period equivalent to the period of such delay. The
provisions of this Section 22.04 shall not operate to excuse Lessee from prompt
payment of annual Minimum Rent or any other payments required by the terms of
this Lease. Further, neither (i) Lessor's reduction of heat, light, air
conditioning, or any other services whatsoever to the Building because of any
similar or dissimilar event constituting a cause of excusable delay hereunder
nor (ii) the occurrence of any event constituting a cause for excusable delay,
43
shall relieve Lessee from its obligations under Article V of this Lease.
SECTION 22.05. NOTICES. Any notice required or permitted to be given
hereunder shall be in writing and may be served personally or by mail; if served
by mail it shall be addressed as specified in Item 11 of the Basic Lease
Provisions. Any notice so given by mail shall be deemed effectively given when
deposited in the United States mail registered or certified, postage prepaid and
addressed as specified above. Either party may be written notice to the other
party specify a different address for notice purposes.
SECTION 22.06. CAPTIONS AND SECTION NUMBERS. The captions, section
numbers, article numbers, and index appearing in this Lease are inserted only as
a mater of convenience and in no way define, limit, construe, or describe the
scope or intent of such sections or articles of this Lease nor in any way affect
this Lease.
SECTION 22.07. BROKER'S COMMISSION. Lessee warrants that it has had no
dealings with any real estate broker or agent in connection with the negotiation
of this Lease except as specifically stated to the contrary in Item 10 of the
Basic Lease Provisions. Lessor and Lessee each agrees to indemnify the other
party and hold it harmless from all liabilities arising from any claim by any
other broker or finder allegedly representing the indemnifying party, including,
without limitation, the cost of attorneys' fees in connection therewith. Such
agreement shall survive the termination of this Lease.
SECTION 22.08. RECORDING. Lessor represents and warrants to Lessee
that no portion of the Building or the land on which the Building is to be
located is presently subject to any mortgage or deed of trust and agrees that
before any such mortgage or trust deed is executed or recorded with respect to
the Building and/or said land, Lessor and Lessee shall execute and record a
"short form" or memorandum of this Lease in form and substance reasonably
satisfactory to both parties.
SECTION 22.09. FURNISHING OF FINANCIAL STATEMENTS. Lessee shall
furnish Lessor, from time to time, with its published annual report, including
financial statements reflecting Lessee's current financial condition.
SECTION 22.10. TRANSFER OF LESSOR'S INTEREST. Subject to Section 23
hereof, Lessor may assign, hypothecate, or otherwise transfer all or any portion
of Lessor's interest in this Lease, the Premises, the Building or the Building
Parcel without Lessee's consent. In the event of any transfer or transfers of
Lessor's interest in the Premises, including a so-called sale-leaseback, the
transferor shall be automatically relieved of any and all obligations on the
part of Lessor accruing under this Lease from
44
and after the date of such transfer, provided that the interest of the
transferor, as Lessor, in any funds then in the hands of Lessor in which Lessee
has an interest shall be turned over, subject to such interest, to the then
transferee and the transferee assumes all obligations on the part of Lessor
accruing under this Lease from and after the date of such transfer. No holder of
a mortgage and/or deed of trust to which this Lease is or may be subordinate,
and no lessor under a so-called saleleaseback, shall be responsible in
connection with the security deposited hereunder, unless such mortgagee or
holder of such deed of trust or lessor shall have actually received the security
deposited hereunder.
SECTION 22.11. FLOOR AREA. "Floor Area" as used in this Lease means,
with respect to any leasable area in the Development, the aggregate number of
square feet of floor space of the ground floor level therein, including
mezzanine space (if any), measured from (i) the outside faces of all perimeter
walls thereof other than any party wall separating such premises from other
leasable premises, (ii) the centerline of any such party wall, (iii) the outside
face of any interior wall, and (iv) the building and/or lease line adjacent to
any entrance to such premises. No deduction or exclusion from Floor Area shall
be made by reason of columns, ducts, or other interior construction or equipment
within the leasable area. "Net rentable" area or square feet as used in this
Lease shall include the Floor Area, exclusive of any common areas serving the
entire Building, such as public stairways, lobbies and the like.
SECTION 22.12. ACCORD AND SATISFACTION. No payment by Lessee or
receipt by Lessor of a lesser amount than the rent herein stipulated shall be
deemed to be other than on account of the earliest due stipulated rent, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment as rent be deemed an accord and satisfaction, and Lessor shall
accept such check or payment without prejudice to Lessor's right to recover the
balance of such rent or pursue any other remedy in this Lease provided.
SECTION 22.13. EXECUTION OF LEASE: NO OPTION. The submission of this
Lease to Lessee shall be for examination purposes only, and does not and shall
not constitute a reservation of or option for Lessee to lease, or otherwise
create any interest by Lessee in, the Premises. Execution of this Lease by
Lessee and return to Lessor shall not be binding upon Lessor notwithstanding any
time interval, until Lessor has in fact executed and delivered this Lease to
Lessee.
SECTION 22.14. CONTROLLING LAW. This Lease shall be governed by and
construed in accordance with the laws of the State of California. If any
provision of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the remainder
of this Lease shall not be affected thereby and each provision of this Lease
shall be valid and enforceable to the fullest extent permitted by the law.
45
SECTION 22.15. SUCCESSORS. All rights and liabilities herein given to,
or imposed upon, the respective parties hereto shall extend to and bind the
several respective heirs, executors, administrators, successors, and assigns of
the parties; and if there shall be more than one Lessee, they shall all be bound
jointly and severally by the terms, covenants and agreements herein. No rights,
however, shall inure to the benefit of any assignee of Lessee unless the
assignment to such assignee has been approved by Lessor in writing as provided
in Section 12.01 hereof.
SECTION 22.16. SPECIFIC PERFORMANCE OF LESSOR'S RIGHTS. Nothing
contained in this Lease shall be construed as or shall have the effect of
abridging the right of Lessor to obtain specific performance of any and all of
the covenants or obligations of Lessee under this Lease.
SECTION 22.17. CERTAIN RULES OF CONSTRUCTION. Time is of the essence
of this Lease. Lessee shall be fully responsible and liable for the observance
and compliance by its subtenants of and with all the terms and conditions shall
be applicable to such subtenants as fully as if they were the Lessee hereunder;
any failure by a subtenant of Lessee to fully observe and comply with the terms
and conditions of this Lease shall constitute a default hereunder by Lessee.
Nothing contained in the preceding sentence shall constitute a consent by Lessor
to any subletting or other arrangement proscribed by Section 12.01.
SECTION 22.18. CORPORATE AUTHORITY. Each individual executing this
Lease on behalf of each corporate party represents and warrants that he or she
is duly authorized to execute and deliver this Lease on behalf of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. Lessee shall, at Lessor's requests, deliver a certified copy of
its board of directors' resolution authorizing such execution.
SECTION 22.19. SAFETY AND HEALTH. Lessee covenants at all times during
the term of this Lease to comply with the requirements of the Occupational
Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq and any analogous
legislation in California (collectively the ("Act"), to the extent that the Act
applies to Lessee's operations within the Premises.
SECTION 22.20. SURRENDER OR CANCELLATION. The voluntary or other
surrender of this Lease by Lessee, or a mutual cancellation thereof, shall not
work a merger, and shall terminate all or any existing subleases, unless Lessor
elects to treat such surrender or cancellation as an assignment to Lessor of any
or all of such subleases.
SECTION 22.21. NONDISCLOSURE OF LEASE TERMS. Lessee acknowledges and
agrees that the terms of this Lease are confidential and constitute proprietary
information. Disclosure of the terms hereof could adversely affect the ability
of Lessor to
46
negotiate other Leases with respect to the Development or other
projects and impair Lessor's relationship with other tenants of the Development
or other projects. Lessee agrees that it, and its officers, directors, employees
and attorneys shall not disclose the terms and conditions of this Lease to any
other person without the prior written consent of Lessor. It is understood and
agreed that damages would be an inadequate remedy for the breach of this
provision by any party hereto and, each of the parties hereto shall have the
right to specific performance of this provision and to injunctive relief to
prevent its breach or continued breach.
SECTION 22.22. INTERSTATE LAND SALES ACT. Lessor, recognizing that the
Premises consist of space in a building and that the Premises are either
completed or that Lessor has herein obligated itself to complete construction of
the Premises within a two-year period from the date of this Lease (except for
such work, furniture, furnishings and fixtures as Lessee is to supply), believes
that this Lease is exempt from the Interstate Land Sales Full Disclosure Act
(the "Act") Pursuant to the exemption provided by paragraph 1403(a)(3) of the
Act which reads as follows:
"The provisions of this chapter shall not apply (to) . . . (3)
the sale or lease of any improved land on which there is a residential,
commercial, or industrial building, or to the sale or lease of land under a
contract obligating the seller to erect such a building thereon within a
period of two years,"
Lessee, by its signature hereto, acknowledges that it has read and understands
such section.
SECTION 22.23. CHANGES REQUESTED BY LENDER. Neither Lessor nor Lessee
shall unreasonably withhold its consent to changes or amendments to this Lease
requested by any lender on Lessor's fee interest or on Lessee's leasehold
interest, as the case may be, so long as such changes do not alter the basic
business terms of this Lease or otherwise materially diminish the rights or
materially increase the obligations of the party from whom consent to such
change or amendment is requested.
ARTICLE XXIII. RIGHT OF FIRST REFUSAL.
SECTION 23.01. RIGHT OF FIRST REFUSAL. During the Initial Term of this
Lease, but provided that this Lease is still in effect, Lessee shall have the
right to acquire both the Building and the Building Parcel from Lessor, whether
by purchase or exchange, upon the same terms and conditions as are contained in
an offer made to Lessor by a bona fide third party which is independent and
not affiliated with Lessor, which offer has been accepted by Lessor subject only
to the exercise by Lessee of the right of
47
first refusal granted under this Section 23.01. Lessee shall give Lessor notice
of exercise of such right of first refusal within fifteen (15) days after Lessor
shall give Lessee prompt written notice of any such third party offer. If Lessee
fails to give such notice, or if Lessee gives such notice but thereafter fails
to comply fully with all terms and conditions of such offer, the foregoing right
of first refusal shall entirely cease and terminate, and Lessor may thereafter
sell such property free of the foregoing right of first refusal. In addition,
Lessor may sell, exchange or otherwise transfer (collectively, "transfer") to a
bona fide third party either the Building or Building Parcel, separate and apart
from the other, or may transfer either or both of them either together with
additional properties as part of the same transaction, or as a direct exchange
with another owner of property in a two-party exchange transaction, whereupon in
any such event the foregoing right of first refusal shall cease and terminate.
Any such transfer of the Building or Building Parcel or both to an entity
controlled by or under common control with Lessor shall be free of the foregoing
rights, but shall thereafter be subject to such rights with respect to any
subsequent transfer to a third party. The foregoing rights shall not apply to
any Lease of the entire Building, the Building Parcel or both. Lessee's rights
of first refusal with respect to an exchange transaction shall only apply, if at
all, to a three-party transaction wherein Lessor may require a prospective
purchaser to acquire certain property designated by Lessor and owned by a third
party, for exchange with Lessor for both the Building and Building Parcel, on
all the same terms and conditions acceptable to Lessor as provided above.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the day and
year first above written.
THE IRVINE COMPANY
By_________________________________
By_________________________________
TORONTO DOMINION BANK OF CALIFORNIA
By_________________________________
By_________________________________
48
78369
LEGAL DESCRIPTION
BUILDING PARCEL
That portion of Parcel 1 in the City of Irvine, County of Orange, State of
California, as shown on the Map filed in Book 112, Pages 29 and 30, of Parcel
Maps in the Office of the County Recorder of said County, described as follows:
Beginning at the most Easterly corner of said Parcel 1; thence South
28(degree)48'10" West 138.00 feet along the Southeasterly line of said Parcel 1;
thence North 61(degree)11'50" West 49.00 feet; thence North 16(degree)ll'50"
West 115.00 feet; thence North 61(degree)11'50" West 72.00 feet; thence South
73(degree)48'10" West 46.50 feet; thence South 16(degree)11'50" East 51.00 feet;
thence South 73(degree)48'10" West 56.00 feet; thence North 61(degree)11'50"
West 60.00 feet; thence South 28(degree)48'10" West 142.00 feet; thence North
61(degree)11'50" West 39.00 feet; thence South 73(degree)48'10" West 82.00 feet;
thence North 61(degree)11'50" West 187.00 feet; thence North 16(degree)11'50"
West 114.00 feet; thence North 61(degree)11'50" West 21.86 feet to the
Northwesterly line of said Parcel 1; thence along said Northwesterly line of
Parcel 1 and the Northeasterly line of said Parcel l the following courses:
North 38(degree)57'58" East 39.60 feet, North 36(degree)26'20" East 273.71 feet,
North 85(degree)38'10" East 38.19 feet, South 49(degree)21'28" East 23.01 feet
to the beginning of a tangent curve, concave Northeasterly having a radius of
2050.00 feet, Southeasterly 447.10 feet along said curve through a central angle
of 12(degree)29'46", and South 61(degree)51'14" East 143.26 feet to the point of
beginning.
Containing an area of 166,617 square feet, more or less.
Subject to covenants, conditions, reservations, restrictions, rights of way and
easements, if any, of record.
49
TORONTO DOMINION BANK
EXHIBIT "C"
LESSOR'S AND LESSEE'S IMPROVEMENTS
1. LESSOR'S IMPROVEMENTS:
Lessor will provide, at its cost, the following work performed to customary
standards for first-class office buildings.
(a) Finished exterior walls, exterior doors and windows.
(b) Building lobby and public areas to be used in common with other
tenants. Building lobby shall be finished with quality architectural
materials comparable to first-class office buildings owned by Lessor
in Executive Park located at MacArthur Blvd., in the City of Irvine,
California.
(c) Required stairways and enclosures for stairways to be used in common
with other tenants. Common stairwell walls shall be finished and
painted.
(d) All on-site construction, including but not limited to, side walks,
paving, curbs and exterior landscaping within the limits of the
Building Parcel, but excluding Lessee's drive-up teller units and
ingress and egress lanes therefor.
(e) All electrical panels sized for Lessee's Improvements connected to
centrally located equipment room.
(f) All telephone back board spaces provided for Lessee's Improvements
connected to centrally located equipment room.
(g) Variable air volume main duct system with economizer system and hot
water piping loop for Lessee's Improvements.
(h) Rough plumbing for development of restrooms in the leased Premises.
(i) Separate meters for all Lessee's utilities except heating and air
conditioning.
(j) Structural columns, beams, floor and ceiling slabs.
Structural frame shall be so designed as to accommodate structural
requirements of the normal office type usage. Any revisions to the
structure required by Lessee for vault, night depositories, etc., will
be borne by Lessee pursuant to Section 3(b) below.
50
All of the above Lessor's Improvements listed, excluding Item (d), shall
constitute the Building Shell.
2. LESSEE'S IMPROVEMENTS:
Lessee will provide, at its cost, the following work:
(a) Paneling, interior partitions with doors and hardware.
(b) Development of restrooms, electrical, mechanical and janitor rooms for
exclusive use of Lessee, including but not limited to walls, ceiling,
doors, ceramic tile, toilet partitions, finish fixtures and other
accessories.
(c) All fixtures and partitions within the Premises.
(d) All vault structures, door, vault equipment, protective equipment and
burglar alarms, and night depositories.
(e) Ceilings and light fixtures.
(f) Floor coverings and drapes.
(g) Electrical and air conditioning distribution in the leased Premises.
(h) All other items required by Lessee and not included in Lessor's
Improvements above.
(i) Drive-up teller units and ingress and egress lanes therefor, together
with any special structural requirements to the Building Shell
necessary for the operation of the teller units.
Lessor shall contribute an amount equal to $14.00 per net square foot of
Lessee's leased Premises towards the total cost of Lessee's Improvements.
In the event Lessor shall construct Lessee's Improvements, all costs in
excess of $14.00 per net square foot shall be payable by Lessee to Lessor
upon demand. In the event Lessee elects to construct Lessee's Improvements,
Lessor's contribution provided above shall be paid by Lessor to Lessee when
Lessee opens for business in the Premises.
3. PAYMENT OF CONSTRUCTION COSTS - Lessee's Share
For purposes of Section 3.04 of the Lease, Lessee's percentage share or
prorata percentage share of Shell Costs, Lessee's Improvements Costs and
On-Site Costs (as defined in Section 3.03 of the Lease) shall be as
follows:
51
(a) 52.6% of all Shell Costs excluding matters covered in (b) below
(estimated percentage, subject to adjustment based on actual square
footage of the Premises as reflected on Exhibit "C-1" referred to in
Section 1.01 of the Lease);
(b) 100% of all Shell Costs for the ground floor of the Building which are
directly attributable to Lessee's specific structural requirements;
(c) 100% of all Lessee's Improvements Costs, including drive up teller
facilities and ingress and egress lanes therefor;
(d) 60% of all On-Site Costs (based on Lessee's prorata share of estimated
parking area, plus land area beneath drive-up teller units and car
lanes therefor within the common facilities).
52
EXHIBIT "D"
ADDENDUM FOR ACTUAL
TERM OF COMMENCEMENT DATE
Pursuant to Section 1.02 of that certain Lease dated ______________,
19 _, between THE IRVINE COMPANY, a Michigan corporation, as Lessor, and TORONTO
DOMINION BANK OF CALIFORNIA, as Lessee, the parties hereby agree as follows:
1. The Initial Term of said Lease commenced
as of ___________________.
2. The Expiration Date of the term shall be
____________________.
3. Date of commencement of Minimum Rent shall be
____________________.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as
of _____________, 19___.
THE IRVINE COMPANY TORONTO DOMINION BANK OF
000 Xxxxxxx Xxxxxx Xxxxx XXXXXXXXXX
Xxxxxxx Xxxxx, XX 00000 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
By______________________ By______________________
By______________________ By______________________
"Lessor" "Lessee"
53
EXHIBIT "E"
RULES AND REGULATIONS
ATTACHED TO AND MADE A PART OF OFFICE SPACE LEASE
1. Except with the prior written consent of the Lessor, no Lessee
shall sell, or permit the sale at retail, of newspapers, magazines, periodicals,
or theater tickets, in or from the Premises, nor shall any Lessee carry on, or
permit or allow any employee or other person to carry on, the business of
stenography, typewriting or any similar business in or from the Premises for the
service or accommodation of occupants of any other portion of the building, or
any manufacturing of any kind, or the business of a public xxxxxx shop, beauty
parlor, or a manicuring and chiropodist business, or any business other than
that specifically provided for in the Lessee's lease.
2. No Lessee shall obtain for use upon the Premises ice, towel and
other similar services, or accept barbering or boot-blacking services in the
Premises, except from persons authorized by the Lessor and at hours and under
regulations fixed by the Lessor.
3. The sidewalks, halls, passages and stairways shall not be
obstructed by any of the Lessees or used by them for any purpose other than for
ingress to and egress from their respective Premises. The halls, passages,
entrances, stairways, balconies and roof are not for the use of the general
public, and the Lessor shall in all cases retain the right to control and
prevent access thereto of all persons whose presence in the judgment of the
Lessor shall be prejudicial to the safety, character, reputation and interests
of the building and its lessees, provided that nothing herein contained shall be
construed to prevent such access to persons with whom the Lessee normally deals
in the ordinary course of business unless such persons are engaged in illegal
activities. No Lessee and no employees of any Lessee shall go upon the roof of
the building without the written consent of the Lessor.
4. The sashes, sash doors, windows, glass lights, and any lights or
skylights that reflect or admit light into the rooms, halls or other places of
the building shall not be covered or obstructed. The toilet rooms, water and
wash closets and other water apparatus shall not be used for any other purpose
other than that for which they were constructed, and no foreign substance of any
kind whatsoever shall be thrown therein, and the expense of any breakage,
stoppage or damage resulting from the violation of this rule shall be borne by
the Lessee who, or whose clerks, agents, employees, or visitors, shall have
caused it.
5. No sign, advertisement or notice visible from the exterior of the
Premises shall be inscribed, painted or affixed by the Lessee on any part of the
building or the Premises without the
54
prior written consent of the Lessor. If the Lessor shall have given such consent
at any time, whether before or after the execution of the lease, such consent
shall in no way operate as a waiver or release of any of the provisions hereof
or of this lease, and shall be deemed to relate only to the particular sign,
advertisement or notice so consented to by the Lessor and shall not be
construed as dispensing with the necessity of obtaining the specific written
consent of the Lessor with respect to each and every such sign, advertisement or
notice other than the particular sign, advertisement or notice, as the case may
be, so consented to by the Lessor. If the Lessor, by a notice in writing to the
Lessee, shall object to any curtain, blind, shade or screen attached to, or hung
in, or used in connection with, any window or door of the Premises, such use of
such curtain, blind, shade or screen shall be forthwith discontinued by the
Lessee. No awnings shall be permitted on any part of the Premises.
6. The Lessee shall not do or permit anything to be done in the
Premises, or bring or keep anything therein, which shall in any way increase the
rate of fire insurance on the building, or on the property kept therein, or
obstruct or interfere with the rights of other lessees, or in any way injure or
annoy them; or conflict with the regulations of the Fire Department or the fire
laws, or with any insurance policy upon the building, or any part thereof, or
with any rules and ordinances established by the Board of Health or other
governmental authority.
7. The Lessor shall have power to prescribe the weight and position of
safes or other large or heavy objects which shall, if considered necessary by
the Lessor, stand on three-inch thick wood strips to distribute the weight. The
moving of safes shall occur only between such hours as may be designated by, and
only upon previous notice to, the manager of the building and the persons
employed to move safes in or out of the building must be acceptable to the
Lessor. No freight, furniture or bulky matter of any description shall be
received into the building except during hours and in a manner approved by the
Lessor.
8. The Lessee shall clean the Premises as provided in Section 8.02 of
Article VIII of the lease and, except with the written consent of the Lessor, no
person or persons other than those approved by the Landlord will be permitted to
enter the building for such purpose.
9. No lessee shall sweep or throw or permit to be swept or thrown from
the Premises any dirt or other substance into any of the corridors or halls, or
out of the doors or windows or stairways of the building, and the Lessee shall
not use, keep or permit to be used or kept any foul or noxious gas or substance
in the Premises, or permit or suffer the Premises to be occupied or used in a
manner offensive or objectionable to the Lessor or other occupants of the
building by reason of noise, odors and/or vibrations, or interfere in any way
with other lessees or those having business therein, nor shall any animals or
birds be kept in or about the building.
55
10. No cooking shall be done or permitted by Lessee on the Premises,
nor shall offices in the building be used for the storage of merchandise or for
lodging.
11. The Lessee shall not use or keep in the building any kerosene,
gasoline, or inflammable fluid or any other illuminating material, or use any
method of heating other than that supplied by the Lessor.
12. If the Lessee desires telephone or telegraph connections, the
Lessor will direct electricians as to where and how the wires are to be
introduced. No boring or cutting for wires or otherwise shall be made without
directions from the Lessor.
13. Each Lessee upon the termination of the tenancy, shall deliver to
the Lessor all the keys of offices, rooms and toilet rooms which shall have been
furnished the Lessee or which the Lessee shall have had made, and in the event
of loss of any keys so furnished, shall pay the Lessor therefor.
14. No Lessee shell lay linoleum or other similar floor covering so
that the same shall be affixed to the floor of the Premises in any manner except
by a paste, or other material which may easily be removed with water, the use of
cement or other similar adhesive materials being expressly prohibited. The
method of affixing any such linoleum or other similar floor covering to the
floor, as well as the method of affixing carpets or rugs to the Premises, shall
be subject to approval by the Lessor. The expense of repairing any damage
resulting from a violation of this rule shall be borne by the Lessee by whom, or
by whose agents, clerks, employees or visitors, the damage shall have been
caused.
15. No furniture, packages or merchandise will be received in the
building except between such hours as shall be designated by the Lessor.
16. On Saturdays, Sundays and legal holidays, and on other days
between the hours of 6 p.m. and 8 a.m., access to the building, or to the halls,
corridors, or stairways in the building, or to the Premises may be refused
unless the person seeking access is known to the building watchman, if any, in
charge and has a pass or is properly identified. The Lessor shall in no case be
liable for damages for the admission to or exclusion from the building of any
person whom the Lessor has the right to exclude under Rule 3 above. In case of
invasion, mob, riot, public excitement, or other commotion, the Lessor reserves
the right to prevent access to the building during the continuance of the same
by closing the doors or otherwise, for the safety of the Lessees and protection
of property in the building.
17. Lessee shall see that the windows, transoms and doors of the
Premises are closed and securely locked before leaving the building and must
observe strict care not to leave windows open
56
when it rains and Lessee shall exercise extraordinary care and caution that all
water faucets or water apparatus are entirely shut off before Lessee or Lessee's
employees leave the building, and that all electricity, gas or air shall
likewise be carefully shut off, so as to prevent waste or damage, and for any
default or carelessness Lessee shall make good all injuries sustained by other
lessees or occupants of the building or Lessor.
18. The Lessee shall not alter any lock or install a new or additional
lock or any bolt on any door of the Premises without prior written consent of
the Lessor. If the Lessor shall give its consent, the Lessee shall in each case
furnish the Lessor with a key for any such lock.
19. Lessee shall not install equipment such as but not limited to
electronic tabulating or computer equipment, requiring electrical or
air-conditioning service in excess of those to be provided by Lessor under
Section 8.01 of the Lease.
57
EXHIBIT "F"
ADDENDUM to Article 14, Section 14.01 - Signs and Advertising.
Subject to the prior approval of any governmental agency having jurisdiction,
and prior approval by Lessor, Lessee may place, or cause to be placed, the
following identification signs, or monuments as indicated. All of such signs, or
monuments shall be of a color, size, material, type, appearance and style
conforming to the established aesthetic standards governing signs for the entire
Development.
1. Redhill elevation on second story as depicted in attached
drawings identified as Exhibit "F-a" on the east end of the
elevation.
a. "TORONTO DOMINION BANK" - Individual illuminated letters of the same
height of comparable signs in the Development, but Lessor may not
require that they be less than 18".
2. Main Street elevation on second story as depicted in attached drawings
identified as Exhibit "F-a" on the south end of the elevation.
a. "TORONTO DOMINION BANK" - Individual illuminated letters of same height,
of comparable signs in the Development, but Lessor may not require that
they be less than 18".
b. Provided Lessor does not locate its Development Monument sign on the
Building Parcel at the corner of Redhill and Main Streets, Lessee may
locate its monument sign on the landscaped strip along the Main Street
elevation.
3. Southwest elevation.
a. "TORONTO DOMINION BANK" - Individual illuminated letters approximately
6" in height built into the design of the main entrance to provide
identification from the Development. This sign may include Toronto
Dominion logo.
b. The following signs on the built-in units only:
"Walk-up Teller"
"Night Depository"
"24-Hour Banking"
Signs necessary to identify these elements will be incorporated in the
design of the southwest elevation.
4. Motor Banking Facility.
a. "Toronto Dominion Bank Motor Banking" - (or similar wording)
58
The size of individual illuminated letters for the above shall be compatible
with the approved design of the drive-up facility.
b. Directional Signs.
Directional signs shall be provided either by the Lessee or under the
Development's graphics program to clearly and adequately direct
customers to the motor banking facility from the Main Street entrance to
the Development.
5. General.
In all cases, Toronto Dominion Bank reserves the right to add "of
California" to any sign if required by the State Banking Commission. It is the
intention of Lessee that if this is required, these letters will be smaller than
the main sign and shall not be illuminated, all as subject to the prior approval
of Lessor.
