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EXHIBIT 10.19
OFFICE LEASE
THIS OFFICE LEASE ("Lease") is made and entered into by and between the
SHEET METAL WORKERS' PENSION PLAN OF SOUTHERN CALIFORNIA, ARIZONA AND NEVADA
("Landlord"), and VINEYARD NATIONAL BANK, a national banking association
("Tenant"), and dated for reference purposes only January 2, 2001.
1. PREMISES/TERM/USE
1.1 LEASE; PREMISES. Subject to the terms and conditions of this Lease,
Landlord hereby leases to Tenant, and Tenant hereby rents and accepts
from Landlord, 1,030 rentable square feet on the third (3rd) floor,
designated as Suite 320 (the "Premises"), of the MANHATTAN PLAZA
OFFICE BUILDING, located at 000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx
Xxxxx, Xxxxxxxxxx (the "Building"), as more fully described on a floor
plan attached hereto and marked Exhibit A. The Premises are 1.54% of
the rentable square feet in the Building.
1.2 TERM. The initial term of this Lease shall be for thirty-six (36)
months (the "Initial Term") with, at Tenant's option, one (1)
additional, consecutive term of thirty-six (36) months (the "Renewal
Term"), pursuant to Section 1.3 below. The Initial Term and the
Renewal Term (if exercised) shall be hereinafter collectively referred
to as the "Term." The Term shall commence (the "Commencement Date") on
February 1, 2001.
1.3 TENANT'S RENEWAL RIGHT. While this Lease is in full force and effect,
provided no Event of Default by Tenant, or condition which with
"Notice" (as defined in Section 23) or the passage of time or both
would constitute an Event of Default by Tenant, exists at the time
such option is exercised or at the commencement of the Renewal Term,
Tenant shall have the option to renew this Lease for the Renewal Term.
Such extension of the Initial Term shall be on the same terms,
covenants and conditions as provided for in the Initial Term, except
that: (a) the Base Year (as defined below) shall be the calendar year
in which the Renewal Term commences; (b) Landlord shall have no
additional obligation for tenant improvements or for any other tenant
inducements for the Renewal Term, with the sole exceptions that
Landlord shall patch and paint the interior walls, and steam clean the
carpets within the Premises, if such repairs are necessary, as
determined in Landlord's reasonable discretion; and (c) the Base Rent
(as defined below) for the Renewal Term shall initially be ninety-five
percent (95%) of the "Fair Market Rent" as defined below; provided,
however, in no event will such monthly rental rate be less than the
Base Rent stated in this Lease for the last month of the Initial Term;
and provided further, that the Fair Market Rent may be subject to Fair
Market Rental Increases. Tenant shall exercise its option by providing
Landlord Notice of such intent to renew not earlier than ten (10)
months nor later than six (6) months prior to the expiration of the
Initial Term. Any Notice not given as specified in the preceding
sentence shall be void, and Tenant shall be deemed to have waived its
renewal rights. This renewal option may be exercised only by Tenant
or, if the Lease shall have been assigned or sublet, by such assignee
or sublessee only if (y) Landlord has consented in writing to the
transfer of this renewal option to such assignee or sublessee, or (z)
such assignment or sublease was accomplished pursuant to the terms of
Section 8.
The term "Fair Market Rent" shall mean the monthly amount per rentable
square foot in the Premises, that a willing, non-equity, non-renewal,
non-expansion, new tenant would pay, and a willing landlord would
accept, at arm's length for space in a comparable office space, with a
space requirement comparable to Tenant, giving appropriate
consideration to monthly rental rates per square foot, the presence or
absence of rent escalation clauses (whether by cost of living ("CPI")
adjustments or a predetermined rate), the presence of operating
expenses and tax pass-throughs, length of lease term, sizes and
location of premises being leased, if any, and other generally
applicable terms and conditions of tenancy for a similar building.
The term "Fair Market Rental Increases" shall mean those increases in
the Fair Market Rent (whether by cost-of-living (CPI) adjustments or
at predetermined rates), if any, during a similar term that the
aforesaid tenant would pay and the aforesaid landlord would accept
under the aforesaid conditions.
Landlord shall determine the Fair Market Rental Rate and the Fair
Market Rental Increases, if any, by using its good faith judgment.
Landlord shall provide Notice of such amount within thirty (30) days
(but in no event later than sixty (60) days) after Tenant provides the
Notice to Landlord exercising Tenant's renewal option. Tenant shall
have fifteen (15) days (the "Tenant's Review Period") after receipt of
Landlord's Notice of the new rental rate and rental increases within
which to accept such rental rate and rental increases. In the event
Tenant fails to accept in writing such rental rate and rental
increases proposed by Landlord then such proposal shall be deemed
rejected, and Landlord and Tenant shall attempt to agree upon such
Fair Market Rental Rate and the Fair Market Rental Increases, using
their best good
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faith efforts. If Landlord and Tenant fail to reach agreement within
fifteen (15) days following Tenant's Review Period (the "Outside
Agreement Date"), then either party may, without incurring any
additional liability, give Notice to the other that the Lease shall
terminate upon the expiration of the Initial Term.
Upon determination of the Fair Market Rent and Fair Market Rental
Increases, if any, as set forth above, Tenant and Landlord shall
execute an amendment to the Lease setting forth the Base Rent, the
increases in Base Rent, if any, and frequency thereof, the expiration
date of the Lease, as extended, and any other terms and conditions
that may have been agreed upon.
1.4 USE. Tenant shall use the Premises for general business and
administrative office uses and shall not occupy or use, or permit any
portion of the Premises to be occupied or used for any other purpose
whatsoever. This Lease covers no other part of the Building or the
ground upon which it is located, except the nonexclusive rights hereby
granted by Landlord to Tenant, its agents, employees, customers
business invitees and visitors to use the public corridors, the
elevators, stairways and similar common areas within the Building, and
the ground level parking area.
2. RENT
2.1 BASE RENT. Tenant shall pay Landlord, without offset or deduction,
monthly base rent ("Base Rent") as follows: (a) during months one (1)
through twelve (12) of the Initial Term, in the amount of $2,317.50
per month, based upon a rate of $2.25 per rentable square foot; (b)
during months thirteen (13) through twenty-four (24) of the Initial
Term, in the amount of $2,575.00 per month, based upon a rate of $2.50
per rentable square foot; and (c) during months twenty-five (25)
through thirty-six (36) of the Initial Term, in the amount of
$2,832.50 per month, based upon a rate of $2.75 per rentable square
foot. Base Rent shall be payable commencing on the Commencement Date.
The first payment shall be made, in advance, upon execution of this
Lease and credited to the first month. Payments of Base Rent shall be
made in monthly installments at the office of Landlord's Manager (as
set forth in Section 23) or at such other place as Landlord shall
specify by Notice, in advance for each month, on the first business
day of each and every month until the end of the Term.
2.2 ADDITIONAL RENT. Tenant's pro rata share of "Operating Expenses" (as
defined in Section 18), and all other sums of money required under
this Lease to be paid by Tenant to Landlord other than Base Rent, are
designated "Additional Rent." The term "Rent" in this Lease means Base
Rent and Additional Rent. Rent shall be payable in lawful funds of the
United States without offset or deduction. All past due Rent shall
bear interest from the due date, until paid, at a rate of twelve
percent (12%) per annum or the highest rate allowed by law, whichever
is lower. Rent for any partial month occurring during the Term shall
be prorated.
3. SERVICES TO BE FURNISHED BY LANDLORD
3.1 GENERAL. Landlord shall furnish or cause to be furnished to the
Premises the following services: (a) electricity for lighting the
Premises and operating ordinary 110-volt portable desk top office
equipment of the type normally used in general business offices,
subject to Section 3.2 of this Lease, (b) heat and air conditioning as
may reasonably be required for the comfortable use and occupancy of
the Premises during Building Operating Hours (as defined in Exhibit
D), (c) janitor and cleaning services limited to emptying and removal
of general office refuse, dusting and light vacuuming of floors as
needed, Monday through Friday, and such window washing as may in the
reasonable judgment of Landlord be required, (d) replacement of
fluorescent tubes and light bulbs, (e) domestic water for the
operation of lavatories, drinking fountains and coffee bars, and (f)
toilet room supplies.
3.2 LIMITS RE ELECTRICITY. Tenant's use of electrical service furnished by
Landlord shall be subject to the following: Tenant shall not, without
Landlord's prior written consent, use any equipment that has a rated
capacity greater than one (1) kilowatt or any machines which require
voltage other than 110 or which will increase the amount of
electricity ordinarily furnished for use of the Premises for general
office purposes. If Tenant requires additional electrical power,
Tenant shall request Landlord to provide the power, which Landlord may
refuse. Tenant shall pay all costs of installation and maintenance of
submeters, wiring, air conditioning and other items requested by
Tenant. If additional electrical power is furnished, Tenant shall pay
on demand, as Additional Rent, the cost of the excess demand and
consumption of electrical current, plus any Landlord expenses incurred
in keeping account of the electric current consumed; provided,
however, Landlord may, at its option, elect to have all equipment
requiring additional electrical power separately metered.
3.3 LIMITS RE AIR CONDITIONING. Furthermore, whenever heat generating
machines or equipment are used in the Premises which affect the
temperature maintained by the air conditioning system, Landlord
reserves the right to provide supplementary air conditioning and the
cost, installation and maintenance shall be paid by Tenant upon
demand.
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3.4 LANDLORD NOT TO BE LIABLE. Landlord shall not be liable for failure to
furnish or cause to be furnished any of the foregoing services when
such failure is caused by accidents or conditions beyond the control
of the Landlord, or by repairs, labor disturbances or labor disputes
of any character; provided, however, that in any of such events,
Landlord shall make a prompt and diligent effort to cause the
resumption of such services. Landlord shall not be liable under any
circumstances for loss of or injury to property, however occurring,
through or in connection with or incidental to the furnishing of any
of the foregoing, excepting only where such loss or injury is solely
the result of Landlord's willful misconduct; nor shall any such
failure or misconduct by Landlord relieve Tenant from the duty to pay
the full amount of rent herein reserved, or constitute or be construed
as a constructive or other eviction of Tenant. If an Event of Default
by Tenant, or a condition which with Notice or the passage of time or
both would constitute an Event of Default by Tenant, exists, Landlord
shall have the right, at Landlord's option, to suspend or discontinue
the foregoing services, or any thereof, during the continuance of any
such Event of Default or condition, and any such suspension or
discontinuance shall not be deemed to be an eviction or ejection of
Tenant.
4. PREPARATION AND ACCEPTANCE OF PREMISES
CONDITION OF PREMISES ON DELIVERY. The Premises are rented "as-is", without
any additional services or improvements to be provided by Landlord other
than repainting and re-carpeting the Premises using building standard
materials. Taking possession of the Premises by Tenant shall be conclusive
evidence as against Tenant that the Premises and the Building were in good
and satisfactory condition when possession was taken.
5. QUIET ENJOYMENT
Tenant, upon keeping, observing and performing all of the covenants and
agreements of this Lease on its part to be kept, observed and performed,
shall lawfully and quietly hold, occupy and enjoy the Premises during the
term of this Lease, subject, however, to the covenants, agreements, terms,
provisions and conditions of this Lease and to underlying mortgages or
ground leases to which this Lease is subject and subordinate.
6. REPAIRS AND RE-ENTRY
6.1 TENANT'S OBLIGATIONS; ADDITIONAL RENT. Tenant will, at Tenant's own
cost and expense, repair or replace any damage done to the Building or
any part thereof, caused by Tenant or Tenant's agents, employees,
invitees, or visitors. If Tenant fails to promptly make such repairs
or replacements within fifteen (15) days of the occurrence of the
event causing such damage, Landlord may, at it option, make such
repairs and replacements itself, and Tenant shall repay the cost
thereof to Landlord on demand as Additional Rent. Tenant shall take
good care of the Premises and the fixtures and improvements therein
and shall not commit or allow any waste or damage to be committed on
any portion of the Premises, and shall, upon termination of this
Lease, deliver up the Premises (except as otherwise herein provided)
in good repair and condition, reasonable wear and tear excepted, and
shall deliver to Landlord all keys to the Premises.
6.2 LANDLORD'S OBLIGATIONS. Landlord shall make repairs, restorations and
replacements as and when needed to those portions of the Building
which are not required to be maintained by Tenant or other tenants of
the Building.
6.3 RE-ENTRY BY LANDLORD. Upon termination of this Lease, Landlord shall
have the right to re-enter and assume possession of the Premises, and
the cost and expense of any repairs necessary to restore the condition
of the Premises to the condition in which they are to be delivered to
Landlord shall be borne by Tenant.
7. ALTERATIONS BY TENANT AND TENANT FIXTURES
7.1 TENANT ALTERATIONS. Tenant will not make or allow to be made any
alterations, decorations, additions or improvements in or to the
Premises or anchor any decorations to the Premises ("Tenant
Alterations") without the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed. All
contractors, subcontractors and workers must be acceptable to, and
approved in advance of any construction by, Landlord, in Landlord's
sole and exclusive discretion. Tenant shall pay or cause to be paid
all costs for work done by it or caused to be done by it on the
Premises of a character which will or may result in liens on
Landlord's interest therein, and Tenant will keep the Premises free
and clear of all mechanic's liens, and other liens on account of work
done for Tenant or persons claiming under it. Tenant shall indemnify
and hold Landlord harmless against any liability, loss, damage, costs
or expenses, including without limitation attorney's and expert's
fees, on account of any claims of any nature whatsoever relating to
Tenant Alterations, including without limitation claims of liens of
laborers or materialmen or others for work performed for, or materials
or supplies furnished to, Tenant or persons claiming under Tenant. All
Tenant
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Alterations (whether temporary or permanent in character) made in or
upon the Premises, either by Landlord or Tenant, shall be Landlord's
property on termination of this Lease and shall remain on the
Premises, without compensation to Tenant.
7.2 TENANT FIXTURES AND OTHER PROPERTY. All built-in furniture,
cabinetwork, movable business and trade fixtures and equipment
installed by Tenant may be removed by Tenant at the termination of
this Lease if Tenant so elects, and shall be so removed if required by
Landlord, or if not so removed shall, at the option of Landlord,
become the property of Landlord. All such removals and restoration
shall be accomplished in a good and workmanlike manner so as not to
damage the Premises or the Building. Any damage to the Premises caused
by installation, alteration or removal of Tenant's fixtures or
equipment shall be repaired at the expense of Tenant.
8. ASSIGNMENT AND SUBLETTING
8.1 PROHIBITION OF ASSIGNMENT AND OTHER TRANSFERS. Tenant shall not,
except as otherwise provided herein, without the prior written consent
of Landlord, which consent shall not be unreasonably withheld or
delayed: (a) assign, mortgage, pledge, encumber or otherwise transfer
this Lease, the term and estate hereby granted, or any interest under
the Lease; or (b) sublease all or any part of the Premises. Without
limiting Landlord's grounds for disapproval, Landlord's withholding or
delaying approval will be deemed reasonable if it is based on: (x)
Landlord's opinion, in Landlord's sole and exclusive discretion, that
the use, business, operations or purposes of a prospective assignee,
sublessee or other transferee may be inconsistent with or contrary to
the purposes of Landlord, its contributing employers or participating
labor unions; (y) Landlord's good faith analysis of the prospective
assignee's, sublessee's or other transferee's credit, character and
business or professional standing; or (z) whether the prospective
assignee, sublessee or other transferee is an existing or prospective
tenant of the Building. The consent of Landlord to any assignment,
other transfer or sublease of this Lease, and the term and estate
hereby granted, shall not relieve Tenant of the obligation to obtain
such consent to any further assignment or other transfer. If the rent
agreed to by Tenant and its subtenant or assignee is greater than the
Rent payable under this Lease, such excess rent shall be paid to
Landlord as Additional Rent at the same times and in the same manner
as the Rent hereunder.
8.2 PROPOSED ASSIGNMENT OR SUBLEASE. If Tenant desires to assign this
Lease or sublease the Premises or any part thereof, then at least
thirty (30) days, but not more than ninety (90) days, prior to the
date when Tenant desires the assignment or sublease to be effective
(the "Transfer Date"), Tenant shall give Landlord Notice (the
"Assignment Notice") which shall set forth the name, address and
business of the proposed assignee or sublessee, the Transfer Date,
detailed information (including references) regarding the
creditworthiness and financial condition of the proposed assignee or
sublessee, and such other information and documentation as Landlord
may require. Landlord shall notify Tenant in writing that Landlord
elects either (a) to disapprove the proposed assignee or sublessor, or
(b) to permit Tenant to assign or sublet such space to the proposed
assignee or sublessee.
8.3 TENANT TO REMAIN LIABLE. Notwithstanding any assignment or subletting,
Tenant and any guarantor of Tenant's obligations under this Lease
shall at all times remain fully responsible and liable for the payment
of all Rent under this Lease and for compliance with all of Tenant's
other obligations under this Lease.
8.4 LANDLORD'S ASSIGNMENT. Landlord may sell, transfer, mortgage, encumber
or assign the Building or this Lease. Within ten (10) days after
request by Landlord, at any time before and after such sale, transfer,
mortgage, encumbrance or assignment by Landlord, Tenant shall execute,
acknowledge and deliver a certificate ("Estoppel Certificate") in
recordable form certifying: (a) the capacity of the person executing
such certificate and that such person is duly authorized to execute it
on behalf of Tenant; (b) the Commencement Date of this Lease and the
date upon which the Term expires; (c) that this Lease is unmodified
and in full force and effect (or if modified, in full force and effect
as modified); (d) that no Event of Default has occurred with respect
to Landlord; (e) that there are no defenses or offsets to this Lease
or its enforceability known to Tenant (if such be the case); and (f)
the date to which Rent has been paid.
9. USE OF THE PREMISES
9.1 LEGAL USE AND VIOLATIONS OF INSURANCE COVERAGE. Tenant shall use the
Premises in a careful, safe and proper manner and shall not occupy or
use, or permit any portion of the Premises to be occupied or used, for
any business or purpose which is unlawful or deemed to be disreputable
in any manner, or extra hazardous on account of fire. Tenant shall not
permit anything to be done which will in any way increase the rate of
fire, hazard, loss of rent, casualty or other insurance on the
Building and/or its contents, and in the event that, by reasons and
acts of Tenant, there shall be any increase in the rate of any such
insurance on the Building or its contents created by Tenant's acts or
conduct of business, then Tenant hereby agrees to pay such increases
as Additional Rent.
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9.2 NUISANCE; RULES AND REGULATIONS. Tenant shall conduct its business in
such a manner as not to create any nuisance, or interfere with or
disturb any other tenant or Landlord in its management of the
Building. Tenant shall observe and comply with the Rules and
Regulations set forth in Exhibit D and such other and further
reasonable Rules and Regulations which Landlord at any time may make
and communicate to Tenant and apply to tenants and occupants of the
Building generally and which, in the reasonable judgment of Landlord,
shall be necessary for the operation, maintenance, reputation or
appearance or the Building.
10. INDEMNITY / LIABILITY
10.1 INDEMNITY BY TENANT. Tenant shall indemnify, defend, protect and hold
harmless Landlord, and its agents, representatives, trustees,
administrators and employees from and against any and all claims,
losses, proceedings, damages, causes of action, liability, costs and
expenses (including without limitation attorney's and expert's fees)
arising from or in connection with, or caused by, any act, omission or
negligence of Tenant or any sublessee of Tenant, or any of their
respective contractors, licensees, invitees, agents, servants or
employees, on or about the Premises or the Building; and if any action
or proceeding is brought against Landlord, or its agents,
representatives, trustees, administrators and/or employees by reason
of any such claim, Tenant upon Notice from Landlord shall defend the
same at Tenant's expense by counsel reasonably satisfactory to
Landlord. Tenant, as a material part of the consideration to Landlord,
hereby assumes all risk of damage to property or injury to persons in,
upon or about the Premises arising from any cause, and Tenant hereby
waives all claims in respect thereof against Landlord, its agents,
representatives, trustees, administrators and/or employees. These
provisions are in addition to, and not in lieu of, the insurance
required to be provided by Tenant, as described elsewhere in this
Lease. Notwithstanding anything contained in this Lease to the
contrary, Tenant's indemnity obligation shall survive the expiration
or earlier termination of this Lease.
10.2 LANDLORD NOT TO HAVE LIABILITY. Tenant hereby agrees that Landlord and
its agents and employees shall not be liable for injury to Tenant's
business or any loss of income therefrom or for damage to the goods,
wares, merchandise or other property of Tenant, or of Tenant's
employees, invitees, customers, contractors, workers, or any other
person in or about the Premises, nor shall Landlord or its agents,
representatives, trustees, administrators and/or employees be liable
for injury to the person of Tenant, Tenant's employees, agents,
invitees, customers, contractors, workers, or any other person in or
about the Premises, whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures, or
from any other cause, whether the said damage or injury results from
conditions arising upon the Premises or from other sources or places
and regardless of whether the cause of such damage or injury or the
means of repairing the same is inaccessible to Tenant. Without in any
way limiting the foregoing, Landlord and its agents or employees shall
not be liable or responsible for any injury, loss or damage to any
property or person occasioned by theft, fire, act of God, public
enemy, injunction, riot, strike, insurrection, war, court order,
requisition, or order of governmental body of authority, or other
matter beyond the control of Landlord.
10.3 MUTUAL RELEASE AND WAIVER OF SUBROGATION. Landlord and Tenant each
hereby waives and releases the other from any claim or liability for
damage to such party's property occurring during the Term to the
extent covered by insurance. Each party shall cause the property
hazard insurance carried by it, with respect to the Building, the
Premises or such party's other property located therein, to be
endorsed, if necessary, to prevent any invalidation of such insurance
by reason of the waivers and releases contained in this Section,
provided such endorsement can be obtained at no cost. If additional
costs are involved, the party carrying such insurance shall give the
other party the opportunity to apply for such endorsement.
10.4 TRANSFER OF OWNERSHIP. Upon the sale or transfer of the Building, the
obligations and duties of the Landlord selling or transferring the
Building under the Lease shall terminate, except as to liabilities
that shall have accrued prior to the transfer or which are the result
of the conduct of that Landlord.
10.5 EXPRESS AGREEMENT. This Lease shall be considered an express agreement
governing any case of damage to or destruction of the Building or the
Premises by fire or other casualty, and any law which purports to
govern the rights of Landlord and Tenant in such a contingency in the
absence of express agreement, and any successor or other law of like
import, shall have no application.
11. ACCESS FOR REPAIRS AND INSPECTION
Landlord and Landlord's agents shall have the right to enter the Premises
at all reasonable hours upon reasonable prior oral request to Tenant,
except in the case of an emergency, in which case the right of entry shall
be immediate, to examine the Premises, to show them to prospective
purchasers, mortgagees or tenants and to make and perform such cleaning,
maintenance, repairs, alterations,
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improvements or additions as Landlord may deem necessary or desirable for
the safety, improvement or preservation of the Premises or of other
portions of the Building, without such acts constituting an eviction of
Tenant in whole or in part or entitling Tenant to any abatement of rent by
reason of loss or interruption of business of Tenant or otherwise. If
Tenant shall not be personally present to open and permit an entry into the
Premises, at any time when for any reason an entry therein shall be
necessary or permissible, Landlord or Landlord's agents may enter the
Premises by use of a master key, or in any emergency may forcibly enter the
Premises, without rendering Landlord or Landlord's agents liable therefor
(provided that during such entry Landlord or Landlord's agents shall accord
reasonable care to Tenant's property), and without in any manner affecting
the obligations and covenants of this Lease. Landlord shall have the right
to erect, build, use and maintain unexposed pipes, ducts and conduits in
and through the Premises.
12. FIRE AND OTHER CASUALTY
12.1 MAJOR CASUALTY. If the Premises or the Building shall be so damaged by
fire or other casualty as to render the Premises untenantable, as
determined in the Landlord's sole and absolute discretion, this Lease
may be terminated by Landlord as of the date of the occurrence of the
fire or other casualty by giving Notice of such termination. Upon such
Notice of termination, Tenant shall surrender to Landlord the Premises
and all interest therein under this Lease, and Landlord may re-enter
and take possession of the Premises and remove Tenant therefrom.
Except for Tenant's indemnity obligations, Landlord and Tenant shall
be free and discharged from all obligations arising under this Lease
after the date of such termination. There shall be no abatement of
Rent by reason of all or any portion of the Premises being unusable
for a period of fifteen (15) days or less. If the damage is due, in
whole or in part, to the fault or negligence of Tenant or Tenant's
employees, agents contractors or invitees, there shall be no abatement
of Rent.
12.2 REPARABLE CASUALTY. If the Premises, without any fault or negligence
of Tenant, shall be damaged by fire or other casualty, but not so as
to render them untenantable and insurance proceeds are made available
to Landlord, Landlord shall cause the damage to be repaired with
reasonable promptness and there shall be no abatement of Rent or any
other amounts due under this Lease. If the fire or other casualty
causing damage to the Premises or other parts of the Building shall
have been caused, in whole or in part, by Tenant or Tenant's
employees, agents, representatives, contractors or invitees, such
damage shall be repaired by Landlord and the amount paid for such
repair shall be immediately due from Tenant to Landlord with interest
at the rate of twelve percent (12%) per annum or the highest rate
allowed by law, whichever is lower, from the dates of Landlord's
payments.
12.3 LANDLORD'S ELECTION. If the Building is so damaged by fire or other
casualty that Landlord shall deem it advisable to reconstruct, rebuild
or raze the Building, then, notwithstanding anything contained herein
to the contrary, this Lease may be terminated by Landlord as of the
date of the occurrence of the fire or other casualty by giving Notice
to Tenant of such termination within thirty (30) days after the
occurrence of the fire or other casualty. Upon such Notice of
termination, Tenant shall surrender to Landlord the Premises and all
interest therein under this Lease, and Landlord may re-enter and take
possession of the Premises and remove Tenant therefrom. Landlord and
Tenant shall be free and discharged from all obligations arising
hereunder after the date of such termination.
12.4 WAIVER. Tenant waives the provisions of California Civil Code Sections
1932(2) and 1933(4) with respect to any destruction of the Premises.
13. CONDEMNATION
13.1 CONDEMNATION. Upon any taking under the power of eminent domain, or
sale under threat of the exercise of said power ("Condemnation") of
the whole or a substantial part of the Building, the Premises or the
parking area that shall substantially interfere with Tenant's use and
occupancy of the balance thereof, this Lease shall, at the election of
either Tenant or Landlord exercised by either party giving Notice to
the other of such termination, terminate as of the date the condemning
authority takes title or possession, whichever first occurs. Upon
Condemnation of any part of the Building which shall not render the
Premises untenantable, Landlord shall have the right, at its option,
to terminate this Lease as of the date the condemning authority takes
title or possession, whichever first occurs. No award from the
condemning authority shall be apportioned, and Tenant hereby assigns
to Landlord any award which may be made, together with any and all
rights of Tenant now or hereafter arising in or to such award or any
part thereof; provided, however, that Tenant may receive any award for
Tenant's property and fixtures removable by Tenant at the expiration
of the Lease under the terms of this Lease, or for the interruption
of, or damage to Tenant's business or for relocation expenses
recoverable against the condemning authority.
13.2 RESTORATION AFTER PARTIAL TAKING. If there is Condemnation which does
not result in a termination of this Lease, Landlord shall, to the
extent of any funds received from the condemning authority for repair
or restoration, restore the Building or Premises substantially to
their condition prior to such partial Condemnation and, thereafter,
Rent shall be abated in
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the proportion which the rentable square footage of the part of the
Premises so made unusable bears to the amount of rentable square
footage immediately prior to the Condemnation. No temporary taking of
a part of the Premises or of the Building shall give Tenant any right
to terminate this Lease or to any abatement of Rent.
13.3 WAIVER. Tenant hereby waives the provisions of Code of Civil
Procedure, Section 1265.130 with respect to any condemnation.
14. HAZARDOUS SUBSTANCES
14.1 DEFINITIONS.
(1) HAZARDOUS SUBSTANCE. The term "Hazardous Substance" as used in
this Lease shall mean any product, substance, chemical, material
or waste whose presence, nature, quantity and/or intensity of
existence, use, manufacture, disposal, transportation, spill,
release or effect, either by itself or in combination with other
materials expected to be in the Building or on the Premises, is
either: (a) potentially injurious to the public health, safety or
welfare, the environment or the Building or Premises, (b)
regulated or monitored by any governmental authority, or (c) a
basis for liability of Landlord to any governmental agency or
third party under any applicable statute or common law theory.
Hazardous Substance shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil or any products,
by-products or fractions thereof.
(2) RESTRICTIONS. The term "Restrictions" shall include all laws,
rules, regulations, ordinances, directives, covenants, easements
and restrictions of record, permits, the requirements of any
applicable fire insurance underwriter or rating bureau, and the
recommendations of Landlord's engineers and/or consultants,
relating in any manner to the Building or the Premises (including
without limitation matters pertaining to (a) industrial hygiene,
(b) environmental and other physical conditions on, in, under or
about the Building, including soil and groundwater conditions,
and (c) the use, generation, manufacture, production,
installation, maintenance, removal, transportation, storage,
spill or release of any Hazardous Substance or storage tank), now
in effect or which may hereafter come into effect, and whether or
not reflecting a change in policy from any previously existing
policy.
(3) REPORTABLE USE. The term "Reportable Use" shall mean (a) the
installation or use of any above or below ground storage tank, or
(b) the generation, possession, storage, use, transportation, or
disposal of a Hazardous Substance that requires a permit from, or
with respect to which a report, notice, registration or business
plan is required to be filed with, any governmental authority.
Reportable Use shall also include Tenant's being responsible for
the presence in, on or about the Building or the Premises of a
Hazardous Substance with respect to which any Restriction
requires that a notice be given to persons entering or occupying
the Building, the Premises or neighboring properties.
14.2 PROHIBITED USES. Tenant shall not engage in any activity in, on or
about the Premises which constitutes a Reportable Use of any Hazardous
Substances without the express prior written consent of Landlord and
compliance in a timely manner (at Tenant's sole cost and expense) with
all Restrictions. Notwithstanding the foregoing, Tenant may, with
Landlord's prior written consent, but in compliance with all
Restrictions, use any ordinary and customary materials reasonably
required to be used by Tenant in the normal course of Tenant's
business permitted on the Premises, so long as such use is not a
Reportable Use and does not expose the Building, the Premises or
neighboring properties to any meaningful risk of contamination or
damage, or expose Landlord to any liability therefor. Landlord may
(but without any obligation to do so) condition its consent or
continued consent to the use or presence of any Hazardous Substance,
activity or storage tank by Tenant upon Tenant's giving Landlord such
additional assurances as Landlord, in its reasonable discretion, deems
necessary to protect itself, the public, the Building, the Premises
and the environment against damage, contamination or injury, or
liability therefrom or therefor, including without limitation the
installation (and removal on or before expiration of the Term or
earlier termination) of reasonably necessary protective modifications
to the Premises (such as concrete encasements) and the deposit of an
additional Security Deposit under Section 19. Tenant shall comply with
all Restrictions relating to the use and storage of such chemical
solutions.
14.3 DUTY TO INFORM LANDLORD. If Tenant knows, or has reasonable cause to
believe, that a Hazardous Substance, or a condition involving or
resulting from same, has come to be located in, on, under or about the
Building or the Premises, other than as previously consented to by
Landlord, Tenant shall immediately give Notice of such fact to
Landlord. Tenant shall also immediately give Landlord a copy of any
statement, report, notice, registration, application, permit, business
plan, license, claim, action or proceeding given to, or received from,
any governmental authority or private party, or persons entering or
occupying the Building or the Premises, concerning the presence,
spill, release, discharge of, or exposure to, any Hazardous Substance
or contamination in, on, or about the Building
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or the Premises, including without limitation all such documents as
may be involved in any Reportable Uses.
14.4 INDEMNIFICATION. Tenant shall indemnify, protect, defend and hold
Landlord, its administrators, sponsors, fiduciaries, trustees, agents,
representatives, employees, and Lender, if any, and the Building and
the Premises, harmless from and against any and all loss of rents
and/or damages, liabilities, judgments, costs, claims, liens,
expenses, penalties, permits and attorney's and consultant's fees
arising out of or involving any Hazardous Substance or storage tank
brought onto the Building or the Premises by or for Tenant or under
Tenant's control. Tenant's obligations under this Section 14.4 shall
include, but not be limited to, the effects of any contamination or
injury to person, property or the environment created or suffered by
Tenant, and the cost of investigation (including consultant's and
attorney's fees and testing), removal, remediation, restoration and/or
abatement thereof, or of any contamination therein involved, and shall
survive the expiration or earlier termination of this Lease. No
termination, cancellation or release agreement entered into by
Landlord and Tenant shall release Tenant from its obligations under
this Lease with respect to Hazardous Substances or storage tanks,
unless specifically so agreed by Landlord in writing at the time of
such agreement.
14.5 TENANT'S COMPLIANCE WITH LAW. Except as otherwise provided in this
Lease, Tenant, shall, at Tenant's sole cost and expense, fully,
diligently and in a timely manner, comply with all Restrictions.
Tenant shall, within (5) days after receipt of Landlord's written
request, provide Landlord with copies of all documents and
information, including without limitation permits, registrations,
manifests, applications, reports and certificates, evidencing Tenant's
compliance with any Restrictions specified by Landlord, and shall
immediately upon receipt, give Notice to Landlord (with copies of any
documents involved) of any threatened or actual claim, notice,
citation, warning, complaint or report pertaining to or involving
failure by Tenant, the Building or the Premises to comply with any
Restrictions.
14.6 ENVIRONMENTAL INSPECTION; COMPLIANCE. Landlord and Landlord's lender,
if any, shall have the right to enter the Premises at any time, in the
case of an emergency, and otherwise at reasonable times, for the
purpose of inspecting the condition of the Premises and thereby
verifying compliance by Tenant with this Section 14 and the
Restrictions, and to employ experts and/or consultants in connection
therewith and/or to advise Landlord with respect to Tenant's
activities, including without limitation the installation, operation,
use, monitoring, maintenance, or removal of any Hazardous Substance on
or from the Building or the Premises. The costs and expenses of any
such inspections shall be paid by the party requesting same, unless an
Event of Default by Tenant, or condition which, with Notice or the
passage of time or both, would constitute an Event of Default by
Tenant, or a violation of the Restrictions, or any contamination,
caused or materially contributed to by Tenant, is found to exist or be
imminent, or unless the inspection is requested or ordered by a
governmental authority as the result of any such existing or imminent
violation or contamination. In any such event, Tenant shall upon
request reimburse Landlord or Landlord's lender, if any, for the costs
and expenses of such inspections.
15. HOLDOVER
If Tenant or any person claiming through or under Tenant is in possession
of any part of the Premises after the expiration of the Term, with or
without the express or implied consent of Landlord, such tenancy shall be
from month-to-month only, and not a renewal of this Lease or an extension
for any further term, and such month-to-month tenancy shall be subject to
each and every term, covenant and agreement contained herein, except that
Base Rent shall be increased to one hundred fifty percent (150%) of the
amount of Base Rent payable by Tenant during the last month of the Term.
Nothing in this Section shall be construed as a consent by Landlord to any
continued possession by Tenant, and Landlord expressly reserves the right
to require Tenant to surrender possession of the Premises upon the
expiration of the Term or upon the earlier termination hereof and to assert
any remedy in law or equity to evict Tenant and/or collect damages in
connection with such continued possession.
16. INSURANCE
16.1 LANDLORD'S INSURANCE. Landlord shall at all times during the Term, as
an operating cost, procure and maintain in force and effect a Broad
Form policy or policies of insurance covering the Building. At
Landlord's option, Landlord may procure endorsements thereon for
flood, earthquake, tornado, theft and collapse, or such other coverage
as Landlord deems appropriate. Landlord may also obtain a
Comprehensive Package policy of liability insurance (including
contractual liability), employer's liability insurance, excess
liability insurance and such other insurance as Landlord deems
necessary or appropriate. Any insurance carried by Landlord may be
under a blanket policy (or policies) covering other properties of
Landlord and/or its related or affiliated entities.
16.2 TENANT'S INSURANCE - LIABILITY. Tenant shall keep in force with
respect to the Premises and Tenant's business and other activities
therein Commercial Package liability insurance,
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includingwithout limitation contractual liability, payable on an
occurrence basis, with a minimum combined limit of $1,000,000, naming
Landlord and Landlord's manager for the Building as additional
insureds.
16.3 TENANT'S INSURANCE - OTHER. Tenant shall carry and maintain a Broad
Form policy of insurance covering all of Tenant's property and all
alterations, additions or improvements permitted under this Lease
(unless provided for at Landlord's expense), from time to time in, on
or upon the Premises in an amount not less that ninety percent (90%)
of their full replacement cost from time to time during the term of
this Lease, providing coverage for sprinkler damage, vandalism and
malicious mischief. Such insurance shall name Landlord and Landlord's
manager for the Building as additional insureds.
16.4 EVIDENCE OF INSURANCE. Tenant shall deliver to Landlord policies or
duly executed certificates of insurance. Renewals shall be delivered
to Landlord at least ten (10) days prior to the expiration of the
respective policy terms. The amount of Tenant's insurance shall be
subject to periodic increase based upon inflation, increased liability
awards, recommendation of Landlord's professional insurance advisers
and other relevant factors.
16.5 LANDLORD NOT TO INSURE. Landlord shall have no obligation to carry
insurance of any kind on Tenant's goods, furniture or furnishings or
other property, and Landlord shall not be obligated to repair any
damage thereto or to replace the same except with respect to any
damage thereto caused by Landlord's willful misconduct or gross
negligence.
17. DEFAULT
The occurrence of any one or more of the events set forth in Sections 17.1,
17.2, 17.3 and 17.4 shall constitute a material Event of Default and breach
of this Lease by Tenant.
17.1 NON-PAYMENT OF RENT. The failure of Tenant to make any payment of Rent
as and when due, where such failure shall continue for a period of
five (5) days after Notice from Landlord that said payment is
delinquent or not received.
17.2 BREACH. The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of the Lease to be observed or
performed by Tenant, other than the failure to pay Rent where such
failure shall continue for a period of ten (10) days after Notice
thereof from Landlord to Tenant.
17.3 INSOLVENCY. (a) The making by Tenant of any general arrangement or
assignment for the benefit of creditors; (b) Tenant's becoming a
"debtor" as defined in the Bankruptcy Code, 11 U.S.C. ss. 101 et seq.,
or any successor statute thereto (unless, in the case of a petition
filed against Tenant, the petition is dismissed within thirty (30)
days); (c) the appointment of a trustee or receiver to take possession
of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where possession is not restored to
Tenant within fifteen (15) days; (d) the attachment, execution or
other judicial seizure of substantially all of Tenant's assets located
at the Premises or of all or any portion of Tenant's interest in this
Lease, where such seizure is not discharged within fifteen (15) days;
or (e) the occurrence of any other event which would have a material
adverse effect on Tenant's ability to pay its debts as they become
due.
17.4 ABANDONMENT. The abandonment of the Premises by Tenant.
17.5 REMEDIES. Upon an Event of Default by Tenant, Landlord shall have the
right, but not the obligation, to re-enter and retake the Premises and
resume possession thereof, and thereafter to relet same for the
remainder of the period of the Term specified in this Lease. Nothing
herein shall be construed as in any way denying Landlord the right, in
case of any Event of Default by Tenant to treat the Event of Default
as an entire breach of the Lease and at Landlord's option immediately
xxx for any and all damages occasioned by Landlord thereby. Should
Landlord terminate this Lease and thereafter seek relief pursuant to
Section 1951.2 of the California Civil Code, interest shall be allowed
upon unpaid rent, for the purposes of Section 1951.2(b), at the
greater of the legal rate of interest and ten percent (10%) per annum.
The foregoing remedies are not exclusive; they are cumulative in
addition to any remedies now or later allowed by law or in equity. Any
proof by Tenant under Section 1951.2(a)(2) or (3) of the California
Civil Code, as to the amount of rental loss that could be reasonably
avoided, shall be made in the following manner: Landlord and Tenant
shall each select a licensed real estate broker in the business of
renting property of the same use as the Premises and in the same
geographic vicinity, and such two real estate brokers shall select a
third licensed real estate broker and the three licensed real estate
brokers so selected shall determine the amount of the rental loss that
could be reasonably avoided for the balance of the term of this Lease
after the time of award. The decision of the majority of said licensed
real estate brokers shall be final and binding upon the parties
hereto. Until Landlord elects to terminate this lease, Landlord has
the remedy provided for in Section 1951.4 of the California Civil Code
(that is, Landlord may continue the lease in effect after Tenant's
breach and abandonment and recover Rent as it becomes due, if Tenant
has the right to sublet or assign, subject only to reasonable
limitations) and such other remedies as
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may be provided at law or in equity. The foregoing remedies are not
exclusive; they are cumulative in addition to any remedies now or
later allowed by law or in equity.
18. OPERATING EXPENSES
18.1 OPERATING EXPENSES DEFINED. "Operating Expenses," as used in this
Lease, means all amounts paid or accrued by Landlord per calendar year
for the operation and maintenance of the Building or the land on which
it is situated, and the equipment, fixtures and facilities used in
connection therewith, including the parking area. Operating Expenses
include, but are not limited to the cost of utilities, window
cleaning, services, building supplies, janitorial and cleaning
services, normal maintenance and repair of the Building and the common
areas (including elevators, if any, and the periodic refurbishing of
the common areas), heating and air conditioning, waste disposal,
lighting, maintenance of fire protection and security systems,
planting and landscaping, landscape maintenance, "Taxes" (as defined
below), insurance premiums (including without limitation boiler and
machinery, fire and extended coverage, earthquake, flood, rental and
public liability insurance), and all labor, supplies, materials,
tools, professional fees, management fees, wages, salaries and payroll
burden of the Building's manager and clerical, maintenance and other
employees directly associated with the operation of the Building,
Building office rent or rental value, office supplies and materials,
and all other items constituting operating and maintenance costs in
connection with the Building and land according to generally accepted
accounting principles. Operating Expenses shall not include the
following: (a) depreciation; (b) leasing commissions; (c) repairs and
restorations paid for by the proceeds of any insurance policy; (d)
construction of improvements of a capital nature; except for the cost,
or portion thereof, properly allocable to the Building, of any capital
improvements made to the Building specifically to reduce Operating
Expenses, which cost shall be amortized over the useful life of the
improvement (together with interest on the unamortized balance at
Landlord's cost of funds), or required to be made to the Building
under any governmental law or regulation not applicable to the
Building at the time it was constructed, which cost shall also be
amortized over the useful life of the improvement (together with
interest on the unamortized balance at Landlord's cost of funds); (e)
ground rent; (f) debt service; and (g) income and franchise taxes
other than that portion, if any, of income and franchise taxes which
may hereinafter be assessed and paid in lieu of or as a substitute in
whole or in part for Taxes. If less than ninety-five percent (95%) of
the rentable area of the Building is actually occupied during any
calendar year, Operating Expenses for such calendar year shall be the
amount that the Operating Expenses would have been for such calendar
year had ninety-five percent (95%) of the rentable area of the
Building been occupied during all of such calendar year as determined
by Landlord.
18.2 PAYMENT OF OPERATING EXPENSES. Tenant shall pay, each month, as
Additional Rent, at the same time as the Base Rent provided for in
Section 2, one-twelfth (1/12) of Tenant's pro rata share of annual
Operating Expenses in excess of those expenses incurred in Base Year
2001. Landlord and Tenant agree that Tenant's pro rata share is 1.54%
("Tenant's Share"), which was computed as a fraction, the numerator of
which is the number of rentable square feet of the Premises, and the
denominator of which is the 66,894 total rentable square feet
contained in the Building.
18.3 LANDLORD'S ESTIMATES. Landlord shall, prior to the first day of any
calendar year, estimate Operating Expenses for the following calendar
year for the purpose of determining Tenant's Share of increases in
Operating Expenses (the "Escalation") to be due from Tenant. Tenant's
monthly payments of the Escalation shall be in such amounts as are so
estimated by Landlord in its reasonable discretion. Landlord shall,
within one hundred twenty (120) days after the end of any calendar
year for which Additional Rent may be due for the Escalation, give
Notice thereof to Tenant, which Notice shall also contain or be
accompanied by a statement of the Operating Expenses for the calendar
year, and by a computation of such Additional Rent. Failure of
Landlord to give Tenant Notice within said time period shall not be a
waiver of Landlord's right to collect said Additional Rent. When the
Landlord presents Tenant with a statement of amounts due by Tenant for
any Escalation: (a) Tenant shall pay Landlord within fourteen (14)
days the difference between the Escalation and the amount of monthly
payments made by Tenant attributable to said Escalation; or (b) Tenant
shall receive a credit against future payments of Additional Rent if
the Escalation is less than the amount of monthly payments collected
by Landlord attributable to such Escalation.
18.4 AUDIT. Tenant, at its cost, shall have the right to audit Landlord's
records of Operating Expenses referred to in any statement of
Operating Expenses delivered in accordance with the provisions of
Section 18.2 above in Landlord's property manager's offices during
usual business hours, within the sixty (60) day period following
delivery of the statement; provided however, that no such audit shall
extend the time within which Tenant is obligated to pay the amounts
shown in such statement. If within such sixty (60) day period Tenant
does not deliver to the Landlord a Notice referring in reasonable
detail to one or more errors in such statement, Tenant shall be deemed
conclusively to have accepted that the information set forth in such
statement is correct.
18.5 TAXES. Where used in this Lease, the term "Taxes" means all taxes,
assessments (special or otherwise), use and occupancy taxes, transit
taxes, water and sewer charges, excises,
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levies, license and permit fees and all other charges levied upon or
with respect to the Building and the property upon which it is
situated and ad valorem taxes on personal property used in connection
therewith, and rentals or receipts therefrom and all taxes of
whatsoever nature that are imposed in substitution for or in lieu of
any of the taxes, assessments, or other charges included in this
definition of Taxes. Taxes shall not include federal or state income
tax, gift, inheritance or estate taxes.
18.6 PERSONAL PROPERTY TAXES. Tenant shall be liable for and shall pay
before delinquency all taxes, and penalties and interest thereon, if
any, levied against Tenant's furniture, trade fixtures and equipment,
and any other personal property of Tenant situated or installed in and
upon the Premises. For the purposes of determining the amount of such
taxes, figures supplied by the county assessor's office or other
taxing authority as to the amount thereof shall be conclusive.
19. SECURITY DEPOSIT
Concurrently with the execution of this Lease, Tenant shall deliver to
Landlord, in good funds, the sum of $2,832.50 to be held by Landlord as
security for the full and faithful performance of every provision of this
Lease (the "Security Deposit"). If any Event of Default by Tenant exists
with respect to any provision of this Lease, including without limitation
the provisions relating to the payment of Rent, Landlord may use, apply or
retain all or any part of the Security Deposit for the payment of any Rent
or for the payment of any other amount which Landlord may spend or become
obligated to spend by reason of the Event of Default by Tenant or to
compensate Landlord for any other loss, cost or damage which Landlord may
suffer by reason of such Event of Default by Tenant. If any portion of the
Security Deposit is so used or applied, Tenant shall, within five (5) days
after written demand therefor, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to the amount deposited, and
Tenant's failure to do so shall be a material breach of this Lease. Should
Tenant faithfully perform all of the terms, covenants and conditions of
this Lease and remain in possession of the Premises at the expiration of
this Lease, the amount of the Security Deposit shall be repaid by Landlord
to Tenant. Should the Base Rent be increased, Tenant on the date of such
increase shall deliver to Landlord additional funds sufficient to ensure
that Landlord is at all times in possession of a Security Deposit equal to
not less than one (1) month's current Base Rent.
20. UNDERLYING MORTGAGES
20.1 SUBORDINATION. This Lease and the term and estate hereby granted are
and shall be subject and subordinate to the lien of each mortgage,
deed of trust and/or ground lease which may now or at any time
hereafter affect Landlord's interest in the Building (an "Underlying
Interest"), at the option of the Landlord or Landlord's lender. Each
holder of each Underlying Interest shall have the right, exercisable
at such holder's sole and exclusive option at any time, to cause any
of the Underlying Interests which such holder owns to be and become
subordinate and inferior to the lien and charge of this Lease by
delivering Notice of such exercise to Tenant. Tenant shall from time
to time execute and deliver such instruments as Landlord or the holder
of any Underlying Interest may reasonably request to confirm the
status of this Lease as provided in this Section 20.
20.2 ATTORNMENT TO HOLDER OF UNDERLYING INTEREST. Tenant confirms that if
by reason of a default under any Underlying Interest the holder of
such Underlying Interest or its successor or assignee in interest
becomes the Landlord hereunder, Tenant shall attorn to, and shall
recognize, such holder as Tenant's landlord under this Lease. Tenant
shall execute and deliver, at any time and from time to time, upon
request of Landlord or of the holder of any Underlying Interest, an
instrument which may be reasonably necessary or appropriate to
evidence such attornment. Tenant waives the provisions of any statute
or rule of law now or hereafter in effect which may give or purport to
give Tenant any right or election to terminate this Lease or to
surrender possession of the Premises in the event any proceeding is
brought by the holder of the Underlying Interest to acquire Landlord's
interest hereunder.
20.3 LANDLORD'S DEFAULT. In the event of any act or omission by Landlord
which pursuant to this Lease or by law would give Tenant the right to
terminate this Lease, Tenant shall not exercise such right unless or
until: (a) it has given Notice of such act or omission to the holder
of each Underlying Interest who has previously given Tenant Notice of
the existence of such Underlying Interest; and (b) a reasonable period
of time for remedying such act or omission shall have elapsed
following the giving of such Notice.
20.4 NON-DISTURBANCE. Notwithstanding anything contained in this Section,
as a condition to the attornment and subordination obligations set
forth in this Section, this Lease and the leasehold estate hereby
created shall not be extinguished or terminated or the possession or
the right of Tenant (including the rights with respect to enjoyment
and removal of Tenant's property) be disturbed so long as this Lease
shall be in force and no Event of Default by Tenant, or condition
which with Notice or the passage of time or both would cause an Event
of Default by Tenant, exists and the holder of an Underlying Interest
shall have entered into a non-disturbance and attornment agreement at
the request of Tenant in form and substance reasonably acceptable to
Tenant, Landlord and such holder of an Underlying Interest.
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20.5 ESTOPPEL CERTIFICATES. Tenant shall, promptly upon request by
Landlord, deliver to Landlord for the holder of the Underlying
Interest an Estoppel Certificate as described in Section 8.4.
21. PARKING PROVISIONS
21.1 PARKING. Tenant shall have the right to use a maximum of three (3)
automobile parking spaces in the Building's parking areas for which
there currently is a $45.00 monthly charge per single unassigned stall
and a $65.00 monthly charge per single assigned stall, which charge
shall be payable in advance on the first day of each calendar month
during the Term hereof. The charge for such spaces shall be adjusted
from time to time in Landlord's sole and absolute discretion. Tenant
shall require its employees to park within the Building's parking
areas and shall forbid its employees to park on city streets.
21.2 LANDLORD NOT TO BE LIABLE. Tenant, its agents, representatives,
employees, customers, business invitees, contractors and all persons
using the drives and parking areas do so at their own risk and
Landlord shall not be responsible for, or in any way have any
obligation or liability for, any damage, loss, theft or injury to any
vehicle or other equipment, any contents thereof or any other personal
property or for the death or injury to any person while located in or
entering or exiting any portion of the drives and parking area.
Landlord shall have the right at any time to change the arrangement or
location of the assigned or unassigned spaces without incurring any
liability to Tenant or entitling Tenant to any abatement of any
parking fee, as long as such changes do not materially affect Tenant's
rights under the Lease.
22. RELOCATION; BUILDING NAME
22.1 [INTENTIONALLY DELETED]
22.2 BUILDING NAME; SIGNAGE. Landlord shall have the right to name the
Building and to change the name or designation by which the Building
is commonly known at any time. Tenant shall not use the name of the
Building for any purpose other than as the address of the business
conducted by Tenant in the Premises. Landlord shall provide a building
directory which shall include Tenant's listing in a conspicuous place
in the Building. Landlord shall also provide one suite identification
sign adjacent to the main entry door of the Premises in Landlord's
standard size and form. Landlord shall pay all reasonable charges for
the initial installation of the directory listing and suite
identification sign, and Tenant shall pay for any subsequent changes
to the directory listing and identification sign at Tenant's request.
23. NOTICES
Any notice, demand or request provided for or permitted to be given
pursuant to this Lease must be in writing and shall be properly given and
effective when personally served, when sent by prepaid Western Union
telegram or air courier, when sent by telecopier, or when deposited in an
official depository under the regular care and custody of the United States
Mail, addressed as specified below, sent by registered or certified mail,
return receipt requested, with postage prepaid ("Notice"). If given by
certified mail, the time period in which a response of any such mailed
Notice must be given, however, shall commence to run from the date of
receipt on the return receipt of the Notice by the addressee thereof.
Rejection or other refusal to accept or the inability to deliver because of
change in address of which no Notice was given shall be deemed to be
receipt of the Notice. Notices shall be addressed as follows:
To Landlord: XXXXXXX & XXXXXXXXX OF CALIFORNIA, INC.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Property Manager
With a copy to: XXXXXXX & XXXXXXX, A LAW CORPORATION
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx Xx.
To Tenant: VINEYARD NATIONAL BANK
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: President
Notice of change of address shall be given in the same manner as prescribed
herein for other Notices.
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24. BROKER'S OR AGENT'S COMMISSION
24.1 Landlord represents and warrants that Landlord has incurred no
obligation for brokerage commission or finder's fee in connection with
the execution of this Lease, except as listed below, and Landlord
agrees to indemnify Tenant and hold Tenant harmless against all
liabilities and costs arising from such claims, including without
limitation attorney's and expert's fees in connection therewith.
Landlord's Broker: XXXXXXX & XXXXXXXXX OF CALIFORNIA, INC.
000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Tenant's Broker: CB XXXXXXX XXXXX, INC.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
24.2 Tenant represents and warrants that Tenant has incurred no obligation
for brokerage commissions or finder's fees in connection with the
execution of this Lease and Tenant agrees to indemnify Landlord and
hold Landlord harmless against all liabilities and costs arising from
such claims, including without limitation attorneys' fees in
connection therewith.
25. GENERAL
25.1 PLACE OF PERFORMANCE - GOVERNING LAW. Tenant shall perform all
covenants, conditions and agreements contained herein, including
without limitation the payment of Rent, in Los Angeles County,
California. Any suit arising from or relating to this Lease shall be
brought in Los Angeles County, California. This Lease shall be
governed by and construed in accordance with the laws of the State of
California.
25.2 SEVERABILITY. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during
the Term, then, and in that event, the parties intend that the
remainder of this Lease shall not be affected thereby, and the parties
also intend that in lieu of each clause or provision of this Lease
that is illegal, invalid or unenforceable, there is added as a part of
this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
25.3 INUREMENT. Subject to the provisions of this Lease governing
assignments and transfers by Landlord and Tenant, respectively, the
terms, provisions, covenants and conditions contained in this Lease
shall apply to, inure to the benefit of, and be binding upon the
parties hereto, and upon their respective successors in interest and
legal representatives.
25.4 INTEGRATION. This Lease and the Exhibits thereto constitute the entire
understanding between Landlord and Tenant. All previous conversations,
memorandums and writings pertaining to leasing of the Premises not
incorporated or referenced in this Lease are superseded hereby. Any
modification hereto must be made by a separate written instrument. No
officer, employee or representative of Landlord, of Landlord's manager
or of Tenant has the authority to make any representation or promise
not already contained herein or made pursuant to the within
provisions, and Landlord and Tenant expressly agree that by executing
this Agreement, and any other document required herein or caused to be
executed hereby, it is not doing so in reliance upon any
representation or promise which is not set forth herein.
25.5 NO WAIVER. No delay or failure of Tenant or Landlord in exercising any
right, power, privilege or remedy hereunder or any single or partial
exercise of any right, power, privilege or remedy shall preclude other
or further exercise thereof or the exercise of any other right, power,
privilege or remedy. Any waiver, permission or consent of any kind by
Landlord or Tenant must be in writing and shall be effective only to
the extent provided therein.
25.6 ATTORNEYS' FEES. If suit is instituted to enforce or construe the
terms of this Lease, the prevailing party shall be entitled to recover
reasonable costs and attorney's and expert's fees (whether or not for
services of salaried attorneys regularly employed by the party) in
connection therewith in addition to any other remedy to which it may
be entitled.
25.7 CAPTIONS. Captions used in this Lease are for ease of reference only
and do not define or limit provisions.
25.8 AUTHORITY. If Tenant is a corporation, partnership, trust, association
or other entity, Tenant and each person executing this Lease on behalf
of Tenant hereby covenant and warrant that: (a) Tenant is duly
incorporated or otherwise established or formed and validly existing
under the laws of its state of incorporation, establishment or
formation; (b) Tenant is duly qualified to do business in California;
(c) Tenant has full corporate, partnership, trust, association or
other appropriate power and authority to enter into this Lease and to
perform all Tenant's obligations hereunder; and (d) each person (and
all of the persons if more than one signs) signing this Lease on
behalf of Tenant is duly and validly authorized to do so.
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25.9 SUBMISSION OF LEASE. The submission of this Lease to Tenant for
examination or execution does not constitute a reservation of or
option on the Premises or an agreement to lease the Premises or any
other space. This Lease shall become effective as a lease and Landlord
shall become obligated to rent space to Tenant only upon the execution
and delivery of this Lease by Landlord and Tenant.
25.10 EXHIBITS. The following Exhibits designated by an "X" are part of
this Lease and are incorporated herein by this reference.
[X] A - Floor Plan of Premises
------
B - Site Plan of Building
------
C - Tenant Improvements; Work Letter
------
[X] D - Rules and Regulations
------
E - Commencement Date Agreement
------
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Office Lease has been duly executed by Landlord
and Tenant as of the date first above written.
Landlord: SHEET METAL WORKERS' PENSION PLAN OF
SOUTHERN CALIFORNIA, ARIZONA AND NEVADA
By: /s/ XXXX XXXXXXXXXX
--------------------------------------
Xxxx Xxxxxxxxxx
Co-Chairman
By: /s/ XXX X. XXXXXXXX
--------------------------------------
Xxx X. Xxxxxxxx
Co-Chairman
Tenant: VINEYARD NATIONAL BANK, a national banking
association
By: /s/ XXXXXX XXXXXXX
--------------------------------------
Name: XXXXXX XXXXXXX
---------------------------------
Title: PRESIDENT AND CHIEF EXECUTIVE
OFFICER
-------------------------------
Date: JANUARY 12, 2001
---------------------------------
By: /s/ XXXXXXXX XXX
--------------------------------------
Name: XXXXXXXX XXX
---------------------------------
Title: ASSISTANT CORPORATE SECRETARY
-------------------------------
Date: JANUARY 12, 2001
---------------------------------
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EXHIBIT A
PREMISES
EXHIBIT A to the Office Lease dated February 1, 2001 between the SHEET
METAL WORKERS' PENSION PLAN OF SOUTHERN CALIFORNIA, ARIZONA AND NEVADA
("Landlord"), and VINEYARD NATIONAL BANK, a national banking association
("Tenant"), for the premises located at 000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx
Xxxxx, Xxxxxxxxxx 00000 consisting of 1,030 rentable square feet, identified as
Suite 320.
All measurements and distances are approximate. This plan is not scaled.
[TO BE PROVIDED]
Page A-16
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EXHIBIT D
BUILDING RULES AND REGULATIONS
EXHIBIT D to the Office Lease ("Lease") dated February 1, 2001 between the
SHEET METAL WORKERS' PENSION PLAN OF SOUTHERN CALIFORNIA, ARIZONA AND NEVADA
("Landlord"), and VINEYARD NATIONAL BANK, a national banking association
("Tenant"), for the premises at 000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxx,
Xxxxxxxxxx 00000, consisting of 1,030 rentable square feet, identified as Suite
320 ("Premises").
26. Tenant will refer all contractors, contractors' representatives and
installation technicians rendering any service for Tenant to Landlord for
Landlord's supervision and approval, which approval may be withheld in
Landlord's sole and absolute discretion, before performance of any such
contractual services. With the sole exceptions of installation of
telephones, computer equipment and related electrical devices and
attachments, the foregoing requirements shall apply to all work performed
in the Building including without limitation installations of any and every
nature affecting floors, walls, woodwork, trim, windows, ceilings,
equipment or any other physical portion of the Building. No such work shall
be done by Tenant without Landlord's written approval first had and
obtained.
27. The work of the janitor or cleaning personnel shall not be hindered by
Tenant after 5:30 p.m. and such work may be done at any time when the
offices are vacant. The windows, doors, and fixtures may be cleaned at any
time. Tenant shall provide adequate waste and rubbish receptacles,
cabinets, book cases, map cases, etc., necessary to prevent unreasonable
hardship to Landlord in discharging its obligations regarding cleaning
service.
28. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which
requires the use of elevators or stairways, or movement through the
Building entrances or lobby shall be restricted to the hours designated by
Landlord from time to time. All such movement shall be directed by Landlord
and in a manner to be agreed upon between Tenant and Landlord by
prearrangement before performance. Such prearrangement initiated by Tenant
shall include determination by Landlord and be subject to its decision and
control of the time, method, and routing of movement. Limitations are
imposed by safety or other concerns which may prohibit any articles,
equipment or any other item from being brought into the Building. Tenant
expressly assumes all risk of loss or damage to any and all articles so
moved, as well as injury to any person or persons or the public engaged or
not engaged in such movement, including, without limitation, equipment,
property, and personnel of Landlord if damaged or injured as a result of
any acts done or undertaken in connection with carrying out this service
for Tenant from the time of entering property to completion of the work;
and Landlord shall not be liable for the act or acts of any person or
persons so engaged in, or any damage or loss to any property of persons
resulting directly or indirectly from any act done or undertaken in
connection with such service performed by or for Tenant.
29. No sign or signs will be allowed in any form on the exterior of the
Building or on any window or windows inside or outside of the Building,
except for alarm system and security service warnings, and no sign or
signs, except in uniform location and uniform style fixed by Landlord, will
be permitted in the public corridors or on corridor doors or entrances to
Tenant's space. All special or large signs will be contracted for by
Landlord for Tenant at the rate fixed by Landlord from time to time, and
Tenant will be billed and pay for such service accordingly. Written consent
from Landlord is an absolute prerequisite for any such sign or signs Tenant
may be so permitted to use.
30. Tenant shall not operate a wholesale or retail establishment such as food,
drink, clothing, etc., without the written consent of Landlord first had
and obtained.
31. Landlord will not be responsible for any lost or stolen personal property,
equipment, money, or jewelry from Tenant's area, common areas, parking
areas, public rooms or any other area of the Building, regardless of
whether such loss occurs when the area is locked against entry or not.
32. No animals shall be brought into or kept in or about the Building, and no
bicycles shall be brought into or kept in or about the Building except in
areas designated for such purpose by Landlord.
33. Landlord may permit entrance to Tenant's offices by use of pass keys
controlled by Landlord or employees, contractors or service personnel
supervised or employed by Landlord.
34. None of the entries, passages, doors, elevators, elevator doors, hallways,
or stairways, shall be blocked or obstructed, nor shall any rubbish,
litter, trash, or materials of any nature be placed, emptied or thrown into
these areas, nor shall such areas be used at any time except for access or
egress by Tenant, Tenant's agents, employees, or invitees.
Page X-00
00
00. Any plant brought into the Building shall be subject to inspection by
Landlord's maintenance personnel. Any plants found to be carrying disease
or pests shall be removed from the Building immediately upon request by
Landlord.
36. No Tenant shall at any time occupy any part of the Building as sleeping or
lodging quarters.
37. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed. No person shall
waste water by interfering with the faucets or otherwise.
38. No person shall disturb the occupants of the Building by the use of any
musical instruments, the making of raucous noises, or other unreasonable
use.
39. Nothing shall be thrown out of the windows of the Building, or down the
stairways or other passages.
40. Tenant shall not store any materials, equipment, products, etc., outside
the premises as shown on the plats attached hereto.
41. Tenant shall comply with all local and federal codes and ordinances. In the
event of fire or code problems, Tenant shall comply with said requirements.
42. Tenant and its agents, employees and invitees shall observe and comply with
the driving and parking signs and markers on the Building grounds and
surrounding areas. Automobiles parked in stalls reserved for other tenants
may be towed at the owner's expense. Speeding, other unsafe driving
practices or abusive behavior toward Building parking attendants and other
Building contractors or employees will be cause to rescind parking
privileges.
43. Directories will be placed in the Building by Landlord at Landlord's
expense, and no other directories shall be permitted.
44. No signs, draperies, shutters, window coverings, decorations, hangings or
obstructions of any type shall be placed on any skylights or any doors or
windows which are visible from outside the premises without the prior
written consent of the Landlord.
45. "Building Operating Hours" shall be from 8:00 a.m. to 6:00 p.m. Monday
through Friday, and from 9:00 to noon on Saturday, but not on Sunday, New
Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving, Christmas or
other legal holidays. Landlord reserves the right to restrict entry to the
Building by unidentified persons during the hours 6:00 p.m. to 8:00 a.m.,
all hours Saturdays and Sundays and legal holidays.
46. The roof is a restricted and unsafe area for unauthorized persons. Only
those specifically authorized by Building management may enter the roof
area, and at their own risks.
47. Only those with specific authority from Building management may enter the
elevator, electrical, machine and janitor rooms.
48. Tenants will be furnished, free of charge, two keys to each of the
following: all door locks to each tenant premises. Extra keys may be
furnished at a reasonable charge. Tenant may not (a) copy entrance keys; or
(b) alter locks or install additional locks in any door, unless agreed to
in writing by Building management. In such a case, work and materials will
be at Tenants' expense and Landlord will be furnished a key to the lock.
All keys furnished tenants will be returned to Landlord upon termination of
the lease.
49. Only trucks or similar material handling equipment with soft rubber wheels
and side guards will be allowed in the Building. No other vehicle of any
kind will be brought in by tenants or kept in its premises.
50. Cooking by any method other than a microwave oven in prohibited. Brewing
coffee, tea, hot chocolate and similar beverages is permitted provided: (a)
Underwriter's Laboratory approved equipment is used for brewing beverages;
and (b) applicable Federal, State and City laws, codes ordinances, rules
and regulations are followed.
51. Only telephone company technicians authorized by Building management may
enter and work in any telephone room. Tenants who hire a telephone company
to do work in the Building are responsible for notifying the company to
instruct their technicians to obtain authority from Building management to
enter telephone rooms and other parts of the Building.
52. Packages, messages, mail, etc. must be delivered directly to tenant suites
or to such mailboxes within the Building as may be provided by Landlord.
Building management will not receive or accept them for tenants.
53. Tenants shall store their trash and garbage in their premises in
receptacles which facilitate disposal by ordinary methods in the City of
Manhattan Beach. Boxes, receptacles, etc., which are used in moving tenants
into the Building will be removed from the Building by the moving company
or tenant
Page D-18
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will absorb the cost of removal. Disposal cost of excessive trash or
garbage beyond the normal and ordinary garbage of an office facility will
be at the cost of the Tenant.
54. Tenant shall not place a load upon any floor of the Premises exceeding the
live load rate per square foot established by Landlord. Tenant will pay the
fees of the structural engineer of the Building if structural engineering
advice is necessary in planning the positioning of heavy loads. Business
machines and mechanical equipment shall be placed and maintained by Tenant
at Tenant's expense in settings sufficient to absorb and prevent vibration,
noise and annoyance. Safes and other heavy equipment, the weight of which
will not constitute a hazard or damage the Building or its equipment, shall
be moved into, from or about the Building only during such hours and in
such manner as shall be prescribed by Landlord.
55. The Landlord reserves the right to rescind any of these rules and make such
other and further rules and regulations as in the judgment of Landlord
shall from time to time be needed for safety, protection, care and good
order therein, and in protection and comfort of its tenants, their agents,
employees and invitees, including but not limited to rules and regulations
regarding hours of access to the Building, which rules when made and notice
thereof given to a tenant shall be binding upon him in like manner as if
originally herein prescribed. In the event of any conflict, inconsistency
or other difference between the terms and provisions of these rules and
regulations and any lease now or hereafter in effect between Landlord and
any tenant in the Building, Landlord shall have the right to rely on the
term or provision in either such lease or such Rules and Regulations which
is most restrictive on such tenant and most favorable to Landlord.
56. Landlord desires to maintain high standards of environment, comfort, and
convenience for its Tenants. It will be appreciated if any undesirable
conditions or lack of courtesy or attention by its contractors or employees
is reported directly to Landlord's Property Manager.
Page D-19
