SUBLEASE
(AU #90267)
By and Between
▇▇▇▇▇ FARGO BANK, N.A.
and
SCRIPPS BANK,
a California banking corporation
Subleased Premises Known As
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dated: February 17, 1999
TABLE OF CONTENTS
Page
1. Basic Sublease Provisions; Definitions. . . . . . . . . . . . . . . . . 2
1.1 Building. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Subleased Premises. . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Area of Subleased Premises. . . . . . . . . . . . . . . . . . . . 2
1.4 Subtenant's Percentage Share. . . . . . . . . . . . . . . . . . . 2
1.5 Sublease Term . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Rent Commencement Date. . . . . . . . . . . . . . . . . . . . . . 2
1.7 Basic Monthly Rent. . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 Rental Adjustment(s). . . . . . . . . . . . . . . . . . . . . . . 2
1.9 Permitted Use . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.10 Late Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.11 Acceptance of Subleased Premises. . . . . . . . . . . . . . . . . 3
1.12 Address for Payment of Rent and Notices . . . . . . . . . . . . . 4
1.13 Security Deposit. . . . . . . . . . . . . . . . . . . . . . . . . 4
1.14 Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.15 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.16 Tax ID Form . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.17 Option(s) to Extend . . . . . . . . . . . . . . . . . . . . . . . 4
1.18 Tenant Improvement Allowance. . . . . . . . . . . . . . . . . . . 4
2. Demise; Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Demise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Failure of Conditions . . . . . . . . . . . . . . . . . . . . . . 6
2.4 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . 7
3. Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1 Incorporation by Reference; Assumption. . . . . . . . . . . . . . 7
3.2 Assumption of Lease Obligations . . . . . . . . . . . . . . . . . 7
3.3 No Assumption by Sublandlord. . . . . . . . . . . . . . . . . . . 7
3.4 Performance Directly to Landlord. . . . . . . . . . . . . . . . . 8
3.5 Landlord Default; Consents. . . . . . . . . . . . . . . . . . . . 8
3.6 Termination of Lease. . . . . . . . . . . . . . . . . . . . . . . 8
4. Covenant of Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . 8
5. Hazardous Substances. . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.2 Compliance with Environmental Laws. . . . . . . . . . . . . . . . 9
5.3 Response to Environmental Claims. . . . . . . . . . . . . . . . . 9
5.4 Environmental Reports . . . . . . . . . . . . . . . . . . . . . . 9
5.5 Notification of Asbestos. . . . . . . . . . . . . . . . . . . . . 9
i
6. Artwork . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
7. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
8. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
9. No Encumbrance. . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
10. Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . . .11
10.1 Restriction on Assignment and Subletting. . . . . . . . . . . . .11
10.2 Determining Factors . . . . . . . . . . . . . . . . . . . . . . .12
10.3 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
10.4 Profit Sharing. . . . . . . . . . . . . . . . . . . . . . . . . .12
11. Alterations; Signs. . . . . . . . . . . . . . . . . . . . . . . . . . .13
11.1 Alterations and Improvements by Subtenant . . . . . . . . . . . .13
11.2 Signs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
11.3 Disposition on Termination. . . . . . . . . . . . . . . . . . . .13
12. Removal of Personal Property. . . . . . . . . . . . . . . . . . . . . .14
13. Holding Over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
14. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
15. Maintenance and Repairs . . . . . . . . . . . . . . . . . . . . . . . .14
16. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
16.1 Coverage. . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
16.2 Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
16.3 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . .15
16.4 Primary Coverage. . . . . . . . . . . . . . . . . . . . . . . . .15
17. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . .15
18. Remedies of Sublandlord on Default. . . . . . . . . . . . . . . . . . .16
18.1 Termination of Sublease . . . . . . . . . . . . . . . . . . . . .16
18.2 Continue Sublease in Effect . . . . . . . . . . . . . . . . . . .17
18.3 Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . .17
19. Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . .18
19.1 Obligation to Provide . . . . . . . . . . . . . . . . . . . . . .18
19.2 Failure to Provide. . . . . . . . . . . . . . . . . . . . . . . .18
19.3 Financial Information . . . . . . . . . . . . . . . . . . . . . .18
20. Real Estate Brokers . . . . . . . . . . . . . . . . . . . . . . . . . .18
21. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
ii
21.1 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . .18
21.2 Construction. . . . . . . . . . . . . . . . . . . . . . . . . . .18
21.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
21.4 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . .19
21.5 Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
21.6 Waiver of Trial by Jury . . . . . . . . . . . . . . . . . . . . .19
21.7 Prohibition on Solicitation of Sublandlord's Customers. . . . . .19
21.8 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . .19
EXHIBITS
EXHIBIT A LEASE
EXHIBIT B DRAWING OF SUBLEASED PREMISES
EXHIBIT C TAX ID FORM
EXHIBIT D ENVIRONMENTAL REPORT
EXHIBIT E SUBTENANT'S WORK
iii
SUBTENANT HAS NO RIGHTS OF ACCESS OR RIGHTS
OF POSSESSION TO THE SUBLEASED PREMISES PRIOR TO
THE COMMENCEMENT DATE OF MARCH 1, 1999.
SUBLEASE
(AU #90267)
THIS SUBLEASE, dated as of February 17, 1999, is entered into by and
between ▇▇▇▇▇ FARGO BANK, N.A., a national banking association ("Sublandlord")
and SCRIPPS BANK, a California banking corporation ("Subtenant").
RECITALS
A. ▇▇▇▇ Rabusha, a married man, as his separate property, as predecessor
in interest to the ▇▇▇▇ Rabusha Trust created under the Will of ▇▇▇▇ Rabusha, as
predecessor in interest to the Harbushka Family Partnership following the death
of ▇▇▇▇▇▇▇▇ ▇. Rabusha, income beneficiary of the ▇▇▇▇ Rabusha Trust, as
"Lessor", and Sublandlord, as successor in interest by merger to First
Interstate Bank of California, a California corporation, as successor in
interest by merger to San Diego Trust & Savings Bank, a California corporation,
as "Lessee", entered into a written lease dated November 1, 1961, a copy of
which is attached hereto as Exhibit A-1 ("Lease 1") covering premises described
in Paragraph 1 of Lease 1.
▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, as "Lessors" and
Sublandlord, as successor in interest by merger to First Interstate Bank of
California, a California corporation, as successor in interest by merger to San
Diego Trust & Savings Bank, a California corporation, as "Lessee", entered into
a written lease dated November 1, 1961, a copy of which is attached hereto as
Exhibit A-2 ("Lease 2") covering premises described in Paragraph 1 of Lease 2.
C. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee under the Trust Agreement dated December
28, 1966, as successor in interest to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, as "Lessors" and Sublandlord, as successor in interest by merger to
First Interstate Bank of California, a California corporation, as successor in
interest by merger to San Diego Trust & Savings Bank, a California corporation,
as "Lessee", entered into a written lease dated October 23, 1961, a copy of
which is attached hereto as Exhibit A-3 ("Lease 3"; Lease 1, Lease 2, and Lease
3 are collectively referred to herein as the "Lease") covering premises
described in Paragraph 1 of Lease 3.
D. The Lessor and Lessors described above shall collectively be referred
to hereinafter as the "Landlord".
E. Subtenant desires to sublet all the premises described in Paragraph 1
of the Lease from Sublandlord on the terms and conditions contained in this
Sublease.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, Sublandlord and Subtenant agree as follows:
1.
1. BASIC SUBLEASE PROVISIONS; DEFINITIONS.
1.1 BUILDING: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1.2 SUBLEASED PREMISES: The Subleased Premises is the entire
premises, including the parking lot contained therein, leased to Sublandlord
under the Lease as depicted on EXHIBIT B hereto.
1.3 AREA OF SUBLEASED PREMISES: Approximately six thousand nine
hundred one (6,901) square feet; of which five thousand five hundred
ninety-two (5,592) square feet are located on the first floor of the Building
("Ground Floor") and one thousand three hundred nine (1,309) square feet are
located on the second floor of the Building ("Second Floor"). In the event of
any discrepancy between the square footage set forth in the Lease and the
square footage set forth herein, this SUBPARAGRAPH 1.3 shall govern.
1.4 SUBTENANT'S PERCENTAGE SHARE: Subtenant will pay one hundred
percent (100%) of all operating expenses and taxes and assessments payable by
Sublandlord under the Lease ("Operating Expenses and Taxes").
1.5 SUBLEASE TERM: Twenty-Seven (27) years and eight (8) months
commencing on March 1, 1999 ("Commencement Date") and ending, unless earlier
terminated pursuant to the terms hereof, on October 31, 2026.
1.6 RENT COMMENCEMENT DATE: Ninety (90) days following the
Commencement Date.
1.7 BASIC MONTHLY RENT: Subtenant covenants and agrees to pay
Sublandlord Basic Monthly Rent in the amount of Thirteen Thousand Eight
Hundred Ninety-one and No/100 Dollars ($13,891.00) comprised of Twelve
Thousand Five Hundred Eighty-two and No/100 Dollars ($12,582.00) for the
Ground Floor of the Subleased Premises and One Thousand Three Hundred Nine
and No/100 Dollars ($1,309.00) for the Second Floor of the Subleased
Premises, subject to adjustment in accordance with SUBPARAGRAPH 1.8 below.
All rent must be paid without demand, deduction, set-off or counter claim, in
advance, on the first day of each calendar month during the Sublease Term,
and in the event of a partial rental month, rent will be prorated on the
basis of a thirty (30) day month.
1.8 RENTAL ADJUSTMENT(S): On the first day of the thirtieth (30th)
calendar month after the Commencement Date and on every thirty (30) month
anniversary thereafter, the Basic Monthly Rent then in effect shall be increased
by eight percent (8%).
1.9 PERMITTED USE: Subtenant shall use the Subleased Premises in
accordance with the terms and conditions of the Lease and this Sublease.
1.10 LATE CHARGES: The parties agree that late payments by
Subtenant to Sublandlord of rent will cause Sublandlord to incur costs not
contemplated by this Sublease, the amount of which is extremely difficult to
ascertain. Therefore, the parties agree that if any installment of Basic
Monthly Rent or Operating Expenses and Taxes is not received by
2.
Sublandlord within ten (10) days after the date due, Subtenant will pay to
Sublandlord a late charge equal to five percent (5%) of the late payment.
Interest on any amounts payable by Subtenant under this Sublease shall accrue at
the rate of twelve percent (12%) per annum from the date delinquent until paid
in full.
1.11 ACCEPTANCE OF SUBLEASED PREMISES: Subtenant agrees to accept
the Subleased Premises in an "as is" condition. Without limiting the
foregoing, Subtenant's rights in the Subleased Premises are subject to all
local, state and federal laws, regulations and ordinances governing and
regulating the use and occupancy of the Subleased Premises and subject to all
matters now or hereafter of record. Subtenant acknowledges that neither
Sublandlord nor Sublandlord's agent has made any representation or warranty
as to:
(i) the present or future suitability of the Subleased
Premises for the conduct of Subtenant's business;
(ii) the physical condition of the Subleased Premises;
(iii) the expenses of operation of the Subleased Premises;
(iv) the safety of the Subleased Premises, whether for the
use of Subtenant or any other person, including Subtenant's employees,
agents, invitees or customers;
(v) the compliance of the Subleased Premises with any
applicable laws, regulations or ordinances; or
(vi) any other matter or thing affecting or related to the
Subleased Premises
Subtenant acknowledges that no rights, easements or licenses are acquired
by Subtenant by implication or otherwise except as expressly set forth herein.
Subtenant will, prior to delivery of possession of the Subleased Premises,
inspect the Subleased Premises and become thoroughly acquainted with their
condition. Subtenant acknowledges that the taking of possession of the Subleased
Premises by Subtenant will be conclusive evidence that the Subleased Premises
were in good and satisfactory condition at the time such possession was taken.
Subtenant specifically agrees that, except as specifically provided by laws in
force as of the date hereof, Sublandlord has no duty to make any disclosures
concerning the condition of the Building and the Subleased Premises and/or the
fitness of the Building and the Subleased Premises for Subtenant's intended use
and Subtenant expressly waives any duty which Sublandlord might have to make any
such disclosures. Subtenant further agrees that, in the event Subtenant
subleases all or any portion of the Subleased Premises, Subtenant will indemnify
and defend Sublandlord (in accordance with PARAGRAPH 7 hereof) for, from and
against any matters which arise as a result of Subtenant's failure to disclose
any relevant information about the Building or the Subleased Premises to any
subtenant or assignee. Subtenant will comply with all laws and regulations
relating to the use or occupancy of the Subleased Premises and to the common
areas, including, without limitation, making structural alterations or providing
auxiliary aids and services to the Subleased Premises as required by the
Americans with Disabilities Act of 1990, 42 U.S.C. Section 12101 ET SEQ. (the
"ADA"). Subtenant further agrees that all telephone and other communication
installation and use requirements will be compatible with the Building and
3.
that Subtenant will be solely responsible for all of its telephone and
communication installation and usage costs.
1.12 ADDRESS FOR PAYMENT OF RENT AND NOTICES:
Sublandlord:
▇▇▇▇▇ Fargo Bank, N.A.
Corporate Properties Group
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Mac# 2064-072
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Asset Manager
with a copy of all legal notices to:
▇▇▇▇▇ Fargo Bank, N.A.
Corporate Properties Group
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Mac# 2064-079
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Manager
Subtenant:
Scripps Bank
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇
1.13 SECURITY DEPOSIT: None.
1.14 PARKING: Subtenant shall have all of the rights and obligations
with respect to parking as Sublandlord has under the Lease, if any.
1.15 BROKERS: The "Sublandlord's Broker" is Retail Insite and the
"Subtenant's Broker" is Capital Growth Properties, Inc. Sublandlord shall pay a
brokers commission in connection with this Sublease in accordance with PARAGRAPH
20 hereof. Sublandlord's Broker and Subtenant's Broker are collectively referred
to in this Sublease as "Brokers."
1.16 TAX ID FORM: Attached hereto as EXHIBIT C is a Tax ID form to
be completed and executed by Subtenant concurrently herewith.
1.17 OPTION(S) TO EXTEND: None.
1.18 TENANT IMPROVEMENT ALLOWANCE: Sublandlord shall provide a tenant
improvement allowance to Subtenant in the amount of One Hundred Three Thousand
Five Hundred Fifteen and No/100 Dollars ($103,515.00) (the "Allowance"), which
may be utilized for the purpose of constructing and installing Subtenant's
improvements in the Subleased Premises and removing any asbestos disclosed in
the Environmental Reports (as defined in SUBPARAGRAPH 5.4 below), which shall
include, but not be limited to, the categories of work listed on EXHIBIT E
attached hereto ("Subtenant's Work"). Subtenant's Work shall be completed in
accordance with PARAGRAPH 11 of this Sublease and ARTICLE 5 of the Lease. Prior
to the commencement of any of Subtenant's Work at the Subleased Premises,
Subtenant shall submit to
4.
Sublandlord plans and specifications for the improvements to be installed in the
Subleased Premises which plans and specifications shall be subject to
Sublandlord's approval, which approval shall not be unreasonably withheld or
delayed, and to Landlord's approval pursuant to ARTICLE 5 of the Lease.
Notwithstanding the foregoing, Sublandlord shall respond to Subtenant's request
for approval of Subtenant's plans and specifications within fifteen (15) days of
Sublandlord's receipt of Subtenant's complete plans and specifications.
Sublandlord shall reimburse Subtenant for the cost of Subtenant's Work within
thirty (30) days following Sublandlord's receipt of Subtenant's request
therefor, up to the maximum amount of the Allowance; provided, however,
Sublandlord also receives with such request: (a) copies of all invoices for the
cost of constructing Subtenant's Work; and (b) mechanic's lien and stop notice
claim releases in a form reasonably acceptable to Sublandlord (which shall be
unconditional for prior requests and may be conditional for the current month's
request). Subtenant shall make no more than three (3) requests to Sublandlord
for disbursement of the Allowance.
2. DEMISE; CONDITIONS.
2.1 DEMISE. Sublandlord hereby subleases to Subtenant and Subtenant
hereby hires from Sublandlord the Subleased Premises for the Sublease Term,
subject to the terms, covenants and conditions set forth herein. Subtenant
covenants that, as a material part of the consideration for this Sublease, it
shall keep and perform each and all of such terms, covenants and conditions by
it to be kept and performed, and that this Sublease is made upon the condition
of such performance. Subtenant acknowledges that Sublandlord's obligation to
perform services, provide utilities, make repairs and carry insurance shall be
satisfied only to the extent that the Landlord under the Lease satisfies those
same obligations. Subtenant assumes and agrees to perform the tenant's
obligations under the Lease during the Sublease Term to the extent such
obligations are applicable to the Subleased Premises, except to the extent
specifically contradicted herein. Subtenant shall not commit or suffer any act
or omission that will violate any of the provisions of the Lease.
2.2 CONDITIONS PRECEDENT. The parties' obligations hereunder are
expressly conditioned upon the satisfaction of the following conditions
precedent; provided, however, that if Subtenant has taken possession of the
Subleased Premises prior to the satisfaction of such conditions, Subtenant shall
be fully obligated under the terms and conditions of this Sublease, including,
without limitation, the indemnity provisions set forth in PARAGRAPH 7 and the
insurance provisions set forth in PARAGRAPH 16 during the period prior to the
satisfaction of such conditions or if such conditions are not satisfied, to the
date of failure of such conditions and termination of this Sublease:
(a) LANDLORD'S WRITTEN CONSENT. Within thirty (30) days after the
later of the dates this Sublease is executed by Sublandlord and Subtenant,
Landlord's execution of a written consent to this Sublease, and satisfaction of
any conditions Landlord may impose upon Subtenant as a condition to this
Sublease.
(b) SUBLANDLORD'S APPROVAL. Within thirty (30) days after the later
of the dates this Sublease is executed by Sublandlord and Subtenant, approval
of the terms and conditions of this Sublease by the appropriate officers in
Sublandlord's corporate office, unless
5.
waived in writing by Sublandlord; provided that if such approval is not obtained
within such time period, the Sublease shall be deemed approved.
(c) FINANCIAL INFORMATION. Within five (5) days after the later of
the dates this Sublease is executed by Sublandlord and Subtenant, if not already
delivered, delivery of Subtenant's following financial information as
applicable: (i) copy of most recent annual report; (ii) audited or certified
financial statements for the last two (2) years or federal and state tax returns
for the last two (2) years; (iii) financial statements for the current year;
(iv) a list of Subtenant's banking references; (v) social security numbers for
the principals of Subtenant; (vi) Subtenant's Taxpayer Identification Number and
(vii) any other information reasonably requested by Sublandlord; and within ten
(10) days after receipt of the foregoing, Sublandlord's written approval
thereof.
(d) AUTHORITY. If requested by Sublandlord, within ten (10) days
after execution of this Sublease by Sublandlord and Subtenant, delivery to
Sublandlord of: (i) if Subtenant is a corporation, certified copies of
Subtenant's Articles of Incorporation, Certificate of Good Standing and a
resolution of Subtenant's Board of Directors, certified by the corporate
secretary of Subtenant, authorizing or ratifying the execution of this Sublease
by Subtenant; or (ii) if Subtenant is a partnership, such partnership documents
as Sublandlord may reasonably request to review, including, but not limited to,
Subtenant's partnership agreement and any state filings establishing the
identity and qualification of the partnership to transact business in the
location in which the Subleased Premises are located, and the identity and
authority of the partners of the partnership, and Sublandlord's approval of such
organizational documents; or (iii) if Subtenant is a limited liability company
("LLC"), such LLC documents as Sublandlord may reasonably request to review,
including, but not limited to, Subtenant's operating agreement and any state
filings establishing the identity and qualification of the LLC to transact
business in the location in which the Subleased Premises are located, and the
identity and authority of the members of the LLC, and Sublandlord's approval of
such organizational documents.
(e) PRIOR SUBLEASE TERMINATION. Within thirty (30) days after the
later of the dates this Sublease is executed by Sublandlord and Subtenant,
Sublandlord's termination of that certain sublease dated March 15, 1998, by and
between Sublandlord, as "Sublandlord," and Jacques Gourmet, Inc., dba Champagne
Bakery, as "Subtenant."
(f) BANK APPROVAL. Within forty-five (45) days after the later of
the dates this Sublease is executed by Sublandlord and Subtenant, Subtenant's
receipt of approval of Subtenant's bank operation at the Subleased Premises from
the Federal Deposit Insurance Corporation and State Banking Department.
(g) OCCUPANCY PERMIT. Within thirty (30) days after the later of
the dates this Sublease is executed by Sublandlord and Subtenant, Subtenant's
receipt of an occupancy permit issued by the City of San Diego.
2.3 FAILURE OF CONDITIONS. The conditions precedent specified in
PARAGRAPHS 2.2(b), (c), (d) and (e) run to the benefit of Sublandlord. The
condition precedent specified in PARAGRAPH 2.2(a) runs to the benefit of both
parties, unless waived by Sublandlord. The conditions precedent specified in
PARAGRAPHS 2.2(f) and 2.2(g) run to the benefit of
6.
Subtenant. If any condition precedent is not satisfied by the date specified in
and in accordance with PARAGRAPH 2.2, and the time period for the satisfaction
of the condition is not extended or waived in writing by the party or parties to
whom the benefit of the condition runs, then the party or parties to whom the
benefit of the condition runs, shall have the right to terminate this Sublease
by written notice to the other party within fifteen (15) days following the end
of such time period and, upon such termination, neither Sublandlord nor
Subtenant shall have any further obligations hereunder (except for Subtenant's
indemnity obligations hereunder).
2.4 COMPLIANCE WITH LAWS. At its own expense, Subtenant will
procure, maintain in effect and comply with all conditions of any and all
permits, licenses and other governmental and regulatory approvals required
for Subtenant's use of the Subleased Premises. Subtenant, at Subtenant's sole
cost and expense and at all times, shall also comply fully with all federal,
state and local laws, including all zoning laws and ordinances and all
regulations, codes, requirements, public and private land use restrictions,
rules and orders (individually and collectively, "Regulations") that apply to
the Subleased Premises or Subtenant's use or occupancy thereof. Subtenant
shall neither store, use or sell any article in or about the Subleased
Premises, nor permit any act, that would cause the premiums for insurance to
increase or cause a cancellation of any policy upon the Subleased Premises
the Building. Subtenant shall not occupy, suffer or permit the Subleased
Premises or any part thereof to be used for any illegal, immoral or dangerous
purpose or in any other way contrary to the Regulations. Subtenant shall not
commit or suffer to be committed, any waste upon the Subleased Premises or
any public or private nuisance or any other act or thing which may disturb
the quiet enjoyment of any other tenants of the Building.
3. LEASE.
3.1 INCORPORATION BY REFERENCE; ASSUMPTION. All of the
Paragraphs of the Lease are incorporated into this Sublease as if fully set
forth in this Sublease except for the following: PARAGRAPH 2 (Term),
PARAGRAPH 3 (Rent), PARAGRAPH 4 (First Refusal), PARAGRAPH 5 (Construction of
Improvements), PARAGRAPH 7 (Liability Insurance, but only as it relates to
liability limits) and PARAGRAPH 12 (Use of the Premises; Assignment and
Subletting, as it relates to (i) the business of a bank and (ii) the right to
sublet the premises without Lessor's consent). Subject to PARAGRAPH 3.3 and
where applicable, references in the Lease to Lessor will mean Sublandlord and
to Lessee will mean Subtenant; provided, however, if any provisions of this
Sublease conflict in any manner with any provisions of the Lease which are
incorporated herein, the terms of this Sublease will govern.
3.2 ASSUMPTION OF LEASE OBLIGATIONS. Subtenant will assume
and perform to Sublandlord the tenant's obligations under the Lease during
the Sublease Term to the extent such obligations are applicable to the
Subleased Premises. Subtenant will pay to Sublandlord Subtenant's Percentage
Share of Operating Expenses and Taxes and any other sums payable by
Sublandlord under the Lease not later than ten (10) days prior to the date
any such amounts are due and payable by Sublandlord. Subtenant will not
commit or suffer any act or omission that will violate any of the provisions
of the Lease.
3.3 NO ASSUMPTION BY SUBLANDLORD. Sublandlord does not
assume the obligations of the Landlord under the Lease. Subtenant
acknowledges that Sublandlord's
7.
obligation to perform services, provide utilities, make repairs and carry
insurance shall be satisfied only to the extent that the Landlord under the
Lease satisfies those same obligations. With respect to the performance by
Landlord of its obligations under the Lease, Sublandlord's sole obligation with
respect thereto will be to request the same, on request in writing by Subtenant,
and to use reasonable efforts to obtain the same from Landlord; provided,
however, Sublandlord will have no obligation to institute legal action against
Landlord.
3.4 PERFORMANCE DIRECTLY TO LANDLORD. At any time and on
reasonable prior notice to Subtenant, Sublandlord can elect to require
Subtenant to perform its obligations under this Sublease directly to
Landlord, in which event Subtenant will send to Sublandlord from time to time
copies of all notices and other communications it sends to and receives from
Landlord.
3.5 LANDLORD DEFAULT; CONSENTS. Notwithstanding any
provision of this Sublease to the contrary, (a) Sublandlord will not be
liable or responsible in any way for any loss, damage, cost, expense,
obligation or liability suffered by Subtenant by reason or as the result of
any breach, default or failure to perform by the Landlord under the Lease,
and (b) whenever the consent or approval of Sublandlord and Landlord is
required for a particular act, event or transaction (i) any such consent or
approval by Sublandlord will be subject to the consent or approval of
Landlord, and (ii) should Landlord refuse to grant such consent or approval,
under all circumstances, Sublandlord will be released from any obligation to
grant its consent or approval.
3.6 TERMINATION OF LEASE. If the Lease terminates under the
specific provisions under the Lease, this Sublease will terminate, unless the
Landlord elects to accept this Sublease as a direct lease between Landlord
and Subtenant, and the parties will be relieved from all liabilities and
obligations under this Sublease excepting obligations which have accrued as
of the date of termination; except that if this Sublease terminates as a
result of a default of one (1) of the parties under this Sublease or by
Sublandlord under the Lease, the defaulting party will be liable to the
non-defaulting party for all damage suffered by the non-defaulting party as a
result of the termination.
4. COVENANT OF QUIET ENJOYMENT. Sublandlord represents that the
Lease is in full force and effect and that there are no defaults on
Sublandlord's part under it as of the Commencement Date. Subject to this
Sublease terminating in the event the Lease is terminated, if Subtenant
performs all the provisions in this Sublease to be performed by Subtenant,
Subtenant will have and enjoy throughout the Sublease Term the quiet and
undisturbed possession of the Subleased Premises. Sublandlord will have the
right to enter the Subleased Premises at any time, in the case of an
emergency, and otherwise at reasonable times, for the purpose of inspecting
the condition of the Subleased Premises and for verifying compliance by
Subtenant with this Sublease and the Lease and permitting Sublandlord to
perform its obligations under this Sublease and the Lease.
5. HAZARDOUS SUBSTANCES.
5.1 DEFINITIONS. For the purposes of this Sublease, the
following terms have the following meanings:
8.
(a) "Environmental Laws" means any and all laws,
statutes, ordinances or regulations pertaining to health, industrial hygiene
or the environment including, without limitation, CERCLA (Comprehensive
Environmental Response Compensation and Liability Act of 1980) and RCRA
(Resources Conservation and Recovery Act of 1976).
(b) "Hazardous Substances" means asbestos and any other
substance, material or waste which is or becomes designated, classified or
regulated as being "toxic" or "hazardous" or a "pollutant" or which is or
becomes similarly designated, classified or regulated under any federal, state
or local law, regulation or ordinance.
5.2 COMPLIANCE WITH ENVIRONMENTAL LAWS. Subtenant will, in all
respects, handle, treat, deal with and manage any and all Hazardous Substances
in, on, under or about the Subleased Premises in total conformity with all
applicable Environmental Laws and prudent industry practices regarding
management of such Hazardous Substances. Upon expiration or earlier termination
of the Sublease Term, Subtenant will cause all Hazardous Substances placed in,
on, under or about the Subleased Premises by Subtenant or at Subtenant's
direction to be removed and transported for use, storage or disposal in
accordance and compliance with all applicable Environmental Laws.
5.3 RESPONSE TO ENVIRONMENTAL CLAIMS. Subtenant will not
take any remedial action in response to the presence of any Hazardous
Substances in, on, under or about the Subleased Premises, nor enter into any
settlement agreement, consent decree or other compromise in respect to any
claims relating to any Hazardous Substances in any way connected with the
Subleased Premises without first notifying Landlord and Sublandlord of
Subtenant's intention to do so and affording Landlord and Sublandlord ample
opportunity to appear, intervene or otherwise appropriately assert and
protect Landlord's and Sublandlord's interests with respect thereto.
5.4 ENVIRONMENTAL REPORTS. The Term "Environmental Reports"
means: (i) that certain Prioritization Asbestos Assessment Study prepared by
▇▇▇▇-▇▇▇▇▇▇▇▇ Environmental Services, Report Number 0380226, dated February
10, 1989; (ii) that certain Asbestos Survey Report prepared by Diagnostics
Engineering Inc., Project No. D/230990126-1 dated May 25, 1990; (iii) that
certain dust, debris and air sample monitoring report prepared by The Szaras
Companies, Project Number 378, dated June 20, 1992; (iv) that certain Limited
Environmental Site Assessment prepared by P & D Technologies, Project Number
11118.00, dated October 19, 1993; and (v) that certain Asbestos Survey Report
prepared by ACC Environmental Consultants, Project No. 1041-068.33, dated
November 18, 1997. Attached hereto as EXHIBIT D are the Environmental Reports
prepared for the Building which is being provided to Subtenant for
informational purposes and without any representation or warranty as to the
completeness or correctness thereof
5.5 NOTIFICATION OF ASBESTOS.
(a) Notification of Asbestos. Sublandlord hereby notifies
Subtenant, in accordance with the Occupational Safety and Health Administration
asbestos rule (1995), 59 Fed. Reg. 40964, 29 CFR 1910.1001, 1926.1101,
clarification 60 Fed. Reg. 33974 ("OSHA Asbestos Rule"), of the presence of
asbestos-containing materials ("ACMs") and/or presumed
9.
asbestos-containing materials ("PACMs")] (as such term is defined in the OSHA
Asbestos Rule), in the locations described in the Environmental Reports attached
hereto as EXHIBIT D. Subtenant acknowledges receipt of such notification and
understands, after having consulted with its legal counsel, that the purpose of
such notification is to make Subtenant, its agents, employees, and contractors
aware of the presence of ACMs and/or PACMs in the Building in order to avoid or
minimize any damage to or disturbance of such ACMs or PACMs.
"SUBTENANT":
SCRIPPS BANK,
a California banking corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Date: 2/23/99
-------------------------
By: /s/ M. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: M. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary and Chief
Financial Officer
Date: 2/23/99
------------------------
(b) Acknowledgment from Contractors/Employees. Subtenant shall
deliver to Sublandlord a copy of a signed acknowledgment from any contractor,
agent, or employee of Subtenant prior to the commencement of any of the
following activities within or about the Subleased Premises:
(i) Removal of thermal system insulation ("TSI") and
surfacing ACMs and PACMs (i.e., sprayed-on or troweled-on material, e.g.,
textured ceiling paint or fireproofing materials);
(ii) Removal of ACMs or PACMs that are not TSI or surfacing
ACMs and PACMS;
(iii) Repair and maintenance of operations that are likely to
disturb ACMs and PACMs; and
(iv) Custodial and housekeeping activities where even minimal
contact with ACMs or PACMs may occur.
10.
6. ARTWORK. To assure compliance with California laws regarding rights
of artists, Subtenant will not install any artwork of any nature in the
Subleased Premises which cannot be removed without damage or destruction to the
artwork.
7. INDEMNITY. Subtenant will indemnify, defend (by counsel acceptable
to Sublandlord in its sole discretion), protect and hold Sublandlord harmless
from and against any and all liabilities, claims, demands, losses, damages,
costs and expenses (including attorneys' fees and litigation and court costs)
arising out of or relating to: (i) the death of or injury to any person or
damage to any property on or about the Subleased Premises that occurs after the
execution of this Sublease (except to the extent the foregoing arise out of the
gross negligence or willful misconduct of Sublandlord); (ii) Subtenant's use of
the Subleased Premises and the Building; (iii) Subtenant's breach or default
under this Sublease (including, without limitation, Subtenant's breach or
default under Section 5 above) or, to the extent incorporated herein, the Lease;
(iv) any legal action taken by Subtenant against Landlord; or (v) any claim or
cause of action of any kind by any person or entity to the effect that
Sublandlord is in any way responsible or liable for any act or omission by
Subtenant, its agents, employees, contractors or subcontractors, whether on
account of any theory of derivative liability or otherwise (except to the extent
the foregoing arise out of the gross negligence or willful misconduct of
Sublandlord).
8. ATTORNEYS' FEES. If there is any legal action or proceeding between
Sublandlord and Subtenant to enforce any provision of this Sublease or to
protect or establish any right or remedy of either Sublandlord or Subtenant
hereunder, the non-prevailing party to such action or proceeding will pay to the
prevailing party all costs and expenses, including reasonable attorneys' fees
incurred by such prevailing party in such action or proceeding and in any
appearance in connection therewith, and if the prevailing party recovers a
judgment in any such action, proceeding or appeal, such costs, expenses and
attorneys' fees will be determined by the court or arbitration panel handling
the proceeding and will be included in and as a part of the judgment.
9. NO ENCUMBRANCE. Subtenant will not voluntarily, involuntarily or by
operation of law mortgage or otherwise encumber all or any part of Subtenant's
interest in the Sublease or the Subleased Premises.
10. ASSIGNMENT AND SUBLETTING.
10.1 RESTRICTION ON ASSIGNMENT AND SUBLETTING. Subtenant will not
voluntarily, involuntarily or by operation of law assign this Sublease or any
interest therein and will not sublet the Subleased Premises or any part thereof,
or any right or privilege appurtenant thereto, without first obtaining the
written consent of Sublandlord, which consent will not be unreasonably withheld.
The transfer of more than a fifty percent (50%) partnership interest in
Subtenant, if Subtenant is a partnership, or more than fifty percent (50%) of
the stock of Subtenant, if Subtenant is a closely-held corporation, or more than
a fifty percent (50%) membership interest in Subtenant, if Subtenant is a
limited liability company, will be deemed to be an assignment for purposes of
this PARAGRAPH 10.1. If Subtenant is a publicly-held corporation, the trading of
Subtenant's stock on a national stock market shall not be deemed to be an
assignment for purposes of this PARAGRAPH 10.1.
11.
10.2 DETERMINING FACTORS. In determining whether or not to consent
to a proposed assignment or subletting, Sublandlord may consider the following
factors, among others, all of which are deemed reasonable:
(a) whether the proposed sublessee or assignee has a net worth
sufficient to fulfill Subtenant's obligations hereunder;
(b) whether the proposed use of the Subleased Premises by the
proposed sublessee or assignee is consistent with the Permitted Use set forth in
PARAGRAPH 1.9;
(c) whether Sublandlord's consent will result in a breach of the
Lease or any other lease or agreement to which Sublandlord is a party affecting
the Building or Subleased Premises; and
(d) whether the Landlord has consented in writing to the proposed
assignment or subletting, if the Landlord's consent is required.
10.3 CONSENTS. Any attempted assignment or subletting, without
Sublandlord's consent will be null and void and of no effect. No permitted
assignment or subletting of Subtenant's interest in this Sublease, will relieve
Subtenant of its obligations to pay the rent or other sum or charge due
hereunder and to perform all the other obligations to be performed by Subtenant
hereunder. The acceptance of rent by Sublandlord from any other person will not
be deemed to be a waiver by Sublandlord of any provision of this Sublease or to
be a consent to any subletting or assignment. Consent to one sublease or
assignment will not be deemed to constitute consent to any subsequent attempted
subletting or assignment.
10.4 PROFIT SHARING.
(a) Within thirty (30) days following the date received by
Subtenant from any assignee or sublessee, Subtenant will pay to Sublandlord as
additional rent a percentage of any appreciated rent as follows: (i) if the rent
payable by Subtenant to Sublandlord hereunder is less than the rent paid by
Sublandlord to Landlord under the Lease, one hundred percent (100%) of the
amount by which the rent payable by the assignee or sublessee to Subtenant
exceeds the rent payable by Subtenant to Sublandlord under this Sublease until
the rent paid by Subtenant to Sublandlord equals the amount paid by
Sublandlord to Landlord under the Lease; and (ii) thereafter or if the rent
payable by Subtenant hereunder is the same or greater than the rent paid by
Sublandlord to Landlord under the Lease, fifty percent (50%) of the amount by
which the rent payable by the assignee or sublessee to Subtenant throughout the
Sublease Term exceeds the rent paid by Subtenant to Sublandlord under this
Sublease. If the premises subleased is less than the entire Subleased Premises,
the rent payable by Subtenant hereunder shall be prorated based upon the square
footage of the premises subleased to the square footage of the entire Subleased
Premises. If Subtenant receives a lump sum payment in connection with an
assignment, the amount of the payment will be allocated between Subtenant and
Sublandlord, in the same manner taking into account the total rents payable
during the remaining terms of the Lease and Sublease.
(b) Notwithstanding the provisions set forth in subparagraph (a)
above, Subtenant will not be obligated to pay Sublandlord any portion of
appreciated rents until
12.
Subtenant has recovered any costs it has reasonably incurred in connection with
the subletting of the Subleased Premises to any third party broker or for
improvements to the Subleased Premises. Any costs to be deducted from
appreciated rents will be submitted to Sublandlord and will be subject to
Sublandlord's reasonable approval.
(c) The profit-sharing provisions set forth in subparagraph (a)
above is a freely negotiated agreement between Subtenant and Sublandlord
respecting the allocation of appreciated rents. This covenant will survive the
expiration of the Sublease Term.
11. ALTERATIONS; SIGNS.
11.1 ALTERATIONS AND IMPROVEMENTS BY SUBTENANT. Subtenant will not
make any alterations, additions or improvements to the Subleased Premises
("Alterations") without obtaining the prior written consent of Sublandlord
thereto (and, if required, by Landlord in accordance with the Lease), which
Sublandlord may grant or withhold, and to which Sublandlord may impose any
conditions, in Sublandlord's sole discretion. Notwithstanding the foregoing,
Subtenant may make non-structural Alterations the total cost of which is less
than Fifty Thousand and No/100 Dollars ($50,000.00) without obtaining the prior
written consent of Sublandlord. The term "Alterations" includes any alterations,
additions or improvements made by Subtenant to comply with the ADA as required
by PARAGRAPH 1.11 above. All Alterations must be constructed (i) in a good and
workmanlike manner using materials of a quality comparable to those on the
Subleased Premises, (ii) in conformance with all relevant codes, regulations and
ordinances and (iii) only after necessary permits, licenses and approvals have
been obtained by Subtenant from appropriate governmental agencies. All
Alterations will be made at Subtenant's sole cost (including all costs relating
to the removal of asbestos, if any, in connection with the Alterations) and
diligently prosecuted to completion. Any contractor or other person making any
Alterations must first be approved in writing by Sublandlord, and Sublandlord
may require that all work be performed under Sublandlord's supervision.
11.2 SIGNS. Subtenant shall not place on any portion of the Subleased
Premises any sign, placard, lettering in or on windows, banners, displays or
other advertising or communicative material which is visible from the exterior
of the Subleased Premises without the prior written approval of Sublandlord,
which consent shall not be unreasonably withheld or delayed, and, if required,
from Landlord in accordance with the Lease. All such approved signs shall
strictly conform to all legal requirements and shall be installed at Subtenant's
sole expense. Subtenant shall maintain such signs in good condition and repair.
Upon the expiration or earlier termination of this Sublease, Subtenant, at
Subtenant's sole cost and expense, shall remove all such signs and repair any
damage caused by such removal. If Subtenant fails to remove such signs upon the
expiration or earlier termination of this Sublease, and repair any damage caused
by such removal, Sublandlord may do so at Subtenant's expense, which expense,
together with interest thereon at the rate for late payments set forth in
PARAGRAPH 1.10 shall be paid by Subtenant to Sublandlord upon demand.
11.3 DISPOSITION ON TERMINATION. Upon the expiration of the Sublease
Term or earlier termination of this Sublease, Sublandlord may elect to have
Subtenant either: (i) surrender with the Subleased Premises any or all of the
Alterations as Sublandlord may determine (except personal property as provided
in PARAGRAPH 12 below), which Alterations will
13.
become the property of Sublandlord; or (ii) promptly remove any or all of the
Alterations if Subtenant elects to remove such Alteration, in which case
Subtenant must, at Subtenant's sole cost, repair and restore the Subleased
Premises to their condition as of the Commencement Date, reasonable wear and
tear excepted.
12. REMOVAL OF PERSONAL PROPERTY. All articles of personal property, and
all business and trade fixtures, machinery and equipment, cabinet work,
furniture and movable partitions, if any, owned or installed by Subtenant at its
expense in the Subleased Premises will be and remain the property of Subtenant
and may be removed by Subtenant at any time, provided that Subtenant, at its
expense, must repair any damage to the Subleased Premises caused by such removal
or by the original installation. Sublandlord may elect to require Subtenant to
remove all or any part of Subtenant's personal property at the expiration of the
Sublease Term or sooner termination of this Sublease, in which event the removal
will be done at Subtenant's expense and Subtenant, prior to the end of the
Sublease Term or upon sooner termination of this Sublease, will repair any
damage to the Subleased Premises caused by its removal.
13. HOLDING OVER. If Subtenant holds over after the expiration of the
Sublease Term or earlier termination of this Sublease, with or without the
express or implied consent of Sublandlord, then at the option of Sublandlord,
Subtenant will become and be only a month-to-month tenant at a rent equal to one
hundred twenty-five percent (125%) of the rent payable by Subtenant immediately
prior to such expiration or termination, and otherwise upon the terms, covenants
and conditions herein specified. Notwithstanding any provision to the contrary
contained herein, (i) Sublandlord expressly reserves the right to require
Subtenant to surrender possession of the Subleased Premises upon the expiration
of Sublease Term or upon the earlier termination of this Sublease and the right
to assert any remedy at law or in equity to evict Subtenant and/or collect
damages in connection with any holding over, and (ii) Subtenant will indemnify,
defend and hold Sublandlord harmless from and against any and all liabilities,
claims, demands, actions, losses, damages, obligations, costs and expenses,
including, without limitation, attorneys' fees (including the allocated costs of
Sublandlord's in-house attorneys) incurred or suffered by Sublandlord by reason
of Subtenant's failure to surrender the Subleased Premises on the expiration of
the Sublease Term or earlier termination of this Sublease.
14. LIENS. Subtenant will keep the Subleased Premises and the Building
free from any liens arising out of any work performed, materials furnished, or
obligations incurred by Subtenant. If a lien is filed, Subtenant will discharge
the lien or post a bond within ten (10) days after the date of filing.
Sublandlord has the right to post and keep posted on the Subleased Premises any
notices that may be provided by law or which Sublandlord may deem to be proper
for the protection of Sublandlord, the Subleased Premises and the Building from
such liens.
15. MAINTENANCE AND REPAIRS. At all times during the Sublease Term,
Subtenant, at its sole cost, will maintain the Subleased Premises and every part
thereof and all equipment, fixtures and improvements therein in good condition
and repair. At the end of the Sublease Term, Subtenant will surrender the
Subleased Premises in as good condition as when received, reasonable wear and
tear excepted. Subtenant will be responsible for all repairs required to be
performed by the Lessee under the Lease.
16. INSURANCE.
14.
16.1 COVERAGE. At all times during the Sublease Term, Subtenant will,
at its sole cost, procure and maintain the following types and amounts of
insurance coverage (but in no event less than the types and amounts of coverage
required from time to time under the Lease):
(a) Comprehensive general liability insurance against any and all
damages and liability, including attorneys' fees on account or arising out of
injuries to or the death of any person or damage to property, however
occasioned, in, on or about the Subleased Premises with at least a single
combined liability and property damage limit of $2,000,000.
(b) Insurance on all plate or tempered glass in or enclosing the
Subleased Premises, for the full replacement cost of such glass.
(c) A policy or policies, including the basic form, broad form and
special form of coverage, including vandalism and malicious mischief, theft,
sprinkler leakage and water damage in an amount equal to the full replacement
value, new without deduction for depreciation, of the building comprising the
Subleased Premises and all trade fixtures, furniture and equipment in the
Subleased Premises, and all alterations, additions and improvements to the
Subleased Premises installed by or for Subtenant or provided to Subtenant.
(d) Employer's liability insurance and workers' compensation
insurance as required by applicable law.
(e) Any other insurance required under the Lease to the extent not
covered in subsections (a)-(d) above.
16.2 POLICIES. All insurance required to be carried by Subtenant must
be in a form satisfactory to Sublandlord and carried with companies reasonably
acceptable to Sublandlord. Subtenant must provide Sublandlord with a certificate
of insurance showing Sublandlord and Landlord as additional insureds on all
policies of insurance excluding the insurance required under PARAGRAPH 16.1(d).
The certificate must provide for a thirty (30) day written notice to Sublandlord
in the event of cancellation or material change of coverage.
16.3 SUBROGATION. Sublandlord and Subtenant will each obtain from
their respective insurers under all policies of fire, theft, public liability
and other insurance maintained by either of them at any time during the Sublease
Term insuring or covering the Subleased Premises excluding the insurance
required under PARAGRAPH 16.1(e), a waiver of all rights of subrogation which
the insurer of one party might otherwise have, if at all, against the other
party.
16.4 PRIMARY COVERAGE. All insurance to be maintained by Subtenant
shall be primary, without right of contribution from any insurance maintained by
Sublandlord.
17. EVENTS OF DEFAULT. If one or more of the following events ("Event of
Default") occurs, such occurrence constitutes a breach of this Sublease by
Subtenant:
(a) Subtenant abandons or vacates the Subleased Premises; or
(b) Subtenant fails to pay any installment of Basic Monthly Rent or
Operating Expenses and Taxes, if applicable, as and when the same become due and
payable, and such
15.
failure continues for more than seven (7) days after Sublandlord gives written
notice thereof to Subtenant; or
(c) Subtenant fails to pay any other sum or charge payable by
Subtenant hereunder as and when the same becomes due and payable, and such
failure continues for more than five (5) days after Sublandlord gives written
notice thereof to Subtenant; or
(d) Subtenant fails to perform or observe any other agreement,
covenant, condition or provision of this Sublease to be performed or observed by
Subtenant as and when performance or observance is due, and such failure
continues for more than five (5) days after Sublandlord gives written notice
thereof to Subtenant, or if the default cannot be cured within said five (5) day
period and Subtenant fails within said period to commence with due diligence and
dispatch the curing of such default or, having so commenced, thereafter fails to
prosecute or complete with due diligence and dispatch the curing of such
default; or
(e) Subtenant: (i) files or consents by answer or otherwise to the
filing against it of a petition for relief or reorganization or arrangement or
any other petition in bankruptcy or liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction; (ii) makes an assignment for
the benefit of its creditors; (iii) consents to the appointment of a custodian,
receiver, trustee or other officer with similar powers of itself or of any
substantial part of its property; or (iv) takes action for the purpose of any of
the foregoing; or
(f) A court or governmental authority of competent jurisdiction,
without consent by Subtenant, enters an order appointing a custodian, receiver,
trustee or other officer with similar powers with respect to it or with respect
to any substantial portion of its property, or constituting an order for relief
or approving a petition for relief or reorganization or any other petition in
bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution,
winding up or liquidation of Subtenant, or if any such petition is filed against
Subtenant and such petition is not dismissed within ninety (90) days; or
(g) This Sublease or any estate of Subtenant hereunder is levied
upon under any attachment or execution and such attachment or execution is not
vacated within ninety (90) days.
18. REMEDIES OF SUBLANDLORD ON DEFAULT.
18.1 TERMINATION OF SUBLEASE. In the event of any breach of this
Sublease by Subtenant, Sublandlord may, at its option, terminate the Sublease
and recover from Subtenant:
(a) the worth at the time of award of the unpaid rent which had been
earned at the time of termination; plus
(b) the worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of the award
exceeds the amount of such rental loss that Subtenant proves could have been
reasonably avoided; plus
16.
(c) the worth at the time of award of the amount by which the unpaid
rent for the balance of the Sublease Term after the time of award exceeds the
amount of such rental loss that Subtenant proves could be reasonably avoided;
plus
(d) any other amount necessary to compensate Sublandlord for all
detriment proximately caused by Subtenant's failure to perform its obligations
under this Sublease or which in the ordinary course of things would be likely to
result therefrom (specifically including, without limitation, the unamortized
portion of any brokerage commissions paid by Sublandlord for this Sublease,
brokerage commissions and advertising expenses incurred for a new sublease,
expenses of remodelling the Subleased Premises or any portion thereof for a new
subtenant, whether for the same or a different use, and any special concessions
made to obtain a new subtenant); and
(e) at Sublandlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time under the laws
and judicial decisions of the State in which the Subleased Premises are located.
The term "rent" as used in this PARAGRAPH 18.1 will be deemed to be and to mean
all sums of every nature required to be paid by Subtenant pursuant to the terms
of this Sublease, whether to Sublandlord or to others. As used in subparagraphs
(a) and (b) above, the "worth at the time of the award" will be computed by
allowing interest at the maximum annual interest rate allowed by law. As used in
subparagraph (c) above, the "worth at the time of the award" will be computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award plus one percent (1%). If Sublandlord
terminates this Sublease or Subtenant's right to possession, Sublandlord will
use reasonable efforts to mitigate Sublandlord's damages, and Subtenant will be
entitled to submit proof of Sublandlord's failure to mitigate as a defense to
Sublandlord's claims hereunder, if mitigation of damages by Sublandlord is
required by applicable law.
18.2 CONTINUE SUBLEASE IN EFFECT. Sublandlord will have the remedy
described in California Civil Code Section 1951.4 (a lessor may continue a lease
in effect after lessee's breach and abandonment and recover rent as it becomes
due, if lessee has the right to sublet or assign, subject only to reasonable
limitations). Accordingly, if Sublandlord does not elect to terminate this
Sublease on account of any default by Subtenant, Sublandlord may, from time to
time, without terminating this Sublease, enforce all of its rights and remedies
under this Sublease, including the right to recover all rent as it becomes due.
If the default continues, Sublandlord may, at any time thereafter, elect to
terminate the Sublease. Sublandlord will not be deemed to have terminated this
Sublease or the liability of Subtenant to pay rent or any other amounts due
hereunder by any reentry or by any action in unlawful detainer, unless
Sublandlord has specifically notified Subtenant in writing that Sublandlord has
elected to terminate this Sublease.
18.3 OTHER REMEDIES. Sublandlord will at all times have the rights
and remedies (which will be cumulative with each other and cumulative and in
addition to those rights and remedies available under PARAGRAPHS 18.1 and 18.2
above, or under any law or other provision of this Sublease), without prior
demand or notice except as required by applicable law,
17.
to seek any declaratory, injunctive or other equitable relief, and specifically
enforce this Sublease, or restrain or enjoin a violation or breach of any
provision hereof.
19. ESTOPPEL CERTIFICATES.
19.1 OBLIGATION TO PROVIDE. Subtenant will at any time upon not less
than ten (10) days' prior written notice from Sublandlord execute, acknowledge
and deliver to Sublandlord a statement in writing: (i) certifying that this
Sublease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Sublease, as so
modified, is in full force and effect), the amount of any security deposit, and
the date to which the rent and other charges are paid in advance, if any; and
(ii) acknowledging that there are not, to Subtenant's knowledge, any uncured
defaults on the part of Sublandlord hereunder or of Landlord under the Lease, or
specifying such defaults if any are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the
Subleased Premises.
19.2 FAILURE TO PROVIDE. At Sublandlord's option, Subtenant's failure
to deliver a statement within the time required by PARAGRAPH 19.1 above, will be
conclusive upon Subtenant: (i) that this Sublease is in full force and effect,
without modification except as may be represented by Sublandlord; (ii) that
there are no uncured defaults in Sublandlord's performance hereunder or in
Landlord's performance under the Lease; and (iii) that not more than one month's
rent has been paid in advance, or such failure may be considered by Sublandlord
as a material default by Subtenant under this Sublease.
19.3 FINANCIAL INFORMATION. If the Landlord desires to finance,
refinance, or sell the Subleased Premises, or any part thereof, Subtenant hereby
agrees to deliver to any lender or purchaser designated by Landlord such
financial statements of Subtenant as may be reasonably required by such lender
or purchaser including, without limitation, the past three years' financial
statements of Subtenant.
20. REAL ESTATE BROKERS. Each party warrants to the other that there are
no brokerage commissions or fees payable in connection with this Sublease except
to the Brokers identified in PARAGRAPH 1.15. Each party further agrees to
indemnify and hold the other party harmless, from any cost, liability and
expense (including attorneys' fees and litigation and court costs) which the
other party may incur as the result of any breach of this PARAGRAPH 20.
21. MISCELLANEOUS.
21.1. COUNTERPARTS. This Sublease may be executed in one (1) or more
counterparts, and all of the counterparts shall constitute but one and the same
agreement, notwithstanding that all parties hereto are not signatory to the same
or original counterpart.
21.2 CONSTRUCTION. The parties acknowledge that each party and its
counsel have reviewed and revised this Sublease and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Sublease or
any amendment or exhibits hereto.
18.
21.3 NOTICES. All notices or other communications required or
permitted hereunder must be in writing, and be personally delivered (including
by means of professional messenger service) or sent by registered or certified
mail, postage prepaid, return receipt requested to the addresses set forth in
PARAGRAPH 1.12. All notices will be deemed received on the date sent.
21.4 GOVERNING LAW. This Sublease shall be governed by and construed
in accordance with the laws of the State of California applicable to contracts
entered into in California between parties residing in California. Subtenant
hereby consents to the personal jurisdiction and venue of any California state
court located in the County of Los Angeles and United States District Courts for
the Central District of California, and any successor court, and the service of
process by any means authorized by such court.
21.5 EXHIBITS. All exhibits and any schedules or riders attached to
this Sublease are incorporated herein by this reference and made a part hereof,
and any reference in the body of the Sublease or in the exhibits, schedules or
riders to the Sublease shall mean this Sublease, together with all exhibits,
schedules and riders.
21.6 WAIVER OF TRIAL BY JURY. Subtenant hereby waives any and all
rights it may have under applicable law to trial by jury with respect to any
dispute with Sublandlord arising directly or indirectly in connection with this
Sublease, the Lease, or the Subleased Premises.
21.7 PROHIBITION ON SOLICITATION OF SUBLANDLORD'S CUSTOMERS.
Subtenant hereby acknowledges that Sublandlord or First Interstate Bank operated
a branch banking facility at the Subleased Premises ("Sublandlord's Branch
Bank") prior to Sublandlord's decision to consolidate its bank business at the
Subleased Premises into another location within the geographical proximity of
the Subleased Premises and to market the Subleased Premises for sublease. As
material consideration for Sublandlord entering into this Sublease, Subtenant
covenants and agrees that neither Subtenant nor any potential sub-subtenant (or
other user) of Subtenant shall use, at any time whether prior to or on or after
the Commencement Date, the trade or service name, logo or marks of WFB, ▇▇▇▇▇
Fargo, ▇▇▇▇▇ Fargo Bank, ▇▇▇▇▇ Fargo & Company, the ▇▇▇▇▇ Fargo stagecoach, the
stagecoach, First Interstate Bank, First Interstate, FIB or any combination of
the foregoing at any time without Sublandlord's consent, which may be withheld
in its sole discretion. The breach of the covenant set forth in this PARAGRAPH
21.7 by Subtenant or any potential sub-subtenant (or other user) of Subtenant
shall be a non-curable Event of Default under this Sublease and, in addition to
any other remedies available to Sublandlord at law or in equity, Sublandlord
shall have the right to terminate this Sublease in accordance with PARAGRAPH
18.1 above. Sublandlord shall be entitled to recover attorneys' fees and
litigation and court costs related to its enforcement of the terms of this
PARAGRAPH 21.7.
21.8 CONFIDENTIALITY. Except for the disclosure to any agency of the
City of San Diego of any information necessary to enable Subtenant to obtain any
permits or approvals necessary for Subtenant's bank operation and Subtenant's
Alterations, Subtenant expressly covenants and agrees to keep confidential and
not publicly disclose, without first obtaining the prior written consent of
Sublandlord, the existence and/or terms of this Sublease and the transaction
contemplated hereby and all information and reports obtained from Sublandlord.
The
19.
provisions of this PARAGRAPH 21.8 shall survive the expiration or earlier
termination of this Sublease.
(Signature page follows)
20.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease
as of the dates set forth below.
"SUBLANDLORD":
▇▇▇▇▇ FARGO BANK, N.A., a national banking
association
By:
------------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date: February _, 1999
By:
------------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date: February _, 1999
"SUBTENANT":
SCRIPPS BANK,
a California banking corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Date: February 23, 1999
By: /s/ M. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: M. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary and Chief Financial
Officer
Date: February 23, 1999
21.
CONSENT OF LANDLORD
(Lots 8 and 9)
Harbushka Family Limited Partnership, a California partnership ("HFLP"), as
successor in interest to the ▇▇▇▇ Rabusha Trust, as successor in interest to
▇▇▇▇ Rabusha ("Landlord"), hereby consents to the foregoing Sublease and
Subtenant's proposed use of the Subleased Premises and represents and warrants
to Sublandlord and Subtenant that no other consents to the foregoing Sublease
are required, including, without limitation, the consent of any lender on the
Subleased Premises. HFLP further represents and warrants to Sublandlord and
Subtenant that HFLP is the successor in interest to ▇▇▇▇ Rabusha Trust, as
successor in interest to ▇▇▇▇ Rabusha.
Date: _____, 1999 "LANDLORD":
HARBUSHKA FAMILY LIMITED
PARTNERSHIP, a California partnership
By: Harbushka Management, Inc.,
a Nevada corporation,
Its: General Partner
By:
----------------------------------------
Its:
------------------------------------
By:
----------------------------------------
Its:
------------------------------------
CONSENT OF LANDLORD
(Lot 13)
▇▇▇▇ ▇. ▇▇▇, as Trustee of the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trust under Trust Agreement dated December 28, 1966 (the "Trust"), as successor
in interest to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Lessors"), hereby
consents to the foregoing Sublease and Subtenant's proposed use of the Subleased
Premises and represents and warrants to Sublandlord and Subtenant that no other
consents to the foregoing Sublease re required, including, without limitation,
the consent of any lender on the Subleased Premises. ▇▇▇▇ ▇. ▇▇▇, as Trustee of
the Trust, further represents and warrants to Sublandlord and Subtenant that the
Trust is the successor in interest to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
Date: ____, 1999 "LANDLORD":
THE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND
▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUST under
Trust Agreement dated December 28, 1966
By:
----------------------------------------
▇▇▇▇ ▇. ▇▇▇, its Trustee
EXHIBIT A-1
(LEASE 1)
EXHIBIT A-1
L E A S E
THIS LEASE, made and entered into by and between ▇▇▇▇ RABUSHA, a
married man, as his separate property, hereinafter referred to as Lessor, and
SAN DIEGO TRUST & SAVINGS BANK, a California banking corporation, hereinafter
referred to as Lessee.
W I T N E S S E T H:
WHEREAS, on July 13, 1961, Lessor granted to Lessee, for an in
consideration of the sum of , an option to lease
certain premises hereinafter described on the terms therein set forth; and
WHEREAS, Lessee has heretofore exercised said option and the
parties are desirous of entering into a lease of said premises on the terms
set forth in said option and such other terms as are herein set forth;
NOW, THEREFORE, IT IS MUTUALLY AGREED between the parties, as
follows:
1. DESCRIPTION OF PREMISES. The Lessor hereby leases to the
Lessee, and the Lessee hires from the Lessor, on the terms and conditions
hereinafter set forth, those certain premises with the appurtenances,
situated in the city of San Diego, county of San Diego, state of California,
described as follows:
That certain real property legally described as
▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇.
2. TERM. The term of this lease shall be for sixty-five (65)
years, commencing November 1, 1961. Lessee is hereby granted an option to
renew this lease for a further term
-1-
of thirty-four (34) years upon each and all of the same terms and conditions
as herein contained. Written notice of Lessee's intention to renew this lease
shall be given to Lessor at least thirty (30) days prior to the expiration of
this lease.
3. RENT. Lessee shall pay to Lessor, in advance, on the first day
of each and every month commencing November 1, 1961, the sum of
as base rent. Said base rent shall be adjusted every three
(3) years on the anniversary date hereof, upwards only in proportion that the
then current U.S. Department of Labor Index of Consumer Commodity Prices (all
commodities) in the Los Angeles area for the immediately preceding calendar
quarter exceeds the U.S. Department of Labor Index of Consumer Commodity
Prices (all commodities) in the Los Angeles area for the quarter immediately
preceding the commencement of this lease. It is agreed that the sum of
heretofore paid by Lessee to Lessor for
the above described option shall be credited and applied on the rent due
hereunder November 1, 1961, December 1, 1961, and January 1, 1962. Lessee
agrees to pay to Lessor upon execution of this lease the sum of
which sum shall apply as base rental for the last
year of the term of this lease.
4. FIRST REFUSAL. In the event Lessor should desire to sell the
leased premises during the term of this lease or any extended term, Lessor
shall submit to Lessee in writing any bona fide offer received by Lessor,
which writing shall name the offeror, the amount offered, and any other
condition of the offer. Lessee shall thereafter have the right, for fifteen
(15) days, in which to purchase the said premises upon the same terms and
conditions as contained in said offer. In the
-2-
event Lessee should fail to exercise the right to purchase within said
fifteen (15) days, Lessor shall then be free to sell said premises to said
offeror, however, the said premises shall not be sold for a less amount or
upon more favorable terms and conditions than contained in said offer
submitted to Lessee without Lessor again offering the same to Lessee. The
right and privilege contained in this paragraph for the purchase of the
leased premises shall only apply to Lessee or a successor bank.
5. CONSTRUCTION OF IMPROVEMENTS. Upon execution and commencement
of this lease, Lessee shall have the right at its sole cost and expense to
demolish, raze, and/or remove any or all of the existing improvements now
situate on the subject property, and in such event shall have the right and
be obligated to construct or cause to be constructed such other improvements
as Lessee may desire. The Lessor may remain in possession of the buildings
situated on the property and retain the rents collected therefrom for ninety
(90) days from the commencement date of this lease, and shall remove himself
therefrom forthwith upon the expiration of said ninety (90) day period.
Further, it is understood and agreed that in the event the Superintendent of
BAnks for the State of California and the Federal Deposit Insurance
Corporation fail to authorize Lessee to establish and maintain a branch of
its bank upon the aforesaid described property, that Lessee shall have the
right and option to cancel this lease upon the giving of ten (10) days'
notice in writing, and in the event of such cancellation the last year's rent
deposited hereunder by Lessee shall be returned to Lessee
-3-
by Lessor. It is understood in this connection that Lessee shall use its best
efforts to secure such permits. In no event shall Lessee demolish, raze,
and/or remove any or all of the existing improvements now situate on the
subject property until such permits have been obtained.
6. TAXES AND UTILITIES. Lessee agrees to pay when due all charges
for water, light, cleaning and the like used on the leased premises or any
part thereof during the term of this lease, and Lessee further agrees to pay
when due all license fees and any and all taxes on the land, improvements,
and personal property that may be levied by any taxing authority upon the
real and personal property located in or upon the said leased premises or
upon the business conducted thereon, provided that the Lessee shall not be
required to pay any income, estate, or inheritance tax of the Lessor that
might be levied against said leased premises, which Lessor shall promptly
pay. Lessee shall have the right to contest or protest any tax, assessment or
charge against said property. All taxes to be paid by the Lessee on the
leased premises shall be prorated as of the date of commencement of this
lease. Within thirty (30) days after the receipt of any and all tax bills
levied by any taxing authority against the leased premises, the Lessor shall
mail such tax bills to the cashier of the San Diego Trust & Savings Bank, who
shall pay such taxes on or before the date due and mail the receipted tax
bills within thirty (30) days after payment to the Lessor, who shall retain
such bills in his records.
7. LIABILITY INSURANCE. Lessee agrees to secure and maintain in
force, at its own expense, during the term
-4-
of this lease, a policy of owner, landlord and tenant liability insurance,
indemnifying and protecting Lessor against any and all claims for injuries or
damages suffered or alleged to have been suffered by a person or persons
while in or about the leased premises, with limits of liability of $100,000
for one person and $300,000 for any one accident involving more than one
person, arising from any and all demands, loss or liability resulting at any
time or times from the injury to or the death of any person or persons, or
from damage to any and all property occurring from the negligence or other
fault of Lessee in or about the leased premises or in connection with the use
of the street or sidewalk adjoining said premises. The said insurance shall
be carried in a company acceptable to Lessor, and a copy of said policy shall
be delivered to Lessor. Lessee further agrees to carry property damage
insurance in the amount of $10,000 indemnifying both Lessor and Lessee from
any and all claims of property damage. Said policy shall be carried in a
company acceptable to Lessor, and a copy of said policy shall be delivered to
Lessor.
8. HOLDING OVER. Lessee agrees that should it hold over the
leased premises or any part thereof after the expiration of the term, unless
otherwise agreed in writing, such holdover shall constitute a tenancy from
month to month only, and Lessee shall pay the then reasonable value of the
use and occupation of the leased premises, which shall not be less than the
rent herein reserved.
9. DEFAULT. Lessee agrees that should default be made in the
payment of the rent herein reserved or
-5-
should Lessee fail to faithfully perform or observe any other covenant,
condition or agreement herein contained on the part of the Lessee to be
performed, and should such default continue for a period of ten (10) days
after written notice thereof, or should the leased premises be vacated or
abandoned, then Lessor may, at his option, either (1) enter upon and repossess
the leased premises and terminate this lease and all rights of the Lessee
herein in and to the leased premises, or (2) re-enter the leased premises
and, as agent of the Lessee, rent the same or any part thereof for the
remainder of the term, applying such rentals first to the payment of such
expenses as the Lessor may have been put to in re-entering, repossessing and
reletting the premises, including costs and attorneys' fees, and the balance
to the payment of the rent and the fulfillment of each of the covenants,
conditions and agreements herein contained, and Lessee agrees that such
action on the part of the Lessor will not release Lessee from any liability
which would otherwise attach or secure under the provisions of this lease, or
for any loss, damage or liability which Lessor may suffer during the
remainder of the term of this lease by reason of such breach, and the failure
of Lessee to thereafter perform the covenants and conditions hereof, whether
the premises remain vacant or be rented. In the event of any breach of this
lease, Lessor may pursue either of the foregoing remedies, or Lessor may
pursue or seek any other remedy or enforce any right to which he may be by
law entitled.
10. LITIGATION. In the event of any litigation between the Lessee
and Lessor to enforce any provision of this lease or any right of either
party hereto, the unsuccessful
-6-
party to such litigation agrees to pay to the successful party all costs and
expenses, including reasonable attorneys' fees, incurred thereby by the
successful party, all of which shall be included in and as a part of the
judgment rendered in such litigation. If either Lessor or Lessee, without
fault on its part, is made a party to any litigation instituted by or against
the other, such other party shall indemnify the Lessor or Lessee, as the case
may be, who, without fault, has been made a party to such action, against and
save it harmless from all costs and expenses, including reasonable attorneys'
fees incurred by it in connection with such litigation except costs and
expenses, if any, which are recoverable from other parties to the litigation.
11. REMOVAL OF FIXTURES. The Lessee may remove all trade fixtures
and movable furniture, including but not limited to vault doors, safety
deposit boxes, counters, signs, and banking fixtures installed on the demised
premises by Lessee at any time during the term of this lease and at the
expiration or termination of this lease or any renewal term hereof, provided
that same may be removed without damage to the building, and if damage is
caused by such removal, Lessee agrees to repair such damage at its own cost
forthwith.
12. USE OF PREMISES; ASSIGNMENT AND SUBLETTING. The premises are
leased to the Lessee for the purpose of conducting the business of a bank
and/or such other businesses as are permitted under the existing zoning laws
of other zone or zones as may be established from time to time. Lessee shall
not assign this lease without the written consent of Lessor, but such consent
-7-
shall not be unreasonably withheld. In the event of such assignment, Lessee
shall not be relieved of liability hereunder. Lessee shall have the right,
however, without Lessor's consent to sublet all or any portion of the
premises, and any such subleases of such premises shall have the right to use
the premises for any lawful purposes.
13. CONDITION OF PREMISES. Lessee covenants and agrees that it
has examined and knows the condition of the leased premises herein and
accepts the same in their present condition and acknowledges that no
statement or representation as to the condition or repair of said premises
has been made by the Lessor or by any person for him prior to or
contemporaneously with the execution of this lease.
14. WASTE; QUIET CONDUCT. Lessee shall not commit, or suffer to
be committed, any waste upon the said premises, or any nuisance.
15. REPAIRS. Lessee shall, at its sole cost, keep and maintain
said premises and appurtenances and every part thereof, including windows and
skylights, sidewalks adjacent to said premises, any store front and the
interior of the premises, in good and sanitary order, condition, and repair,
hereby waiving all right to make repairs at the expense of Lessor as provided
in Section 1942 of the Civil Code of the State of California, and all rights
provided for by Section 1941 of said Civil Code.
16. ACCEPTANCE OF PREMISES AS IS; SURRENDER AT END OF TERM. By
entry hereunder, Lessee accepts the premises as being in good and sanitary
order, condition and repair
-8-
and agrees on the last day of said term, or sooner termination of this lease,
to surrender unto Lessor all and singular said premises with said
appurtenances in as good condition as when received, reasonable use and wear
thereof and act of God or by the elements excepted, and to remove all of
Lessee's signs from said premises, but shall not be required to restore the
premises in any event.
17. COMPLIANCE WITH LAW. Lessee shall, at its sole cost and
expense, comply with all of the requirements of all Municipal, State and
Federal authorities now in force, or which may hereafter be in force,
pertaining to the said premises, and shall faithfully observe in the use of
the premises all Municipal ordinances and State and Federal statutes now in
force or which may hereafter be in force. The judgment of any court of
competent jurisdiction, or the admission of Lessee in any action or
proceeding against Lessee, whether Lessor be a party thereto or not, that
Lessee has violated any such ordinance or statute in the use of the premises
shall be conclusive of that fact as between Lessor and Lessee.
18. NOTICES. Any notice or demand which Lessor may desire to
give to Lessee shall be mailed or served at Lessee's main office, Sixth and
Broadway, San Diego, California, attention of its cashier, or at such other
address as Lessee may designate in writing; all notices which Lessee may
desire to give to Lessor shall be served on Lessor or mailed to him at ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
-9-
19. TIME OF ESSENCE. Time is of the essence of each and all of
the terms and conditions of this lease. Except as otherwise herein expressly
provided, all agreements and provisions herein contained are binding upon and
shall inure to the benefit of the heirs, executors, administrators,
successors and assigns of the parties hereto.
20. COMPLETE AGREEMENT. This lease contains a complete expression
of the agreement between the parties hereto, and there are no promises,
representations, agreements, warranties or inducements except such as are
herein fully set forth. No alterations of any of the terms, covenants,
provisions or conditions shall be binding unless reduced to writing and
signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have signed this lease this
1 day of November, 1961.
/s/ ▇▇▇▇ Rabusha
----------------------------------------
▇▇▇▇ Rabusha
LESSOR
SAN DIEGO TRUST & SAVINGS BANK,
a California banking corporation
/s/ [ILLEGIBLE]
----------------------------------------
Its Vice President and Comptroller
/s/ [ILLEGIBLE]
----------------------------------------
Its Assistant Secretary
LESSEE
-▇▇-
▇▇▇▇▇▇▇ ▇-▇
(LEASE 2)
EXHIBIT A-2
L E A S E
THIS LEASE, made and entered into by and between ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, hereinafter referred to as Lessors, and SAN DIEGO
TRUST & SAVINGS BANK, a California banking corporation, hereinafter referred
to as Lessee.
W I T N E S S E T H:
WHEREAS, on July 13, 1961, Lessors granted to Lessee, for and in
consideration of the sum of , an option to lease
certain premises hereinafter described on the terms therein set forth; and
WHEREAS, Lessee has heretofore exercised said option and the
parties are desirous of entering into a lease of said premises on the terms
set forth in said option and such other terms as are herein set forth;
NOW, THEREFORE, IT IS MUTUALLY AGREED between the parties, as
follows:
1. DESCRIPTION OF PREMISES. The Lessors hereby lease to the
Lessee, and the Lessee hires from the Lessors, on the terms and conditions
hereinafter set forth, those certain premises with the appurtenances,
situated in the city of San Diego, county of San Diego, state of California,
described as follows:
That certain real property legally described as
▇▇▇▇ ▇▇, ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ Park, 75' x 140'
to 20' Alley.
2. TERM. The term of this lease shall be for sixty-five (65)
years, commencing November 1, 1961. Lessee is hereby granted an option to
renew this lease for a further term
-1-
of thirty-four (34) years upon each and all of the same terms and conditions
as herein contained. Written notice of Lessee's intention to renew this lease
shall be given to Lessors at least thirty (30) days prior to the expiration
of this lease.
3. RENT. Lessee shall pay to Lessors, in advance, on the first
day of each and every month commencing November 1, 1961, the sum of
as base rent. Said base rent shall be adjusted every
three (3) years on the anniversary date hereof, upwards only in proportion
that the then current U. S. Department of Labor Index of Consumer Commodity
Prices (all commodities) in the Los Angeles area for the immediately
preceding calendar quarter exceeds the U. S. Department of Labor Index of
Consumer Commodity Prices (all commodities) in the Los Angeles area for the
quarter immediately preceding the commencement of this lease. It is agreed
that the sum of heretofore paid by Lessee
to Lessors for the above described option shall be credited and applied on
the rent due hereunder November 1, 1961. Lessee agrees to pay to Lessors upon
execution of this lessor the sum of which
sum shall apply as base rental for the last year of the term of this lease.
4. FIRST REFUSAL. In the event Lessors should desire to sell the
leased premises during the term of this lease or any extended term, Lessors
shall submit to Lessee in writing any bona fide offer received by Lessors,
which writing shall name the offeror, the amount offered, and any other
condition of the offer. Lessee shall thereafter have the right, for fifteen
(15) days, in which to purchase the said premises upon the same terms and
conditions as contained in said offer. In the
-2-
event Lessee should fail to exercise the right to purchase within said fifteen
(15) days, Lessors shall then be free to sell said premises to said offeror,
however, the said premises shall not be sold for a less amount or upon more
favorable terms and conditions than contained in said offer submitted to
Lessee without Lessors again offering the same to Lessee. The right and
privilege contained in this paragraph for the purchase of the leased premises
shall only apply to Lessee or a successor bank.
5. CONSTRUCTION OF IMPROVEMENTS. Upon execution and commencement
of this lease. Lessee shall have the right at its sole cost and expense to
demolish, raze, and/or remove any or all of the existing improvements now
situate on the subject property, and in such event shall have the right and
be obligated to construct or cause to be constructed such other improvements
as Lessee may desire. The Lessors may remain in possession of the buildings
situated on the property and retain the rates collected therefrom for ninety
(90) days from the commencement date of this lease, and shall remove
themselves therefrom forthwith upon the expiration and said ninety (90) day
period. Further, it is understood and agreed that in the event the
Superintendent of Banks for the State of California and the Federal Deposit
Insurance Corporation fail to authorize Lessee to establish and maintain a
branch of its bank upon the aforesaid described property, that Lessee shall
have the right and option to cancel this lease upon the giving of ten (10)
days' notice in writing, and in the event of such cancellation the last
year's rent deposited hereunder by Lessee shall be returned to Lessee
-3-
by Lessors. It is understood in this connection that Lessee shall use its
best efforts to secure such permits. In no event shall Lessee demolish, raze,
and/or remove any or all of the existing improvements now situate on the
subject property until such permits have been obtained.
6. TAXES AND UTILITIES. Lessee agrees to pay when due all charges
for water, light, cleaning and the like used on the leased premises or any
part thereof during the term of this lease, and Lessee further agrees to pay
when due all license fees and any and all taxes on the land, improvements,
and personal property that may be levied by any taxing authority upon the
real and personal property located in or upon the said leased premises or
upon the business conducted thereon, provided that the Lessee shall not be
required to pay any income, estate, or inheritance tax of the Lessors that
might be levied against said leased premises, which Lessors shall promptly
pay. Lessee shall have the right to contest or protest any tax, assessment or
charge against said property. All taxes to be paid by the Lessee on the
leased premises shall be prorated as of the date of commencement of this
lease. Within thirty (30) days after the receipt of any and all tax bills
levied by any taxing authority against the leased premises, the Lessors shall
mail such tax bills to the cashier of the San Diego Trust & Savings Bank, who
shall pay such taxes on or before the date due and mail the receipted tax
bills within thirty (30) days after payment to the Lessors, who shall retain
such bills in their records.
7. LIABILITY INSURANCE. Lessee agrees to secure and maintain in
force, at its own expense, during the term
-4-
of this lease, a policy of owner, landlord and tenant liability insurance,
indemnifying and protecting Lessors against any and all claims for injuries
or damages suffered or alleged to have been suffered by a person or persons
while in or about the leased premises, with limits of liability of $100,000
for one person and $300,000 for any one accident involving more than one
person, arising from any and all demands, loss or liability resulting at any
time or times from the injury to or the death of any person or persons, or
from damage to any and all property occurring from the negligence or other
fault of Lessee in or about the leased premises or in connection with the use
of the street or sidewalk adjoining said premises. The said insurance shall
be carried in a company acceptable to Lessors, and a copy of said policy
shall be delivered to Lessors. Lessee further agrees to carry property damage
insurance in the amount of $10,000 indemnifying both Lessors and Lessee from
any and all claims of property damage. Said policy shall be carried in a
company [ILLEGIBLE] to Lessors, and a copy of said policy shall be delivered
to [ILLEGIBLE].
8. HOLDING OVER. Lessee agrees that should it hold over the
leased premises or any part thereof after the expiration of the term, unless
otherwise agreed in writing, such holdover shall constitute a tenancy from
month to month only, and Lessee shall pay the then reasonable value of the
use and occupation of the leased premises, which shall not be less than the
rent herein reserved.
9. DEFAULT. Lessee agrees that should default be made in the
payment of the rent herein reserved or
-5-
should Lessee fail to faithfully perform or observe any other covenant,
condition or agreement herein contained on the part of the Lessee to be
performed, and should such default continue for a period of ten (10) days
after written notice thereof, or should the leased premises be vacated or
abandoned, then Lessors may, at their option, either (1) enter upon and
repossess the leased premises and terminate this lease and all rights of the
Lessee herein in and to the leased premises, or (2) re-enter the leased
premises and, as agent of the Lessee, rent the same or any part thereof for
the remainder of the term, applying such rentals first to the payment of such
expenses as the Lessors may have been put to in re-entering, repossessing and
reletting the premises, including costs and attorneys' fees, and the balance
to the payment of the rent and the fulfillment of each of the covenants,
conditions and agreements herein contained, and Lessee agrees that such
action on the part of the Lessors will not release Lessee from any liability
which would otherwise attach or [ILLEGIBLE] the provisions of this lease, or
for any loss, damage or liability which Lessors may suffer during the
remainder of the term of this lease by reason of such breach, and the failure
of Lessee to thereafter perform the covenants and conditions hereof, whether
the premises remain vacant or be rented. In the event of any breach of this
lease. Lessors may pursue either of the foregoing remedies, or Lessors may
pursue or seek any other remedy or enforce any right to which they may be by
law entitled.
10. LITIGATION. In the event of any litigation between the Lessee
and Lessors to enforce any provision of this lease or any right of either
party hereto, the unsuccessful
-6-
party to such litigation agrees to pay to the successful party all costs and
expenses, including reasonable attorneys' fees, incurred thereby by the
successful party, all of which shall be included in and as a part of the
judgment rendered in such litigation. If either Lessors or Lessee, without
fault on its part, is made a party to any litigation instituted by or against
the other, such other party shall indemnify the Lessors or Lessee, as the
case may be, who, without fault, has been made a party to such action,
against and save it harmless from all costs and expenses, including
reasonable attorneys' fees incurred by it in connection with such litigation
except costs and expenses, if any, which are recoverable from other parties
to the litigation.
11. REMOVAL OF FIXTURES. The Lessee may remove all trade fixtures
and movable furniture, including but not limited to vault doors, safety
deposit boxes, counters, signs, and banking fixtures installed on the demised
premises by Lessee at any time during the term of this lease and at the
expiration or termination of this lease or any renewal term hereof, provided
that same may be removed without damage to the building, and if damage is
caused by such removal, Lessee agrees to repair such damage at its own cost
forthwith.
12. USE OF PREMISES; ASSIGNMENT AND SUBLETTING. The premises are
leased to the Lessee for the purpose of conducting the business of a bank
and/or such other businesses as are permitted under the existing zoning laws
or other zone or zones as may be established from time to time. Lessee shall
not assign this lease without the written consent of Lessors, but such consent
-7-
shall not be unreasonable withheld. In the event of such assignment. Lessee
shall not be relieved of liability hereunder. Lessee shall have the right,
however, without Lessors' consent to sublet all or any portion of the
premises, and any such sublessees of such premises shall have the right to
use the premises for any lawful purposes.
13. CONDITION OF PREMISES. Lessee covenants and agrees that it
has examined and knows the condition of the leased premises herein and
accepts the same in their present condition and acknowledges that no
statement or representation as to the condition or repair of said premises
has been made by the Lessors or by any person for them prior to or
contemporaneously with the execution of this lease.
14. WASTE; QUIET CONDUCT. Lessee shall not commit, or suffer to
be committed, any waste upon the said premises, or any nuisance.
15. REPAIRS. Lessee shall, at its sole cost, keep and maintain
said premises and appurtenances and every part thereof, including windows and
skylights, sidewalks adjacent to said premises, any store front and the
interior of the premises, in good and sanitary order, condition, and repair,
hereby waiving all right to make repairs at the expense of Lessors as
provided in Section 1942 of the Civil Code of the State of California, and
all rights provided for by Section 1941 of said Civil Code.
16. ACCEPTANCE OF PREMISES AS IS; SURRENDER AT END OF TERM. By
entry hereunder, Lessee accepts the premises as being in good and sanitary
order, condition and repair
-8-
and agrees on the last day of said term, or sooner termination of this lease,
to surrender unto Lessors all and singular said premises with said
appurtenances in as good condition as when received, reasonable use and wear
thereof and act of God or by the elements excepted, and to remove all of
Lessee's signs from said premises, but shall not be required to restore the
premises in any event.
17. COMPLIANCE WITH LAW. Lessee shall, at its sole cost and
expense, comply with all of the requirements of all Municipal, State and
Federal authorities now in force, or which may hereafter be in force,
pertaining to the said premises, and shall faithfully observe in the use of
the premises all Municipal ordinances and State and Federal statutes now in
force or which may hereafter be in force. The judgment of any court of
competent jurisdiction, or the admission of Lessee in any action or
proceeding against Lessee, whether Lessors be parties thereto or not, that
Lessee has violated any such ordinance or statute in the use of the premises
shall be conclusive of that fact as between Lessors and Lessee.
18. NOTICES. Any notice or demand which Lessors may desire to
give to Lessee shall be mailed or served at Lessee's main office, Sixth and
Broadway, San Diego, California, attention of its cashier, or at such other
address as Lessee may designate in writing; all notices which Lessee may
desire to give to Lessors shall be served on Lessors or mailed to them at
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------------------------------------
-9-
19. TIME OF ESSENCE. Time is of the essence of each and all of
the terms and conditions of this lease. Except as otherwise herein expressly
provided, all agreements and provisions herein contained are binding upon and
shall inure to the benefit of the heirs, executors, administrators,
successors and assigns of the parties hereto.
20. COMPLETE AGREEMENT. This lease contains a complete expression
of the agreement between the parties hereto, and there are no promises,
representations, agreements, warranties or inducements except such as are
herein fully set forth. No alterations of any of the terms, covenants,
provisions or conditions shall be binding unless reduced to writing and
signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have signed this lease this
1 day of November, 1961.
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
LESSORS
SAN DIEGO TRUST & SAVINGS BANK.
a California banking corporation
By /s/ [ILLEGIBLE]
----------------------------------
Its VICE PRESIDENT AND COMPTROLLER
By /s/ [ILLEGIBLE]
----------------------------------
Its ASSISTANT SECRETARY
LESSEE
-10-
[STAMP ILLEGIBLE]
L E A S E
-----------
(Short Form)
THIS LEASE, made and entered into as of the 31st day of October,
1961, by and between ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, hereinafter
referred to as Lessors, and SAN DIEGO TRUST & SAVINGS BANK, a California
banking corporation, hereinafter referred to as Lessee.
W I T N E S S E T H:
1. That, for the rents and upon the terms, covenants and
provisions set forth in that certain lease of even date herewith (hereinafter
called "said Lease"), between Lessors and Lessee, Lessors have demised,
leased and let, and do hereby demise, lease and let unto Lessee for a term of
sixty-five (65) years, commencing November 1, 1961, with [ILLEGIBLE] renew
said lease for a further term of thirty-four (34) years, these certain
premises with the appurtenances, situated in the city of San Diego, county of
San Diego, state of California, described as follows:
That certain real property legally described as ▇▇▇▇ ▇▇, ▇▇,
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ Park, 75' x 140' to 20' Alley.
2. That said Lease and each and all of the terms, covenants, and
provisions thereof are by this reference hereby incorporated herein and made
a part hereof, the same as though fully set forth herein.
-1-
IN WITNESS WHEREOF, Lessors and Lessee have caused their respective
names and seals to be affixed hereunto as of the day and year first above
written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Lessors
SAN DIEGO TRUST & SAVINGS BANK.
a California banking corporation
By /s/ [ILLEGIBLE]
----------------------------------
Its Vice President and Comptroller
By /s/ [ILLEGIBLE]
----------------------------------
Its Assistant Secretary
Lessee
-2-
STATE OF CALIFORNIA |
|SS
COUNTY OF SAN DIEGO |
On this 31st day of October, 1961, before me, the undersigned, a
notary public in and for said county and state, personally appeared ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ and , known to me to be the persons whose
names are subscribed to the within instrument, and acknowledged that they
executed the same.
[SEAL]
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Notary Public in and for said
County and State
(▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇)
My Commission Expires May 18, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ |
|SS
COUNTY OF SAN DIEGO |
On this 8th day of November, 1961, before me, the undersigned, a
notary public in and for said county and state, personally appeared ▇. ▇.
▇▇▇▇▇▇▇▇ and [ILLEGIBLE] ▇▇▇▇▇, known to me to be the vice president and
comptroller and the assistant secretary, respectively, of the corporation
that executed the foregoing instrument on behalf of the corporation therein
named, and acknowledged to me that such corporation executed the same
pursuant to its bylaws or a resolution of its Board of Directors.
WITNESS my hand and official seal.
[SEAL]
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Notary Public in and for said
County and State
[ILLEGIBLE]
-3-
STATE OF CALIFORNIA )
), ss
COUNTY OF SAN FRANCISCO)
On this 1st day of November, 1961, before me, the undersigned, a
notary public in and for said county and state, personally appeared ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be the person whose name is subscribed to
the within instrument, and acknowledged that she executed the same.
[SEAL]
/s/ [ILLEGIBLE]
--------------------------------------
Notary Public in and for said
County and State
My Commission Expires 11/17/
-4-
EXHIBIT A-3
(LEASE 3)
EXHIBIT A-3
L E A S E
---------
THIS LEASE, made and entered into by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, hereinafter referred to as Lessors, and SAN DIEGO
TRUST & SAVINGS BANK, A California banking corporation, hereinafter referred
to as Lessee,
W I T N E S S E T H:
WHEREAS, on July 13, 1961, Lessors granted to Lessee, for and in
consideration of the sum of ,
an option to lease certain premises hereinafter described on the terms
therein set forth; and
WHEREAS, Lessee has heretofore exercised said option and the
parties are desirous of entering into a lease of said premises on the terms
set forth in said option and such other terms as are herein set forth:
NOW, THEREFORE, IT IS MUTUALLY AGREED between the parties, as
follows:
1. DESCRIPTION OF PREMISES. The Lessors hereby lease to the
Lessee, and the Lessee hires from the Lessors, on the terms and conditions
hereinafter set forth, those certain premises with the appurtenances,
situated in the city of San Diego, county of San Diego, state of California,
described as follows:
That certain real property legally described as
▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇, 25' x 140' to
20" Alley.
2. TERM. The term of this lease shall be for sixty-five (65)
years, commencing November 1, 1961. Lessee is hereby granted an option to
renew this lease for a further term
-1-
of thirty-four (34) years upon each and all of the same terms and conditions
as herein contained. Written notice of Lessee's intention to renew this lease
shall be given to Lessors at least thirty (30) days prior to the expiration
of this lease.
3. RENT. Lessee shall pay to Lessors, in advance, on the first
day of each and every month commencing November 1, 1961, the sum of
as base rent. Said base rent shall be adjusted
every three (3) years on the anniversary date hereof, upwards only in
proportion that the then current U. S. Department of Labor Index of Consumer
Commodity Prices (all commodities) in the Los Angeles area for the
immediately preceding calendar quarter exceeds the U. S. Department of Labor
Index of Consumer Commodity Prices (all commodities) in the Los Angeles area
for the quarter immediately preceding the commencement of this lease. It is
agreed that the sum of heretofore paid by Lessee to
Lessors for the above described option shall be credited and applied on the
rent due hereunder November 1, 1961. Lessee agrees to pay to Lessors upon
execution of this lease the sum of , which sum shall
apply as base rental for the last year of the term of this lease.
4. FIRST REFUSAL. In the event Lessors should desire to sell the
leased premises during the term of this lease or any extended term. Lessors
shall submit to Lessee in writing any bona fide offer received by Lessors,
which writing shall name the offeror, the amount offered, and any other
condition of the offer. Lessee shall thereafter have the right, for fifteen
(15) days, in which to purchase the said premises upon the same terms and
conditions as contained in said offer. In the
-2-
event Lessee should fail to exercise the right to purchase within said
fifteen (15) days, Lessors shall then be free to sell said premises to said
offeror, however, the said premises shall not be sold for a less amount or
upon more favorable terms and conditions than contained in said offer
submitted to Lessee without Lessors again offering the same to Lessee. The
right and privilege contained in this paragraph for the purchase of the
leased premises shall only apply to Lessee or a successor bank.
5. CONSTRUCTION OF IMPROVEMENTS. Upon execution and commencement
of this lease, Lessee shall have the right at its sole cost and expense to
demolish, raze, and/or remove any or all of the existing improvements now
situate on the subject property, and in such event shall have the right and
be obligated to construct or cause to be constructed such other improvements
as Lessee may desire. The Lessors may remain in possession of the buildings
situated on the property and retain the rents collected therefrom for ninety
(90) days from the commencement date of this lease, and shall remove
themselves therefrom forthwith upon the expiration of said ninety (90) day
period. Further, it is understood and agreed that in the event the
Superintendent of Banks of the State of California and the Federal Deposit
Insurance Corporation fail to authorize Lessee to establish and maintain a
branch of its bank upon the aforesaid described property, that Lessee shall
have the right and option to cancel this lease upon the giving of ten (10)
days' notice in writing, and in the event of such cancellation the last
year's rent deposited hereunder by Lessee shall be returned to Lessee
-3-
by Lessors. It is understood in this connection that Lessee shall use its
best efforts to secure such permits. In no event shall Lessee demolish, raze,
and/or remove any or all of the existing improvements now situate on the
subject property until such permits have been obtained.
6. TAXES AND UTILITIES. Lessee agrees to pay when due all
charges for water, light, cleaning and the like used on the leased premises
or any part thereof during the term of this lease, and Lessee further agrees
to pay when due all license fees and any and all taxes on the land,
improvements, and personal property that may be levied by any taxing
authority upon the real and personal property located in or upon the said
leased premises or upon the business conducted thereon, provided that the
Lessee shall not be required to pay any income, estate, or inheritance tax of
the Lessors that might be levied against said leased premises, which Lessors
shall promptly pay. Lessee shall have the right to contest or protest any
tax, assessment or charge against said property. All taxes to be paid by the
Lessee on the leased premises shall be prorated as of the date of
commencement of this lease. Within thirty (30) days after the receipt of any
and all tax bills levied by any taxing authority against the leased premises,
the Lessors shall mail such tax bills to the cashier of the San Diego Trust &
Savings Bank, who shall pay such taxes on or before the date due and mail the
receipted tax bills within thirty (30) days after payment to the Lessors, who
shall retain such bills in their records.
7. LIABILITY INSURANCE. Lessee agrees to secure and maintain in
force, at its own expense, during the term
-4-
of this lease, a policy of owner, landlord and tenant liability insurance,
indemnifying and protecting Lessors against any and all claims for injuries
or damages suffered or alleged to have been suffered by a person or persons
while in or about the leased premises, with limits of liability of $100,000
for one person and $300,000 for any one accident involving more than one
person arising from any and all demands, loss or liability resulting at any
time or times from the injury to or the death of any person or persons, or
from damage to any and all property occurring from the negligence or other
fault of Lessee in or about the leased premises or in connection with the use
of the street or sidewalk adjoining said premises. The said insurance shall
be carried in a company acceptable to Lessors, and a copy of said policy
shall be delivered to Lessors. Lessee further agrees to carry property damage
insurance in the amount of $10,000 indemnifying both Lessors and Lessee from
any and all claims of property damage. Said policy shall be carried in a
company acceptable to Lessors, and a copy of said policy shall be delivered
to Lessors.
8. HOLDING OVER. Lessee agrees that should it hold over the
leased premises or any part thereof after the expiration of the term, unless
otherwise agreed in writing, such holdover shall constitute a tenancy from
month to month only, and Lessee shall pay the then reasonable value of the
use and occupation of the leased premises, which shall not be less than the
rent herein reserved.
10. DEFAULT. Lessee agrees that should default be made in the
payment of the rent herein reserved or
-5-
should Lessee fail to faithfully perform or observe any other covenant,
condition or agreement herein contained on the part of the Lessee to be
performed, and should such default continue for a period of ten (10) days
after written notice thereof, or should the leased premises be vacated or
abandoned, then Lessors may, at their option, either (1) enter upon and
repossess the leased premises and terminate this lease and all rights of the
Lessee herein in and to the leased premises, or (2) re-enter the leased
premises and, as agent of the Lessee, rent the same or any part thereof for
the remainder of the term, applying such rentals first to the payment of such
expenses as the Lessors may have been put to in re-entering, repossessing and
reletting the premises, including costs and attorneys' fees, and the balance
to the payment of the rent and the fulfillment of each of the covenants,
conditions and agreements herein contained, and Lessee agrees that such
action on the part of the Lessors will not release Lessee from any liability
which would otherwise attach or accrue under the provisions of this lease, or
for any loss, damage or liability which Lessors may suffer during the
remainder of the term of this lease by reason of such breach, and the failure
of Lessee to thereafter perform the covenants and conditions hereof, whether
the premises remain vacant or be rented. In the event of any breach of this
lease, Lessors may pursue either of the foregoing remedies, or Lessors may
pursue or seek any other remedy or enforce any right to which they may be by
law entitled.
10. LITIGATION. In the event of any litigation between the Lessee
and Lessors to enforce any provision of this lease or any right of either
party hereto, the unsuccessful
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party to such litigation agrees to pay to the successful party all costs and
expenses, including reasonable attorneys' fees, incurred thereby by the
successful party, all of which shall be included in and as a part of the
judgment rendered in such litigation. If either Lessors or Lessee, without
fault on its part, is made a party to any litigation instituted by or against
the other, such other party shall indemnify the Lessors or Lessee, as the
case may be, who, without fault, has been made a party to such action,
against and save it harmless from all costs and expenses, including
reasonable attorneys' fees incurred by it in connection with such litigation
except costs and expenses, if any, which are recoverable from other parties
to the litigation.
11. REMOVAL OF FIXTURES. The Lessee may remove all trade fixtures
and movable furniture, including but not limited to vault doors, safety
deposit boxes, counters, signs, and banking fixtures installed on the demised
premises by Lessee at any time during the term of this lease and at the
expiration or termination of this lease or any renewal term hereof, provided
that same may be removed without damage to the building, and if damage is
caused by such removal. Lessee agrees to repair such damage at its own cost
forthwith.
12. USE OF PREMISES; ASSIGNMENT AND SUBLETTING. The premises are
leased to the Lessee for the purpose of conducting the business of a bank
and/or such other businesses as are permitted under the existing zoning laws
or other zone or zones as may be established from time to time. Lessee shall
not assign this lease without the written consent of Lessors, but such consent
-7-
shall not be unreasonably withhold. In the event of such assignment, Lessee
shall not be relieved of liability hereunder. Lessee shall have the right,
however, without Lessors' consent to sublet all or any portion of the
premises, and any such sublessees of such premises shall have the right to
use the premises for any lawful purposes.
13. CONDITION OF PREMISES. Lessee covenants and agrees that it
has examined and knows the condition of the leased premises herein and
accepts the same in their present condition and acknowledges that no
statement or representation as to the condition or repair of said premises
has been made by the Lessors or by any person for them prior to or
contemporaneously with the execution of this lease.
14. WASTE; QUIET CONDUCT. Lessee shall not commit, or suffer to
be committed, any waste upon the said premises, or any nuisance.
15. REPAIRS. Lessee shall, at its sole cost, keep and maintain
said premises and appurtenances and every part thereof, including windows and
skylights, sidewalks adjacent to said premises, any store front and the
interior of the premises, in good and sanitary order, condition, and repair,
hereby waiving all rights to make repairs at the expense of Lessors as
provided in Section 1942 of the Civil Code of the State of California, and
all rights provided for by Section 1941 of said Civil Code.
16. ACCEPTANCE OF PREMISES AS IS; SURRENDER AT END OF TERM. By
entry hereunder, Lessee accepts the premises as being in good and sanitary
order, condition and repair
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and agrees on the last day of said term, or sooner termination of this lease,
to surrender unto Lessors all and singular said premises with said
appurtenances in as good condition as when received, reasonable use and wear
thereof and act of God or by the elements excepted, and to remove all of
Lessee's signs from said premises, but shall not be required to restore the
premises in any event.
17. COMPLIANCE WITH LAW. Lessee shall, at its sole cost and
expense, comply with all of the requirements of all Municipal, State and
Federal authorities now in force, or which may hereafter be in force,
pertaining to the said premises, and shall faithfully observe in the use of
the premises all Municipal ordinances and State and Federal statutes now in
force or which may hereafter be in force. The judgment of any court of
competent jurisdiction, or the admission of Lessee in any action or
proceeding against Lessee, whether Lessors be parties thereto or not, that
Lessee has violated any such ordinance or statute in the use of the premises
shall be conclusive of that fact as between Lessors and Lessee.
18. NOTICES. Any notice or demand which Lessors may desire to
give Lessee shall be mailed or served at Lessee's main office, Sixth and
Broadway, San Diego, California, attention of its cashier, or at such other
address as Lessee may designate in writing; all notices which Lessee may
desire to give to Lessors shall be served on Lessors or mailed to them at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ 4, California
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-9-
19. TIME OF ESSENCE. Time is of the essence of each and all of
the terms and conditions of this lease. Except as otherwise herein expressly
provided, all agreements and provisions herein contained are binding upon and
shall inure to the benefit of the heirs, executors, administrators,
successors and assigns of the parties hereto.
20. COMPLETE AGREEMENT. This lease contains a complete expression
of the agreement between the parties hereto, and there are no promises,
representations, agreements, warranties or inducements except such as are
herein fully set forth. No alterations of any of the terms, covenants,
provisions or conditions shall be binding unless reduced to writing and
signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have signed this lease this
23 day of October, 1961.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
LESSORS
SAN DIEGO TRUST & SAVINGS BANK.
a California banking corporation
By /s/ [ILLEGIBLE]
----------------------------------
Its VICE PRESIDENT AND COMPTROLLER
By /s/ [ILLEGIBLE]
----------------------------------
Its ASSISTANT SECRETARY
LESSEE
-10-
19. TIME OF ESSENCE. Time is of the essence of each and all of
the terms and conditions of this lease. Except as otherwise herein expressly
provided, all agreements and provisions herein contained are binding upon and
shall inure to the benefit of the heirs, executors, administrators,
successors and assigns of the parties hereto.
20. COMPLETE AGREEMENT. This lease contains a complete expression
of the agreement between the parties hereto, and there are no promises,
representations, agreements, warranties or inducements except such as are
herein fully set forth. No alterations of any of the terms, covenants,
provisions or conditions shall be binding unless reduced to writing and
signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have signed this lease this
23 day of October, 1961.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
STATE OF CALIFORNIA)
) ss
COUNTY OF SAN DIEGO)
[SEAL]
ON THE 23RD DAY OF OCTOBER 1961 BEFORE ME,
▇▇▇▇ ▇. ▇▇▇▇▇
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A NOTARY PUBLIC IN AND FOR SAID COUNTY AND STATE, PERSONALLY APPEARED
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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KNOWN TO ME,
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TO BE THE PERSONS WHOSE NAMES ARE SUBSCRIBED TO THE WITHIN INSTRUMENT AND
ACKNOWLEDGED TO ME THAT SHE EXECUTED THE SAME.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND AND AFFIXED MY OFFICIAL SEAL
THE DAY AND YEAR IN THIS CERTIFICATE FIRST ABOVE WRITTEN.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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NOTARY PUBLIC IN AND FOR SAID COUNTY AND STATE.
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S T A T E M E N T
October 27, ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
The undersigned state that the Lease executed at San Diego, California
on April 7, 1960, between ▇▇▇▇ RABUSHA as lessor and ▇▇▇▇▇ ▇▇▇▇▇▇ as lessee,
covering the property at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, said
property being legally described as ▇▇▇▇ ▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇, in the City of San Diego State of California, was terminated on the
30th of April, 1961; that all of the construction work and alterations
performed, furnished or used in or upon said property, as set forth in the
Notice of Non-Responsibility filed by ▇▇▇▇ RABUSHA, was completed; that to
the knowledge of the undersigned there are no liens against said property in
connection with said work, construction or alterations.
/s/ ▇▇▇▇ Rabusha
--------------------
▇▇▇▇ Rabusha
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
▇▇▇▇▇ ▇▇▇▇▇▇
STATE OF CALIFORNIA)
) ss
County of San Diego)
On October 31, 1961, before me, the undersigned, a Notary Public in and
for said County and State, personally appeared ▇▇▇▇ RABUSHA and ▇▇▇▇▇ ▇▇▇▇▇▇,
known to me to be the persons whose names are subscribed to the within
instrument and acknowledged that they execute the same.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, Notary Public in
and for said County and State