Exhibit 10.18
LEASE AGREEMENT
TOWN PLACE SHOPPING CENTER
GILROY, CALIFORNIA
This Lease Agreement is dated January 30, 2002 for reference
purposes only, and is made and entered into by and between Town Place
LLC, a California limited liability company ("Landlord"), whose
address is ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
Central Coast Bancorp, a California corporation dba "Community Bank
of Central California" ("Tenant"), whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The terms "the Lease Agreement", "the
Lease", "this Lease" and "this Lease Agreement" are interchangeable
terms and refer to this Lease Agreement dated February 1, 2002.
ARTICLE 1. BASIC LEASE PROVISIONS
Section 1.01 Basic Lease Provisions. The following basic
lease provisions (the "Basic Lease Provisions") are (i) an integral
part of this Lease, (ii) are referred to in other Sections of this
Lease and (iii) are set forth in this Section 1.01 for the
convenience of the parties. Each reference in this Lease to a Basic
Lease Provision shall incorporate all of the terms and conditions
applicable to such Basic Lease Provision as provided for in this
Lease.
(a) Date of this Lease: February 1, 2002
(b) Landlord: Town Place LLC, a California limited
liability company
(c) Tenant: Central Coast Bancorp, a California corporation
dba Community Bank of Central California
(d) Premises: Section 2.02
The Premises consist of approximately 2,670 square feet which
consists of (i) 2,470 square feet with a frontage of
approximately 38 feet and a depth of approximately 65 feet
plus (ii) 200 square feet (approximately 10' x 20') within a
fire exit corridor as shown on the site plan which is attached
hereto and made a part hereof as Exhibit B. The Premises are
commonly known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
(e) Term: Section 2.05
Lease Term is five (5) years.
(e-1) Option to Extend Lease Term: Section 2.11
Tenant has one (1) option to extend the Lease Term for an
additional five (5) years. The terms and conditions of the
option and the rent and rental increases to be paid during the
option period are set forth in Section 2.11 of the Lease.
(f) Base Rent: Section 3.01
The Base Rent for months 1-12 of the Lease Term is $23.40 per
square foot, or $62,478. Commencing with the second (2nd)
year of the Lease Term, the Base Rent shall be adjusted
annually according to increases in the CPI Index.
(g) Monthly Base Rent: Section 3.01
The Base Rent payable on a monthly basis for months 1-12 of
the Lease Term is $1.95 per square foot, or $5,206.50 per
month. Commencing with the second (2nd) year of the Lease
Term, the Base Rent shall be adjusted annually according to
increases in the CPI Index.
(h) Percentage Rent Rate: Section 3.02
None.
(i) Breakpoint: Section 3.02
None.
(j) Tenant's Use: Section 7.01, 7.02
Tenant shall use the Premises for the operation of a bank
using the trade name "Community Bank of Central California".
Tenant shall not use the Premises for any other purpose
without the prior written consent of Landlord, which may be
granted or withheld by Landlord, in Landlord's sole and
absolute discretion as provided in Sections 7.01(a) and
7.01(b) of this Lease.
(k) Tenant's Trade Name: Section 16.01
Tenant's trade name shall be "Community Bank of Central
California."
(l) Annual Promotional Charge: Section 16.03
Tenant's participation in any Advertising and Promotional
Program, if established by Landlord, shall be at Tenant's
option. If Tenant does elect to participate in such a
program, then Tenant shall pay Tenant's proportionate share of
the Annual Promotional Charge as determined by Landlord.
(m) Security Deposit: Section 25.01
Deleted.
(n) Landlord's Address: Section 26.05
Town Place LLC
c/o Pacific Oak Properties, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇
(o) Tenant's Address: Section 26.05
Community Bank of Central California
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ARTICLE II. GRANT AND TERM
Section 2.01 Shopping Center Defined. Landlord has executed
that certain Ground Lease dated October 23, 1996 ("Ground Lease")
pursuant to which Landlord leases the property described on Exhibit
A, attached hereto and made a part hereof ("Property") for a period
of twenty-five (25) years. Landlord has constructed a shopping
center known as "Town Place Shopping Center" ("Shopping Center") on
the Property in accordance with the site plan ("Site Plan") which is
attached hereto and made a part hereof as Exhibit B.
Section 2.02 Premises. Landlord, in consideration of the
Rent to be paid and the covenants to be performed by Tenant, does
hereby demise and lease unto Tenant, and Tenant hereby rents from
Landlord, those certain premises in the Shopping Center, being a
portion of the building identified as Pad 1 as shown on the Site
Plan ("the Premises").
The exterior walls and roof of the Premises and the area
beneath said Premises are not demised hereunder, and the use thereof
together with the right to install, maintain, use, repair, and
replace pipes, ducts, conduits, wires and structural elements
leading through the Premises in locations which will not materially
interfere with Tenant's use thereof and serving other parts of the
Shopping Center are hereby reserved unto Landlord; provided,
however, that such reservation shall in no way affect the
maintenance obligations as provided herein.
Subject to the provisions of Sections 6.02 and 26.13 of this
Lease, the Premises shall consist of a storebuilding having a
frontage of approximately thirty-eight (38) feet, a depth of
approximately sixty-five (65) feet, a finished ceiling at least ten
(10) feet from the finished floor, a fire exit corridor of
approximately two hundred (200) square feet and containing a floor
area of approximately two thousand six hundred seventy (2,670)
square feet as shown on Exhibit B. Tenant shall have rights of
ingress and egress from the Premises and the streets shown on
Exhibit B and through the entrances shown on Exhibit B.
Section 2.03 Easement and Covenant Agreement. This Lease
Agreement and the Premises are subject to that certain Agreement
("Easement Agreement") recorded on December 14, 1984 which creates
certain reciprocal easements between the Property and other
adjoining property. It is expressly understood between Landlord and
Tenant that this Lease is subject to the provisions of the Easement
Agreement and that the Easement Agreement shall control over any
conflicting provisions of this Lease.
Landlord has also provided Tenant with a copy of an Agreement dated
June 23, 1972 executed between Gavilan Bank and Margiorino Chiesa
("Gavilan Agreement"). The Chiesa Parcel referred to in the Gavilan
Agreement includes the Shopping Center. Section 4 of the Gavilan
Agreement provides that "no portion of the Chiesa Parcel shall be
devoted to commercial banking" for a period of 35 years ("Bank
Restriction"). Landlord makes no warranty or representation
regarding the Bank Restriction including, without limitation, the
validity, enforceability and/or legal effect of the Bank
Restriction. Landlord and Tenant agree that if a future claim or
threat of legal action is made against either Landlord or Tenant on
the basis that this Lease violates the Bank Restriction, then either
Landlord or Tenant may elect to terminate the Lease by providing
written notice to the other party. In the event of such
termination, (a) Landlord waives and releases Tenant from any and
all claims and/or damages arising out of the termination of this
Lease due to the Bank Restriction, (b) Tenant waives and releases
Landlord from any and all claims and/or damages arising out of the
termination of this Lease due to the Bank Restriction and (c) Tenant
shall pay Landlord all Rent due under this Lease through the date of
such termination.
Section 2.04 Common Area. The term "Common Area" shall mean
all areas within the exterior boundaries of the Shopping Center
exclusive of buildings and shall include, without limitation, the
parking areas, roadways, driveways, sidewalks, truckways, loading
docks, delivery areas, landscaped areas, public bathrooms and
comfort stations, and all other areas or improvements of the
Shopping Center which may be provided by Landlord for the
convenience and use of the Tenants of the Shopping Center, and their
respective subtenants, agents, employees, customers, invitees, and
any other licensees of Landlord. Landlord hereby grants to Tenant,
its agents, customers, licensees, invitees, employees, vendors and
visitors, the right, privilege and easement to use the Common Area
provided that Tenant is not in default of any of the performance of
any of its obligations as provided in this Lease and that such use
is in accordance with all of the provisions of this Lease and the
Rules and Regulations attached hereto and made a part hereof as
Exhibit G.
Section 2.05 Lease Term. The term of this Lease ("the Lease
Term") shall be for a period of five (5) Lease Years following the
Rent Commencement Date.
Section 2.06 Rent Commencement Date. The term "Rent
Commencement Date" shall mean the date which is forty-five (45) days
after the date on which Landlord and Tenant have executed the Lease.
Section 2.07 Termination Date. The term "Termination Date"
shall mean the date which is five (5) Lease Years following the Rent
Commencement Date or the earlier termination of this Lease as
provided herein.
Section 2.08 Lease Year Defined. The term "Lease Year" as
used herein shall be defined to mean a period of twelve (12)
consecutive calendar months. The first (1st) Lease Year shall begin
on the Rent Commencement Date if the Rent Commencement Date shall
occur on the first day of a calendar month: if not, then the first
(1st) Lease Year shall commence on the first (1st) day of the month
immediately following the Rent Commencement Date and the period
between the Rent Commencement Date and the last day of such month
shall be added to the first Lease Year. Each succeeding Lease Year
shall commence on the anniversary date of the first (1st) Lease Year.
Section 2.09 Supplemental Agreement. When the Rent
Commencement Date and the Termination Date have been determined,
Landlord and Tenant shall execute a supplemental agreement in the
form attached hereto and made a part hereof as Exhibit C.
Section 2.10 Deleted.
Section 2.11 Option to Extend Lease Term. (a) For separate,
independent and bargained for consideration, Landlord hereby grants
to Tenant one (1) option to extend the Lease Term ("Option") for an
additional five (5) years ("Option Period") subject to the following
terms and conditions:
(b) The Option shall be exercised by Tenant, if at all, by
delivering to Landlord, not later than twelve (12) months prior to
the expiration of the original Lease Term written notice stating
Tenant's election to exercise its Option to extend the Lease Term
("Tenant's Option Notice").
(c) All terms and conditions of the Lease Agreement shall
remain the same during the Option Period (provided that in no event
shall Tenant have the right to extend the Lease Term after the
expiration of the Option Period) except the payment of Base Rent,
which shall be determined as provided in Sections 2.11(d) of this
Lease.
(d) In the event that Tenant elects to exercise the Option
to extend the Lease Term as provided herein, then the Base Rent
payable during the first year of the Option Period (Lease Year 6)
shall be one hundred percent (100%) of the prevailing fair market
rental rate for the Premises ("FMRR") as determined in Section
2.11(e) of this Lease; provided, however, that in no event shall the
Base Rent during the first year of the Option Period (Lease Year 6)
be less than the Base Rent payable in the last year of the original
Lease Term (Lease Year 5). The Base Rent shall be increased at the
commencement of the second year of the Option Period (Lease
Year 7) and at the commencement of each Lease Year thereafter (each
of which is referred to herein as an "Adjustment Date") based on
increases in the CPI Index in the same manner as provided in Section
3.01(b) of this Lease.
(e) The FMRR shall be determined as follows:
(i) Landlord and Tenant shall meet and attempt to
determine the FMRR by mutual agreement within thirty (30) days
after Landlord has received Tenant's Option Notice.
(ii) In the event that the parties fail to agree on the
FMRR during such thirty (30) day period, then each party
shall, within ten (10) days following the expiration of the
thirty (30) day period, select an MAI appraiser with at least
five (5) years experience in the appraisal of
commercial/retail properties and shopping centers in Santa
▇▇▇▇▇ County. The appraisers so selected shall, in turn,
select an additional appraiser meeting the same qualifications
as the appraisers selected by Landlord and Tenant.
(iii) Landlord shall pay the fees of the appraiser
selected by Landlord, Tenant shall pay for the fees of the
appraiser selected Tenant and Landlord and Tenant shall share
equally the fees of the third appraiser.
(iv) Within thirty (30) days of being selected, all
appraisers shall submit their respective opinions of FMRR to
Landlord and Tenant. The average of the three (3) FMRR
numbers submitted by the appraisers shall be the FMRR for
purposes of this Lease.
(v) For purposes of this Lease, FMRR shall mean the Base
Rent charged for similar premises located within the City of
Gilroy of comparable type and quality, taking into account the
condition of the Shopping Center and site improvements, the
nature, extent and quality of interior improvements and the
Shopping Center, the other tenants of the Shopping Center, the
amount of parking and other relevant factors.
(e) Notwithstanding other provision of this Lease, in the
event that Tenant is in default of any of its obligations under the
Lease, and such default is not cured as provided herein, then
Tenant's Option shall immediately terminate without any further
action of the parties and shall be of no further force or effect.
(f) The Option shall be personal to the originally named
Tenant and any Affiliate of Tenant, as defined in Section 14.01 of
this Lease, and shall be exercisable only by the originally named
Tenant and such Affiliate (and not any other assignee, sublessee or
other Transferee of the originally named Tenant's interest in this
Lease). The originally named Tenant and any Affiliate may exercise
the Option only if that Tenant or Affiliate occupies the entire
Premises as of the last date on which the Tenant and/or Affiliate
may properly exercise the Option.
(g) In the event of any sublease, assignment or other
transfer of all or part of the Premises by Tenant or of Tenant's
interest in this Lease without the prior written consent of
Landlord, then the Option shall immediately terminate and be of no
further force or effect.
ARTICLE III. RENT
Section 3.01 Base Rent. (a) The Base Rent during the Lease
Term shall be the amount set forth in Section 1.01(f) hereof, which
sum shall be payable by Tenant in monthly installments in the
amounts set forth in Section 1.01(g) hereof, on or before the first
(1st) day of each month, in advance, without notice or demand and
without any deduction, offset or abatement, in lawful money of the
United States of America, at the office of Landlord, or such other
place as Landlord may designate. If the Lease Term commences on a
day other than the first (1st) day of a calendar month, then the
Rent, as hereinafter defined, for such month shall be prorated upon
a daily basis based upon a thirty (30) day calendar month.
(b) The Base Rent set forth in Section 3.01 of this Lease
shall be adjusted at the commencement of the second (2nd) year of
the Lease Term and at the commencement of each Lease Year thereafter
(each of which is referred to herein as an "Adjustment Date") as
follows:
(i) The adjustment shall be calculated upon the basis
of the percentage increase in the Consumer Price Index, San
Francisco Bay Area, All Urban Consumers, with a base year of
1982 - 1984 = 100, as published by the United States
Department of Labor, Bureau of Labor Statistics, (referred to
herein as the "CPI Index") for the twelve (12) months
immediately preceding the Adjustment Date in question. If the
percentage change in the CPI Index for such prior twelve (12)
month period is either negative or zero, then the Base Rent
shall remain unchanged until the next Adjustment Date.
(ii) If the CPI Index is discontinued or is revised
during the Lease Term, then the adjustment to the Base Rent
shall be based on such other government index or computation
with which it is replaced in order to obtain substantially the
same result as would be obtained if the CPI Index had not been
discontinued or revised.
Section 3.02 Percentage Rent. Deleted.
Section 3.03 Gross Sales. Deleted.
Section 3.04 Tenant's Tax Obligations. (a) During the Lease
Term, Tenant shall pay to Landlord its proportionate share of real
property taxes and assessments applicable to the Shopping Center
("Real Estate Taxes") as defined herein. In the event that a
property tax ▇▇▇▇ applies to a period of time which is prior to the
Rent Commencement Date or after the Termination Date, as defined in
this Lease, then such property tax ▇▇▇▇ shall be prorated based upon
Tenant's occupancy of the Premises. Tenant's proportionate share of
Real Estate Taxes shall mean 3.36 % (2,670 square feet in a total of
79,385 square feet). The term "Real Estate Taxes" shall mean all
taxes and existing and future assessments, general and special, and
governmental charges of any kind or nature whatsoever, which may be
levied or assessed by any lawful authority against the land,
buildings, and improvements comprising the Shopping Center,
including without limitation (i) all charges, taxes and assessments
set forth on the real property tax ▇▇▇▇ from the tax collector for
the County of Santa ▇▇▇▇▇, (ii) any fee, tax, levy, charge or
assessment imposed by any taxing authority, (iii) any tax or charge
for fire protection, streets, sidewalks, road maintenance, refuse or
other services provided to the property by any governmental agency,
(iv) all ad valorem real property taxes and assessments (including
installments of special assessments required to be paid during the
calendar year) including any increase in taxes resulting from a
reappraisal of the Shopping Center from time to time by virtue of a
change in the ownership of Landlord's interest or otherwise by
operation of law and (v) any costs, expenses and attorneys' fees
(including the costs of tax consultants) incurred by Landlord in
connection with the negotiation for reduction in the assessed
valuation of land, buildings and improvements comprising the
Shopping Center.
(b) Tenant's proportionate share of Real Estate Taxes levied
or assessed for or during the term hereof, as determined by Landlord
shall be paid in monthly installments on or before the first (1st)
day of each calendar month, in advance, in an amount estimated by
Landlord. Upon receipt of all tax bills and assessment bills,
Landlord shall furnish Tenant with a written statement of the actual
amount of Tenant's proportionate share of Real Estate Taxes for such
year. In the event no tax ▇▇▇▇ is available, Landlord will compute
the amount of such tax. If the total amount paid by Tenant under
this Section 3.04 for any calendar year during the term of this
Lease shall be less than the actual amount due from Tenant for such
year, as shown on such statement, Tenant shall pay to Landlord the
difference between the amount paid by Tenant and the actual amount
due, such deficiency to be paid within ten (10) days after demand
therefore by Landlord; and if the total amount paid by Tenant
hereunder for any such calendar year shall exceed such actual amount
due from Tenant for such calendar year, such excess shall be
credited against the next installment of taxes and assessments due
from Tenant to Landlord hereunder. All amounts due hereunder shall
be payable to Landlord at the place where the Base Rent is payable.
Landlord's and Tenant's obligations under this Section 3.04 shall
survive the expiration of the term of this Lease.
(c) Tenant shall pay all taxes charged against trade
fixtures, furnishings, equipment or any other personal property
belonging to Tenant.
Section 3.05 Additional Payments. Tenant shall pay any and
all sums of money or charges required to be paid by Tenant under
this Lease promptly when the same are due, without any deductions or
setoff whatsoever. Tenant's failure to pay any such amounts or
charges when due shall carry with it the same consequences as
Tenant's failure to pay Rent. All such amounts or charges shall be
payable to Landlord at the place where the Base Rent is payable.
Section 3.06 Definition of Rent. The Base Rent, Amortized
Rent and Additional Rent shall be collectively referred to in this
Lease as "Rent."
Section 3.07 Definition of Additional Rent. Tenant's
proportionate share of all Real Estate Taxes, insurance premiums,
Common Area charges, utility services paid by Tenant to Landlord,
and all other charges, costs, expenses and other sums which Tenant
is required to pay to Landlord under the terms of this Lease
(together with all interest and penalties that may accrue in the
event of Tenant's failure to pay such charges) and all damages,
costs and expenses which Landlord may incur by reason of any default
by Tenant shall be deemed to be "Additional Rent" under the terms of
this Lease. Landlord shall have all of the same rights and remedies
with respect to the non-payment of Additional Rent as Landlord has
for the non-payment of Rent.
Section 3.08 Returned Check. In the event that any payment
of Rent is made by a check which is not honored by the bank upon
which it is drawn, whether the check is returned for insufficient
funds (NSF) or any other reason, then all future payments of Rent
during the Lease Term, or any extension thereof, shall be made by
cashier's check payable to Landlord.
Section 3.09 Three Day Notice. In the event that Tenant
defaults in the payment of Rent and Landlord delivers a written
notice to Tenant pursuant to California Code of Civil Procedure
1161(2) (commonly referred to as a 3 Day Notice to Pay Rent or
Quit), then Tenant shall be required to (1) cure such default by
making the payments referred to in the written notice with a
cashier's check payable to Landlord and (2) subject to Tenant
properly curing such default, then all future payments of Rent
during the Lease Term, or any extension thereof, shall be made by
cashier's check payable to Landlord.
Section 3.10 Late Charges. If any payment of Rent due from
Tenant is not received by Landlord within ten (10) days of the due
date two (2) times during any one year of the Lease Term, then Tenant
shall pay to Landlord, in all future instances where the payment of
Rent due from Tenant is not received by Landlord within ten (10) days
of the due date, an additional sum equal to ten percent (10%) of the
amount of the Rent then due ("Late Charge"). The ten (10) day period
during which Landlord agrees to accept the Rent due without the
imposition of a Late Charge shall be referred to herein as the "Grace
Period". Landlord and Tenant agree that the Late Charge is
reasonable under the circumstances existing at the time of the
execution of this Lease and represents a fair and reasonable estimate
of, and is intended to reimburse Landlord for, additional
administrative and other costs that are likely to be incurred by
Landlord by reason of Tenant's failure to pay Rent in a timely
manner. Acceptance of any Late Charge shall not constitute a waiver
of Tenant's default with respect to the overdue amount, nor prevent
or delay Landlord from exercising any of the other rights and
remedies available to Landlord. Landlord and Tenant intend and agree
that (i) Rent is due as and when provided for in this Lease
notwithstanding the existence of the Grace Period and (ii) the Grace
Period shall not affect the definition of a Tenant default (as
provided in Section 19.01 of this Lease) or the exercise of any of
Landlord's remedies in the event of a Tenant default (as provided in
Section 19.02 of this Lease), it being the understanding of Landlord
and Tenant that the Grace Period is solely an agreement that a Late
Charge will not be imposed if the payment of Rent then due and owing
is received by Landlord within the Grace Period.
Section 3.11 Interest on Past Due Obligations. Any amount
owed by Tenant to Landlord which is not paid when due shall bear
interest at the rate of ten percent (10%) per annum (the "Interest
Rate") from the due date of such amount until paid. The payment of
interest on such amounts shall not excuse or cure any default by
Tenant under this Lease. If the Interest Rate specified in this
Lease is higher than the rate permitted by law, then the Interest
Rate shall be decreased to the maximum legal interest rate then
permitted by law.
ARTICLE IV. RECORDS AND BOOKS OF ACCOUNT
Section 4.01 Tenant's Records. Deleted.
Section 4.02 Reports by Tenant. Deleted.
ARTICLE V. AUDIT
Section 5.01 Right to Examine Books. Deleted.
Section 5.02 Audit. Deleted.
ARTICLE VI. CONSTRUCTION AND IMPROVEMENTS
Section 6.01 Lease of Premises AS IS. As of the date of this
Lease, Landlord has already constructed certain improvements within
the Premises. Tenant hereby accepts the existing improvements
within the Premises, accepts the Premises in an "AS IS" condition
and acknowledges and agrees that Landlord shall have no obligation
to construct any additional improvements in, on or about the
Premises.
Section 6.02 Changes and Additions. Landlord reserves the
right at any time and from time to time (a) to make or permit
changes or revisions in its plan for the Shopping Center including
additions to, subtractions from, rearrangements of, alterations of,
modifications of or supplements to the building areas, walkways,
parking areas, driveways or other areas, (b) to construct other
buildings or improvements in Shopping Center and to make alterations
thereof or additions thereto and to build additional stories on any
such building or buildings and to build adjoin same, and (c) to make
or permit changes or revisions in the Shopping Center, including
additions thereto, and to convey portions of the Shopping Center to
others for the purpose of constructing thereon other buildings or
improvements, including additions thereto and alterations thereof;
provided, however, that no such changes, rearrangements or other
construction shall reduce the parking areas provided by Landlord
below the number of parking spaces required by law. Landlord
reserves to itself the right, from time to time, to grant such
easements, rights and dedications that Landlord deems necessary or
desirable, and to cause the recordation of parcel maps and
restrictions, so long as such easements, rights, dedications, maps
and restrictions do not unreasonably interfere with the use of the
Premises by Tenant. Tenant shall sign any such documents upon the
request of Landlord and failure to do so shall constitute a material
breach of this Lease.
Section 6.03 Construction of Premises By Tenant. (a) If
Tenant intends to construct additional improvements within the
Premises, then Tenant shall prepare all plans and working drawings
("Tenant's Plans") for the Tenant's Improvement Work described in
Exhibit E which is attached hereto and made a part hereof and shall
deliver Tenant's Plans to Landlord for Landlord's approval.
Tenant's Plans shall be approved by Landlord prior to submittal to
the City of Gilroy. Tenant is authorized to construct all of the
improvements described in Exhibit E (at Tenant's sole cost and
expense) including the installation of Tenant's trade fixtures
(which shall be new unless otherwise approved in writing by
Landlord) and is further authorized to furnish and install its
exterior sign or signs, which sign or signs shall be subject to
Landlord's prior written approval. All Tenant's Improvement Work
shall be constructed by and under the supervision of a qualified and
licensed general contractor approved in advance by Landlord, which
approval shall not be unreasonably withheld.
(b) In the event that Landlord shall require any
modifications to the plans and specifications referred to in Section
6.03(a) of this Lease, Tenant shall promptly make such modifications
and resubmit them to Landlord for approval. If Tenant fails to
furnish such plans and specifications within the required time
period, or fails to make the modifications as directed by Landlord,
then Landlord may, at its option, either prepare the same and the
cost thereof shall be paid by Tenant to Landlord upon receipt of an
invoice therefor, or cancel this Lease at any time thereafter while
such information has not been so furnished. No deviation from the
final set of plans and specifications, once approved by Landlord,
shall be made by Tenant without Landlord's prior written approval.
Landlord's approval of Tenant's plans or drawings shall create no
liability of Landlord for their completeness, design, sufficiency or
compliance with any laws, rules, regulations or ordinances.
(c) All alterations, additions, and improvements constructed
by Tenant shall be constructed in a good and workmanlike manner, in
conformity with all applicable laws and regulations and by a
contractor approved by Landlord. Tenant shall keep the Premises
free and clear of any liens in accordance with the provisions of
Section 9.02(b) of this Lease. Upon completion of any such work,
Tenant shall provide Landlord with copies of all construction
contracts, "as built" plans approved by the appropriate governmental
agency, building permits and written evidence that all improvements
have been inspected and approved by the appropriate governmental
officials.
Section 6.04 Settlement of Disputes. It is understood and
agreed that any disagreement or dispute which may arise between
Landlord and Tenant with reference to the work to be performed with
respect to the Premises pursuant to Exhibit E shall be submitted to
Landlord's architect, whose decision shall be final and binding on
both Landlord and Tenant.
ARTICLE VII. CONDUCT OF BUSINESS BY TENANT
Section 7.01 Use of Premises. (a) Tenant shall use and
occupy the Premises during the continuance of this Lease solely for
the purpose of conducting the business set forth in Section 1.01(j)
hereof. Tenant acknowledges and agrees that a material consideration
and inducement for Landlord to execute this Lease is Tenant's
agreement to use the Premises for the operation of a bank ("Bank
Use"). Tenant, and any proposed Transferee or Affiliate (as defined
in Section 14.01 of this Lease) shall not use the Premises for any
use other than a Bank Use; provided, however, that Landlord may, in
Landlord's sole and absolute discretion, approve of a non-Bank Use
("Non-Bank Use") if (i) such Non-Bank Use is a retail use and not an
"office" use and (ii) Landlord determines, in Landlord's sole and
absolute discretion, that such Non-Bank Use would be complementary
to the then-existing uses in the Shopping Center and otherwise
complies with the provisions of Article XIV (Assignment and
Subletting) of this Lease.
(b) Tenant acknowledges and agrees that the success of a
project such as the Shopping Center is dependent upon Landlord being
able to maintain, in Landlord's sole and absolute discretion, a
so-called "quality tenant mix," whereby Landlord selects and leases
space in the Shopping Center to quality tenants providing different
services, goods and merchandise to customers, so as to create the
synergism necessary for a successful retail project. Tenant agrees
that neither Tenant, nor Tenant's successors and assigns as
permitted by this lease, shall have the right to change the
permitted Bank Use unless Landlord agrees, in Landlord's sole and
absolute discretion as provided in Section 7.02(a) of this Lease.
(c) Tenant shall keep all portions of the Premises clean at
all times. Tenant shall enforce such rules and regulations with
respect to the Premises as may be promulgated by Landlord from time
to time. Tenant shall not use or permit the use of the Premises in
any manner that will constitute a waste or a nuisance or in any way
interfere with the use and quiet enjoyment of adjoining property
and/or tenants. Tenant shall not do or permit anything on the
Premises that will cause damage to the Premises and Tenant shall be
responsible for the cost to repair any damage caused to the Premises
by Tenant and Tenant's agents. Tenant shall not deposit or store
any materials, supplies, equipment, products or refuse on the
Premises without the prior written consent of Landlord.
(d) No auction, liquidation, going out of business, fire or
bankruptcy sales may be conducted in the Premises. Tenant agrees
that it will conduct its business in the Premises during all hours
established for the Shopping Center by Landlord and will conduct
such business in a lawful manner and in good faith, and will not do
any act tending to injure the reputation of the Shopping Center.
Tenant shall not permit noise or odors in the Premises which are
objected to by any Tenant or occupant of the Shopping Center and
upon written notice from Landlord, Tenant shall immediately cease
and desist from causing such noise or odor, and failing of which
Landlord may deem the same a material breach of this Lease. Tenant
shall not permit the operation of any vending machines, pinball
machines, video games or other amusement devices, or pay telephones
on the Premises unless otherwise approved in writing by Landlord.
Tenant shall not use the areas adjacent to the Premises for business
purposes; provided, however, that Tenant is authorized, subject to
Landlord's prior written consent and compliance with the other terms
of this Lease, to install and maintain an automatic teller machine
("ATM") in a location to be approved by Landlord. Tenant shall be
solely responsible to pay for all expenses related to the
installation, construction, maintenance, repair and/or replacement
of an ATM. Tenant agrees that all receiving and delivery of goods
and merchandise and all removal of merchandise, supplies, equipment,
trash and garbage shall be made only by way of the areas provided
therefore by Landlord. Tenant shall not use or permit the use of
any portion of said Premises as sleeping apartments, lodging rooms,
or for any unlawful purposes. No radio or television or other
similar device shall be installed exterior to the Premises and no
aerial shall be erected on the roof or exterior walls of the
building in which the Premises are located. No merchandise or other
obstruction shall be placed or permitted on the walks immediately
adjoining the Premises. Landlord may direct the use of all pest
extermination contractors at such intervals as Landlord may require.
Section 7.02 Operation of Business. (a) Tenant agrees and
covenants to operate one hundred percent (100%) of the Premises
during the entire term of this Lease unless prevented from doing so
because of fire, accident, or acts of God, and to conduct its
business at all times in a high class and reputable manner,
maintaining at all times a full staff of employees and a full and
compete stock of merchandise.
(b) Tenant shall, at Tenant's sole cost and expense, comply
with all present and future laws, rules, requirements, ordinances,
orders, directions and regulations of any federal, state, city,
municipal or other governmental or lawful authority ("Governmental
Laws") affecting the Premises and the operation of Tenant's business
on the Premises, including but not limited to, any Governmental Laws
pertaining to hazardous materials, safety and any building codes
applicable to the Tenant's Improvement Work. Tenant shall not use
the Premises or permit anything to be done in or about the Property
which will in any way conflict with any Governmental Laws. Tenant
agrees to indemnify, defend and hold Landlord and Landlord's
officers, employees and agents harmless from any cost, liability,
loss, damage or expense, including without limitation those for
legal services, arising out of the breach of Section 7.02 of this
Lease and this indemnity shall survive the termination of this Lease.
(c) (i) Notwithstanding anything contained in this Lease to
the contrary:
(A) Deleted.
(B) Tenant, at its sole cost and expense, shall be
responsible for complying with all applicable provisions of Title
III (hereinafter referred to as "Title III") of the Americans with
Disabilities Act of 1990 (hereinafter referred to as the "ADA"")
relating to: (aa) the physical condition of the Premises, (bb)
Tenant's policies and the operation of its business in or from the
Premises, and (cc) Tenant's employment and employment-related
practices, (2) Landlord shall have no responsibility whatsoever for
compliance with the ADA within the Premises; and (3) Tenant shall
indemnify, defend and hold harmless Landlord from and against any
and all claims, actions, damages, liability, cost and expense,
including reasonable attorney fees, in connection with or resulting
from compliance or non-compliance with the ADA relating to those
matters described in Section 7.02(c)(ii)(B)(1) hereof.
(C) Notwithstanding the foregoing or anything to the
contrary contained in this Lease, Landlord's consent shall not be
required with respect to any work done in and/or alterations to the
Premises by or on behalf of Tenant in order to comply with the ADA;
provided, however, (1) with respect to any such work or alterations
which are structural in nature, Tenant shall give Landlord thirty
(30) days' prior written notice of any such work or alterations and
(aa) such structural work or alterations shall be subject to
Landlord's prior written approval, which shall not be unreasonably
withheld, and (bb) Landlord shall have the option, exercisable by
notice to Tenant within such thirty (30) day period, to perform such
work or alterations at Tenant's cost and expense, (2) at least
thirty (30) days prior to commencing such work or alterations,
Tenant shall provide Landlord with plans and specification for any
such work or alterations, and whether or not Landlord shall exercise
its option to perform such work pursuant to Section 7.02(c)(i)(C)(1)
hereof, Landlord shall have the right to approve the aesthetic
aspects of such work, such approval not to be unreasonably withheld,
and (3) within thirty (30) days after completing such work or
alterations, Tenant shall provide Landlord with as-built drawings of
such work or alterations.
Section 7.03 Care of Premises. Tenant shall keep the
Premises (including the service areas adjacent to the Premises, show
windows and signs) orderly, neat, safe and clean and free from
rubbish, insects, pests and dirt at all times and shall store all
trash and garbage within the Premises and arrange for the regular
pick up of such trash and garbage at Tenants expense. No such trash
or garbage shall be stored in the Premises for in excess of
twenty-four (24) hours. Tenant shall not burn any trash or garbage
at any time in or about the building. If Landlord shall provide any
services or facilities for such pick up, then Tenant shall be
obligated to use the same and shall pay as additional rent a
proportionate share of the actual cost thereof within ten (10) days
after being billed therefore.
ARTICLE VIII. EXPENSES AND COMMON AREA
Section 8.01 Maintenance of Common Area. Landlord agrees to
cause to be operated, managed and maintained during the term of this
Lease the Common Area. The manner in which the Common Area shall be
maintained and operated and the expenditures therefor shall be at
the sole discretion of Landlord and the use of such areas and
facilities shall be subject to such reasonable regulations as
Landlord shall make from time to time. Notwithstanding any other
provision of this Lease, Tenant shall have no right to (i) make any
repairs to the Common Area of the Shopping Center, (ii) make any
repairs to any other buildings located in the Shopping Center or
(iii) replace any portion of the Shopping Center outside of the
Premises.
Section 8.02 Tenant's Share of Expenses. Tenant shall pay to
Landlord in the manner hereinafter provided, but not more often than
once each calendar month, Tenant's proportionate share of all costs
and expenses of every kind and nature paid or incurred by Landlord
in operating, equipping, policing, protecting, lighting, insuring,
repairing, replacing and maintaining all or a portion of the
Shopping Center, including, without limitation, (i) the maintenance,
repair and replacement of the Common Area and all other areas,
facilities, parking lots, paved areas and buildings in the Shopping
Center, (ii) illumination and maintenance of Shopping Center signs,
(iii) cleaning, (iv) lighting, (iv) painting of buildings and
restriping of paved areas, (v) removal of trash and debris, (vi)
landscaping, (vii) repairs and replacements, including roof and
building repairs and replacements, (viii) heating, ventilating and
air conditioning (HVAC) repairs and replacements, (ix) repairs and
replacements of all parking lots and paved surfaces, (x) alarm
systems, (xi) premiums for the liability and property insurance
described in Article XI of this Lease, (xi) plate glass in the
Common Area, (xii) fidelity bonds for employees of Landlord (xiii)
personal property taxes, (xiv) supplies, (xv) holiday decorations,
(xvi) the cost of maintenance and replacement of equipment, (xvii)
the reasonable depreciation of maintenance equipment used in the
operation and maintenance of the Common Area, (xviii) rental for
offsite parking, (xix) total compensation and benefits (including
premiums for worker' compensation and other insurance) paid to or on
behalf of employees involved in the performance of the work
specified in this Section 8.02, (xx) cost of water, utilities and
other services, if any, furnished by Landlord for the non-exclusive
use of tenants; (xxi) parcel pickup and delivery services, (xxii)
the amount of any depreciation reserves as reasonably determined by
Landlord, for the maintenance, repair and/or replacement of any of
the foregoing costs and expenses and (xxiii) an amount equal to
fifteen percent (15%) of the total of all costs incurred in
accordance with Section 8.02 of this Lease to cover Landlord's
administrative cost.
The proportionate share to be paid by Tenant shall initially
be 3.36%, which is 2,670 square feet in a total of 79,385 square
feet. Notwithstanding any other provision of this Lease, Landlord
reserves the right to equitably adjust Tenant's proportionate share
if such adjustment is required, as reasonably determined by
Landlord, in order to fairly apportion and charge Tenant for
Tenant's share of the costs and expenses described herein based on
Tenant's use of the Premises and the actual charges incurred.
Tenants proportionate share of such costs and expenses for
such calendar year and partial calendar year shall be paid in
monthly installments on the first (1st) day of each calendar month,
in advance, in an amount estimated by Landlord. Within ninety (90)
days after the end of each calendar year or partial calendar year,
Landlord shall furnish Tenant with a statement of the actual amount
of Tenants proportionate share of such costs and expenses for such
period. If the total amount paid by Tenant under this Section 8.02
for any calendar year shall be less than the actual amount due from
Tenant for such year as shown on such statement, Tenant shall pay to
Landlord the difference between the amount paid by Tenant and the
actual amount due, such deficiency to be paid within thirty (30)
days after the furnishing of each such statement, and if the total
amount paid by Tenant hereunder for any such calendar year shall
exceed such actual amount due from Tenant for such calendar year,
such excess shall be credited against the next installment due from
Tenant to Landlord under this Section 8.02.
Section 8.03 Use of Common Area. (a) The term "Common
Area," as used in this Lease, shall mean the areas described in
Section 2.04 of this Lease. The use and occupancy by Tenant of the
Premises shall include the use, in common with all others to whom
Landlord has granted or may hereafter grant rights to use the same,
of the Common Area located within the Shopping Center, and of such
other facilities as may be designated from time to time, subject,
however, to rules and regulations for the use thereof as prescribed
from time to time by Landlord. Tenant shall be responsible for
compliance with such rules and regulations by the employees,
servants, agents, visitors and invitees of Tenant.
(b) Landlord may at any time close temporarily any Common
Area to make repairs or changes, to prevent the acquisition of
public rights in such area or to discourage non-customer parking;
and may do such other acts in and to the Common Area as in its
judgment may be desirable to improve the convenience thereof.
(c) Tenant and its employees, subtenants, licensees and
concessionaires shall park their cars only in areas specifically
designated from time to time by Landlord for that purpose.
Automobile license numbers of employees', subtenants', licensees'
and concessionaires' cars shall be furnished to Landlord upon
Landlord's request. In the event Tenant or its employees,
subtenants, licensees concessionaires or their employees fail to
park their automobiles in designated parking areas, then Landlord
may, at its option, charge Tenant and Tenant shall pay to Landlord
as additional rent, Twenty-Five Dollars ($25.00) per day per
automobile in any areas other than those designated as employee
parking and distinguished form public parking areas and/or to have
such automobiles towed from the Shopping Center at Tenant's expense.
(d) Landlord reserves the right, from time to time, to
utilize portions of the Common Area for carnival type shows, rides
and entertainment, outdoor shows, displays, automobile and other
product shows, the leasing of kiosks, or such other uses which, in
Landlord's judgment, tend to attract the public. Further, Landlord
reserves the right to utilize the lighting standards and other areas
in the parking lot for advertising purposes.
ARTICLE IX. ALTERATIONS AND SIGNS
Section 9.01 Installation by Tenant. Tenant shall not make
or cause to be made any alterations, additions or improvements to
the Premises, or install or cause to be installed any exterior
signs, floor covering, interior or exterior lighting, plumbing
fixtures, shades, canopies or awnings or make any changes to the
storefront, mechanical, electrical or sprinkler systems without the
prior written approval of Landlord. Tenant shall present to
Landlord plans and specifications for such work at the time approval
is sought. At least twenty (20) days prior to the commencement of
any such alterations, additions or improvements pursuant to this
Section 9.01, Tenant shall notify Landlord, so that Landlord may
record and post notices of non-responsibility. Notwithstanding the
foregoing, Tenant may, without Landlord's consent, make interior
non-structural alterations in and to the Premises which are
consistent in quality, color and decor to the plans and
specifications previously approved by Landlord; provided that (a)
the cost thereof does not exceed Five Thousand Dollars ($5,000.00)
during any Lease Year, and (b) electrical, plumbing and HVAC systems
and the storefront shall be deemed structural for purposes of the
foregoing.
Section 9.02 Removal of Improvements. (a) Landlord may, at
Landlord's option and in Landlord's sole and absolute discretion,
require Tenant, at Tenant's sole cost and expense, to remove any
alterations, additions, or improvements upon termination of the
Lease and to restore the Premises to a "vanilla shell" condition.
As used in this Lease, the term "vanilla shell" means (i) the
removal of all floor coverings, (ii) the removal of all wall
coverings and the walls are ready for paint, (iii) the removal of
all interior, non-structural partition walls, (iv) the repair and/or
replacement of any damaged T-Bar ceiling and/or ceiling tiles and
(v) the repair of any damaged caused by the foregoing items. Tenant
acknowledges that restoring the Premises to a "vanilla shell"
condition will involve the removal of certain interior improvements
that were constructed by the former tenant and Tenant agrees to do
so as provided herein. All alterations, additions and improvements
which Landlord has not required Tenant to remove shall become
Landlord's Property and shall be surrendered to Landlord upon
termination of the Lease, except that Tenant may remove any of
Tenant's machinery or equipment which can be removed without
material damage to the Property. Tenant shall repair, at Tenant's
sole cost and expense, any damage to the Premises and/or Property
caused by the removal of any such machinery or equipment. In no
event, however, shall Tenant remove any of the following materials
or equipment without Landlord's prior written consent: any power
wiring, power panels or electrical distribution systems, security
systems, heaters, air conditioners or any other heating or air
conditioning equipment. Tenant shall, at its cost and expense,
repair any damage to the Premises or the Shopping Center by such
removal, including restoring the sign fascia to its original
condition and capping off all utilities
(b) Tenant shall pay, when due, all claims for labor or
materials furnished for Tenant at or for use in the Premises, which
claims are or may be secured by any mechanic's or materialman's lien
against the Premises or any interest therein. Tenant shall keep the
Premises free from any liens arising out of any work performed,
materials furnished, or obligations incurred by or on behalf of
Tenant. Upon completion of the improvements, Tenant shall provide
Landlord with proof of payment and lien releases for all labor and
materials. Tenant shall protect, defend, indemnify and hold
Landlord harmless from all liability and cost, including attorneys'
fees, incurred in connection with or arising out of any such lien or
claim of lien as described in the paragraph. In the event Tenant
fails to remove any liens against the Premises, then Landlord may do
so and Tenant shall reimburse Landlord for all reasonable costs
incurred, including attorney's fees.
Section 9.03 Signs. Tenant will not place or cause to be
placed or maintained any sign or advertising matter of any kind
anywhere within the Shopping Center, except in the interior of the
Premises, without Landlord's prior written approval and no
handwritten signs shall be permitted. No symbol, design, name, ▇▇▇▇
or insignia adopted by Landlord for the Shopping Center shall be
used without the prior written consent of Landlord. No illuminated
signs located in the interior of the Premises and which are visible
from the outside shall be permitted without Landlord's prior written
approval. All signs located in the interior of the Premises shall
be professionally prepared and in good taste so as not to detract
from the general appearance of the Premises and the Shopping
Center. Tenant further agrees to maintain in good condition and
repair at all times any such sign or advertising matter of any kind
which has been approved by Landlord for use by Tenant. Tenant's
storefront sign shall comply with the sign criteria set forth in
Exhibit F, which is attached hereto and made a part hereof, and
shall be subject to Landlord's prior written approval. Tenant shall
comply with all applicable Governmental Laws pertaining to signage
at the Premises and/or Shopping Center.
ARTICLE X. MAINTENANCE OF PREMISES
Section 10.01 Landlord's Obligations for Maintenance. (a)
Landlord shall, subject to reimbursement from Tenant as provided in
Section 8.02 of this Lease, keep and maintain the foundation,
exterior walls and roof of the building in which the Premises are
located and the structural portions of the Premises which were
originally installed by Landlord, exclusive of store fronts, plate
glass windows, doors, door frames, door closure devices, windows,
and window frames, in good repair except that Landlord shall not be
called upon to make any such repairs occasioned by the act or
negligence of Tenant, its agents, employees, invitees, licensees or
contractors, except to the extent that Landlord is reimbursed
therefor under any policy of insurance permitting waiver of
subrogation in advance of loss. In the event that the Premises
should require maintenance or repairs for which Landlord is
responsible hereunder, Tenant shall give immediate written notice
thereof to Landlord and Landlord shall not be responsible in any way
for failure to perform any such maintenance or make any such repairs
until a reasonable time shall have elapsed after receipt of such
written notice by Landlord.
(b) Landlord may, at Landlord's option and subject to
reimbursement from Tenant as provided in Section 8.02 of this Lease,
contract for, in its own name, a qualified service contractor to
inspect, adjust, clean and repair heating, ventilating and air
conditioning (HVAC) equipment, including changing filters on a
regular basis. The service contract shall include all services
suggested by the equipment manufacturer within the
operation/maintenance manual and shall become effective within
thirty (30) days of the date Tenant takes possession of the
Premises. If Landlord so elects, Tenant shall be responsible, at
Tenant's sole cost and expense, to maintain the HVAC equipment and
system as described herein and shall (i) deliver to Landlord a copy
of Tenant's current service contract from time to time during the
term of this Lease, (ii) from time to time upon Landlord's request
furnish proof reasonably satisfactory to Landlord that all such
system and equipment are being serviced in accordance with the
maintenance/service contract and (ii) within the thirty (30) day
period preceding moveout by Tenant, Tenant shall have the HVAC
systems and equipment checked and serviced to ensure proper
functioning and shall furnish Landlord satisfactory proof thereof
upon request.
Section 10.02. Tenant's Obligations for Maintenance. (a)
Except as provided in Section 10.01(a) and 10.01(b) of this Lease,
Tenant, at Tenant's expense, shall keep and maintain in good order,
condition and repair (including replacement of parts, equipment and
cracked or broken glass) the Premises and every part thereof and any
and all appurtenances thereto wherever located, including, but
without limitation, the exterior and interior portion of all doors,
door frames, door checks, windows, window frames, plate glass,
storefront, all plumbing and sewage facilities within the Premises,
including free flow up to the main sewer line, fixtures, HVAC
equipment and systems (if Landlord so elects as provided herein),
electrical systems, sprinkler system, walls, floors and ceilings.
(b) Tenant shall keep and maintain, at Tenant's sole cost
and expense, the Premises in a clean, sanitary and safe condition in
accordance with all applicable Governmental Laws. If Tenant refuses
or neglects to commence and to complete repairs promptly and
adequately, Landlord may, but shall not be required to do so, make
and complete said repairs and Tenant shall pay the cost thereof to
Landlord as Additional Rent upon demand. Subject to Section 9.02 of
this Lease, upon termination of this Lease, Tenant shall surrender
the Premises in good condition, reasonable wear and tear excepted.
Any damage or injury sustained by any person because of mechanical,
electrical, plumbing or any other equipment or installations, whose
maintenance and repair shall be the responsibility of Tenant shall
be paid for by Tenant and Tenant shall indemnify and hold harmless
Landlord from and against all claims, actions, damages and liability
in connection therewith, including, but not limited to, attorneys'
and other professional fees, and any other costs which Landlord
might reasonably incur, which indemnity shall survive the
termination of this Lease.
(c) Deleted.
(d) Tenant, at its own expense, shall install and maintain
fire extinguishers and other fire protection devices as may be
required from time to time by any agency having jurisdiction thereof
an the insurance underwriters insuring the building in which the
Premises are located.
(e) Tenant hereby waives the benefit of any present or
future law, including without limitation California Civil Code
Sections 1941 and 1942, which may give Tenant the right to repair
the Premises at Landlord's expense or to terminate his Lease due to
a condition of the Premises or the building of which it is a part.
ARTICLE XI. INSURANCE AND INDEMNITY
Section 11.01 Landlord's Insurance. (a) During the Lease
Term, Landlord shall obtain and maintain a Commercial General
Liability policy of insurance insuring Landlord against liability
arising out of the ownership, use, occupancy or maintenance of the
Property in an amount not less than Two Million Dollars
($2,000,000).
(b) Landlord also agrees to carry, during the Lease Term or
any extension thereof, all risk property insurance covering fire and
extended coverage, vandalism and malicious mischief, sprinkler
leakage and such other perils of direct physical loss or damage (as
are from time to time covered under an all risk insurance policy)
insuring the Shopping Center and the building in which the Premises
is located (but excluding Tenant's personal property, equipment,
furniture and fixtures) in an amount reasonably determined by
Landlord but not less than an amount equal to ninety percent (90%)
of the replacement cost of such improvements excluding foundations
and excavations. In addition, Landlord may, in Landlord's sole
discretion, elect to carry (i) earthquake insurance, (ii) flood
insurance and (iii) rental income insurance not to exceed one (1)
year's Rent. Landlord, upon Tenant's request, shall furnish Tenant
a certificate of such Landlord's Property Insurance.
11.02 Tenant's Insurance. (a) Tenant shall obtain and
maintain in full force and effect at all times during the term of
the Lease, a Commercial General Liability policy of insurance
protecting Tenant and Landlord (as an additional insured) against
claims for bodily injury, personal injury and property damage based
upon, involving, or arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such
insurance shall be on an occurrence basis providing single limit
coverage in an amount not less than Two Million Dollars ($2,000,000)
per occurrence with an "Additional Insured-Managers or Lessors of
Premises" Endorsement and contain the "Amendment of the Pollution
Exclusion" for damage caused by heat, smoke or fumes from a hostile
fire. The policy shall not contain any intra-insured exclusions as
between insured persons or organizations but shall include coverage
for liability assumed under this Lease as an "insured contract" for
the performance of Tenant's indemnity obligations under this Lease.
The limits of the insurance required by this Lease or as carried by
Tenant shall not limit the liability of Tenant nor relieve Tenant of
any obligation hereunder. All insurance to be carried by Tenant
shall be primary to and not contributory with any similar insurance
carried by Landlord, whose insurance shall be considered excess
insurance only. Landlord shall be named as an additional insured on
Tenant's insurance policy. Tenant shall provide a certificate to
Landlord duly issued by the insurer verifying that such insurance is
in full force and effect not later than thirty (30) days after
receipt of Landlord's written request.
(b) Tenant shall be responsible for the maintenance and
repair of the plate glass in or on the Premises and may elect to
obtain such insurance at Tenant's expense.
(c) Tenant, at its expense, shall carry worker's
compensation insurance in compliance with California law.
(d) Tenant shall not carry any stock of goods or do anything
in or about the Premises which will in any way tend to increase the
insurance rates or invalidate any insurance policy on the Premises
and/or the building of which they are a part. If Tenant installs
any electrical equipment that overloads the lines in the Premises,
Tenant shall at its own expense make whatever changes are necessary
to comply with the requirements of the insurance underwriters and
governmental authorities having jurisdiction. Tenant shall pay as
additional rent, upon demand of Landlord, any such increased premium
cost due to Tenant's use or occupancy of the Premises. All property
kept, stored or maintained within the Premises by Tenant shall be at
Tenant's sole risk.
Section 11.03 Tenant's Contractor's Insurance. Tenant shall
require any contractor of Tenant performing work on the Premises to
take out and keep in force, at no expense to Landlord, comprehensive
general liability insurance and business auto liability insurance,
including contractor's liability coverage, employer's liability
coverage, contractual liability coverage, completed operations
coverage, broad form property damage endorsement and contractor's
protective liability coverage, to afford protection to the limit,
for each occurrence, of not less than Two Million Dollars
($2,000,000) with respect to personal injury or death and One
Million Dollars ($1,000,000) with respect to property damage; and
(b) worker's compensation or similar insurance in form and amounts
required by law. Tenant's contractor shall be required to maintain
such other and additional insurance coverage as reasonably
determined by Landlord.
Section 11.04 Policy Requirements. The company or companies
writing any insurance which Tenant is required to take out and
maintain or cause to be taken out or maintained pursuant to this
Lease, as well as the form of such insurance shall at all times be
subject to Landlord's approval and any such company or companies
shall be licensed to do business in the State. Each policy
evidencing such insurance shall name Landlord and/or its designee as
additional insured(s) and shall also contain a provision by which
the insurer agrees that this policy shall not be canceled except
after thirty (30) days written notice to Landlord or its designee.
A copy of each paid up policy evidencing such insurance or a
certificate of insurance certifying to the issuance of such policy
shall be delivered to Landlord prior to commencement of Tenant's
work on the Premises and upon renewals not less than thirty (30)
days prior to the expiration of such coverage. If Tenant shall fail
to perform any of its obligations under this Article XI, Landlord
may, but shall not be obligated to, perform the same and the cost of
same shall be deemed Additional Rent and shall be payable upon
Landlord's demand.
Section 11.05 Waiver of Subrogation. Each party hereby
releases and discharges the other party, and waives any and all
rights of recovery against the other party, or against the officers,
employees, agents or representatives of the other party, for any
liability arising from loss, damage or injury caused by fire or
other casualty if such loss, damage or injury is covered by any
insurance policy in force at the time of such loss, damage or
injury. Upon obtaining the policies of insurance described herein,
Landlord and Tenant shall give notice to the insurance carrier or
carriers of this mutual waiver of subrogation.
Section 11.06 Tenant's Indemnity. Tenant covenants to
protect, defend, indemnify and hold harmless Landlord and Landlord's
successors, assigns, representatives, officers, employees and agents
from and against any and all liabilities, losses, claims, damages,
lost profits, consequential damages, interest, penalties, fines,
monetary sanctions, personal injuries, property damage, attorney's
fees, experts fees and court costs which result from or arise in any
manner whatsoever out of (i) any breach of and/or default by Tenant
or Tenant's successors and assigns in the performance of any of
Tenant's obligations under this Lease and (ii) any damage to person
or property sustained by any person or persons arising out of or in
consequence of the performance of this Lease, provided such injuries
to persons or damage to property are due to the negligence or
willful misconduct of Tenant, its agents, employees, servants,
licensees, contractors or invitees. In case Landlord shall, without
fault on its part, be made a party to any litigation commenced by or
against Tenant, then Tenant shall protect and hold it harmless and
shall pay all costs, expenses and reasonable attorneys' fees
incurred or paid by Landlord in connection with such litigation.
Tenant shall also pay all costs, expenses and reasonable attorneys'
fees that may be incurred in enforcing Tenant's covenants and
agreements in this Lease.
Section 11.07 Landlord's Indemnity. Landlord hereby agrees to
protect, defend, indemnify and hold Tenant harmless from and against
any and all claims, demands, liabilities, losses and expenses,
including attorney's fees, arising from the use, operation or
maintenance by Landlord (or Landlord's contractors, licensees,
agents or employees) of the Shopping Center, provided such injuries
to persons or damage to property are due to the negligence or
willful misconduct of Landlord, its agents, employees, servants,
licensees, contractors or invitees. In the event any action or
proceeding shall be brought against Tenant by reason of any such
claim or demand, Landlord shall defend the same at Landlord's
expense by counsel reasonably satisfactory to Tenant. Except as
otherwise provided herein, Landlord shall not be liable for any
damage or injury to the person, business, goods, wares, merchandise
or other property of Tenant, Tenant's employees, invitees, customers
or any other person in or about the Premises regardless of the
reason for the damage or injury.
Section 11.08 Survival of Indemnities. The indemnities set
forth in Sections 11.06 and 11.07 of this Lease shall survive the
termination of the Lease.
ARTICLE XII. UTILITIES
Section 12.01. Utility Charges. Tenant shall be solely
responsible for and promptly pay all charges for water, gas, heat,
electricity, sewer, refuse disposal and any other utility used upon
or furnished to the Premises. If Tenant shares with other tenant's
of the Shopping Center a common meter for utility service, then
Tenant's share of the charges for such utility service shall be
reasonably and equitably determined by Landlord. Notwithstanding
any other provision of this Lease, Landlord reserves the right to
equitably adjust charges for utilities, refuse disposal and/or other
utilities and services provided or supplied to the Premises based on
Tenant's use of the Premises as reasonably determined by Landlord
and Tenant agrees to pay such charges as Additional Rent. The
obligation of Tenant to pay for such utilities shall commence as of
the date on which possession of the Premises is delivered to
Tenant. Tenant shall be responsible for payment of all connection
and use charges and fees imposed by any governmental units or any
public or private utility in connection with utility services to the
Premises.
Section 12.02 Discontinuance and Interruption of Utility
Services. Landlord shall not be liable to Tenant in damages or
otherwise (a) if any utility shall become unavailable from any
public or private utility company, public authority or any other
person or entity (including Landlord) supplying or distributing such
utility, or (b) for any interruption in a utility service
(including, without limitation, any heating, ventilation or air
conditioning) caused by the making of any necessary repairs or
improvements or by any cause beyond Landlord's reasonable control,
and the same shall not constitute a termination of this Lease or an
eviction of Tenant.
ARTICLE XIII. OFF-SET STATEMENT, ATTORNMENT AND SUBORDINATION
Section 13.01 Off-Set Statement. Tenant agrees within ten
(10) days after request therefor by Landlord to execute in
recordable form and deliver to Landlord a statement, in writing,
certifying to Landlord and/or any party designated by Landlord (a)
that this Lease is in full force and effect, (b) the date of
commencement of the term of this Lease, (c) that Rent is paid
currently without any off-set or defense thereto, (d) the amount of
Rent, if any, paid in advance, (e) that there are no uncured
defaults by Landlord or stating those claimed by Tenant, provided
that, in fact, such facts are accurate and ascertainable, and (f)
any other information reasonably requested by Landlord.
Section 13.02 Attornment. In the event any proceedings are
brought for the foreclosure of, or in the event of the conveyance by
deed in lieu of foreclosure of, or in the event of exercise of the
power of sale under, any mortgage made by Landlord covering the
Premises, Tenant hereby attorns to, and covenants and agrees to
execute an instrument in writing reasonably satisfactory to the new
owner whereby Tenant attorns to such successor in interest and
recognizes such successor as the Landlord under this Lease.
Section 13.03. Subordination. Tenant agrees that this Lease
shall be subordinate to any first mortgages or deeds of trust that
may be placed upon the Premises before or after the date hereof and
to any and all advances to be made thereunder, and to the interest
thereon, and all renewals, replacements and extensions thereof;
provided, however, that so long as Tenant is not in default of any
of its obligations under this Lease, Tenant's tenancy and Tenant's
rights under this Lease shall not be disturbed, nor shall this Lease
be affected by any default under such mortgage or deed of trust and
any successor to Landlord shall be bound by and agrees to recognize
this Lease and to perform all of the obligations under this Lease
required to be performed by Landlord. Tenant also agrees that any
mortgagee or trustee may elect to have this Lease constitute a prior
lien to its mortgage or deed of trust, and in the event of such
election and upon notification by such mortgagee or trustee to
Tenant to that effect, this Lease shall be deemed a prior lien to
the said mortgage or deed of trust, whether this Lease is dated
prior to or subsequent to the date of said mortgage or deed of
trust. Tenant agrees, that upon the request of Landlord, any
mortgagee or any trustee, it shall execute whatever instruments may
be required to carry out the intent of this Section 13.03.
Section 13.04 Modifications to Lease. If in the connection
with obtaining financing for the Shopping Center the proposed lender
shall request reasonable modifications of this Lease as a condition
of such financing, Tenant covenants not to withhold or delay
unreasonably its agreement to such modifications, provided that such
modifications do not materially increase the obligations, or
materially and adversely affect the rights of Tenant under this
Lease.
Section 13.05 Waiver. Tenant hereby waives the protection of
any statute or rule of law which gives or purports to give Tenant
any right to terminate this Lease or surrender possession of the
Premises upon a transfer of Landlord's interest in the Shopping
Center and/or this Lease.
ARTICLE XIV. ASSIGNMENT AND SUBLETTING
Section 14.01 Assignment and Subletting.
(a) Except as provided in Section 14.02 of this Lease,
Tenant shall have no right to assign, sublet, mortgage, pledge or
otherwise transfer or encumber any portion of the Premises or of
Tenant's interest in this Lease, either voluntarily or by operation
of law, in whole or in part (collectively referred to herein as a
"Transfer"), without the prior written consent of Landlord, which
consent shall not be unreasonably withheld; provided, however, that
any Transfer that proposes to use the Premises for a Non-Bank Use
must be approved by Landlord, in Landlord's sole and absolute
discretion, as provided in Section 7.01(a) of this Lease. Any
person or entity to whom any Transfer is made or sought to be made
is a "Transferee". Any attempted assignment, subletting or Transfer
of the Property or of Tenant's interest in this Lease without
Landlord's prior written consent shall be null and void and shall,
at the option of Landlord, terminate this Lease.
(b) In connection with any proposed Transfer, Tenant shall
submit to Landlord in writing ("Tenant's Transfer Notice") the
following information:
(i) The name, address and legal composition of the
proposed Transferee,
(ii) The financial responsibility of the proposed
Transferee,
(iii) The proposed Transferee's intended use for the
Property so that Landlord may determine the suitability of
that use, in Landlord's sole and absolute discretion, in the
Premises as provided in Section 7.02(a) of this Lease,
(iv) Any alterations that must be made to the Premises
to accommodate the proposed Transferee,
(v) Written consent by the proposed Transferee of all
of the terms and conditions of this Lease Agreement,
(vi) All of the terms and conditions upon which the
proposed assignment, subletting or other transfer is to be
made, and
(vii) The types and quantities of hazardous materials,
if any, intended to be used by the proposed Transferee on the
Premises.
In the case of an assignment, then the Transferee shall execute and
deliver to Landlord an assignment agreement in form and content
reasonably satisfactory to Landlord and assignee shall (A) assume
all of Tenant's obligations under the Lease, (B) agree to be bound
by all of the provisions of the Lease and (C) agree to perform all
of the obligations of Tenant under the Lease as a direct obligation
to Landlord from and after the effective date of the assignment. In
the case of a sublease, then the Transferee shall execute a sublease
in form and content reasonably satisfactory to Landlord and shall
comply with the provisions of Section 14.01(f) of this Lease.
(c) In the case of a Transfer in which the Premises will
continue to be used for a Bank Use, Landlord shall have reasonable
grounds upon which to withhold its consent to an assignment or
sublease, including, but not limited to, the following:
(i) At the time that Landlord receives Tenant's
Transfer Notice, Tenant is in default of its obligations under
the Lease Agreement and Landlord reasonably believes that such
default would not be cured as a result of the proposed
assignment or sublease,
(ii) Based upon a review of Tenant's Transfer Notice,
Landlord or Landlord's lender determine that the proposed
Transferee presents an unwarranted risk due to the proposed
use of hazardous materials on the Premises,
(iii) Landlord or Landlord's lender determines that the
financial condition of the proposed Transferee does not meet
relevant standards for tenants of comparable facilities, and
(iv) The sublease does not comply with the provisions
of Section 14.01(f) of this Lease.
In the case of a Transfer in which the Premises are proposed to be
used for a Non-Bank Use, the provisions of Section 7.01(a) of this
Lease shall apply.
(d) Tenant shall be required to deliver the Tenant's
Transfer Notice to Landlord at least forty-five (45) days prior to
the proposed commencement date of the Transfer. Landlord shall
either approve or disapprove Tenant's request in writing within
fifteen (15) days of receiving Tenant's Transfer Notice. In the
event that Landlord does not respond within such fifteen (15) day
period, then Tenant's request for the proposed Transfers shall be
deemed approved.
(e) No assignment, sublease or other Transfer shall release
Tenant of Tenant's obligations hereunder or alter the primary
liability of Tenant to pay Rent and other payments required
hereunder and to perform all other obligations required to be
performed by Tenant under this Lease Agreement. The acceptance of
Rent by Landlord from any other person or entity shall not be deemed
to be a waiver by Landlord of any provision set forth herein.
Consent to one Transfer shall not be deemed a waiver of the
necessity for consent to any subsequent Transfer. In the event of
any default by any assignee, sublessee or other Transferee, by
Tenant or any successor of Tenant, in the performance of any of the
terms of this Lease, then Landlord may proceed directly against
Tenant without the necessity of exhausting remedies against the
assignee, sublessee, Transferee or other successor of Tenant.
(f) Landlord reserves the right to approve the form of any
sublease to be executed by Tenant and such sublease shall include,
without limitation, the following provisions: (i) the sublease is
subject to all of the terms and conditions of this Lease, (ii) the
sublease will terminate if this Lease is terminated, (iii) the
subtenant will not permit any act or omission to act in, on or about
the Premises that will violate any of the provisions of this Lease
and (iv) subtenant will obtain and maintain all liability insurance
described in this Lease which is required to be obtained and
maintained by Tenant and shall name Landlord as an additional
insured on all such policies.
Section 14.02 Transfers to Affiliates.
(a) Landlord Consent Not Required. In connection with
any proposed Transfer, Landlord's consent shall not be required for
any Transfer to an Affiliate, as defined herein, as long as the
following conditions are satisfied: (i) at least fifteen (15) days
before the Transfer, Landlord receives written notice of the
Transfer (as well as any documents or information reasonably
requested by Landlord regarding the Transfer and the Affiliate),
(ii) if the Transfer is an assignment, the Affiliate executes and
delivers to Landlord an assignment which satisfies the provisions of
Section 14.01(b) of this Lease, and (iii) if the Transfer is a
sublease, the Affiliate executes a sublease which satisfies the
provisions of Section 14.01(f) of this Lease.
(b) Affiliate Defined. For purposes of this Lease,
the term "Affiliate" means any entity that controls, is controlled
by or is under common control with Tenant, provided that such entity
satisfies the Net Worth requirement set forth in Section 14.02(b) of
this Lease, or (b) any entity with which Tenant may merge,
consolidate or become affiliated as a parent, subsidiary, holding
company or otherwise, provided that such acquiring entity, combined
entity or surviving entity (if other than Tenant), as applicable,
shall have a net worth, as evidenced by financial statements
delivered to Landlord and certified by an independent CPA in
accordance with GAAP ("Net Worth"), at least equal to Tenant's Net
Worth either immediately before the Transfer or as of the date of
this Lease, whichever is greater. "Control" means the direct or
indirect ownership of more than fifty percent (50%) of the voting
securities of an entity or possession of the right to vote more than
fifty percent (50%) of the voting interest in the ordinary direction
of the entity's affairs.
Section 14.03 Recapture. Notwithstanding any other provision
of this Lease, except as otherwise provided in Section 14.02
(Transfer to Affiliates), for a period of thirty (30) days following
Landlord's receipt of Tenant's Transfer Notice, Landlord shall have
the right by written notice to Tenant, to terminate this Lease
("Landlord's Termination Notice"), such termination to be effective
as of the last day of the month following the date that Landlord
delivers to Tenant the Landlord's Termination Notice. If Landlord
so terminates this Lease, then Landlord may, if Landlord so elects,
enter into a new lease with the proposed Transferee on such terms
and conditions as Landlord and such proposed Transferee may agree or
enter into a new lease covering the Premises with any other person
or entity; in such event, Tenant shall not be entitled to any
portion of the profit, if any, which Landlord may realize on account
of such termination and reletting. From and after the date of such
termination of this Lease, Tenant shall have no further obligation
to Landlord hereunder, except for matters occurring or obligations
arising hereunder prior to the date of such termination.
ARTICLE XV. WASTE
Section 15.01 Waste or Nuisance. Tenant shall not commit or
suffer to be committed any waste upon the Premises or any nuisance
or other act or thing which may disturb the quiet enjoyment of any
other tenant in the building in which the Premises may be located,
or in the Shopping Center. Tenant shall not use or permit to be
used, any medium that might constitute a nuisance, such as loud
speakers, sound amplifiers, phonographs, radios, televisions, or any
other sound producing device which will carry sound outside the
Premises.
Section 15.02 Hazardous Materials. Tenant and Tenant's
employees, agents, contractors and invitees shall not use, store or
bring onto the Shopping Center or within, upon or under the Premises
any toxic or hazardous materials (collectively referred to herein as
"Hazardous Materials") without the prior written consent of
Landlord. Tenant shall indemnify, defend upon demand with counsel
reasonably acceptable to Landlord, and hold harmless Landlord from
and against any and all (i) liabilities, losses, claims, damages,
lost profits, consequential damages, interest, penalties, fines,
monetary sanctions, attorneys' fees, experts fees and courts costs
and (ii) reasonably incurred remediation costs, investigation costs
and other expenses which result from or arise in any manner
whatsoever out of the use, storage or disposal of Hazardous
Materials in, on, under or about the Premises by Tenant, its agents,
employees, contractors, or invitees. As used herein, the term
"Hazardous Materials" means any substance, material or waste which
is or shall become regulated by a local governmental authority, the
State of California, the United States government or any other
federal, state or local law, ordinance, regulation or order
regulating Hazardous Materials. The obligations and indemnity of
Tenant as set forth in Section 15.02 of this Lease shall survive the
termination of this Lease.
ARTICLE XVI. ADVERTISING
Section 16.01 Change of Name. Tenant agrees (a) to operate
its business in the Premises under the name set forth in Section
1.01(k) hereof, so long as the same shall not be held to be in
violation of any applicable law, and (b) not to change the
advertised name or character of the business operated in the
Premises without the prior written approval of Landlord, and (c) to
refer to the Shopping Center by its name in designating the location
of the Premises in all newspaper and other advertising and in all
other references to the location of the Premises.
Section 16.02 Solicitation of Business. Tenant and Tenant's
employees and agents shall not solicit business in the parking or
other Common Area, nor shall Tenant distribute any handbills or
other advertising matter in the parking area or in other Common
Areas.
Section 16.03 Advertising and Promotional Program. Landlord
may, but shall not be required to, establish an Advertising and
Promotional Program (hereinafter referred to as the "Program") to
furnish and maintain advertising and sales promotions, which in
Landlord's sole judgment, will benefit the Shopping Center from time
to time. If Tenant, at Tenant's option, elects to participate in
the Program, then during each Lease Year, Tenant shall pay to
Landlord, in monthly installments in advance, its proportionate
share of the costs of the Program as determined by Landlord from
time to time in Landlord's sole and absolute (hereinafter referred
to as the "Annual Promotional Charge").
ARTICLE XVII. DESTRUCTION OF PREMISES
Section 17.01 Partial Damage to Premises. Tenant shall
notify Landlord in writing immediately upon the occurrence of any
damage to the Premises and the following provisions shall apply:
(a) If the Premises is only partially damaged and if the
proceeds received by Landlord from the insurance policies are
sufficient to pay for the necessary repairs, this Lease shall remain
in effect and Landlord shall repair the damage as soon as reasonably
possible. Landlord may elect, but shall not be obligated, to repair
any damage to Tenant's fixtures, equipment, or improvements.
(b) If the insurance proceeds received by Landlord are not
sufficient to pay the entire cost of repair, or if the cause of the
damage is not covered by the insurance policies which Landlord
maintains, Landlord may elect either to (1) repair the damage as
soon as reasonably possible, in which case this Lease shall remain
in full force and effect, or (2) terminate this Lease as of the date
the damage occurred. Landlord shall notify Tenant within forty-five
(45) days after receipt of notice of the occurrence of the damage,
whether Landlord elects to repair the damage or terminate the Lease.
(c) If Landlord elects to terminate this Lease, Tenant may
elect to continue this Lease in full force and effect, in which case
Tenant shall repair any damage to the Premises and the Building in
which the Premises is located. Tenant shall pay the cost of such
repairs, except that, upon satisfactory completion of such repairs,
Landlord shall deliver to Tenant any insurance proceeds received by
Landlord for the damage repaired by Tenant. Tenant shall give
Landlord written notice of such election within ten (10) days after
receiving Landlord's termination notice.
(d) If the damage to the Premises occurs during the last six
(6) months of the lease term, Landlord may elect to terminate this
Lease as of the date the damage occurred, regardless of the
sufficiency of any insurance proceeds. In such event, Landlord
shall not be obligated to repair or restore the Premises and Tenant
shall have no right to continue this Lease. Landlord shall notify
Tenant of its election within thirty (30) days after receipt of
notice of the occurrence of the damage.
Section 17.02 Total or Substantial Destruction. If the
Premises is totally or substantially destroyed by any cause
whatsoever, or if the Premises is in a building which is
substantially destroyed (even though the Premises is not totally or
substantially destroyed), this Lease shall terminate as of the date
the destruction occurred regardless of whether Landlord receives any
insurance proceeds. However, if the Premises can be rebuilt within
one (1) year after the date of destruction, Landlord may elect, but
shall not be obligated, to rebuild the Premises at Landlord's own
expense, in which case this Lease shall remain in full force and
effect. Landlord shall notify Tenant of such election within sixty
(60) days after the occurrence of such total or substantial
destruction.
Section 17.03 Temporary Reduction of Rent. If the Premises
is destroyed or damaged and Landlord or Tenant repairs or restores
the Premises pursuant to the provisions of this Article XVII, any
Rent payable during the period of such damage, repair and/or
restoration shall be reduced according to the degree, if any, to
which Tenant's use of the Premises is impaired, as reasonably
determined by Landlord. Except for such possible reduction in Rent,
Tenant shall not be entitled to any compensation, reduction, or
reimbursement from Landlord as a result of any damage, destruction,
repair, or restoration of or to the Premises.
Section 17.04 Waiver. Tenant waives the provisions of Civil
Code Section 1932(2) and Civil Code Section 1933(4) with respect to
any destruction of the Premises. Tenant agrees that the provisions
of Section 17.02 of this Lease shall govern the rights and
obligations of Landlord and Tenant in the event of any substantial
or total destruction to the Premises.
ARTICLE XVIII. EMINENT DOMAIN
Section 18.01 Condemnation. If any portion of the Premises
is taken under the power of eminent domain or sold under the threat
of that power (referred to herein as "Condemnation"), this Lease
shall remain in effect and the Rent shall be reduced
proportionately; provided, however, that in the event the
Condemnation affects more than twenty (20%) of the Premises, then
this Lease shall terminate. Each party waives the provisions of
California Code of Civil Procedure Section 1265.130 allowing either
party to petition the superior court to terminate this Lease in the
event of a partial taking of the Premises. Any Condemnation award
or payment shall be distributed as follows: (i) to Tenant, only the
amount of any award specifically designated for loss of or damage to
Tenant's trade fixtures or removable personal property and (ii) to
Landlord, the remainder of any award, whether such award is made as
compensation for diminution in value of the leasehold or the taking
of the fee, or as severance damages, or otherwise. If this Lease is
not terminated as set forth above, Landlord shall only be obligated
to repair any damage to the Premises caused by the condemnation to
the extent of any proceeds actually received by Landlord. Landlord
shall not be obligated to repair any damage for which Tenant has
been reimbursed by the condemning authority. If the severance
damages received by Landlord are not sufficient to pay for such
repair, then Tenant shall pay any amount in excess of such severance
damages required to complete the repair.
ARTICLE XIX. DEFAULT AND REMEDIES
Section 19.01 Default by Tenant. The occurrence of any one
or more of the following events shall constitute a material default
and breach of this Lease by Tenant:
(a) Failure by Tenant to make any payment of monthly Base
Rent or Additional Rent, as and when due, where such failure shall
continue for a period of five (5) days from the due date.
(b) The failure by Tenant to perform any of the covenants,
conditions, provisions or obligations of this Lease to be performed
by Tenant, other than as described in Section 19.01(a) above, where
such failure shall continue for a period of five (5) days after
written notice from Landlord to Tenant. If the nature of Tenant's
default is such that more than five (5) days are reasonably required
for its cure, then Tenant shall not be deemed to be in default if
Tenant commences such cure within the five (5) day period and
thereafter diligently pursues such cure to completion.
Section 19.02 Remedies Upon Default. In the event of any
default or breach of this Lease by Tenant, then Landlord may, at
Landlord's option, proceed as follows:
(a) Continue this Lease in full force and effect, in which
case the Lease will continue in effect as long as Landlord does not
terminate Tenant's right to possession and Landlord shall have the
right to collect Base Rent and Additional Rent when due. During the
period Tenant is in default, Landlord can enter the Property and
relet all or a portion of the Property to third parties for Tenant's
account. Tenant shall be liable immediately to Landlord for all
costs Landlord incurs in reletting the Property, including, without
limitation, brokerage commissions, expenses of remodeling the
Property required by the reletting and similar costs. Reletting can
be for a period shorter or longer than the remaining term of this
Lease. Tenant shall pay to Landlord the Rent due under this Lease
on the dates the Rent is due, less the Rent Landlord receives from
any reletting. No act by Landlord allowed by this paragraph shall
terminate this Lease unless Landlord notifies Tenant that Landlord
elects to terminate the Lease.
(b) Terminate Tenant's right to possession of the Property
by giving notice to Tenant or by any other lawful means in which
case this Lease shall terminate and Tenant shall immediately
surrender possession of the Property to Landlord. In such event,
Landlord shall be entitled to recover from Tenant:
(i) All damages incurred by Landlord by reason of
Tenant's default including, but not limited to, the amounts
described in Section 1951.2 of the California Civil Code,
(ii) The worth at the time of award of the unpaid Rent
which had been earned at the time of termination,
(iii) The worth at the time of award of the amount by
which the unpaid Rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss that
the Tenant proves could have been reasonably avoided,
(iv) The worth at the time of award of the amount by
which the unpaid Rent for the balance of the term after the time of
award exceeds the amount of such rental loss that the Tenant proves
could be reasonably be avoided, and
(v) Any other amount necessary to compensate Landlord
for all the detriment proximately caused by the Tenant's failure to
perform its obligations under the Lease including, but not limited
to, the cost of recovering the Premises, reasonable attorneys' fees,
real estate commissions and any other amount which in the ordinary
course of things would be likely to result from Tenant's failure to
perform its obligations under the Lease.
(vi) The "worth at the time of award" of the amounts
referred to in Sections 19.02(b)(ii) and 19.02(b)(iii) of this Lease
is computed by allowing interest at the legal rate. The "worth at
the time of award" of the amount referred to in Section 19.02(b)(iv)
is computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one
percent (1%).
(c) The remedies set forth herein are cumulative and not
exclusive and Landlord may exercise them at any time after Tenant's
default or breach with or without demand, and without limiting
Landlord in the exercise of any right or remedy now or later allowed
by law which Landlord has by reason of such default or breach.
Landlord's exercise of any right or remedy shall not prevent it from
exercising any other right or remedy.
(d) In addition to the other remedies described in Section
19.02 of this Lease, Landlord shall have all remedies not
inconsistent with the provisions of this Lease available to it under
California law as provided in Section 1951.4 of the California Civil
Code (Landlord may continue Lease in effect after Tenant's breach
and abandonment and recover rent as it becomes due, if Tenant has
right to sublet or assign, subject only to reasonable limitations).
Section 19.03 Legal Proceedings. In any action between the
parties to enforce any of the terms of this Lease, whether it be an
action at law or in equity, including an action for declaratory
relief, the prevailing party ("Prevailing Party") shall be entitled
to recover reasonable attorney's fees, reasonable accountant's and
expert witness fees, and such other costs as may be set by the court
whether provided for by statute or not. The Prevailing Party shall
be determined in accordance with Civil Code section 1717(b)(1) or
any successor statute. If as a result of any breach or default in
the performance of any of the provisions of this Lease, Landlord
uses the services of an attorney in order to secure compliance with
such provisions or recover damages for the breach thereof, or to
terminate this Lease or evict Tenant, Tenant shall reimburse
Landlord upon demand for any and all reasonable attorney's fees and
expenses so incurred by Landlord whether or not a complaint or other
action is filed in the appropriate court. This Lease Agreement
shall be construed and interpreted in accordance with, and governed
and enforced in all respects by, the laws of the State of
California. The venue for any judicial action or proceeding
concerning this Lease shall be Santa ▇▇▇▇▇ County. Landlord and
Tenant desire and intend that any disputes arising between them with
respect to, or in connection with, this Lease be subject to
expeditious resolution in a court trial, without a jury. Landlord
and Tenant each hereby waive the right to a trial by jury of any
cause of action, claim, counterclaim, or cross-complaint in any
action, proceeding or other hearing brought by either Landlord or
Tenant relating to this Lease. Landlord and Tenant further agree
that each party shall have the right at any time to file this Lease
with the clerk or judge of any court in which any disputes may be
pending as Landlord's and Tenant's written consent to waiver of
trial by jury in accordance with California Code of Civil Procedure
section 631.
ARTICLE XX. ACCESS BY LANDLORD
Section 20.01 Right of Entry. Landlord or Landlord's agent
shall have the right to enter the Premises at all reasonable times
to examine the same, and to show them to prospective purchasers or
mortgagees of the building, and to make such repairs, alterations,
improvements or additions as Landlord may deem necessary or
desirable, and Landlord shall be allowed to take all material into
and upon the Premises that may be required therefor without the same
constituting an eviction of Tenant in whole or in part, and the Rent
reserved shall in no ways ▇▇▇▇▇ while said repairs, alterations,
improvements, or additions are being made, by reason of loss or
interruption of business of Tenant, or otherwise. During the six
(6) months prior to the expiration of the term of this Lease or any
renewal term, Landlord may exhibit the Premises to prospective
Tenant's and place upon the Premises the usual notices "To Let" or
"For Rent" which notices Tenant shall permit to remain thereon
without molestation. All such rights of entry are limited to
reasonable times and places, as may be reasonable within the
security and vault procedures required by the banking industry.
ARTICLE XXI. TENANT'S PROPERTY
Section 21.01 Taxes on Tenant's Property. Tenant shall be
responsible for and shall pay before delinquency all municipal,
county, state and federal taxes assess during the term of this Lease
against any leasehold interest or Tenant's Property.
Section 21.02 Loss and Damage. Landlord, or its agents,
shall not be liable for any damage to property entrusted to
employees of Tenant, nor for loss or damage to any property by theft
or otherwise, nor for any injury to or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the
building or from the pipes, appliances or plumbing works therein, or
from the roof, street or subsurface, or from any other place,
resulting from dampness or any other cause whatsoever, unless caused
by or due to the negligence of Landlord, its agents, servants or
employees, and as to which Tenant has given Landlord reasonable
notice. Landlord, or its agents, shall not be liable for
interference with the loss of business by Tenant, nor shall Landlord
be liable for any damages arising from any act or neglect of any
other tenant of the building.
Section 21.03 Notice by Tenant. Tenant shall give immediate
notice to Landlord in case of fire or accidents in the Premises or
in the building of which the Premises are a part or of defects
therein or in any fixtures or equipment.
ARTICLE XXII. HOLDING OVER
Section 22.01 Holding Over. Tenant shall vacate the Premises
upon the Termination Date or earlier termination of this Lease.
Notwithstanding any other provision of this Lease Agreement, Tenant
shall indemnify, defend upon demand with counsel reasonably
acceptable to Landlord, and hold harmless Landlord and the heirs,
successors, personal representatives and assigns of Landlord, from
and against any and all liabilities, losses, claims, damages, lost
profits, consequential damages, interest, penalties, fines, monetary
sanctions, attorney's fees, experts fees and court costs which
result from or arise in any manner whatsoever out of the failure of
Tenant to vacate the Premises upon the Termination Date or earlier
termination of this Lease. This indemnity shall survive the
termination of this Lease. If Tenant does not vacate the Premises
upon the Termination Date or earlier termination of this Lease, and
if Landlord thereafter accepts Rent from Tenant, then Tenant's
occupancy of the Premises shall be a month-to-month tenancy, subject
to all of the terms of this Lease applicable to a month-to-month
tenancy, except that the Rent shall be one hundred fifty percent
(150%) of the Rent payable at the end of the lease term.
Section 22.02 Successors. All rights and liabilities herein
given to or imposed upon, the respective parties hereto shall extend
to and bind permitted heirs, executors, administrators, successors
and assigns of the said parties; and if there shall be more than one
Tenant, they shall all be bound jointly and severally by the terms,
covenants and agreements herein. No rights, however, shall inure to
the benefit of any assignee of Tenant unless the assignment to such
assignee has been approved by Landlord in writing.
ARTICLE XXIII. RULES AND REGULATIONS
Section 23.01 Rules and Regulations. Tenant agrees to comply
with and observe the rules and regulations set forth on Exhibit G,
attached hereto and made a part hereof, and all rules and
regulations established by Landlord from time to time. Tenant's
failure to keep and observe said rules and regulations shall
constitute a breach of the terms of this Lease.
ARTICLE XXIV. QUIET ENJOYMENT
Section 24.01 Landlord's Covenant. Upon payment by Tenant of
the Rent herein provided, and upon the observance and performance of
all the covenants, terms and conditions on Tenant's part to be
observed and performed, Tenant shall peaceably and quietly hold and
enjoy the Premises for the term hereby demised without hindrance or
interruption by Landlord or any other person or persons lawfully or
equitably claiming by, through or under Landlord, subject,
nevertheless, to the terms and conditions of this Lease and
mortgages to which this Lease is subordinate.
ARTICLE XXV. SECURITY DEPOSIT
Section 25.01 Security Deposit. Deleted.
ARTICLE XXVII. MISCELLANEOUS
Section 26.01 Waiver. One or more waivers of any covenant or
condition by Landlord shall not be construed as a waiver of a
subsequent breach of the same covenant or condition, and the consent
or approval by Landlord to or of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to render
unnecessary Landlord's consent or approval to or of any subsequent
similar act by Tenant. No breach of a covenant or condition of this
Lease shall be deemed to have been waived by Landlord, unless such
waiver be in writing signed by Landlord.
Section 26.02 Entire Agreement. This Lease and the Exhibits
attached hereto and forming a part hereof, sets forth all the
covenants, promises, agreements, conditions and understandings
between Landlord and Tenant concerning the Premises and there are no
covenants, promises, agreements, conditions or understandings,
either oral or written, express or implied between them other than
are herein set forth. Tenant has not relied upon any warranty or
representation of Landlord or its agents, express or implied, other
than any items contained in this Lease, as an inducement to enter
into this Lease. No alteration, amendment, change or addition to
this Lease shall be binding upon Landlord or Tenant unless reduced
to writing and signed by each party.
Section 26.03 Interpretation and Use of Pronouns. Nothing
contained herein shall be deemed or construed by the parties hereto,
nor by any third party, as creating the relationship of principal
and agent or of partnership or of joint venture between the parties
hereto, it being understood and agreed that neither the method of
computation of Rent, nor any other provision contained herein, nor
any acts of the parties herein, shall be deemed to create any
relationship between the parties hereto other than the relationship
of Landlord and Tenant. Whenever herein the singular number is
used, the same shall include the plural, and the masculine gender
shall include the feminine and neuter genders.
Section 26.04 Delays. In the event that either party hereto
shall be delayed or hindered in or prevented from the performance of
any act required hereunder by reason of strikes, lockouts, labor
troubles, inability to procure materials, failure of power,
restrictive governmental laws or regulations, riots, insurrection,
war or other reason of a like nature not the fault of the party
delayed in performing work or doing acts required under the terms of
this Lease, then performance of such act shall be excused for the
period of the delay and the period for the performance of any such
act shall be extended for a period equivalent to the period of such
delay. The party entitled to such extension hereunder shall give
written notice as soon as possible to the other party hereto of its
claim of right to such extension and the reason(s) therefor. The
provisions of this Section 26.04 shall not operate to excuse Tenant
from prompt payment of Rent or any other payments required by the
terms of this Lease.
Section 26.05 Notices. Any and all notices or other
communications required or permitted by this Lease Agreement or by
law to be served on, given to, or delivered to any party hereto by
any other party to this Lease Agreement shall be in writing and
shall be deemed duly served, given or delivered when personally
delivered to the party or to an officer of the party, or when sent
by registered, certified or "Express Mail", or by Federal Express or
other similar courier service of comparable reliability, returned
receipt requested, postage prepaid, to the recipient at the
addresses set forth in the opening paragraph of this Lease. Either
party may, by notice given to the other party in accordance with
Section 26.05 of this Lease, specify a different address for notice
purposes, except that upon Tenant's taking possession of the
Premises, the Premises shall constitute Tenant's address for notice
purposes. Notwithstanding the foregoing, a written notice to Tenant
pursuant to California Code of Civil Procedure 1161(2) (commonly
referred to as a 3 Day Notice to Pay Rent or Quit), may be sent to
Tenant by United States first class mail, postage prepaid.
Section 26.06 Brokers. Tenant represents and warrants unto
Landlord that there are no claims for brokerage commissions or
finder's fee in connection with this Lease, and Tenant agrees to
indemnify Landlord and hold it harmless from all liabilities arising
from any such claim arising from an alleged agreement or act by
Tenant (including, without limitation, the cost of attorneys' fees
in connection therewith); such agreement to survive the termination
of this Lease.
Section 26.07 Furnishing of Financial Statements. Upon
Landlord's written request, Tenant shall promptly furnish Landlord,
from time to time, financial statements reflecting Tenant's current
financial condition.
Section 26.08 Transfer of Landlord's Interest. As used in
this Lease Agreement, the term "Landlord" means the person or entity
which is (i) the current tenant, assignee and/or sublessee of the
Ground Lease and (ii) the owner of the Shopping Center at the time
in question. Any Landlord who transfers all of its right, title and
interest in and to the Ground Lease and the Shopping Center is
relieved of all liability with respect to the obligations of
Landlord under this Lease to be performed on or after the date such
transfer.
Section 26.09 Liability of Landlord. If Landlord shall fail
to perform any covenant, term or condition of this Lease upon
Landlord's part to be performed, and if as a consequence of such
default Tenant shall recover a money judgment against Landlord, such
judgment shall be satisfied only out of the proceeds of sale
received upon execution of such judgment and levied thereon against
the right, title and interest of Landlord in the Shopping Center and
out of rents or other income from such property receivable by
Landlord, or out of the consideration received by Landlord from the
sale or other disposition of all or any part of Landlord's right,
title and interest in the Shopping Center, and Landlord shall not be
liable for any deficiency.
Section 26.10 Accord and Satisfaction. No payment by Tenant
or receipt by Landlord of a lesser amount than the Rent herein
stipulated shall be deemed to be other than on account of the
earliest stipulated Rent, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as Rent be
deemed an accord and satisfaction, and Landlord shall accept such
check or payment without prejudice to Landlord's right to recover
the balance of such Rent or pursue any other remedy in this Lease
provided.
Section 26.11 Execution of Lease. The submission of this
Lease for examination does not constitute a reservation of or option
for the Premises, and this Lease shall become effective as a lease
only upon execution and delivery thereof by Landlord and Tenant.
Section 26.12 Laws of the State of California. This Lease
shall be governed by, and construed in accordance with, the laws of
the State of California. If any provision of this Lease or the
application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Lease
shall not be affected thereby and each provision of the Lease shall
be valid and enforceable to the fullest extent permitted by the law.
Section 26.13 Relocation of Premises. (a) Landlord hereby
reserves the right at any time prior to or during the term hereof to
change the location of the Premises in the Shopping Center subject
to the following: (i) such relocated premises shall contain at least
the same number of square feet as the original Premises, (ii) such
relocated premises shall be comparable to the original Premises in
terms of customer traffic pattern, visibility, accessibility and
parking, (iii) such relocated premises may be of a different depth
and width provided that the overall configuration and dimensions of
the relocated premises are commercially reasonable, (iv) Landlord
shall pay the cost of constructing new interior improvements in such
relocated premises and such improvements shall be substantially the
same as and comparable to the improvements constructed in the
original Premises and (v) Landlord shall pay the cost of moving and
reinstalling Tenant's trade fixtures and storefront sign In the
event Landlord elects to exercise such right of relocation, it shall
so advise Tenant by sixty (60) days prior written notice, and Tenant
hereby agrees to be bound by such election and, further, to execute,
upon receipt from Landlord, whatever amendments or other instruments
as may be required to correctly reflect the foregoing. Except as
provided herein, Landlord shall have no further or additional
obligations in connection with such relocated premises.
(b) In the event Landlord elects to expand the Shopping
Center in a manner which requires Landlord to obtain possession of
the Premises, Landlord upon one hundred eighty (180) days prior
notice in writing to Tenant may terminate this Lease.
Section 26.14 Authority. Each individual executing this
Lease Agreement on behalf of an entity represents and warrants that
he or she is duly authorized to execute and deliver this Lease on
behalf of such entity and that the Lease Agreement shall be binding
upon and enforceable against such entity. The submission of this
document for examination and negotiation does not constitute an
offer to lease or a reservation of or option to lease the Premises,
and this document will become effective and binding only upon
execution and delivery by Landlord and Tenant or such authorized
officer or officers of Tenant.
Section 26.15 Time of Essence. Time is of the essence of
each and every provision of this Lease Agreement.
Section 26.16. Binding on Successors and Assigns. Subject
to the provisions of Article XIV of this Lease, this Lease Agreement
shall be binding on the parties hereto and on each of their heirs,
executors, personal representatives, successors and assigns.
Section 26.17 Security. Tenant hereby agrees and
acknowledges that Landlord reserves the right but shall have no
obligation whatsoever to provide guard service or other security
measures for the benefit of the Premises or the Shopping Center.
Tenant assumes the risk and all responsibility for the protection of
Tenant, its officers, directors, employees, agents, invitees and
customers and the property of Tenant and Tenant's agents from acts
or omissions of third parties. Notwithstanding the foregoing, in
the event that Landlord elects to provide guard service or other
security measures at the Shopping Center, then Tenant shall pay to
Landlord as additional rent its proportionate share of such costs as
reasonably determined by Landlord and as provided in Section 8.02 of
this Lease.
Section 26.18 Exhibits: This Lease includes the following
Exhibits which are made an integral part of this Lease and fully
incorporated by this reference:
Exhibit A: Property Description (Section 2.01)
Exhibit B: Site Plan of Premises (Section 2.02)
Exhibit C: Supplemental Agreement (Section 2.09)
Exhibit D: Deleted
Exhibit E: Tenant's Improvement Work (Section 6.03)
Exhibit F: Sign Criteria (Section 9.03)
Exhibit G: Rules and Regulations (Section 23.01)
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Lease as of February 11, 2002.
LANDLORD:
Town Place LLC,
a California limited liability company, by Pacific
Oak Properties, Inc., a California corporation,
Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------
▇▇▇▇ ▇. ▇▇▇▇, President
Pacific Oak Properties, Inc.
TENANT:
Central Coast Bancorp, a California
corporation, dba Community Bank of
Central California
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President,
Branch Administrator,
Authorized Representative
EXHIBIT A TO LEASE AGREEMENT
PROPERTY DESCRIPTION
All that certain real property in the City of Gilroy, County of
Santa ▇▇▇▇▇, State of California described as Parcel Three of that
certain Parcel Map recorded in the Official Records of the County of
Santa ▇▇▇▇▇ on July 29, 1997 at Book 691 of Maps, at Page 45,
consisting of approximately 6.25 acres, as shown on the attached
drawing.
[DRAWING NOT INCLUDED]
EXHIBIT B TO LEASE AGREEMENT
SITE PLAN
(Attach site plan as per section 2.02 of the Lease)
[DRAWING NOT INCLUDED]
EXHIBIT C TO LEASE AGREEMENT
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement is made as of February 11, 2002
and is entered into by
and between Town Place LLC, a California limited liability company
("Landlord"), whose address is ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Landlord"), and Central Coast Bancorp, a
California corporation, dba "Community Bank of Central California"
whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Landlord and Tenant have executed that certain Lease Agreement
dated February 1, 2002 ("the Lease") affecting those premises
described in the Lease ("Premises"). The parties hereto agree as
follows:
1. The Rent Commencement Date of the Lease is April 1,2002.
2. The Termination Date of the Lease is March 31, 2007.
3. The Lease is in full force and effect, neither party
is in default of its obligations under the Lease, and Tenant has
no setoffs, claims or defenses to the enforcement of the Lease.
4. This Supplemental Agreement is executed in accordance
with Section 2.09 of the Lease.
LANDLORD:
Town Place LLC,
a California limited
liability company, by
Pacific Oak Properties,
Inc., a California
corporation, Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------
▇▇▇▇ ▇. ▇▇▇▇, President
Pacific Oak Properties, Inc.
TENANT:
Central Coast
Bancorp, a
California
corporation, dba
Community Bank of
Central California
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President,
Branch Administrator,
Authorized Representative
EXHIBIT E TO LEASE AGREEMENT
(Tenant's Improvement Work)
Tenant is authorized to construct, at Tenant's sole cost and
expense, all improvements and fixtures necessary to bring the
Premises to a finished condition for the conduct of Tenant's
business in accordance with the Lease, subject to the following:
1. Tenant shall be required to pay the cost of any permits and
fees assessed due to Tenant's Improvement Work, Tenant's use and/or
operation including, without limitation, water and sewer fees.
2. Tenant shall submit to Landlord, detailed plans and
specifications for review and written
approval by Landlord prior to the commencement of construction of
any interior or exterior
improvements.
3. Tenant shall submit to Landlord, the names, addresses, phone
numbers and contact
personsfor all contractors performing improvements within Tenant's space.
Tenant, in advance
of commencement of work, will provide acceptable certificates of
insurance from Tenant and/or
its contractor with Landlord listed as an additional insured.
4. Tenant or its contractor will provide Landlord with all
necessary permits prior to the
commencement of work and Certificates of Occupancy prior to opening
for business and Tenant
and/or its contractor shall pay all fees required by public
authorities with respect to Tenant's
work.
5. All utilities must be in Tenant's name prior to the
commencement of work in Tenant's
space.
6. All of Tenant's fixtures, equipment and materials shall be new
and first-class quality.
7. Any roof penetrations as required for Tenant improvements
shall only be performed by
Landlord unless otherwise approved in advance by Landlord.
EXHIBIT F TO LEASE AGREEMENT
SIGN CRITERIA
(Attach additional sign criteria as per section 9.03 of the Lease)
TOWN PLACE
Gilroy, California
SIGN CRITERIA for STORES A + B, PAD 1
These criteria have been established for the purpose of assuring a
coordinated sign program for the benefit of Town Place Shopping
Center and its tenants. Landlord shall administer and interpret the
criteria. Conformance will be strictly enforced.
A. General Requirements
1. Tenant shall submit to Landlord at least three (3)
copies of detailed sign drawings.
Landlord's written approval is required prior to submittal to
governmental authorities.
2. Once Landlord's written approval has been granted,
Tenant shall submit the sign
drawings to the City of Gilroy for review. Planning Department
and/or Building
Department approval shall be required for all signage.
3. All permits for signage and installation shall be
obtained by Tenant at Tenant's expense.
4. Tenant shall be responsible for the fulfillment of all
requirements and specifications.
B. Design Requirements for Building Fascia Signs
1. Tenants are encouraged to use corporate
colors, logos, letter styles, and sign
designs in order to promote tenant
identity and name recognition. Landlord
shall, however, have the right to
disapprove or require revisions to
Tenant's proposed signage if Landlord
reasonably determines that Tenant's
proposed signage is inappropriate,
detrimental to adjacent tenants and/or the
shopping center, or in need of improvement.
2. The suggested height for individual sign characters for
Stores A and B, and Pad I is twenty-four inches (24").
However, for tenants occupying over 3000 square feet of
retail space, suggested height of sign characters is
thirty inches (30"). Larger or smaller signs,
unconventional designs and other creative signage
proposals may be approved by Landlord if Landlord in
its sole and absolute judgment, determines that
Tenant's request is in keeping with a high quality sign
program. and will not be detrimental to adjacent
tenants and/or the shopping center. NOTWITHSTANDING THE
FOREGOING, City of Gilroy sign requirements specify
that the total area of Tenant's signage shall not
exceed one and one half square feet (1.50 SF) for each
lineal foot of storefront. However, a minimum of twenty
square feet (20 SF) shall be allowed for all tenants.
3. The length of Tenant's fascia signage shall not exceed
the frontage of Tenant's premises, less a reasonable
"blank space" at each side of the sign. The suggested
minimum blank space for twenty-four inch (24")
characters is at least two feet (2') at each side of
the sign. Suggested blank space for characters larger
than twenty-four inches (24") is at least thirty-six
inches (36").
4. Tenants occupying the end of a building shall be
permitted to have both front and side facing signage.
5. No signs shall be permitted on the roof of a building.
6. Signs shall be internally illuminated.
7. All signs shall be comprised of individual characters or
connected script, unless otherwise approved by Landlord.
TOWN PLACE
Sign Criteria Page Two
C. Other Building Signage
1. Tenant may place signage at the store entrance
indicating hours of business, telephone
number and other similar information. Size, design and type of
signage shall be
approved in writing by Landlord.
2. Tenant may have uniform signage applied upon
non-customer receiving door indicating
Tenant's name and address. Written Landlord approval required.
3. Tenant may install under canopy signage. Size, design,
material and color shall be
approved by Landlord.
D. General Specifications
1. All electrical signs shall bear the UL label, and their
installation must comply with all
local building and electrical codes.
2. All conductors, transformers and other equipment shall
be concealed.
3. Electrical service to signs shall be on Tenant's meter
and shall be part of Tenant's
construction and operation costs.
4. No signmaker's label or other identification will be
permitted on the exposed surface of
sign. except for those required by local ordinance and these shall
be placed in an
inconspicuous location
5. All penetrations of the building structure required for
sign installation shall be neatly
sealed in a watertight condition.
6. Sign contractor shall repair all damage caused by their
work. Damage not repaired by
sign contractor shall become Tenant's responsibility to correct..
7. Tenant shall be responsible for the actions of Tenant's
sign contractor.
E. Administration
1. Landlord shall administer and interpret the criteria.
2. With respect to administration and interpretation.
Landlord's decision shall be final.
However, Landlord and Tenant recognize that final authority rests
with the City of Gilroy.
3. Landlord reserves the right to make additions,
deletions, and/or revisions to the Sign
Criteria at any time with or without notifying tenant.
EXHIBIT G TO LEASE AGREEMENT
(Rules and Regulations)
1. The sidewalks and entry passages of the Shopping Center shall
not be obstructed by
Tenant or used by Tenant for any purpose other than ingress and
egress; provided, however, that
Landlord may, in Landlord's sole and absolute discretion and only
with Landlord's prior written
consent,grant individual tenants of the Shopping Center the right to use the
Common Area for
variouspurposes, including outdoor dining The floors and windows that reflect
or admit light
into anyplace in the Premises shall not be covered or obstructed by Tenant
except that Tenant
shall be allowed to install levelor style blinds to front window.
The water closets and other water
apparatus shall not be used for any other purpose than those for
which they were constructed, and
no sweepings, rubbish or other obstructing substances shall be
thrown therein.
2. Nothing shall be thrown by Tenant, its agents and/or servants
out of the windows, doors or down the passages of the Premises.
3. Unless otherwise approved in writing by Landlord, no animals,
birds, bicycles or other vehicles shall be allowed in the Premises.
4. No painting shall be done, nor shall any alterations be made
to any part of the Premises
by putting up or changing any partitions, doors or windows, nor
shall there be any nailing, boring
or screwing into the woodwork or plastering, nor shall any
connection be made to the electric
wires orgas or electric fixtures, without the prior written consent of Landlord
or its agent. All
glass, locks and trimmings in or upon the doors and windows of the
Premises shall be kept whole
and, when any part thereof shall be broken, the same shall be
immediately replaced or repaired
and ▇▇▇▇▇ order under the direction and to the satisfaction of Landlord or its
agents, and shall be
left whole and in good repair. Tenant shall not injure, overload or
deface the Premises or any
part of the Shopping Center, the woodwork or the walls of the
Premises or any part of the
Building, nor carry on upon the Premises any noisy or offensive
business.
5. Safes, furniture, heavy equipment, boxes or other bulky
articles shall be carried into the
Premises or removed from the Premises only with prior written
consent of Landlord, and then
only bemeans of passageways, doors, or through the windows of the Premises as
Landlord may
in writing direct. Heavy articles shall only be placed by Tenant in
such places as may be
specified in writing by Landlord, and any damage done to the
Premises, to other tenants in the
Building or to other persons by moving said bulky articles in or out
of the Premises, by the
overloading of floors by said articles, or in any other manner,
shall be paid for by Tenant.
6. Deleted.
7. Tenant shall load and unload its merchandise, equipment and
supplies and remove its
rubbishonly by way of the truck loading area (if any) and service doors (if any)
designated for
Tenant'suse at hours established from time to time by Landlord. Tenant shall not
permit the use
of any fork lift truck, tow truck or any other mechanically powered
machine or equipment for
handling freight in the Premises or other portions of the Building,
except in the truck loading
areas. All equipment and devices hauling freight in the Premises or
portions of the Building
other than the said excepted areas shall be propelled by hand and
shall have no ▇▇▇▇ type rubber
tires or wheels. No freight shall be hauled into or through covered
areas in the Building.
EXHIBIT G TO LEASE AGREEMENT
(Rules and Regulations)
8. When reasonably practical, all printed material referring to
the location of Tenant's
Premises and in all advertising (by newspaper, radio, television or
otherwise) Tenant shall
includein any reference to Tenant's place of business the name of the Shopping
Center.
9. Common areas shall not be used for solicitations, distribution
of hand bills or other
advertising matter, demonstrations or any other activity of Tenant
and Tenant shall not sell or
displaymerchandise on or otherwise obstruct common areas or any other area
outside the confines of the Premises.
10. Tenant shall not conduct any going out of business auction,
distress, fire or bankruptcy sales, provided, however, that Tenant
may conduct periodic seasonal promotional or clearance sales.
11. Tenant shall not sell, display or distribute any alcoholic
liquors or beverages for
consumption on or off the Premises without the prior written consent
of Landlord.
12. Tenant shall not install or operate in the Premises any coin
operated vending machines or
similar devices for the sale of merchandise, food and beverages
without the prior written consent
of Landlord, except for those vending machines which are for the
exclusive use of Tenant's
employees and are not in view of or available to the public.
13. Tenant shall not permit the extermination of vermin to be
performed in, on or about the
Premises, except by a person or company designated or approved by
Landlord. Refuse or
rubbishaccumulated in Tenant's operations or on the Premises shall not be
collected or removed
except by the person or company, if any, designated or approved by
Landlord, but in any such
case Landlord agrees that the prices to be charged therefore by the
person or company so
designated shall be competitive. Only Tenant's employees or a person
or company designated or
approved by Landlord, if any, shall clean the windows or perform
janitorial services or any other
cleaning or maintenance
service in or for the Premises or on the exterior of the Premises,
during reasonable hours
designated from time to time for such purposes by Landlord.
14. Tenant shall not install, operate or maintain or suffer to be
installed, operated or
maintained any public telephone within or without the Premises.
15. Tenant shall maintain displays of merchandise in the display
windows, if any, and shall
keep the same well lighted during such hours and days that the
common areas are lighted by
Landlord.
16. Tenant shall store or stock in the Premises only such
merchandise as Tenant intends to
offer for sale at, in, from or upon the Premises.
17. All signs shall be professionally prepared and in good taste
so as not to detract from the general appearance of the leased
premises or the Shopping Center, and under no circumstances shall
Tenant attach or affix to the Premises any hand-lettered signs,
notices, or other materials.