EXHIBIT 10.2
AMENDMENT TO LEASE
This Amendment is entered into on June 17, 1999 by and between Elf
Realty Corporation, as Landlord ("Landlord") and Service 1st Bank as Tenant
("Tenant").
Recitals
A. Landlord and Tenant have entered into that certain Lease dated
April 13, 1999 (the "Lease") pursuant to which Tenant has leased
certain real property and improvements at 00 Xxxx 00xx Xxxxxx,
Xxxxx, Xxxxxxxxxx.
B. Landlord and Tenant now desire to make certain corrections in
numbering, add language, and clarify the payment of rents.
NOW THEREFORE, in consideration of good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, and of the benefits to
accrue to the parties hereto, Landlord and Tenant agree as follows:
1. Section 1.01 Basic Lease Provisions - Lease Term Rental
Commencement Date and Term (Section 2.05). The reference to
Section 2.05 is hereby changed to Section 2.03.
2. Section 1.01 Basic Lease Provisions - Common Area Maintenance
Payment & Operating Expense (Section 4.01). The reference to
Section 4.01 is hereby changed to Section 5.01 and 6.02.
3. Section 3.01 Fixed Minimum Rent. Add the following to the end of
the paragraph: All payments of rent shall be made payable and
sent to HSR Realty, 000 Xxxxxxxx Xx., Xxxxxxxx, XX. 00000.
4. Section 10.01.5. Add this new paragraph:
Notwithstanding any other provision of this Lease, Landlord
shall not have the right to take possession of any of
Tenant's business records or the records or personal
property located on the premises of any customer of Tenant
or of any other third party. Furthermore, any rights and
remedies of Landlord are subject to the powers of the
California Department of Financial Institutions and other
Regulatory Authority to enter upon or assume control of the
Premises and of any personal property thereon.
5. Except as set forth above, the terms and conditions of the Lease
shall retrain unmodified and in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to
Lease to be executed on the date hereinabove set forth.
LANDLORD, Elf Realty Corporation: TENANT, Service 1st Bank
By:__________________________ By: _______________________________
Xxxxx Xxxxxxx, President Xxxxx Xxxxxxx, Chief Executive
Officer
ARTICLE I
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BASIC LEASE PROVISIONS
ENUMERATION OF EXHIBITS
SECTION 1.01. Basic Lease Provisions.
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DATE: April 13,1999
LANDLORD: Elf Realty Corporation
ADDRESS OF LANDLORD: HSR Realty
000 Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
TENANT: Service 1st Bank (Proposed)
ADDRESS OF TENANT: 00 Xxxx Xxxxx Xxxxxx, Xxxxx, XX.
PERMITTED USE: (1) The delivery of financial services to
commercial and retail customers including
operating a bank, savings bank, credit union,
insurance company/agency, stock brokerage, trust
company, or related financial services company
or institution, (2) general office use, (3) data
processing, or (4) any other business now or in
the future operated by Tenant, its affiliates,
subsidiaries, or assignees, in accordance with
Article IV.
TENANT'S TRADE NAME: Service 1st Bank (Proposed)
PREMISES: The entire building located at 00 Xxxx Xxxxx
Xxxxxx, Xxxxx, XX.
LEASE TERM RENTAL COMMENCEMENT Seven (7) years commencing no later than 60 days
DATE AND TERM (Section 2.05): following the vacating of the Premises by the
current Tenant, but no later than May 1, 2000
(commencement date)
LEASE YEAR: If the Commencement date is other than the first
day of a calendar month, the first Lease Year
shall be the period of time from said
Commencement Date to the end of the month in
which said Commencement date shall occur plus
the following twelve (12) calendar months. Each
Lease Year thereafter shall be successive period
of twelve (12) calendar months.
FIXED MINIMUM RENT $6,100.00 (Six Thousand One Hundred Dollars) per
(Section 3.01): calendar month of the Lease Year.
PERIODIC COST OF LIVING An integral part of this Lease
ADJUSTMENT (Section 3.02):
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COMMON AREA MAINTENANCE Tenant to pay all taxes and assessments,
PAYMENT & OPERATING EXPENSE maintenance and repairs. Landlord to pay real
(Section 4.01): property Insurance.
PREPAID RENT: $6,100.00 (Six Thousand One Hundred Dollars)
upon execution of this Lease as prepaid rent to
be applied to the first installment of Fixed
Minimum Rent due hereunder. If this Lease is
terminated as per Section 17.21 below, the
prepaid rent shall immediately be refunded to
Tenant.
SECURITY DEPOSIT: $6,100.00 (Six Thousand One Hundred Dollars)
upon execution of this Lease. If this Lease is
terminated as per Section 17.21 below, the
Security Deposit shall immediately be refunded
to Tenant.
OPTION TO RENEW: Tenant has two (2) consecutive options to extend
the Lease term for five (5) years each as per
Section 3.05 below. The Fixed Minimum Rent
shall be adjusted under the terms of this Lease.
All other terms of this Lease shall remain in
effect.
SECTION 1.02. Significance of a Basic Lease Provision.
------------ ----------------------------------------
Each reference in this "Lease" to any of the Basic Lease Provisions contained in
Section 1.01 of this Article shall be deemed and construed to incorporate all of
the terms thereof. The Basic Lease Provisions shall be construed in connection
with and limited by any such reference.
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ARTICLE II
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DEMISE OF PREMISES AND QUIET ENJOYMENT
SECTION 2.01. Description and General Obligations.
------------. ------------------------------------
Landlord owns the building located at 00 Xxxx Xxxxx Xxxxxx, Xxxxx, XX. In
consideration of the rents, covenants and agreements reserved and contained in
this Lease, Landlord hereby leases and demises the Premises to Tenant and Tenant
rents same, in order that Tenant shall continuously operate its business
operations thereon in accordance with its Permitted Use, subject only to the
terms and conditions herein contained and all liens, encumbrances, easements,
restrictions, zoning laws, and governmental or other regulations affecting the
Premises.
The Premises shall include the following fixtures: any items left by the
previous Tenant such as the vault, teller line, and other cabinetry to be
mutually agreed upon, and which shall remain the property of Landlord.
SECTION 2.02. Quiet Enjoyment.
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Landlord covenants that Tenant, upon paying all sums due from Tenant to
Landlord, hereunder "Rent", and performing and observing all of Tenant's
obligations under this Lease, shall peacefully and quietly have, hold and enjoy
the Premises and the appurtenances throughout the Lease Term without
interference by the Landlord, subject, nevertheless, to the other terms and
provisions of this Lease.
SECTION 2.03. Statement of Lease Term.
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When the commencement date and termination date of the Lease Term have been
determined, Landlord and Tenant shall execute and deliver a written statement in
recordable form specifying therein the Rental Commencement Date and termination
date of the Lease Term.
ARTICLE III
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RENT
SECTION 3.02. Fixed Minimum Rent.
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During the entire Lease Term, Tenant covenants and agrees to pay to Landlord, in
lawful money of the United States, without any prior demand and without any
deduction or setoff whatsoever, the fixed Minimum Rent as provided in Section
1.01. The payment of Fixed Minimum Rent by Tenant to Landlord shall be made in
advance on the first day of each calendar month during the Lease Term hereof.
Fixed Minimum Rent for any partial calendar month during the Lease Term shall be
prorated on a per diem basis.
SECTION 3.02 Periodic Cost of Living Adjustment.
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The minimum monthly rent shall be subject to adjustment at the commencement of
the second year of the term and each year thereafter ("the adjustment date") as
follows:
The base for computing the adjustment is the Consumer Price Index (All Urban
consumers) (base year 1982-1984 - 100) for San Francisco-Oakland-San Xxxx
published by the United States Department of Labor, Bureau of Labor Statistics
("Index") which was last published one (1) year prior to the Adjustment Date
("Beginning Index"). The Index last published prior to the Adjustment Date
("Extension Index") is to be used in determining the amount of the adjustment.
If the Extension Index has increased over the
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Beginning Index, the minimum monthly rent for the following year (until the next
rent adjustment) shall be set by multiplying the minimum monthly rent for the
preceding period by a fraction, the numerator of which is the Extension Index
and the denominator of which is the Beginning Index.
The above adjustment shall be subject to a minimum floor of two percent (2%) and
a maximum cap of five percent (5%) therefore the adjusted minimum rent shall be
no less than two percent (2%) greater than the monthly minimum rent in effect
prior to the Adjustment Date then occurring and shall be no more than five
percent (5%) greater than the monthly minimum rent in effect prior to the
Adjustment Date then occurring.
If the Index is changed so that the base year differs from that in effect when
the term commences, the Index shall be converted in accordance with the
conversion factor published by the United States Department of Labor, Bureau of
Labor Statistics. If the Index is discontinued or revised during the term, such
other government index or computation with which it is replaced shall be used in
order to obtain substantially the same result as would be obtained if the Index
had not been discontinued or revised.
SECTION 3.03. Additional Charges.
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In addition to Fixed Minimum Rent, all other payments (except reimbursements) to
be made by Tenant to Landlord shall be deemed to be and shall become "Additional
Rent" hereunder whether or not the same be designated as such, and shall be due
and payable on demand together with any interest thereon; and Landlord shall
have the same remedies for failure to pay same as for a non-payment of Minimum
Rents. (Minimum Rent and Additional Rent are hereinafter sometimes collectively
referred to as "Rent"). If Tenant fails to make any payment of Rent when due as
required under the applicable provisions of this Lease, Tenant shall pay a late
charge in accordance with Section 3.04 hereof.
SECTION 3.04. Past Due Rent and Additional Rent.
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If Tenant shall fail to pay, when the same is due and payable, any Rent or any
Additional Rent, or amounts or charges of the character described in Section
3.03 hereof, Tenant shall pay as Additional Rent a late fee equal to six (6%)
percent of the delinquent amount if such payments are not paid within five days
of their due date. Landlord and Tenant agree that this late charge represents a
reasonable estimate of the costs and expenses Landlord will incur and is fair
compensation to Landlord for its loss suffered by reason of late payment by
Tenant.
SECTION 3.05. Option to Renew.
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If Tenant elects to exercise its Option to Renew provided for in Section 1.01,
then Tenant shall provide Landlord with written notice not earlier than six (6)
months prior to the expiration of the then current term of the Lease, but no
later than 5:00 p.m. (Pacific Time) on the date which is three (3) months prior
to the expiration of the then current term of the Lease. If Tenant fails to
provide such notice, Tenant shall have no further or additional right to extend
or renew the term of the Lease.
SECTION 3.06. Option Minimum Rent.
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The Fixed Minimum Monthly Rent for the Option Period shall be determined by
either the Cost of Living Adjustment (Section 3.02) or the Fair Market Rental
(Section 3.07 below), whichever is greater.
Should the Fair Market Rental Adjustment prevail for one or both of the two
Option Periods, the Fixed Minimum Monthly Rent shall be adjusted in accordance
with Section 3.07 for the first year and Section 3.02 for the second and
subsequent years.
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SECTION 3.07. Fair Market Rental.
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Fair Market Rental shall be the actual rental rates for comparable space of
comparable financial institutions in other comparable areas of Tracy,
California, adjusting to account for, with respect to such rental, any
difference between the lease and the lease(s) of comparable space, including
without limitation, net versus gross lease provisions. Fair Market Rental shall
be determined pursuant to the foregoing factors and shall mean the Fair Market
Rental in effect as of the beginning of the Option Period.
Not less than sixty (60) days before the beginning of each Option Period,
Landlord shall notify Tenant of Landlord's determination of the Fair Market
Rental for the Premises for the coming Option Period (the Fair Market Rental
Notice).
If Tenant disputes the amount of the Fair Market Rental as determined by
Landlord, Tenant may require that Landlord submit the dispute to arbitration.
The judgment rendered in any such arbitration may be entered in any court having
jurisdiction and shall be final and binding between parties. The arbitration
shall be conducted in San Francisco, California, in accordance with the then
prevailing rules of the American Arbitration Association or its successors for
arbitration of commercial disputes, except to the extent that the procedures
mandated by such rules shall be modified as follows:
Tenant shall make demand for arbitration in writing within twenty (20) business
days after receipt of the Fair Market Rental Notice, specifying therein the name
and address of the person to act as the arbitrator on Tenant's behalf. The
arbitrator shall be qualified as a real estate appraiser familiar with the fair
market rental of comparable space in comparable areas in Tracy, California.
Failure on the part of Tenant to make a timely and proper demand for such
arbitration shall constitute a waiver of the right thereto, and rental for the
option period shall be the amount stated in the Fair Market Rental Notice.
Within ten (10) business days after the service of the demand for arbitration,
Landlord shall give notice to Tenant specifying the name and address of the
person designated by Landlord to act as arbitrator on its behalf who shall be
similarly qualified. If Landlord fails to notify Tenant of the appointment of
its arbitrator within or by the time above specified, then the arbitrator
appointed by Tenant shall be the arbitrator to determine the issue.
If two arbitrators are chosen pursuant to the preceding paragraph, the
arbitrators so chosen shall meet within ten (10) business days after the second
arbitrator has been appointed and, if within twenty (20) business days after
such meeting the two arbitrators are unable to agree promptly upon a
determination of Fair Market Rental, they - themselves - shall appoint a third
arbitrator who shall be a competent and impartial person with qualifications
similar to those required of the first two arbitrators.
If the two arbitrators are unable to agree upon such appointment within five (5)
business days after the expiration of such twenty (20) day period, the third
arbitrator shall be selected by the parties themselves, if they can agree
thereon within a further period of ten (10) business days. If the parties cannot
so agree, then either party, on behalf of both, may request the then Chief Judge
of the United States District Court having jurisdiction over the City of San
Francisco, California, to appoint a third arbitrator and the other party shall
not raise any question as to the judge's full power and jurisdiction to
entertain the application for and make the appointment.
Where the issue cannot be resolved by agreement between the two arbitrators
selected by Landlord and Tenant or settled between the parties during the course
of arbitration, the issue shall be resolved by the three arbitrators as follows:
The arbitrator selected by each of the parties shall state in writing his
determination of the Fair Market Rental supported by the reasons therefore with
counterpart copies to each party. The arbitrators shall arrange for a
simultaneous exchange of such proposed resolutions. The role of the third
arbitrator shall be to select which of the two proposed resolutions most closely
approximates his determination of Fair Market Rental. The third arbitrator shall
have no right to propose
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a middle ground or any modification of either of the two proposed resolutions.
The resolution he chooses as most closely approximating his determination shall
constitute the decision of the arbitrators and shall be final and binding upon
the parties.
If any arbitrator fails, refuses, or is unable to act, his successor shall be
appointed by him, but in the case of the third arbitrator, his successor shall
be appointed in the same manner as provided for the appointment of the third
arbitrator. The arbitrators shall attempt to decide the issue within ten (10)
business days after the appointment of the third arbitrator. Any decision in
which the arbitrator appointed by Landlord and arbitrator appointed by Tenant
concur shall be binding and conclusive upon the parties. Each party shall pay
the fee and expense of its respective arbitrator and both shall share the fees
and expenses of the third arbitrator, if any. The attorneys' fees and expenses
of counsel for the respective parties and of witnesses shall be paid by the
respective party engaging such counsel or calling such witnesses.
The arbitrators shall have the right to consult experts and competent
authorities for factual information or evidence pertaining to a determination of
Fair Market Rental, but any such consultation shall be made in the presence of
both parties with full right on their part to cross-examine. The arbitrators
shall render their decision in writing with counter-part copies to each party.
The arbitrators shall have no power to modify the provisions of the lease.
If the new rental term begins prior to determination of Fair Market Rental, then
the minimum monthly rental initially due during the new rental term shall be the
amount stated in the Fair Market Rental Notice. Within fifteen (15) days after
determination of the Fair Market Rental, the appropriate party shall pay the
other party the difference between the amount actually paid and the amount that
should have been paid pursuant to this Paragraph 2.
In no case shall the Fixed Minimum Monthly Rent be less than the minimum monthly
rent paid immediately preceding the option period year, plus two (2%) percent.
ARTICLE IV
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PERMITTED USE
SECTION 4:01. Use of Premises.
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Tenant shall use and occupy the Premises during the term for the purpose of
delivering financial services to commercial and retail customers including
operating a bank, savings bank, credit union, mortgage company, insurance
company/agency, stock brokerage, trust company, or related financial services
company or institution (2) general office use, (3) data processing, or (4) any
other business now or in the future operated by Tenant, its affiliate,
subsidiaries, or assignees, and for no other purpose whatsoever without the
written consent of Landlord.
SECTION 4.02. Continuous Operation.
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Tenant shall continuously during the entire term hereof conduct and carry on
Tenant's aforesaid business in the Premises and shall keep said Premises open
for business and cause such business to be conducted thereon during each and
every business day for such number of hours each day as is customary for
business of like character in the City of Xxxxx, except for a temporary shutdown
on account of strikes, lockouts or causes beyond the control of Tenant, or (for
not more than one (1) day) out of respect to the memory of any deceased officer
or employee of Tenant.
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Should Tenant close the Premises without the express consent of Landlord,
Landlord may terminate this Lease.
SECTION 4.03. Abandonment.
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Tenant agrees not to vacate or abandon the Premises at any time during the Lease
Term. Should Tenant vacate or abandon the Premises or be dispossessed by process
of law or otherwise, such abandonment, vacation or dispossession shall be a
breach of this Lease and, in addition to any other rights which Landlord may
have, Landlord may, after notice to Tenant, terminate this Lease and remove any
personal property belonging to Tenant which remains on the Premises and store
the same in a public warehouse or elsewhere, such removal and storage to be at
the cost of and for the account of Tenant
Notwithstanding the above, Tenant may vacate the Premises, with prior written
notice to Landlord, at any time, for no more than six (6) months, and such
action shall not constitute an event of default provided Tenant continues to
meet all other Lease Obligations, including Rent.
SECTION 4.04. Surrender of Premises.
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At the termination of this Lease, Tenant shall surrender the Premises in the
same condition (subject to the removals hereinafter required) as the Premises
were on the date Tenant opened the Premises for business to the public,
reasonable wear and tear and loss due to insured casualty excepted, and shall
surrender all keys for the Premises to Landlord at the place then fixed for the
payment of Rents and shall inform Landlord of all combinations on locks, safes
and vaults, if any, in the Premises. Prior to termination, Tenant shall remove
all its trade fixtures, and, to the extent required by Landlord by written
notice, any other installation, alterations or improvements before surrendering
the Premises as aforesaid and shall repair any damage to the Premises caused
thereby. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of the Lease Term.
ARTICLE V
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OPERATING COSTS
SECT10N 5.01. Operating Costs.
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During each month of the Lease Term, Tenant shall pay all taxes, public charges
and assessments of whatsoever nature directly or indirectly assessed or imposed
upon the land, buildings, equipment and improvements constituting the Premises,
including, but not limited to, all real property taxes, rates, duties and
assessments, local improvement taxes, import charges or levies, whether general
or special, that are levied, charged or assessed against the Premises by any
lawful taxing authority whether federal, state, county, municipal, school or
otherwise (other than income, inheritance and franchise taxes thereon).
ARTICLE VI
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INSTALLATION, MAINTENANCE, OPERATION AND REPAIR
SECTION 6.01. Tenant Installation.
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Tenant shall, at Tenant's sole expense, install all trade fixtures and
equipment required to operate its business (all of which shall be of
first-class quality and workmanship). All trade fixtures, signs, or other
personal property installed in the Premises by Tenant shall remain the property
of Tenant and may be removed at any time provided that Tenant is not in default
hereunder and provided the removal thereof
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does not cause, contribute to, or result in Tenant's default hereunder; and
further provided that Tenant shall at Tenant's sole expense promptly repair any
damage to the Premises resulting from the removal of personal property and shall
replace same with personal property of like or better quality. The term "trade
fixtures" as used herein shall not include carpeting, floor coverings, attached
shelving, lighting fixtures other than free-standing lamps, wall coverings, or
similar Tenant improvements which upon installation shall immediately become the
property of Landlord but which can be moved, modified, or changed by Tenant at
any time during the Lease Term without permission from Landlord. Tenant shall
not attach any fixtures or articles to any portion of the Premises, nor make any
alterations, additions, improvements, or changes or perform any other work
whatsoever in and to the Premises, other than minor interior cosmetic and
decorative changes which do not exceed Five Thousand Dollars ($5,000.00) in the
aggregate per Lease Year, without in each instance obtaining the prior written
approval of Landlord. Any alterations, additions, improvements, changes to the
Premises or other work permitted herein shall be made by Tenant at Tenant's sole
cost and expense.
SECTION 6.02. Maintenance and Repairs by Tenant.
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Except as provided in Section 6.01 hereof, Tenant shall, at Tenant's expense, at
all times keep the Premises and appurtenances and every part thereto in good
clean, sanitary and safe order, condition and repair, including fixtures,
electrical, plumbing, sewage systems, sidewalks, parking lot and landscaping,
thereby waiving all rights to make repairs at the expense of Landlord as
provided in Section 1942 of the Civil code of the State of California, and all
rights provided for by Section 1941 of said Civil Code. Tenant shall replace all
broken glass with glass of the same size and quality and on a quarterly basis
maintain and repair HVACs. Any replacement of major parts or an entire HVAC unit
shall be handled as follows: Upon determination of the need for replacement of
parts or an entire unit, and the cost, Tenant shall notify Landlord of the
extent and cost of the replacement, Tenant shall be responsible for the first
$5000 of cost for each HVAC unit. The $5000 shall be cumulative from the
beginning of the Lease Term, and shall continue through the option periods. The
cumulative $5000 shall not include costs paid by Tenant for quarterly
maintenance or minor repairs. If the replacement of parts or an entire unit
exceeds the $5000 cap per unit, Landlord shall pay the difference between the
actual cost and the $5000. Tenant shall, in a manner satisfactory to Landlord,
paint the interior of the Premises when necessary to maintain at all times a
clean and sightly appearance. In the event Tenant fails to perform any of its
obligations as required hereunder, Landlord may, but shall not be required to,
perform and satisfy same, with Tenant hereby agreeing to reimburse Landlord for
the cost hereof promptly upon demand.
Tenant shall make any and all additions, improvements, alterations, and repairs
to or on the Premises (other than those required for the structural repair of
the roof, or exterior walls), which may at any time during the Lease Term be
required or recommended by any lawful authorities, insurance underwriters,
inspection rating bureaus, or insurance inspectors designated by Landlord.
Landlord may, but shall not be obligated to deal directly with any authorities
respecting their requirements for additions, improvements, alterations or
repairs. All such repairs shall be performed in a good and workmanlike manner,
up to code. All such additions, improvements, and alterations thereto shall
become immediately the property of Landlord. Tenant shall comply with all
county, municipal, state, and federal laws and regulations including those
relating to commercial banks, now in force or which hereafter may be in effect
pertaining to the Premises.
SECTION 6.03. Signs, Awnings and Canopies.
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Tenant shall not place or suffer to be placed or maintained on any exterior
door, wall or window of the Premises any sign, awning or canopy, or advertising
matter or other thing of any kind, and shall not place or maintain any exterior
lighting, plumbing fixture or protruding object or any decoration, lettering or
advertising matter on the glass of any window or door of the Premises without
first obtaining Landlord's written approval and consent, which shall not be
unreasonably withheld. Notwithstanding the above,
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Tenant shall be allowed to put the business hours, trade name and logo, and
legal name in vinyl letters on the door windows, and to place signs and banners
on the interior of the windows during marketing promotions without the consent
of Landlord. Tenant further agrees to maintain such sign, awning, canopy,
decoration, lettering, advertising matter or other thing as may be approved in
good condition and repair at all times. Tenant is allowed to place signs and
awnings on the exterior of the building as per City of Xxxxx codes.
SECTION 6.04. Discharge Of All Liens.
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Tenant shall not create or permit to be created or to remain, and shall
discharge, any lien (including, but not limited to, the liens of mechanics,
laborers or materialmen for work or materials alleged to be done or furnished in
connection with the Premises), encumbrance or other charge upon the Premises or
any part thereof, upon Tenant's leasehold interest therein, provided, that
Tenant shall not be required to discharge any such liens, encumbrances or
charges as may be placed upon the Premises by the act of Landlord.
Tenant shall have the right to contest, in good faith and by appropriate legal
proceedings, the validity or amount of any mechanics', laborers' or
materialmen's lien or claimed lien. In the event of such contest, Tenant shall
give to Landlord reasonable security as may be required by Landlord to insure
payment thereof and to prevent any sale, foreclosure or forfeiture of the
Premises or any part thereof by reason of such non-payment. On final
determination of such lien or such claim for lien, Tenant shall immediately pay
any judgment rendered, with all proper costs and charges, and shall have such
lien released or judgment satisfied at Tenant's expense, and upon such payment
and release of satisfaction, Landlord shall promptly return to Tenant such
security as Landlord shall have received in connection with such contest.
Landlord reserves the right to enter the Premises to post and keep posted
notices of non-responsibility for any such lien. Tenant shall pay, protect and
indemnify Landlord from and against all liabilities, losses, claims, damages,
costs and expenses, including reasonable attorney's fees, incurred by Landlord
by reason of the filing of any lien and/or the removal of the same.
SECTION 6.05. Utilities.
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From the time Tenant first enters the Premises for the purpose of installing
fixtures or from the commencement of the Lease Term, whichever date is the
earlier, Tenant shall pay in a timely manner for water, gas, light, power,
refuse, and all other utilities and services to or consumed in or on the
Premises.
Utility service providers shall be chosen and retained by Landlord.
Tenant shall comply with all present and future laws, order, and regulations of
all federal, state, municipal and local governments, departments, commissions,
and boards regarding the collection, sorting, separation, and recycling of waste
products, garbage, refuse and trash.
SECTION 6.06. Maintenance by Landlord.
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Except as provided in Section 9 and for damage caused by any negligent or
intentional act or omission of Tenant, Tenant's agents, employees, or invitees,
Landlord, at its sole cost and expense, shall keep in good condition and repair
the foundations, exterior walls, and exterior roof of the Premises. Landlord
shall also maintain the unexposed electrical, plumbing and sewage systems
including, without limitation, those portions of the systems lying outside the
Premises; window frames, gutters and down spouts on the building. If maintenance
or repair of any item in this Section 6.06 is necessary due to the negligent or
intentional act or omission of Tenant, Tenant's agents, employees, or invitees,
Tenant shall repair and maintain such items. Notwithstanding anything in this
Lease to the contrary, Landlord shall only be responsible for repairs of the
items mentioned in this Section if said repairs are due to normal wear and tear,
age, or obsolescence. For example, if wiring in the walls needs repair because
of the age of the wiring or a faulty or old breaker, said repairs shall be the
responsibility of Landlord. If Tenant overloads
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a circuit by attaching too much equipment to it, causing damage to the wiring or
breakers, Tenant shall be responsible for repairing the wires and breakers.
Landlord shall comply with all county, municipal, federal, and state laws and
regulations, including those relating to commercial banks, now in force or which
hereafter may be in effect pertaining to the Premises.
Notwithstanding anything to the contrary contained in this Lease, Landlord shall
not be liable for failure to make repairs required to be made by Landlord under
provisions of this Lease unless Tenant has previously notified Landlord in
writing of the need for such repairs and Landlord has failed to commence and
complete the repairs within a reasonable time following receipt of Tenant's
notification. If Landlord fails to commence such repairs or replacements
required of Landlord pursuant to the foregoing within thirty (30) days after
written notice from Tenant of the need for such work (or if more than thirty
(30) days shall be required because of the nature of the work, if Landlord
shall fail to diligently proceed to commence to perform such work after written
notice), Tenant shall be entitled to make such repairs as are necessary, and
Landlord shall reimburse Tenant for the cost paid by Tenant in doing so within
thirty (30) days after Tenant's delivery to Landlord of an invoice, together
with reasonable back up documentation for same.
SECTION 6.07. Hazardous Substances.
------------- ---------------------
Landlord has no knowledge of the presence of hazardous substances in or on the
Premises. Hazardous substances pose only a hazard when disturbed, damaged, or
released into the air. Therefore, Tenant shall inform Landlord anytime Tenant
plans to repair, remove, or otherwise disturb any areas or materials that may
contain hazardous substances and where there may be the possibility of
releasing, disturbing, or coming in contract with hazardous substances.
In the event that any hazardous substances are discovered in or on the Premises,
which may present a danger to Tenant and Tenant's agents, employees, invitees,
etc. when disturbed or released in the air, and it is determined that such
hazardous substances have been placed on the Premises prior to Tenant's
occupancy, such hazardous substances shall be encapsulated (if feasible) or
diligently removed by qualified personnel, at Landlord's cost and expense.
The making of alterations or the removal of all or a portion of such hazardous
substances shall not entitle Tenant to any damages except for injury or damages
arising out of Landlord's negligence or that of its agents nor shall it relieve
Tenant of the obligation to pay any sums due under this Lease except to the
extent that the premises are unusable for the conduct of business during or
after the removal.
Tenant shall not cause or permit the storage or use of any hazardous substances
in or on the Premises.
ARTICLE VII
-----------
OPERATING RULES, REGULATIONS, SURRENDER
SECTION 7.01. Rules and Regulations.
------------- ----------------------
Tenant agrees to comply with and observe the following rules and regulations:
1. No aerial or antennae shall be erected on the roof or exterior walls of the
Premises or on the grounds, without in each instance, the written consent
of Landlord. Any aerial or antennae so installed without such written
consent shall be subject to removal without notice at any time at Tenant's
sole cost and expense.
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10
2. The exterior areas immediately adjoining the Premises shall be kept clean
and free from dirt and rubbish by Tenant to the satisfaction of Landlord,
and Tenant shall not place or permit any obstructions or merchandise in
such areas.
3. The plumbing facilities shall not be used for any other purpose than that
for which they are constructed, and no foreign substance of any kind shall
be thrown therein, and the expense of any breakage, stoppage, or damage
resulting from a violation of this provision shall be borne by Tenant who
shall, or whose employees, agents or invitees shall, have caused it
4. 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.
6. Tenant shall, at Tenant's sole cost and expense, comply with all of the
requirements of all county, municipal, state of California, federal and
other applicable governmental authorities, now in force, or which may
hereafter be in force, pertaining to the Premises, and shall faithfully
observe in the use of the Premises all municipal and county ordinances and
state and federal statutes now in force or which may hereafter be in force,
and all regulations, orders and other requirements issued or made pursuant
to any such ordinances and statutes.
Tenant agrees to comply with and observe the rules and regulations set forth
above. Tenant's failure to keep and observe said rules and regulations shall
constitute a breach of the terms of the Lease Terms in the manner as if the same
were contained herein as covenants. Landlord reserves the right from time to
time to amend or supplement said rules and regulations, and to adopt and
promulgate additional rules and regulations applicable to the Premises provided
these amendments are agreeable to both Landlord and Tenant and both shall be
reasonable in negotiating if negotiation becomes necessary.
ARTICLE VIII
------------
INSURANCE
SECTION 8.01. Tenant's Coverage.
------------- ------------------
Tenant shall maintain at its sole expense during the term hereof, liability
insurance covering the Premises with a $2,000,000 Limit of Liability for
commercial general liability for each occurrence and $2,000,000 annual
aggregate. Tenant shall also keep in force rent insurance as well as special
form property insurance for the full replacement value of Tenant's improvements
and Tenant's property, including, but not limited to, inventory, trade fixtures,
furnishings and other personal property. Tenant shall also have plate glass
insurance covering all plate glass on the Premises at full replacement value,
however for plate glass coverage Tenant shall have the option to either insure
this risk or self-insure. Tenant shall cause such insurance policies to name
Landlord as an additional insured and to be written so as to provide that the
insurer waives all right of recovery by way of subrogation against Landlord in
connection with any loss or damage covered by the policy. In addition, Tenant
shall keep in force xxxxxxx'x compensation or similar insurance to the extent
required by law. Tenant shall deliver to Landlord at least five (5) days prior
to the commencement of the Term a copy of the insurance policy or the
endorsement evidencing coverage and evidencing Landlord, Elf Realty Corporation,
as additional insured. Each insurer under the policies required hereunder shall
agree by endorsement on the policy issued by it or by independent instrument
furnished to Landlord that it will give Landlord thirty (30) days' prior written
notice before the policy or policies in question shall be altered or canceled.
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11
SECTION 8.02. Landlord Coverage.
------------- ------------------
Landlord shall throughout the Lease Term, at its sole cost and expense, keep the
property insured.
SECTION 8.03. Indemnification.
------------- ----------------
During the term of this Lease, Tenant shall indemnify and hold Landlord,
Landlord's officers, agents, and employees, harmless from any loss, cost or
expense of any sort or nature, and from any liability to any person on account
of any damage to person or property arising out of any failure of Tenant to
perform and comply in any respect with any of the requirements and provisions of
this Lease, provided that such damage does not result directly or indirectly by
reason of conduct of Landlord, Landlord's officers, agents and employees.
Landlord shall indemnify and save Tenant harmless from any loss, cost or expense
of any sort or nature, and from any liability to any person on account of any
damage to person or property arising out of any failure of Landlord to perform
and comply in any respect with any of the requirements and provisions of this
Lease; provided that such damage does not result directly or indirectly by
reason of conduct of Tenant, its agents and employees.
SECTION 8.04. Indemnity Agreement.
------------- --------------------
Tenant hereby agrees to indemnify Landlord, Landlord's officers, agents and
employees against, and hold Landlord, Landlord's officers, agents and employees
harmless from any and all claims, demands, actions, loss or liability because or
on account of injuries to or death of any person (including death or injuries to
Tenant's employees) and damage to property of others, howsoever caused or
sustained (except where caused in whole or in part by negligence of Landlord,
Landlord's officers, agents and/or employees,) and in any way arising out of or
connected with the occupancy or use of the Premises (including the ways
immediately adjoining).
SECTION 8.05. Release.
------------- --------
Tenant hereby waives and releases all claims which Tenant may have against
Landlord, Landlord's officers agents and employees, for damages to or loss of
any property of any kind in which Tenant has an interest, howsoever such loss or
damage may have occurred or been caused.
ARTICLE IX
----------
DAMAGE & CONDEMNATION
SECTION 9.01. Partial Damage.
------------- ---------------
If the Premises are partially damaged or destroyed and paragraph 9.02 does not
apply, Landlord shall promptly repair the damage and restore the improvement at
Landlord's expense. The completed repair, restoration or replacement shall be
equal in value, quality and use to the condition of the improvement immediately
before the damage.
SECTION 9.02. Major Damage: Destruction.
------------- --------------------------
If the Premises are destroyed or damaged and the damage or destruction renders
more than 50% of the Premises permanently untenantable, either party may elect
to terminate the Lease as of the date of the damage or destruction by giving the
other party written notice within 30 days after the date of the damage. In such
event all rights and obligations of the parties shall cease as of the date of
termination, and Tenant shall be entitled to reimbursement of any Prepaid Rent.
If neither party elects to terminate, Landlord shall promptly and diligently
proceed to restore the Premises to substantially the same form as
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12
prior to the damage or destruction. Work shall be commenced as soon as possible
and shall proceed without interruption during normal working hours except for
work stoppages on account of labor disputes and matters outside of Landlord's
control.
SECTION 9.03. Rent Abatement.
------------- ---------------
Rent shall be proportionately abated during the repair of any damage to the
Premises to the extent Tenant's use of the Premises is materially impaired.
SECTION 9.04. Tenant's Work.
------------- --------------
Promptly following such destruction, Tenant shall, at Tenant's expense, perform
any work required to place the Premises in their prior condition and Tenant
shall restore, repair or replace its stock in trade fixtures, furniture,
furnishings, floor coverings and equipment, and if Tenant has closed, Tenant
shall promptly reopen for business.
SECTION 9.05. Condemnation.
------------- -------------
9.05.1 Taking.
The term "Taking" as used in this Section 9.05, shall mean an
appropriation or taking under the power of eminent domain by any
public or quasi-public authority or a voluntary sale or conveyance in
lieu of condemnation but under threat of condemnation.
9.05.2 Total Taking.
In the event of a Taking of the entire Premises, this Lease shall
terminate and expire as of the date possession is delivered to the
condemning authority, and Landlord and Tenant shall each be released
from any liability accruing pursuant to this Lease after the date of
such termination, but Minimum Annual Rent and Additional Rent for the
last month of Tenant's occupancy shall be prorated and Landlord shall
refund to Tenant any Minimum Annual Rent and Additional Rent paid in
advance.
9.05.3 Partial Taking.
If (a) there is a Taking of a material portion of the Premises and the
remainder of the Premises is not, in Tenant's sole but reasonable
business judgment, suitable for the continued operation of Tenant's
business, Tenant may terminate this Lease upon giving notice in
writing of such election to Landlord within thirty (30) days after
receipt by Tenant from Landlord of written notice that a portion of
the Premises has been so appropriated or taken. In each case, the
termination of this Lease shall be effective as of the date Tenant is
required to vacate the Premises, or the portion of the Premises taken.
9.05.4 Award.
The entire award or compensation in any such condemnation proceeding,
whether for a total or partial Taking, or for diminution in the value
of the leasehold or for the fee, shall belong to and be the property
of Landlord; and, in any event, the holder of any mortgage or deed of
trust encumbering the Project shall have a first priority to the
extent of the unpaid balance of principal and interest on its loan.
Without derogating the rights of Landlord or said lender under the
preceding sentence, Tenant shall be entitled to recover from the
condemning authority such compensation as may be separately awarded by
the condemning authority to Tenant or recoverable from the condemning
authority by Tenant in its own right for the taking of
--------------------------------------------------------------------------------
13
trade fixtures and equipment owned by Tenant and for the expense of
removing and relocating its trade fixtures and equipment, but only in
the event that the compensation awarded to Tenant shall be in addition
to and shall not diminish the compensation awarded to Landlord as
provided above.
9.05.5 Continuation of Lease.
In the event of a Taking, if Landlord and Tenant elect not to
terminate this Lease as provided above (or have no right to so
terminate), Landlord agrees, at Landlord's cost and expense as soon as
reasonably possible after the Taking, to restore the Premises (to the
extent of the condemnation proceeds) on the land remaining to a
complete unit of like quality and character as existed prior to the
Taking and, thereafter, Minimum Annual Rent and Additional Rent
payable by Tenant hereunder shall be reduced on an equitable basis,
taking into account the relative value of the portion taken as
compared to the portion remaining, and Landlord shall be entitled to
receive the total award or compensation in such proceedings.
ARTICLE X
---------
DEFAULT AND REMEDIES
SECTION 10.01. Tenant's Default.
Each of the following events shall be a default by Tenant and a breach of this
Lease:
10.01.1 Failure to Pay Rent
Failure of Tenant to make any rent payment within ten days after
receipt of written notice from Landlord that it is due.
10.01.2 Other Performance Failures.
Failure of Tenant to perform any other term, condition or covenant of
the Lease within thirty (30) days after receipt of written notice from
Landlord specifying the nature of the failure with reasonable
particularity. If the failure is of such a nature that it cannot be
completely remedied within the 30-day period, the failure shall not be
a default if Tenant begins correction of the failure within the 30 day
period and thereafter proceeds with reasonable diligence and in good
faith to correct the failure as soon as possible.
10.01.3 Attachment.
Attachment, execution, levy or other seizure by legal process of any
right or interest of Tenant under this Lease if not released within
thirty (30) days.
10.01.4 Bankruptcy.
An assignment by Tenant for the benefit of creditors, the filing by
Tenant of a voluntary petition in bankruptcy, the filing of an
involuntary petition in bankruptcy and failure of Tenant to secure a
dismissal of the petition within thirty (30) days after filing, the
appointment of a receiver to take possession of the Premises or
improvements or the leasehold estate or of Tenant's operations on the
Premises for any reason.
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14
10.01.5 Notwithstanding anything to the contrary in this Lease, in the event
(a) Tenant or its successors or assignees shall become insolvent or
bankrupt, or it or their interests under this Lease shall be levied
upon or sold under execution of other legal process, or (b) the
depository institution then operating on the Premises is closed, or is
taken over by any depository institution regulatory authority
("Regulatory Authority"), Landlord may, in either such event,
terminate this Lease only with concurrence of any Receiver or
Liquidator appointed by such Regulatory Authority; provided, that in
the event this Lease is terminated by the Receiver or Liquidator, the
maximum claim of Lessor for Rent, damages, or indemnity for injury
resulting from the termination, rejection, or abandonment of the
unexpired Lease shall by law in no event be in an amount greater than
all accrued and Unpaid Rent to the date of termination.
SECTION 10.02. Rights and Remedies.
-------------- --------------------
Landlord shall have the following remedies if Tenant commits a default. These
remedies are not exclusive; they are cumulative in addition to any remedies now
or later allowed by law.
Landlord may continue this Lease in full force and effect, and the Lease shall
continue in effect as long as Landlord does not terminate Tenant's right to
possession, and Landlord shall have the right to collect Rent when due during
the original term of this Lease. Tenant shall be liable immediately, however
payment is only due within thirty (30) days of written notice by Landlord, to
Landlord for all reasonable costs Landlord incurs in reletting the Premises,
including, without limitation, brokers' commissions, expenses of remodeling the
Premises required by the reletting, and like costs. Reletting can be for a
period shorter or longer than the remaining Lease Term, but Tenant shall only be
responsible for the obligations under this Lease for original Term hereof.
Tenant shall pay to Landlord the Rent due under this Lease on the dates Rent is
due, less 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 this Lease. After Tenant's default and for as
long as Landlord does not terminate Tenant's right to possession of the
Premises, if Tenant obtains Landlord's consent, Tenant shall have the right to
assign or sublet its interest in this Lease, but Tenant shall not be released
from liability. Landlord's consent to a proposed assignment or subletting shall
not be unreasonably withheld.
If Landlord elects to relet the Premises as provided in this paragraph, Rent
that Landlord receives from reletting shall be applied to the payment of:
First, any indebtedness from Tenant to Landlord other than Rent due from Tenant;
Second, all costs, including those for maintenance and repair, incurred by
Landlord in reletting;
Third, Rent due and unpaid under this Lease. After deducting the payments
referred to in this paragraph, any sum remaining from Rent Landlord receives
from reletting shall be held by Landlord and applied in payment of future Rent
as Rent becomes due under this Lease. In no event shall Tenant be entitled to
any excess Rent received by Landlord. If, on the date Rent is due under this
Lease, the Rent received from the reletting is less than Rent due on that date,
Tenant shall pay to Landlord, in addition to the remaining Rent due, all costs,
including those for maintenance and repair, Landlord incurred in reletting that
remain after applying Rent received from the reletting as provided in this
paragraph.
Landlord may terminate Tenant's right to possession of the Premises at any time.
No act by Landlord other than giving notice to Tenant shall terminate this
Lease. Acts of maintenance, efforts to relet the Premises, or the appointment of
a receiver on Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to possession. On
termination, Landlord has the right to recover from Tenant:
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15
a) The worth, at the time of the award, of the unpaid Rent that had been
earned at the time of termination of this Lease;
b) The worth, at the time of the award, of the amount by which the unpaid Rent
that would have been earned after the date of termination of this Lease
until the time of award exceeds the amount of the loss of Rent that Tenant
proves could have been reasonably avoided;
c) The worth, at the time of the award, of the amount by which the unpaid Rent
for the balance of the Term after the time of award exceeds the amount of
the loss of Rent that Tenant proves could have been reasonably avoided; and
d) Any other amount, and court costs, necessary to compensate Landlord for all
detriment proximately caused by Tenant's default.
"The worth, at the time of the award", as used in a) and b) of this paragraph,
shall be 10%. "The worth, at the time of the award", as referred to in c) of
this paragraph, is to be computed by discounting the amount at the discount rate
of the Federal Reserve Bank of San Francisco at the time of the award, plus 1%.
Landlord, at any time after Tenant commits a default, may cure the default at
Tenant's cost. If Landlord at any time, by reason of Tenant's default, pays any
sum or does any act that requires the payment of any sum, the sum paid by
Landlord shall be due immediately from Tenant to Landlord at the time the sum is
paid, and if paid at a later date shall bear interest at the maximum rate an
individual is permitted by law to charge from the date the sum is paid by
Landlord until Landlord is reimbursed by Tenant. The sum, together with interest
on it, shall be Additional Rent.
ARTICLE XI
----------
ASSIGNMENT AND SUBLETTING
SECTION 11.01. Landlord's Consent Required.
-------------- ----------------------------
Tenant shall not assign or sublease all or any part of its interest in this
Lease or transfer any interest of Tenant therein (any and all such acts being
collectively referred to herein as a "Transfer") without the prior written
consent of Landlord, and attempt to do so without such consent being first had
and obtained shall be wholly void and shall constitute a breach of this Lease.
Landlord shall not unreasonably withhold its consent to a Transfer provided that
the provisions of this Article XI are met. The only exception would be the
transfer to an affiliate or subsidiary in which case the prior written consent
of the Landlord is not required provided that the other provisions of this
Article XI are met.
SECTION 11.02. Condition of Transfer.
-------------- ----------------------
If Tenant desires to effect a Transfer, Tenant shall submit in writing to
Landlord within a reasonable time for evaluation prior to the proposed Transfer
the following information all in sufficient detail to enable Landlord to
evaluate the proposed Transfer and the prospective Transferee:
a) The name and legal composition of the proposed Transferee;
b) The nature of the business proposed to be carried on in the Premises;
c) The terms and provisions of the proposed Transfer;
d) Such reasonable financial information as Landlord may request concerning
the proposed Transferee.
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16
It is the intent of the parties hereto that this Lease shall confer upon Tenant
only the right to use and occupy the Premises, and to exercise such other rights
as are conferred upon Tenant by this Lease. In the event Tenant seeks to
transfer its interest in this Lease or the Premises, Landlord shall have the
following options, which may be exercised at its sole choice without limiting
Landlord in the exercise of any other right of remedy which Landlord may have by
reason of such proposed Transfer:
1) Landlord may terminate this Lease effective as of the proposed effective
date of the proposed Transfer and release Tenant from any liability
hereunder accruing after such termination date by giving Tenant written
notice of such termination within fifteen (15) days after receipt by
Landlord of Tenant's notice of intent to transfer as provided above. If
Landlord gives such notice, Tenant shall surrender the Premises, in
accordance with Section 15, on the effective termination date.
2) Landlord may consent to the proposed Transfer on certain conditions,
including without limitations one or more of the conditions set forth in
Section 11.03 (c), and (d) below.
SECTION 11.03. Reasonable Consent.
-------------- -------------------
The parties hereto agree that Landlord's refusal to consent to any proposed
Transfer, or conditional consent to any Transfer, shall not be deemed
unreasonable if:
a) The proposed Transferee, or the proposed Transfer of the Premises to such
Transferee will not attract the same or greater volume of trade and
patronage to the Building as Tenant of the use of the Premises by Tenant;
b) Tenant fails to provide Landlord with the information requested by Landlord
pursuant to Section 11.02 (a), (b), (c), and (d) above, within a reasonable
time for evaluation prior to the proposed Transfer;
c) Landlord conditions its consent to such Transfer by requiring that Tenant
agree to pay to Landlord, as Additional Rent, fifty percent (50%) of any
and all rents in excess of the Rent to be paid under this Lease. For the
purpose of this Article 11, the term "Rent" shall include any consideration
of any kind received or to be received, by Tenant from the Transferee, if
such sums are related to Tenant's interest in this Lease.
Tenant expressly agrees that the conditions imposed by Landlord for any Transfer
pursuant to this Article 11 are not unreasonable for purposes of Section 1951.4
(b) (2) of the California Civil Code, as amended from time to time.
SECTION 11.04. Assignment Fees.
-------------- ----------------
Should Tenant request the consent of Landlord to an assignment of this Lease or
of any of Tenant's rights thereunder and whether or not such consent is
ultimately given by Landlord and/or any such assignment, subletting, occupancy
or use is carried out, Tenant agrees to pay to Landlord's agent the sum of
$500.00 for services plus expenses and to Landlord reasonable attorneys' fees
incurred in connection with each such request.
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17
ARTICLE XII
-----------
RIGHT OF ENTRY
SECTION 12.01. Right of Entry.
-------------- ---------------
Landlord or Landlord's agents shall have the right to enter the Premises at
reasonable times, with notice if possible, to examine the same, and to show them
to prospective purchasers or tenants, to post notices, and to make such repairs,
alterations, improvements or additions as Landlord may deem necessary, 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 wise xxxxx 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 months
prior to the expiration of the Lease Term or any renewal term, Landlord may
place upon the Premises the usual notices "For Lease" which notices Tenant shall
permit to remain thereon without molestation. Landlord shall limit any "For
Sale" sign placed on the building to no larger than 4 feet by 4 feet, and
clearly indicate on the sign that the building, not the Bank or the business, is
for sale.
ARTICLE XIII
------------
TENANTS PROPERTY
SECTION 13.01. Taxes.
-------------- ------
Tenant shall be responsible for and shall pay before delinquency all municipal,
county or state taxes, levies and fees of every kind and nature, including, but
not limited to, general or special assessments assessed during the Lease Term
against any personal property of any kind, owned by or placed in, upon or about
the Premises by Tenant and taxes assessed on the basis of Tenant's occupancy
thereof, including, but not limited to, taxes measured by Rents due from Tenant
hereunder.
SECTION 13.02. Notices by Tenant.
-------------- ------------------
Tenant shall give immediate telephone or facsimile notice to Landlord in case of
fire, casualty, or accidents in the Premises or in the building of which the
Premises are a part or of defects therein or in any fixtures of and/or equipment
and shall promptly thereafter confirm such notice in writing.
ARTICLE XIV
-----------
SUCCESSION TO LANDLORD'S INTEREST
SECTION 14.01. Attornment.
-------------- -----------
If the interest of Landlord is transferred to any person or entity by reason of
foreclosure or other proceedings of enforcement of any mortgage, deed of trust
or security interest or by delivery of a deed in lieu of foreclosure or other
proceedings, Tenant shall upon delivery to Tenant by said transferee of a
nondisturbance agreement, immediately and automatically attorn to such person or
entity. In the event of such transfer, this Lease and Tenant's rights hereunder
shall continue undisturbed so long as Tenant is not in default.
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18
SECTION 14.02. Subordination.
-------------- --------------
This Lease shall be subordinate to the lien of any mortgage or security deed or
the lien resulting from any other method of financing or refinancing now or
hereafter in force against the Premises, any portion thereof, or upon any
buildings hereafter placed upon the land of which the Premises are a part, and
to any and all advances to be made under such mortgages, and all renewals,
modifications, extensions, consolidations and replacements thereof. The
aforesaid provisions shall be self-operative and no further instrument of
subordination shall be required to evidence such subordination. Tenant covenants
and agrees to execute and deliver, upon demand, such further instrument or
instruments subordinating this Lease on the foregoing basis to the lien of any
such mortgage or mortgages as shall be desired by Landlord and any mortgagees or
proposed mortgagees.
SECTION 14.03. Estoppel Certificate.
-------------- ---------------------
Within ten (10) days after request therefor by Landlord, or in the event that
upon any sale, assignment or hypothecation of the Premises and/or the land
thereunder by Landlord, an estoppel certificate shall be required from Tenant,
Tenant agrees to deliver in recordable form, a certificate to any proposed
mortgagee or purchaser, or to Landlord, certifying that this Lease is unmodified
and in full force and effect (or, if there have been modifications, that the
same is in full force and effect as modified, and stating the modification),
that there are no defenses or offsets thereto (or stating those claimed by
Tenant) and the dates to which Fixed Minimum Rent, and other charges have been
paid.
ARTICLE XV
----------
SURRENDER OF PREMISES
SECTION 15.01. Condition on Surrender.
-------------- -----------------------
At the expiration or earlier termination of this Lease, Tenant shall surrender
the Premises to Landlord broom clean and in the same condition as when tendered
by Landlord, reasonable wear and tear and insured casualty excepted. Tenant
shall promptly repair any damage to the Premises caused by the removal of any
furniture, trade fixtures or other personal property placed in the Premises.
SECTION 15.02. Holding Over.
-------------- -------------
Should Tenant, with Landlord's written consent, hold over at the end of the
term, Tenant shall become a Tenant at will and any such holding over shall not
constitute an extension of this Lease. During such holding over, Tenant shall
pay rent and other charges at 105% of the highest monthly rate provided for
herein.
ARTICLE XVI
-----------
TENANT FINANCIAL DATA
SECTION 16.01. Tenant Financial Data.
-------------- ----------------------
Within fifteen (15) days after Landlord's written request, Tenant shall furnish
Landlord with financial statements or other reasonable financial information
reflecting Tenants current financial condition, certified by Tenant or its
financial officer. If Tenant is a publicly traded corporation, delivery of
Tenant's last published financial information shall be satisfactory for purposes
of this Section.
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19
Landlord may request the financial statements set forth herein only if the
request is made for a specific reason, such as in connection with a sale,
financing or refinancing the Project. Any information obtained from Tenant's
financial statements shall be confidential and shall not be disclosed other than
to carry out the purposes of this Lease; provided, however, Landlord shall incur
no liability for the inadvertent disclosure of any such information. Landlord
may divulge the contents of any financial statements in connection with any
financing arrangement or sale of Landlord's interest in the Premises or in
connection with any administrative or judicial proceedings.
ARTICLE XVII
------------
MISCELLANEOUS
SECTION 17.01. Waiver.
-------------- -------
The waiver by Landlord of any breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or condition
or any subsequent breach of the same or any other term, covenant or condition
herein contained. The subsequent acceptance of Rent hereunder by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of Tenant to pay the
particular rental so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such Rent. No covenant, term or
condition of this Lease shall be deemed to have been waived by Landlord, unless
such waiver be in writing by Landlord.
SECTION 17.02. Accord and Satisfaction.
-------------- ------------------------
No payment by Tenant or receipt by Landlord of a lesser amount than the monthly
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 may 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 17.03. Entire Agreement.
-------------- -----------------
This Lease and the Exhibits and Rider, if any, attached hereto and forming a
part hereof, set 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, between them other than as are herein set forth. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to
this Lease shall be binding upon Landlord or Tenant unless reduced to writing
and signed by them.
SECTION 17.04. No Partnership.
-------------- ---------------
Landlord does not, in any way or for any purpose, become a partner of Tenant in
the conduct of its business, or otherwise, or joint adventurer or a member of a
joint enterprise with Tenant
SECTION 17.05. Force Majeure.
-------------- --------------
In the event that Landlord shall be delayed or hindered in or prevented from
doing or performing any act or thing required hereunder by reason of strikes,
lock-outs, casualties, Acts of God, labor troubles, inability to procure
materials, failure of power, governmental laws or regulations, riots,
insurrection, war or other causes beyond the reasonable control of Landlord,
then Landlord shall not be liable or responsible for any such delays and the
doing or performing of such act or thing shall be excused for the
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20
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.
SECTION 17.06. Notices.
-------------- --------
Any notice, demand, request or other instrument which may be or are required to
be given under this Lease shall be delivered personally or sent by either United
States certified mail postage prepaid or expedited mail service and shall be
addressed (a) if to Landlord at the address provided in Section 1.01 for
Landlord or at such other address as Landlord may designate by written notice
and (b) if to Tenant at the address provided in Section 1.01 for Tenant or at
such other address as Tenant shall designate by written notice. Notices shall be
effective upon delivery unless delivery is refused or cannot be made in which
event notice shall be effective on mailing.
SECTION 17.07. Captions and Section Numbers.
-------------- -----------------------------
The captions, section numbers, article numbers, and index appearing in this
Lease are inserted only as a matter of convenience and in no way define, limit,
construe, or describe the scope or intent of such section or articles of this
Lease nor in any way affect this Lease.
SECTION 17.08. Tenant Defined, Use of Pronoun.
-------------- -------------------------------
The word "Tenant" shall be deemed and taken to mean each and every person or
party mentioned as a Tenant herein, be the same one or more; and if there shall
be more than one Tenant, any notice required or permitted by the terms of this
lease may be given by or to any one thereof, and shall have the same force and
effect as if given by or to all thereof. The word "Landlord" shall be deemed and
taken to mean each and every person or party mentioned as a Landlord herein, be
the same one or more; and if there shall be more than one Landlord, any notice
required or permitted by the terms of this Lease shall be given by or to any one
thereof, and shall have the same force and effect as if given by or to all
thereof. The use of the neuter singular pronoun to refer to Landlord or Tenant
shall be deemed a proper reference even though Landlord or Tenant may be an
individual, a corporation, or a group of two or more individuals or
corporations. The necessary grammatical changes required to make the provisions
of this Lease apply in the plural sense where there is more than one Landlord or
Tenant and to either corporations, associations, partnerships, or individuals,
males or females, shall in all instances be assumed as though in each case fully
expressed.
SECTION 17.09. Partial Invalidity.
-------------- -------------------
If any term, covenant or condition of this Lease or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term, covenant or
condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each term, covenant
or condition of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
SECTION 17.10. Execution of Lease.
-------------- -------------------
The submission of this Lease for examination does not constitute a reservation
of or option for the Premises and this Lease becomes effective as a Lease only
upon execution and delivery thereof by Landlord and Tenant. If Tenant is a
corporation, Tenant shall furnish Landlord with such evidence, as Landlord
reasonably requires to evidence the binding effect on Tenant of the execution
and delivery of this Lease.
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21
SECTION 17.11. Recording.
-------------- ----------
Tenant agrees not to record this Lease. However, Tenant and Landlord, upon
request of either, agree to execute and deliver a memorandum or so-called "short
form" of this Lease in recordable form for the purpose of recordation at
Tenant's expense. Said memorandum or short form of this Lease shall describe the
parties, the Premises and the Lease Term and shall incorporate this Lease by
reference.
SECTION 17.12. Applicable Law.
-------------- ---------------
The Laws of the State of California shall govern the validity, performance and
enforcement of this Lease with venue in San Xxxxxxx County, except where
indicated differently in this Lease.
SECTION 17.13. Time is of the Essence.
-------------- -----------------------
Time is of the essence of this Agreement.
SECTION 17.14. Successors and Assigns.
-------------- -----------------------
Except as otherwise provided herein, this Lease shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, executors, administrators, successors and assigns; except that
nothing in this Paragraph shall be deemed to permit any assignment, subletting,
occupancy, or use contrary to the provisions of this Article.
SECTION 17.15. Survival of Obligations.
-------------- ------------------------
Any obligation of Tenant to pay any sum owing in order to perform the provisions
of this Lease after the expiration or other termination of this Lease, shall
survive the expiration or other termination of this Lease.
SECT10N 17.16. Arbitration.
-------------- ------------
Any controversy between the parties hereto involving the construction or
application of any of the terms, covenants, or conditions of this Lease shall on
written request of one party served on the other be submitted to arbitration and
such arbitration shall comply with and be governed by the provisions of the
American Arbitration Association.
SECTION 17.17. Attorney Fees.
-------------- --------------
In case suit should be brought for recovery of the Premises, or for any sum or
rents due hereunder, or because of any act which may arise out of the possession
of the Premises, by either party, the prevailing party shall be entitled to all
costs incurred in connection with such action, including a reasonable attorney's
fee.
If Landlord shall be made a party to any litigation commenced by or against
Tenant, Tenant shall pay all costs, expenses and attorneys' fees incurred by
Landlord in connection with such litigation except in the event that such
litigation shall determine that Landlord has committed a breach of this Lease
and shall adjudicate that Landlord is liable therefor.
SECTION 17.18. Representations.
-------------- ----------------
Tenant acknowledges that neither Landlord nor Landlord's agents, employees, or
contractors have made any representations or promises with respect to the
Premises, or this Lease except as expressly set forth herein.
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22
SECTION 17.19. Landlord's Liability.
-------------- ---------------------
Landlord's liability hereunder shall be limited solely to Landlord's interest in
the Premises.
SECTION 17.20. Landlord's Consent Must Be Reasonable.
-------------- --------------------------------------
Wherever in this Lease the consent or approval of Landlord is required, such
consent or approval shall not be unreasonably withheld.
SECTION 17.21. Contingency.
-------------- ------------
This Lease is contingent upon regulatory approval by the California Department
of Financial Institutions and the FDIC. If the contingencies are not lifted by
August 1, 1999, the Lease shall become null and void and the security deposit
and Prepaid Rent shall be refunded to Tenant.
IN WITNESS WHEREOF the parties hereto have executed this Lease this day and year
first above written.
LANDLORD, Elf Realty Corporation TENANT, Service 1st Bank (Proposed)
By:_____________________________ By:_______________________________
Xxxxx Xxxxxxx Xxxxx Xxxxxxx
President Chief Executive Officer
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23
ARTICLE I
---------
BASIC LEASE PROVISIONS
ENUMERATION OF EXHIBITS
SECTION 1.01. Basic Lease Provisions
DATE: April 13,1999
LANDLORD: Elf Realty Corporation
ADDRESS OF LANDLORD: HSR Realty
000 Xxxxxxxx Xx.
Xxxxxxxx, XX. 00000
TENANT: Service 1st Bank (Proposed)
ADDRESS OF TENANT: 00 Xxxx Xxxxx Xxxxxx, Xxxxx, XX.
PERMITTED USE: (1) The delivery of financial services to
commercial and retail customers including
operating a bank, savings bank, credit union,
insurance company/agency, stock brokerage, trust
company, or related financial services company or
institution, (2) general office use, (3) data
processing, or (4) any other business now or in
the future operated by Tenant, its affiliates,
subsidiaries, or assignees, in accordance with
Article IV.
TENANT'S TRADE NAME: Service 1st Bank (Proposed)
PREMISES: The entire building located at 00 Xxxx Xxxxx
Xxxxxx, Xxxxx, XX.
LEASE TERM RENTAL Seven (7) years commencing no later than 60 days
COMMENCEMENT DATE AND TERM following the vacating of the Premises by the
(Section 2.05): current Tenant, but no later than May 1, 2000
(commencement date)
LEASE YEAR If the Commencement date is other than the first
day of a calendar month, the first Lease Year
shall be the period of time from said Commencement
Date to the end of the month in which said
Commencement date shall occur plus the following
twelve (12) calendar months. Each Lease Year
thereafter shall be successive period of twelve
(12) calendar months.
FIXED MINIMUM RENT $6,100.00 (Six Thousand One Hundred Dollars) per
(Section 3.01): calendar month of the Lease Year.
PERIODIC COST OF LIVING An integral part of this Lease
ADJUSTMENT (Section 3.02):
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1
COMMON AREA MAINTENANCE Tenant to pay all taxes and assessments,
PAYMENT & OPERATING EXPENSE maintenance and repairs. Landlord to pay real
(Section 4.01): property Insurance.
PREPAID RENT: $6,100.00 (Six Thousand One Hundred Dollars) upon
execution of this Lease as prepaid rent to be
applied to the first installment of Fixed Minimum
Rent due hereunder. If this Lease is terminated as
per Section 17.21 below, the prepaid rent shall
immediately be refunded to Tenant.
SECURITY DEPOSIT: $6,100.00 (Six Thousand One Hundred Dollars) upon
execution of this Lease. If this Lease is
terminated as per Section 17.21 below, the
Security Deposit shall immediately be refunded to
Tenant.
OPTION TO RENEW: Tenant has two (2) consecutive options to extend
the Lease term for five (5) years each as per
Section 3.05 below. The Fixed Minimum Rent shall
be adjusted under the terms of this Lease. All
other terms of this Lease shall remain in effect.
SECTION 1.02. Significance of a Basic Lease Provision.
------------- ----------------------------------------
Each reference in this "Lease" to any of the Basic Lease Provisions contained in
Section 1.01 of this Article shall be deemed and construed to incorporate all of
the terms thereof. The Basic Lease Provisions shall be construed in connection
with and limited by any such reference.
--------------------------------------------------------------------------------
2
ARTICLE II
----------
DEMISE OF PREMISES AND QUIET ENJOYMENT
SECTION 2.01. Description and General Obligations.
------------- ------------------------------------
Landlord owns the building located at 00 Xxxx Xxxxx Xxxxxx, Xxxxx, XX. In
consideration of the rents, covenants and agreements reserved and contained in
this Lease, Landlord hereby leases and demises the Premises to Tenant and Tenant
rents same, in order that Tenant shall continuously operate its business
operations thereon in accordance with its Permitted Use, subject only to the
terms and conditions herein contained and all liens, encumbrances, easements,
restrictions, zoning laws, and governmental or other regulations affecting the
Premises.
The Premises shall include the following fixtures: any items left by the
previous Tenant, such as the vault, teller line, and other cabinetry to be
mutually agreed upon, and which shall remain the property of Landlord.
SECTION 2.02. Quiet Enjoyment.
------------- ----------------
Landlord covenants that Tenant, upon paying all sums due from Tenant to
Landlord, hereunder "Rent", and performing and observing all of Tenant's
obligations under this Lease, shall peacefully and quietly have, hold and enjoy
the Premises and the appurtenances throughout the Lease Term without
interference by the Landlord, subject, nevertheless, to the other terms and
provisions of this Lease.
SECTION 2.03. Statement of Lease Term.
------------- ------------------------
When the commencement date and termination date of the Lease Term have been
determined, Landlord and Tenant shall execute and deliver a written statement in
recordable form specifying therein the Rental Commencement Date and termination
date of the Lease Term.
ARTICLE III
-----------
RENT
SECTION 3.01. Fixed Minimum Rent.
------------- -------------------
During the entire Lease Term, Tenant covenants and agrees to pay to Landlord, in
lawful money of the United States, without any prior demand and without any
deduction or setoff whatsoever, the fixed Minimum Rent as provided in Section
1.01. The payment of Fixed Minimum Rent by Tenant to Landlord shall be made in
advance on the first day of each calendar month during the Lease Term hereof.
Fixed Minimum Rent for any partial calendar month during the Lease Term shall be
prorated on a per diem basis.
SECTION 3.02. Periodic Cost of Living Adjustment.
------------- -----------------------------------
The minimum monthly rent shall be subject to adjustment at the commencement of
the second year of the term and each year thereafter ("the adjustment date") as
follows:
The base for computing the adjustment is the Consumer Price Index (All Urban
consumers) (base year 1982-1984 - 100) for San Francisco-Oakland-San Xxxx
published by the United States Department of Labor, Bureau of Labor Statistics
("Index") which was last published one (1) year prior to the Adjustment Date
("Beginning Index"). The Index last published prior to the Adjustment Date
("Extension Index") is to be used in determining the amount of the adjustment.
If the Extension Index has increased over the
--------------------------------------------------------------------------------
3
Beginning Index, the minimum monthly rent for the following year (until the next
rent adjustment) shall be set by multiplying the minimum monthly rent for the
preceding period by a fraction, the numerator of which is the Extension Index
and the denominator of which is the Beginning Index.
The above adjustment shall be subject to a minimum floor of two percent (2%) and
a maximum cap of five percent (5%), therefore the adjusted minimum rent shall be
no less than two percent (2%) greater than the monthly minimum rent in effect
prior to the Adjustment Date then occurring and shall be no more than five
percent (5%) greater than the monthly minimum rent in effect prior to the
Adjustment Date then occurring.
If the Index is changed so that the base year differs from that in effect when
the term commences, the Index shall be converted in accordance with the
conversion factor published by the United States Department of Labor, Bureau of
Labor Statistics. If the Index is discontinued or revised during the term, such
other government index or computation with which it is replaced shall be used in
order to obtain substantially the same result as would be obtained if the Index
had not been discontinued or revised.
SECTION 3.03. Additional Charges.
------------- -------------------
In addition to Fixed Minimum Rent, all other payments (except reimbursements) to
be made by Tenant to Landlord shall be deemed to be and shall become "Additional
Rent" hereunder whether or not the same be designated as such, and shall be due
and payable on demand together with any interest thereon; and Landlord shall
have the same remedies for failure to pay same as for a non-payment of Minimum
Rents. (Minimum Rent and Additional Rent are hereinafter sometimes collectively
referred to as "Rent"). If Tenant fails to make any payment of Rent when due as
required under the applicable provisions of this Lease, Tenant shall pay a late
charge in accordance with Section 3.04 hereof.
SECTION 3.04. Past Due Rent and Additional Rent.
------------- ----------------------------------
If Tenant shall fail to pay, when the same is due and payable, any Rent or any
Additional Rent, or amounts or charges of the character described in Section
3.03 hereof, Tenant shall pay as Additional Rent a late fee equal to six (6%)
percent of the delinquent amount if such payments are not paid within five days
of their due date. Landlord and Tenant agree that this late charge represents a
reasonable estimate of the costs and expenses Landlord will incur and is fair
compensation to Landlord for its loss suffered by reason of late payment by
Tenant.
SECTION 3.05. Option to Renew.
------------- ----------------
If Tenant elects to exercise its Option to Renew provided for in Section 1.01,
then Tenant shall provide Landlord with written notice not earlier than six (6)
months prior to the expiration of the then current term of the Lease, but no
later than 5:00 p.m. (Pacific Time) on the date which is three (3) months prior
to the expiration of the then current term of the Lease. If Tenant fails to
provide such notice, Tenant shall have no further or additional right to extend
or renew the term of the Lease.
SECTION 3.06. Option Minimum Rent
------------- -------------------
The Fixed Minimum Monthly Rent for the Option Period shall be determined by
either the Cost of Living Adjustment (Section 3.02) or the Fair Market Rental
(Section 3.07 below), whichever is greater.
Should the Fair Market Rental Adjustment prevail for one or both of the two
Option Periods, the Fixed Minimum Monthly Rent shall be adjusted in accordance
with Section 3.07 for the first year and Section 3.02 for the second and
subsequent years.
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4
SECTION 3.07. Fair Market Rental
------------- ------------------
Fair Market Rental shall be the actual rental rates for comparable space of
comparable financial institutions in other comparable areas of Tracy,
California, adjusting to account for, with respect to such rental, any
difference between the lease and the lease(s) of comparable space, including
without limitation, net versus gross lease provisions. Fair Market Rental shall
be determined pursuant to the foregoing factors and shall mean the Fair Market
Rental in effect as of the beginning of the Option Period.
Not less than sixty (60) days before the beginning of each Option Period,
Landlord shall notify Tenant of Landlord's determination of the Fair Market
Rental for the Premises for the coming Option Period (the Fair Market Rental
Notice).
If Tenant disputes the amount of the Fair Market Rental as determined by
Landlord, Tenant may require that Landlord submit the dispute to arbitration.
The judgment rendered in any such arbitration may be entered in any court having
jurisdiction and shall be final and binding between parties. The arbitration
shall be conducted in San Francisco, California, in accordance with the then
prevailing rules of the American Arbitration Association or its successors for
arbitration of commercial disputes, except to the extent that the procedures
mandated by such rules shall be modified as follows:
Tenant shall make demand for arbitration in writing within twenty (20) business
days after receipt of the Fair Market Rental Notice, specifying therein the name
and address of the person to act as the arbitrator on Tenant's behalf. The
arbitrator shall be qualified as a real estate appraiser familiar with the fair
market rental of comparable space in comparable areas in Tracy, California.
Failure on the part of Tenant to make a timely and proper demand for such
arbitration shall constitute a waiver of the right thereto, and rental for the
option period shall be the amount stated in the Fair Market Rental Notice.
Within ten (10) business days after the service of the demand for arbitration,
Landlord shall give notice to Tenant, specifying the name and address of the
person designated by Landlord to act as arbitrator on its behalf who shall be
similarly qualified. If Landlord fails to notify Tenant of the appointment of
its arbitrator within or by the time above specified, then the arbitrator
appointed by Tenant shall be the arbitrator to determine the issue.
If two arbitrators are chosen pursuant to the preceding paragraph, the
arbitrators so chosen shall meet within ten (10) business days after the second
arbitrator has been appointed and, if within twenty (20) business days after
such meeting the two arbitrators are unable to agree promptly upon a
determination of Fair Market Rental, they - themselves - shall appoint a third
arbitrator who shall be a competent and impartial person with qualifications
similar to those required of the first two arbitrators.
If the two arbitrators are unable to agree upon such appointment within five (5)
business days after the expiration of such twenty (20) day period, the third
arbitrator shall be selected by the parties themselves, if they can agree
thereon within a further period of ten (10) business days. If the parties cannot
so agree, then either party, on behalf of both, may request the then Chief Judge
of the United States District Court having jurisdiction over the City of San
Francisco, California, to appoint a third arbitrator and the other party shall
not raise any question as to the judge's full power and jurisdiction to
entertain the application for and make the appointment.
Where the issue cannot be resolved by agreement between the two arbitrators
selected by Landlord and Tenant or settled between the parties during the course
of arbitration, the issue shall be resolved by the three arbitrators as follows:
The arbitrator selected by each of the parties shall state in writing his
determination of the Fair Market Rental supported by the reasons therefore with
counterpart copies to each party. The arbitrators shall arrange for a
simultaneous exchange of such proposed resolutions. The role of the third
arbitrator shall be to select which of the two proposed resolutions most closely
approximates his determination of Fair Market Rental. The third arbitrator shall
have no right to propose
--------------------------------------------------------------------------------
5
a middle ground or any modification of either of the two proposed resolutions.
The resolution he chooses as most closely approximating his determination shall
constitute the decision of the arbitrators and shall be final and binding upon
the parties.
If any arbitrator fails, refuses, or is unable to act, his successor shall be
appointed by him, but in the case of the third arbitrator, his successor shall
be appointed in the same manner as provided for the appointment of the third
arbitrator. The arbitrators shall attempt to decide the issue within ten (10)
business days after the appointment of the third arbitrator. Any decision in
which the arbitrator appointed by Landlord and arbitrator appointed by Tenant
concur shall be binding and conclusive upon the parties. Each party shall pay
the fee and expense of its respective arbitrator and both shall share the fees
and expenses of the third arbitrator, if any. The attorneys' fees and expenses
of counsel for the respective parties and of witnesses shall be paid by the
respective party engaging such counsel or calling such witnesses.
The arbitrators shall have the right to consult experts and competent
authorities for factual information or evidence pertaining to a determination of
Fair Market Rental, but any such consultation shall be made in the presence of
both parties with full right on their part to cross-examine. The arbitrators
shall render their decision in writing with counter-part copies to each party.
The arbitrators shall have no power to modify the provisions of the lease.
If the new rental term begins prior to determination of Fair Market Rental, then
the minimum monthly rental initially due during the new rental term shall be the
amount stated in the Fair Market Rental Notice. Within fifteen (15) days after
determination of the Fair Market Rental, the appropriate party shall pay the
other party the difference between the amount actually paid and the amount that
should have been paid pursuant to this Paragraph 2.
In no case shall the Fixed Minimum Monthly Rent be less than the minimum monthly
rent paid immediately preceding the option period year, plus two (2%) percent.
ARTICLE IV
----------
PERMITTED USE
SECTION 4.01. Use of Premises
------------- ---------------
Tenant shall use and occupy the Premises during the term for the purpose of
delivering financial services to commercial and retail customers including
operating a bank, savings bank, credit union, mortgage company, insurance
company/agency, stock brokerage, trust company, or related financial services
company or institution (2) general office use, (3) data processing, or (4) any
other business now or in the future operated by Tenant, its affiliate,
subsidiaries, or assignees, and for no other purpose whatsoever without the
written consent of Landlord.
SECTION 4.02. Continuous Operation
------------- --------------------
Tenant shall continuously during the entire term hereof conduct and carry on
Tenant's aforesaid business in the Premises and shall keep said Premises open
for business and cause such business to be conducted thereon during each and
every business day for such number of hours each day as is customary for
business of like character in the City of Xxxxx, except for a temporary shutdown
on account of strikes, lockouts or causes beyond the control of Tenant, or (for
not more than one (1) day) out of respect to the memory of any deceased officer
or employee of Tenant.
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6
Should Tenant close the Premises without the express consent of Landlord,
Landlord may terminate this Lease.
SECTION 4.03. Abandonment
------------- -----------
Tenant agrees not to vacate or abandon the Premises at any time during the Lease
Term. Should Tenant vacate or abandon the Premises or be dispossessed by process
of law or otherwise, such abandonment, vacation or dispossession shall be a
breach of this Lease and, in addition to any other rights which Landlord may
have, Landlord may, after notice to Tenant, terminate this Lease and remove any
personal property belonging to Tenant which remains on the Premises and store
the same in a public warehouse or elsewhere, such removal and storage to be at
the cost of and for the account of Tenant.
Notwithstanding the above, Tenant may vacate the Premises, with prior written
notice to Landlord, at any time, for no more than six (6) months, and such
action shall not constitute an event of default provided Tenant continues to
meet all other Lease Obligations, including Rent.
SECTION 4.04. Surrender of Premises
------------- ---------------------
At the termination of this Lease, Tenant shall surrender the Premises in the
same condition (subject to the removals hereinafter required) as the Premises
were on the date Tenant opened the Premises for business to the public,
reasonable wear and tear and loss due to insured casualty excepted, and shall
surrender all keys for the Premises to Landlord at the place then fixed for the
payment of Rent, and shall inform Landlord of all combinations on locks, safes
and vaults, if any, in the Premises. Prior to termination, Tenant shall remove
all its trade fixtures, and, to the extent required by Landlord by written
notice, any other installation, alterations or improvements before surrendering
the Premises as aforesaid and shall repair any damage to the Premises caused
thereby. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of the Lease Term.
ARTICLE V
---------
OPERATING COSTS
SECTION 5.01. Operating Costs.
------------- ----------------
During each month of the Lease Term, Tenant shall pay all taxes, public charges
and assessments of whatsoever nature directly or indirectly assessed or imposed
upon the land, buildings, equipment and improvements constituting the Premises,
including, but not limited to, all real property taxes, rates, duties and
assessments, local improvement taxes, import charges or levies, whether general
or special, that are levied, charged or assessed against the Premises by any
lawful taxing authority whether federal, state, county, municipal, school or
otherwise (other than income, inheritance and franchise taxes thereon).
ARTICLE VI
----------
INSTALLATION, MAINTENANCE, OPERATION AND REPAIR
SECTION 6.01. Tenant Installation.
------------- --------------------
Tenant shall, at Tenant's sole expense, install all trade fixtures and equipment
required to operate its business (all of which shall be of first-class quality
and workmanship). All trade fixtures, signs, or other personal property
installed in the Premises by Tenant shall remain the property of Tenant and may
be removed at any time provided that Tenant is not in default hereunder and
provided the removal thereof
--------------------------------------------------------------------------------
7
does not cause, contribute to, or result in Tenant's default hereunder; and
further provided that Tenant shall at Tenant's sole expense promptly repair any
damage to the Premises resulting from the removal of personal property and shall
replace same with personal property of like or better quality. The term "trade
fixtures" as used herein shall not include carpeting, floor coverings, attached
shelving, lighting fixtures other than free-standing lamps, wall coverings, or
similar Tenant improvements which upon installation shall immediately become the
property of Landlord but which can be moved, modified, or changed by Tenant at
any time during the Lease Term without permission from Landlord. Tenant shall
not attach any fixtures or articles to any portion of the Premises, nor make any
alterations, additions, improvements, or changes or perform any other work
whatsoever in and to the Premises, other than minor interior cosmetic and
decorative changes which do not exceed Five Thousand Dollars ($5,000.00) in the
aggregate per Lease Year, without in each instance obtaining the prior written
approval of Landlord. Any alterations, additions, improvements, changes to the
Premises or other work permitted herein shall be made by Tenant at Tenant's sole
cost and expense.
SECTION 6.02. Maintenance and Repairs by Tenant.
------------- ----------------------------------
Except as provided in Section 6.01 hereof, Tenant shall, at Tenant's expense, at
all times keep the Premises and appurtenances and every part thereto in good
clean, sanitary and safe order, condition and repair, including fixtures,
electrical, plumbing, sewage systems, sidewalks, parking lot and landscaping,
thereby waiving all rights to make repairs at the expense of Landlord as
provided in Section 1942 of the Civil code of the State of California, and all
rights provided for by Section 1941 of said Civil Code. Tenant shall replace all
broken glass with glass of the same size and quality and on a quarterly basis
maintain and repair HVACs. Any replacement of major parts or an entire HVAC unit
shall be handled as follows: Upon determination of the need for replacement of
parts or an entire unit, and the cost, Tenant shall notify Landlord of the
extent and cost of the replacement. Tenant shall be responsible for the first
$5000 of cost for each HVAC unit. The $5000 shall be cumulative from the
beginning of the Lease Term, and shall continue through the option periods. The
cumulative $5000 shall not include costs paid by Tenant for quarterly
maintenance or minor repairs. If the replacement of parts or an entire unit
exceeds the $5000 cap per unit, Landlord shall pay the difference between the
actual cost and the $5000. Tenant shall, in a manner satisfactory to Landlord,
paint the interior of the Premises when necessary to maintain at all times a
clean and sightly appearance. In the event Tenant fails to perform any of its
obligations as required hereunder, Landlord may, but shall not be required to,
perform and satisfy same, with Tenant hereby agreeing to reimburse Landlord for
the cost hereof promptly upon demand.
Tenant shall make any and all additions, improvements, alterations, and repairs
to or on the Premises (other than those required for the structural repair of
the roof, or exterior walls), which may at any time during the Lease Term be
required or recommended by any lawful authorities, insurance underwriters,
inspection rating bureaus, or insurance inspectors designated by Landlord.
Landlord may, but shall not be obligated to deal directly with any authorities
respecting their requirements for additions, improvements, alterations or
repairs. All such repairs shall be performed in a good and workmanlike manner,
up to code. All such additions, improvements, and alterations thereto shall
become immediately the property of Landlord. Tenant shall comply with all
county, municipal, state, and federal laws and regulations including those
relating to commercial banks, now in force or which hereafter may be in effect
pertaining to the Premises.
SECTION 6.03. Signs, Awnings and Canopies.
------------- ----------------------------
Tenant shall not place or suffer to be placed or maintained on any exterior
door, wall or window of the Premises any sign, awning or canopy, or advertising
matter or other thing of any kind, and shall not place or maintain any exterior
lighting, plumbing fixture or protruding object or any decoration, lettering or
advertising matter on the glass of any window or door of the Premises without
first obtaining Landlord's written approval and consent, which shall not be
unreasonably withheld. Notwithstanding the above,
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8
Tenant shall be allowed to put the business hours, trade name and logo, and
legal name in vinyl letters on the door windows, and to place signs and banners
on the interior of the windows during marketing promotions without the consent
of Landlord. Tenant further agrees to maintain such sign, awning, canopy,
decoration, lettering, advertising matter or other thing as may be approved in
good condition and repair at all times. Tenant is allowed to place signs and
awnings on the exterior of the building as per City of Xxxxx codes.
SECTION 6.04. Discharge Of All Liens.
------------- -----------------------
Tenant shall not create or permit to be created or to remain, and shall
discharge, any lien (including, but not limited to, the liens of mechanics,
laborers or materialmen for work or materials alleged to be done or furnished in
connection with the Premises), encumbrance or other charge upon the Premises or
any part thereof, upon Tenant's leasehold interest therein, provided, that
Tenant shall not be required to discharge any such liens, encumbrances or
charges as may be placed upon the Premises by the act of Landlord.
Tenant shall have the right to contest, in good faith and by appropriate legal
proceedings, the validity or amount of any mechanics', laborers' or
materialmen's lien or claimed lien. In the event of such contest, Tenant shall
give to Landlord reasonable security as may be required by Landlord to insure
payment thereof and to prevent any sale, foreclosure or forfeiture of the
Premises or any part thereof by reason of such non-payment. On final
determination of such lien or such claim for lien, Tenant shall immediately pay
any judgment rendered, with all proper costs and charges, and shall have such
lien released or judgment satisfied at Tenant's expense, and upon such payment
and release of satisfaction, Landlord shall promptly return to Tenant such
security as Landlord shall have received in connection with such contest.
Landlord reserves the right to enter the Premises to post and keep posted
notices of non-responsibility for any such lien. Tenant shall pay, protect and
indemnify Landlord from and against all liabilities, losses, claims, damages,
costs and expenses, including reasonable attorney's fees, incurred by Landlord
by reason of the filing of any lien and/or the removal of the same.
SECTION 6.05. Utilities.
------------- ----------
From the time Tenant first enters the Premises for the purpose of installing
fixtures or from the commencement of the Lease Term, whichever date is the
earlier, Tenant shall pay in a timely manner for water, gas, light, power,
refuse, and all other utilities and services to or consumed in or on the
Premises.
Utility service providers shall be chosen and retained by Landlord.
Tenant shall comply with all present and future laws, order, and regulations of
all federal, state, municipal and local governments, departments, commissions,
and boards regarding the collection, sorting, separation, and recycling of waste
products, garbage, refuse and trash.
SECTION 6.06. Maintenance by Landlord.
------------- ------------------------
Except as provided in Section 9 and for damage caused by any negligent or
intentional act or omission of Tenant, Tenant's agents, employees, or invitees,
Landlord, at its sole cost and expense, shall keep in good condition and repair
the foundations, exterior walls, and exterior roof of the Premises. Landlord
shall also maintain the unexposed electrical, plumbing and sewage systems
including, without limitation, those portions of the systems lying outside the
Premises; window frames, gutters and down spouts on the building. If maintenance
or repair of any item in this Section 6.06 is necessary due to the negligent or
intentional act or omission of Tenant, Tenant's agents, employees, or invitees,
Tenant shall repair and maintain such items. Notwithstanding anything in this
Lease to the contrary, Landlord shall only be responsible for repairs of the
items mentioned in this Section if said repairs are due to normal wear and tear,
age, or obsolescence. For example, if wiring in the walls needs repair because
of the age of the wiring or a faulty or old breaker, said repairs shall be the
responsibility of Landlord. If Tenant overloads
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9
a circuit by attaching too much equipment to it, causing damage to the wiring or
breakers, Tenant shall be responsible for repairing the wires and breakers.
Landlord shall comply with all county, municipal, federal, and state laws and
regulations, including those relating to commercial banks, now in force or which
hereafter may be in effect pertaining to the Premises.
Notwithstanding anything to the contrary contained in this Lease, Landlord shall
not be liable for failure to make repairs required to be made by Landlord under
provisions of this Lease unless Tenant has previously notified Landlord in
writing of the need for such repairs and Landlord has failed to commence and
complete the repairs within a reasonable time following receipt of Tenant's
notification. If Landlord fails to commence such repairs or replacements
required of Landlord pursuant to the foregoing within thirty (30) days after
written notice from Tenant of the need for such work (or if more than thirty
(30) days shall be required because of the nature of the work, if Landlord shall
fail to diligently proceed to commence to perform such work after written
notice), Tenant shall be entitled to make such repairs as are necessary, and
Landlord shall reimburse Tenant for the cost paid by Tenant in doing so within
thirty (30) days after Tenant's delivery to Landlord of an invoice, together
with reasonable back up documentation for same.
SECTION 6.07. Hazardous Substances
------------- --------------------
Landlord has no knowledge of the presence of hazardous substances in or on the
Premises. Hazardous substances pose only a hazard when disturbed, damaged, or
released into the air. Therefore, Tenant shall inform Landlord anytime Tenant
plans to repair, remove, or otherwise disturb any areas or materials that may
contain hazardous substances and where there may be the possibility of
releasing, disturbing, or coming in contract with hazardous substances.
In the event that any hazardous substances are discovered in or on the Premises,
which may present a danger to Tenant and Tenant's agents, employees, invitees,
etc. when disturbed or released in the air, and it is determined that such
hazardous substances have been placed on the Premises prior to Tenant's
occupancy, such hazardous substances shall be encapsulated (if feasible) or
diligently removed by qualified personnel, at Landlord's cost and expense.
The making of alterations or the removal of all or a portion of such hazardous
substances shall not entitle Tenant to any damages except for injury or damages
arising out of Landlord's negligence or that of its agents nor shall it relieve
Tenant of the obligation to pay any sums due under this Lease except to the
extent that the premises are unusable for the conduct of business during or
after the removal.
Tenant shall not cause or permit the storage or use of any hazardous substances
in or on the Premises.
ARTICLE VII
-----------
OPERATING RULES, REGULATIONS, SURRENDER
SECTION 7.01. Rules and Regulations.
------------- ----------------------
Tenant agrees to comply with and observe the following rules and regulations:
1. No aerial or antennae shall be erected on the roof or exterior walls of the
Premises or on the grounds, without in each instance, the written consent
of Landlord. Any aerial or antennae so installed without such written
consent shall be subject to removal without notice at any time at Tenant's
sole cost and expense.
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10
2. The exterior areas immediately adjoining the Premises shall be kept clean
and free from dirt and rubbish by Tenant to the satisfaction of Landlord,
and Tenant shall not place or permit any obstructions or merchandise in
such areas.
3. The plumbing facilities shall not be used for any other purpose than that
for which they are constructed, and no foreign substance of any kind shall
be thrown therein, and the expense of any breakage, stoppage, or damage
resulting from a violation of this provision shall be borne by Tenant who
shall, or whose employees, agents or invitees shall, have caused it.
4. 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.
6. Tenant shall, at Tenant's sole cost and expense, comply with all of the
requirements of all county, municipal, state of California, federal and
other applicable governmental authorities, now in force, or which may
hereafter be in force, pertaining to the Premises, and shall faithfully
observe in the use of the Premises all municipal and county ordinances and
state and federal statutes now in force or which may hereafter be in force,
and all regulations, orders and other requirements issued or made pursuant
to any such ordinances and statutes.
Tenant agrees to comply with and observe the rules and regulations set forth
above. Tenant's failure to keep and observe said rules and regulations shall
constitute a breach of the terms of the Lease Terms in the manner as if the same
were contained herein as covenants. Landlord reserves the right from time to
time to amend or supplement said rules and regulations, and to adopt and
promulgate additional rules and regulations applicable to the Premises provided
these amendments are agreeable to both Landlord and Tenant and both shall be
reasonable in negotiating if negotiation becomes necessary.
ARTICLE VIII
------------
INSURANCE
SECTION 8.01. Tenant's Coverage.
------------- ------------------
Tenant shall maintain at its sole expense during the term hereof, liability
insurance covering the Premises with a $2,000,000 Limit of Liability for
commercial general liability for each occurrence and $2,000,000 annual
aggregate. Tenant shall also keep in force rent insurance as well as special
form property insurance for the full replacement value of Tenant's improvements
and Tenant's property, including, but not limited to, inventory, trade fixtures,
furnishings and other personal property. Tenant shall also have plate glass
insurance covering all plate glass on the Premises at full replacement value,
however for plate glass coverage Tenant shall have the option to either insure
this risk or self-insure. Tenant shall cause such insurance policies to name
Landlord as an additional insured and to be written so as to provide that the
insurer waives all right of recovery by way of subrogation against Landlord in
connection with any loss or damage covered by the policy. In addition, Tenant
shall keep in force xxxxxxx'x compensation or similar insurance to the extent
required by law. Tenant shall deliver to Landlord at least five (5) days prior
to the commencement of the Term a copy of the insurance policy or the
endorsement evidencing coverage and evidencing Landlord, Elf Realty Corporation,
as additional insured. Each insurer under the policies required hereunder shall
agree by endorsement on the policy issued by it or by independent instrument
furnished to Landlord that it will give Landlord thirty (30) days' prior written
notice before the policy or policies in question shall be altered or canceled.
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11
SECTION 8.02. Landlord Coverage.
------------- ------------------
Landlord shall throughout the Lease Term, at its sole cost and expense, keep the
property insured.
SECTION 8.03. Indemnification.
------------- ----------------
During the term of this Lease, Tenant shall indemnify and hold Landlord,
Landlord's officers, agents, and employees, harmless from any loss, cost or
expense of any sort or nature, and from any liability to any person on account
of any damage to person or property arising out of any failure of Tenant to
perform and comply in any respect with any of the requirements and provisions of
this Lease, provided that such damage does not result directly or indirectly by
reason of conduct of Landlord, Landlord's officers, agents and employees.
Landlord shall indemnify and save Tenant harmless from any loss, cost or expense
of any sort or nature, and from any liability to any person on account of any
damage to person or property arising out of any failure of Landlord to perform
and comply in any respect with any of the requirements and provisions of this
Lease; provided that such damage does not result directly or indirectly by
reason of conduct of Tenant, its agents and employees.
SECTION 8.04. Indemnity Agreement
------------- -------------------
Tenant hereby agrees to indemnify Landlord, Landlord's officers, agents and
employees against, and hold Landlord, Landlord's officers, agents and employees
harmless from any and all claims, demands, actions, loss or liability because or
on account of injuries to or death of any person (including death or injuries to
Tenant's employees) and damage to property of others, howsoever caused or
sustained (except where caused in whole or in part by negligence of Landlord,
Landlord's officers, agents and/or employees,) and in any way arising out of or
connected with the occupancy or use of the Premises (including the ways
immediately adjoining).
SECTION 8.05. Release
------------- -------
Tenant hereby waives and releases all claims which Tenant may have against
Landlord, Landlord's officers agents and employees, for damages to or loss of
any property of any kind in which Tenant has an interest, howsoever such loss or
damage may have occurred or been caused.
ARTICLE IX
----------
DAMAGE & CONDEMNATION
SECTION 9.01. Partial Damage.
------------- ---------------
If the Premises are partially damaged or destroyed and paragraph 9.02 does not
apply, Landlord shall promptly repair the damage and restore the improvement at
Landlord's expense. The completed repair, restoration or replacement shall be
equal in value, quality and use to the condition of the improvement immediately
before the damage.
SECTION 9.02. Major Damage: Destruction.
------------- --------------------------
If the Premises are destroyed or damaged and the damage or destruction renders
more than 50% of the Premises permanently untenantable, either party may elect
to terminate the Lease as of the date of the damage or destruction by giving the
other party written notice within 30 days after the date of the damage. In such
event all rights and obligations of the parties shall cease as of the date of
termination, and Tenant shall be entitled to reimbursement of any Prepaid Rent.
If neither party elects to terminate, Landlord shall promptly and diligently
proceed to restore the Premises to substantially the same form as
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12
prior to the damage or destruction. Work shall be commenced as soon as possible
and shall proceed without interruption during normal working hours except for
work stoppages on account of labor disputes and matters outside of Landlord's
control.
SECTION 9.03. Rent Abatement.
------------- ---------------
Rent shall be proportionately abated during the repair of any damage to the
Premises to the extent Tenant's use of the Premises is materially impaired.
SECTION 9.04. Tenant's Work.
------------- --------------
Promptly following such destruction, Tenant shall, at Tenant's expense, perform
any work required to place the Premises in their prior condition and Tenant
shall restore, repair or replace its stock in trade fixtures, furniture,
furnishings, floor coverings and equipment, and if Tenant has closed, Tenant
shall promptly reopen for business.
SECTION 9.05. Condemnation.
------------- -------------
9.05.1 Taking.
The term "Taking" as used in this Section 9.05, shall mean an
appropriation or taking under the power of eminent domain by any
public or quasi-public authority or a voluntary sale or conveyance in
lieu of condemnation but under threat of condemnation.
9.05.2 Total Taking.
In the event of a Taking of the entire Premises, this Lease shall
terminate and expire as of the date possession is delivered to the
condemning authority and Landlord and Tenant shall each be released
from any liability accruing pursuant to this Lease after the date of
such termination, but Minimum Annual Rent and Additional Rent for the
last month of Tenant's occupancy shall be prorated and Landlord shall
refund to Tenant any Minimum Annual Rent and Additional Rent paid in
advance.
9.05.3 Partial Taking.
If (a) there is a Taking of a material portion of the Premises and the
remainder of the Premises is not, in Tenant's sole but reasonable
business judgment, suitable for the continued operation of Tenant's
business, Tenant may terminate this Lease upon giving notice in
writing of such election to Landlord within thirty (30) days after
receipt by Tenant from Landlord of written notice that a portion of
the Premises has been so appropriated or taken. In each case, the
termination of this Lease shall be effective as of the date Tenant is
required to vacate the Premises, or the portion of the Premises taken.
9.05.4 Award.
The entire award or compensation in any such condemnation proceeding,
whether for a total or partial Taking, or for diminution in the value
of the leasehold or for the fee, shall belong to and be the property
of Landlord; and, in any event, the holder of any mortgage or deed of
trust encumbering the Project shall have a first priority to the
extent of the unpaid balance of principal and interest on its loan.
Without derogating the rights of Landlord or said lender under the
preceding sentence, Tenant shall be entitled to recover from the
condemning authority such compensation as may be separately awarded by
the condemning authority to Tenant or recoverable from the condemning
authority by Tenant in its own right for the taking
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13
of trade fixtures and equipment owned by Tenant and for the expense of
removing and relocating its trade fixtures and equipment, but only in
the event that the compensation awarded to Tenant shall be in addition
to and shall not diminish the compensation awarded to Landlord as
provided above.
9.05.5 Continuation of Lease.
In the event of a Taking, if Landlord and Tenant elect not to
terminate this Lease as provided above (or have no right to so
terminate), Landlord agrees, at Landlord's cost and expense as soon as
reasonably possible after the Taking, to restore the Premises (to the
extent of the condemnation proceeds) on the land remaining to a
complete unit of like quality and character as existed prior to the
Taking and, thereafter, Minimum Annual Rent and Additional Rent
payable by Tenant hereunder shall be reduced on an equitable basis,
taking into account the relative value of the portion taken as
compared to the portion remaining, and Landlord shall be entitled to
receive the total award or compensation in such proceedings.
ARTICLE X
---------
DEFAULT AND REMEDIES
SECTION 10.01: Tenant's Default.
-----------------
Each of the following events shall be a default by Tenant and a breach of this
Lease:
10.01.1 Failure to Pay Rent.
Failure of Tenant to make any rent payment within ten days after
receipt of written notice from Landlord that it is due.
10.01.2 Other Performance Failures.
Failure of Tenant to perform any other term, condition or covenant of
the Lease within thirty (30) days after receipt of written notice from
Landlord specifying the nature of the failure with reasonable
particularity. If the failure is of such a nature that it cannot be
completely remedied within the 30-day period, the failure shall not be
a default if Tenant begins correction of the failure within the 30 day
period and thereafter proceeds with reasonable diligence and in good
faith to correct the failure as soon as possible.
10.01.3 Attachment.
Attachment, execution, levy or other seizure by legal process of any
right or interest of Tenant under this Lease if not released within
thirty (30) days.
10.01.4 Bankruptcy.
An assignment by Tenant for the benefit of creditors, the filing by
Tenant of a voluntary petition in bankruptcy, the filing of an
involuntary petition in bankruptcy and failure of Tenant to secure a
dismissal of the petition within thirty (30) days after filing, the
appointment of a receiver to take possession of the Premises or
improvements or the leasehold estate or of Tenant's operations on the
Premises for any reason.
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14
10.01.5 Notwithstanding anything to the contrary in this Lease, in the event
(a) Tenant or its successors or assignees shall become insolvent or
bankrupt, or it or their interests under this Lease shall be levied
upon or sold under execution of other legal process, or (b) the
depository institution then operating on the Premises is closed, or is
taken over by any depository institution regulatory authority
("Regulatory Authority"), Landlord may, in either such event,
terminate this Lease only with concurrence of any Receiver or
Liquidator appointed by such Regulatory Authority; provided, that in
the event this Lease is terminated by the Receiver or Liquidator, the
maximum claim of Lessor for Rent, damages, or indemnity for injury
resulting from the termination, rejection, or abandonment of the
unexpired Lease shall by law in no event be in an amount greater than
all accrued and Unpaid Rent to the date of termination.
SECTION 10.02. Rights and Remedies.
-------------- --------------------
Landlord shall have the following remedies if Tenant commits a default. These
remedies are not exclusive; they are cumulative in addition to any remedies now
or later allowed by law.
Landlord may continue this Lease in full force and effect, and the Lease shall
continue in effect as long as Landlord does not terminate Tenant's right to
possession, and Landlord shall have the right to collect Rent when due during
the original term of this Lease. Tenant shall be liable immediately, however
payment is only due within thirty (30) days of written notice by Landlord, to
Landlord for all reasonable costs Landlord incurs in reletting the Premises,
including, without limitation, brokers' commissions, expenses of remodeling the
Premises required by the reletting, and like costs. Reletting can be for a
period shorter or longer than the remaining Lease Term, but Tenant shall only be
responsible for the obligations under this Lease for original Term hereof.
Tenant shall pay to Landlord the Rent due under this Lease on the dates Rent is
due, less 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 this Lease. After Tenant's default and for as
long as Landlord does not terminate Tenant's right to possession of the
Premises, if Tenant obtains Landlord's consent, Tenant shall have the right to
assign or sublet its interest in this Lease, but Tenant shall not be released
from liability. Landlord's consent to a proposed assignment or subletting shall
not be unreasonably withheld.
If Landlord elects to relet the Premises as provided in this paragraph, Rent
that Landlord receives from reletting shall be applied to the payment of:
First, any indebtedness from Tenant to Landlord other than Rent due from Tenant;
Second, all costs, including those for maintenance and repair, incurred by
Landlord in reletting;
Third, Rent due and unpaid under this Lease. After deducting the payments
referred to in this paragraph, any sum remaining from Rent Landlord receives
from reletting shall be held by Landlord and applied in payment of future Rent
as Rent becomes due under this Lease. In no event shall Tenant be entitled to
any excess Rent received by Landlord. If, on the date Rent is due under this
Lease, the Rent received from the reletting is less than Rent due on that date,
Tenant shall pay to Landlord, in addition to the remaining Rent due, all costs,
including those for maintenance and repair, Landlord incurred in reletting that
remain after applying Rent received from the reletting as provided in this
paragraph.
Landlord may terminate Tenant's right to possession of the Premises at any time.
No act by Landlord other than giving notice to Tenant shall terminate this
Lease. Acts of maintenance, efforts to relet the Premises, or the appointment of
a receiver on Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to possession. On
termination, Landlord has the right to recover from Tenant:
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15
a) The worth, at the time of the award, of the unpaid Rent that had been
earned at the time of termination of this Lease;
b) The worth, at the time of the award, of the amount by which the unpaid Rent
that would have been earned after the date of termination of this Lease
until the time of award exceeds the amount of the loss of Rent that Tenant
proves could have been reasonably avoided;
c) The worth, at the time of the award, of the amount by which the unpaid Rent
for the balance of the Term after the time of award exceeds the amount of
the loss of Rent that Tenant proves could have been reasonably avoided; and
d) Any other amount, and court costs, necessary to compensate Landlord for all
detriment proximately caused by Tenant's default.
"The worth, at the time of the award", as used in a) and b) of this paragraph,
shall be 10%. "The worth, at the time of the award", as referred to in c) of
this paragraph, is to be computed by discounting the amount at the discount rate
of the Federal Reserve Bank of San Francisco at the time of the award, plus 1%.
Landlord, at any time after Tenant commits a default, may cure the default at
Tenant's cost. If Landlord at any time, by reason of Tenant's default, pays any
sum or does any act that requires the payment of any sum, the sum paid by
Landlord shall be due immediately from Tenant to Landlord at the time the sum is
paid, and if paid at a later date shall bear interest at the maximum rate an
individual is permitted by law to charge from the date the sum is paid by
Landlord until Landlord is reimbursed by Tenant. The sum, together with interest
on it, shall be Additional Rent.
ARTICLE XI
----------
ASSIGNMENT AND SUBLETTING
SECTION 11.01. Landlord's Consent Required.
-------------- ----------------------------
Tenant shall not assign or sublease all or any part of its interest in this
Lease or transfer any interest of Tenant therein (any and all such acts being
collectively referred to herein as a "Transfer") without the prior written
consent of Landlord, and attempt to do so without such consent being first had
and obtained shall be wholly void and shall constitute a breach of this Lease.
Landlord shall not unreasonably withhold its consent to a Transfer provided that
the provisions of this Article XI are met. The only exception would be the
transfer to an affiliate or subsidiary in which case the prior written consent
of the Landlord is not required provided that the other provisions of this
Article XI are met.
SECTION 11.02. Condition of Transfer.
-------------- ----------------------
If Tenant desires to effect a Transfer, Tenant shall submit in writing to
Landlord within a reasonable time for evaluation prior to the proposed Transfer
the following information all in sufficient detail to enable Landlord to
evaluate the proposed Transfer and the prospective Transferee:
a) The name and legal composition of the proposed Transferee;
b) The nature of the business proposed to be carried on in the Premises;
c) The terms and provisions of the proposed Transfer;
d) Such reasonable financial information as Landlord may request concerning
the proposed Transferee.
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16
It is the intent of the parties hereto that this Lease shall confer upon Tenant
only the right to use and occupy the Premises, and to exercise such other rights
as are conferred upon Tenant by this Lease. In the event Tenant seeks to
transfer its interest in this Lease or the Premises, Landlord shall have the
following options, which may be exercised at its sole choice without limiting
Landlord in the exercise of any other right of remedy which Landlord may have by
reason of such proposed Transfer:
1) Landlord may terminate this Lease effective as of the proposed effective
date of the proposed Transfer and release Tenant from any liability
hereunder accruing after such termination date by giving Tenant written
notice of such termination within fifteen (15) days after receipt by
Landlord of Tenant's notice of intent to transfer as provided above. If
Landlord gives such notice, Tenant shall surrender the Premises, in
accordance with Section 15, on the effective termination date.
2) Landlord may consent to the proposed Transfer on certain conditions,
including without limitations one or more of the conditions set forth in
Section 11.03 (c), and (d) below.
SECTION 11.03. Reasonable Consent.
-------------- -------------------
The parties hereto agree that Landlord's refusal to consent to any proposed
Transfer, or conditional consent to any Transfer, shall not be deemed
unreasonable if:
a) The proposed Transferee, or the proposed Transfer of the Premises to such
Transferee will not attract the same or greater volume of trade and
patronage to the Building as Tenant of the use of the Premises by Tenant;
b) Tenant fails to provide Landlord with the information requested by Landlord
pursuant to Section 11.02 (a), (b), (c), and (d) above, within a reasonable
time for evaluation prior to the proposed Transfer;
c) Landlord conditions its consent to such Transfer by requiring that Tenant
agree to pay to Landlord, as Additional Rent, fifty percent (50%) of any
and all rents in excess of the Rent to be paid under this Lease. For the
purpose of this Article 11, the term "Rent" shall include any consideration
of any kind received or to be received, by Tenant from the Transferee, if
such sums are related to Tenant's interest in this Lease.
Tenant expressly agrees that the conditions imposed by Landlord for any Transfer
pursuant to this Article 11 are not unreasonable for purposes of Section 1951.4
(b) (2) of the California Civil Code, as amended from time to time.
SECTION 11.04. Assignment Fees
-------------- ---------------
Should Tenant request the consent of Landlord to an assignment of this Lease or
of any of Tenant's rights thereunder and whether or not such consent is
ultimately given by Landlord and/or any such assignment, subletting, occupancy
or use is carried out, Tenant agrees to pay to Landlord's agent the sum of
$500.00 for services plus expenses and to Landlord reasonable attorneys' fees
incurred in connection with each such request.
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17
ARTICLE XII
-----------
RIGHT OF ENTRY
SECTION 12.01. Right of Entry.
-------------- ---------------
Landlord or Landlord's agents shall have the right to enter the Premises at
reasonable times, with notice if possible, to examine the same, and to show them
to prospective purchasers or tenants, to post notices, and to make such repairs,
alterations, improvements or additions as Landlord may deem necessary, 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 wise xxxxx 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 months
prior to the expiration of the Lease Term or any renewal term, Landlord may
place upon the Premises the usual notices "For Lease" which notices Tenant shall
permit to remain thereon without molestation. Landlord shall limit any "For
Sale" sign placed on the building to no larger than 4 feet by 4 feet, and
clearly indicate on the sign that the building, not the Bank or the business, is
for sale.
ARTICLE XIII
------------
TENANT'S PROPERTY
SECTION 13.01. Taxes.
-------------- ------
Tenant shall be responsible for and shall pay before delinquency all municipal,
county or state taxes, levies and fees of every kind and nature, including, but
not limited to, general or special assessments assessed during the Lease Term
against any personal property of any kind, owned by or placed in, upon or about
the Premises by Tenant and taxes assessed on the basis of Tenant's occupancy
thereof, including, but not limited to, taxes measured by Rents due from Tenant
hereunder.
SECTION 13.02. Notices by Tenant.
-------------- ------------------
Tenant shall give immediate telephone or facsimile notice to Landlord in case of
fire, casualty, or accidents in the Premises or in the building of which the
Premises are a part or of defects therein or in any fixtures of and/or equipment
and shall promptly thereafter confirm such notice in writing.
ARTICLE XIV
-----------
SUCCESSION TO LANDLORD'S INTEREST
SECTION 14.01. Attornment.
-------------- -----------
If the interest of Landlord is transferred to any person or entity by reason of
foreclosure or other proceedings of enforcement of any mortgage, deed of trust
or security interest or by delivery of a deed in lieu of foreclosure or other
proceedings, Tenant shall upon delivery to Tenant by said transferee of a
nondisturbance agreement, immediately and automatically attorn to such person or
entity. In the event of such transfer, this Lease and Tenant's rights hereunder
shall continue undisturbed so long as Tenant is not in default.
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SECTION 14.02. Subordination.
-------------- --------------
This Lease shall be subordinate to the lien of any mortgage or security deed or
the lien resulting from any other method of financing or refinancing now or
hereafter in force against the Premises, any portion thereof, or upon any
buildings hereafter placed upon the land of which the Premises are a part, and
to any and all advances to be made under such mortgages, and all renewals,
modifications, extensions, consolidations and replacements thereof. The
aforesaid provisions shall be self-operative and no further instrument of
subordination shall be required to evidence such subordination. Tenant covenants
and agrees to execute and deliver, upon demand, such further instrument or
instruments subordinating this Lease on the foregoing basis to the lien of any
such mortgage or mortgages as shall be desired by Landlord and any mortgagees or
proposed mortgagees.
SECTION 14.03. Estoppel Certificate.
-------------- ---------------------
Within ten (10) days after request therefor by Landlord, or in the event that
upon any sale, assignment or hypothecation of the Premises and/or the land
thereunder by Landlord, an estoppel certificate shall be required from Tenant,
Tenant agrees to deliver in recordable form, a certificate to any proposed
mortgagee or purchaser, or to Landlord, certifying that this Lease is unmodified
and in full force and effect (or, if there have been modifications, that the
same is in full force and effect as modified, and stating the modification),
that there are no defenses or offsets thereto (or stating those claimed by
Tenant) and the dates to which Fixed Minimum Rent, and other charges have been
paid.
ARTICLE XV
----------
SURRENDER OF PREMISES
SECTION 15.01. Condition on Surrender.
-------------- -----------------------
At the expiration or earlier termination of this Lease, Tenant shall surrender
the Premises to Landlord broom clean and in the same condition as when tendered
by Landlord, reasonable wear and tear and insured casualty excepted. Tenant
shall promptly repair any damage to the Premises caused by the removal of any
furniture, trade fixtures or other personal property placed in the Premises.
SECTION 15.02. Holding Over.
-------------- -------------
Should Tenant, with Landlord's written consent, hold over at the end of the
term, Tenant shall become a Tenant at will and any such holding over shall not
constitute an extension of this Lease. During such holding over, Tenant shall
pay rent and other charges at 105% of the highest monthly rate provided for
herein.
ARTICLE XVI
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TENANT FINANCIAL DATA
SECTION 16.01. Tenant Financial Data.
-------------- ----------------------
Within fifteen (15) days after Landlord's written request, Tenant shall furnish
Landlord with financial statements or other reasonable financial information
reflecting Tenants current financial condition, certified by Tenant or its
financial officer. If Tenant is a publicly traded corporation, delivery of
Tenant's last published financial information shall be satisfactory for purposes
of this Section.
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Landlord may request the financial statements set forth herein only if the
request is made for a specific reason, such as in connection with a sale,
financing or refinancing the Project. Any information obtained from Tenant's
financial statements shall be confidential and shall not be disclosed other than
to carry out the purposes of this Lease; provided, however, Landlord shall incur
no liability for the inadvertent disclosure of any such information. Landlord
may divulge the contents of any financial statements in connection with any
financing arrangement or sale of Landlord's interest in the Premises or in
connection with any administrative or judicial proceedings.
ARTICLE XVII
------------
MISCELLANEOUS
SECTION 17.01. Waiver.
-------------- -------
The waiver by Landlord of any breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or condition
or any subsequent breach of the same or any other term, covenant or condition
herein contained. The subsequent acceptance of Rent hereunder by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of Tenant to pay the
particular rental so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such Rent. No covenant, term or
condition of this Lease shall be deemed to have been waived by Landlord, unless
such waiver be in writing by Landlord.
SECTION 17.02. Accord and Satisfaction.
-------------- ------------------------
No payment by Tenant or receipt by Landlord of a lesser amount than the monthly
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 may 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 17.03. Entire Agreement.
-------------- -----------------
This Lease and the Exhibits and Rider, if any, attached hereto and forming a
part hereof, set 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, between them other than as are herein set forth. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to
this Lease shall be binding upon Landlord or Tenant unless reduced to writing
and signed by them.
SECTION 17.04. No Partnership.
-------------- ---------------
Landlord does not, in any way or for any purpose, become a partner of Tenant in
the conduct of its business, or otherwise, or joint adventurer or a member of a
joint enterprise with Tenant.
SECTION 17.05. Force Majeure.
-------------- --------------
In the event that Landlord shall be delayed or hindered in or prevented from
doing or performing any act or thing required hereunder by reason of strikes,
lock-outs, casualties, Acts of God, labor troubles, inability to procure
materials, failure of power, governmental laws or regulations, riots,
insurrection, war or other causes beyond the reasonable control of Landlord,
then Landlord shall not be liable or responsible for any such delays and the
doing or performing of such act or thing shall be excused for the
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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.
SECTION 17.06. Notices.
-------------- --------
Any notice, demand, request or other instrument which may be or are required to
be given under this Lease shall be delivered personally or sent by either United
States certified mail postage prepaid or expedited mail service and shall be
addressed (a) if to Landlord at the address provided in Section 1.01 for
Landlord or at such other address as Landlord may designate by written notice
and (b) if to Tenant at the address provided in Section 1.01 for Tenant or at
such other address as Tenant shall designate by written notice. Notices shall be
effective upon delivery unless delivery is refused or cannot be made in which
event notice shall be effective on mailing.
SECTION 17.07. Captions and Section Numbers.
-------------- -----------------------------
The captions, section numbers, article numbers, and index appearing in this
Lease are inserted only as a matter of convenience and in no way define, limit,
construe, or describe the scope or intent of such section or articles of this
Lease nor in any way affect this Lease.
SECTION 17.08. Tenant Defined, Use of Pronoun.
-------------- -------------------------------
The word "Tenant" shall be deemed and taken to mean each and every person or
party mentioned as a Tenant herein, be the same one or more; and if there shall
be more than one Tenant, any notice required or permitted by the terms of this
lease may be given by or to any one thereof, and shall have the same force and
effect as if given by or to all thereof. The word "Landlord" shall be deemed and
taken to mean each and every person or party mentioned as a Landlord herein, be
the same one or more; and if there shall be more than one Landlord, any notice
required or permitted by the terms of this Lease shall be given by or to any one
thereof, and shall have the same force and effect as if given by or to all
thereof. The use of the neuter singular pronoun to refer to Landlord or Tenant
shall be deemed a proper reference even though Landlord or Tenant may be an
individual, a corporation, or a group of two or more individuals or
corporations. The necessary grammatical changes required to make the provisions
of this Lease apply in the plural sense where there is more than one Landlord or
Tenant and to either corporations, associations, partnerships, or individuals,
males or females, shall in all instances be assumed as though in each case fully
expressed.
SECTION 17.09. Partial Invalidity.
-------------- -------------------
If any term, covenant or condition of this Lease or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term, covenant or
condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each term, covenant
or condition of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
SECTION 17.10. Execution of Lease.
-------------- -------------------
The submission of this Lease for examination does not constitute a reservation
of or option for the Premises and this Lease becomes effective as a Lease only
upon execution and delivery thereof by Landlord and Tenant. If Tenant is a
corporation, Tenant shall furnish Landlord with such evidence, as Landlord
reasonably requires to evidence the binding effect on Tenant of the execution
and delivery of this Lease.
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SECTION 17.11. Recording.
-------------- ----------
Tenant agrees not to record this Lease. However, Tenant and Landlord, upon
request of either, agree to execute and deliver a memorandum or so-called "short
form" of this Lease in recordable form for the purpose of recordation at
Tenant's expense. Said memorandum or short form of this Lease shall describe the
parties, the Premises and the Lease Term and shall incorporate this Lease by
reference.
SECTION 17.12. Applicable Law.
-------------- ---------------
The Laws of the State of California shall govern the validity, performance and
enforcement of this Lease with venue in San Xxxxxxx County, except where
indicated differently in this Lease.
SECTION 17.13. Time is of the Essence.
-------------- -----------------------
Time is of the essence of this Agreement.
SECTION 17.14. Successors and Assigns.
-------------- -----------------------
Except as otherwise provided herein, this Lease shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, executors, administrators, successors and assigns; except that
nothing in this Paragraph shall be deemed to permit any assignment, subletting,
occupancy, or use contrary to the provisions of this Article.
SECTION 17.15. Survival of Obligations.
-------------- ------------------------
Any obligation of Tenant to pay any sum owing in order to perform the provisions
of this Lease after the expiration or other termination of this Lease, shall
survive the expiration or other termination of this Lease.
SECTION 17.16. Arbitration.
-------------- ------------
Any controversy between the parties hereto involving the construction or
application of any of the terms, covenants, or conditions of this Lease shall on
written request of one party served on the other be submitted to arbitration and
such arbitration shall comply with and be governed by the provisions of the
American Arbitration Association.
SECTION 17.17. Attorney Fees.
-------------- --------------
In case suit should be brought for recovery of the Premises, or for any sum or
rents due hereunder, or because of any act which may arise out of the possession
of the Premises, by either party, the prevailing party shall be entitled to all
costs incurred in connection with such action, including a reasonable attorney's
fee.
If Landlord shall be made a party to any litigation commenced by or against
Tenant, Tenant shall pay all costs, expenses and attorneys' fees incurred by
Landlord in connection with such litigation except in the event that such
litigation shall determine that Landlord has committed a breach of this Lease
and shall adjudicate that Landlord is liable therefor.
SECTION 17.18. Representations.
-------------- ----------------
Tenant acknowledges that neither Landlord nor Landlord's agents, employees, or
contractors have made any representations or promises with respect to the
Premises, or this Lease except as expressly set forth herein.
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SECTION 17.19. Landlord's Liability.
-------------- ---------------------
Landlord's liability hereunder shall be limited solely to Landlord's interest in
the Premises.
SECTION 17.20. Landlord's Consent Must Be Reasonable.
-------------- --------------------------------------
Wherever in this Lease the consent or approval of Landlord is required, such
consent or approval shall not be unreasonably withheld.
SECTION 17.21. Contingency.
-------------- ------------
This Lease is contingent upon regulatory approval by the California Department
of Financial Institutions and the FDIC. If the contingencies are not lifted by
August 1, 1999, the Lease shall become null and void and the security deposit
and Prepaid Rent shall be refunded to Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease this day and
year first above written.
LANDLORD, Elf Realty Corporation TENANT, Service 1st Bank (Proposed)
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
---------------------------------- ----------------------------------
Xxxxx Xxxxxxx Xxxxx Xxxxxxx
President Chief Executive Officer
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