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OFFICE SERVICE AGREEMENT
This Agreement is dated October 8, 1997 and is entered into in Pleasanton, CA
by and between Rostex, Inc., dba HQ Business Centers (hereinafter "HQ") and
Summit Bank (hereinafter "Client").
HQ and Client agree that HQ shall grant to Client for and in consideration of
the agreements and fee(s) set forth herein, a license to use the Office(s) as
from time to time designated by HQ and, in common with HQ's other clients, a
license to use HQ's Business Center facilities and services, in accordance
with the terms hereof.
1. BASIC TERMS. This Section 1 contains the basic terms of this Agreement
and all provisions of this Agreement are to be read in accord therewith:
A. Base Services: HQ's Complete Executive Office Program, including the
use of executive offices complete with professional administrative
staff, telephone answering and such other inclusive services as defined
in Schedule "A".
B. Additional Services: Access to additional business services for
purchase as needed by Client, including secretarial, administrative,
telecommunications support and such other services are as defined in
Schedule "B".
C. HQ Business Center Pleasanton
D. Building 0000 Xxxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000
E. Office [(number(s)] 23 having a maximum occupancy of 2 person(s).
F. Commencement Date December 1, 1997
G. Initial Term 12 Months
H. End of Initial Term November 30, 1998
I. Monthly Base Services Fee $1669.00
J. Refundable Services Retainer $2503.50
2. OFFICE. Client shall, as part of the Base Services, be granted a
license to use the Office and shall have access to the Office twenty-four
(24) hours a day, seven (7) days a week. HQ agrees to provide office
cleaning, maintenance services, electric heating and air conditioning to the
Office for normal office use in such reasonable quantities and during such
reasonable hours as shall be determined by HQ or the Building. In addition,
Client will have reasonable use of HQ common area facilities. Client shall
use the Office and common areas of the HQ Business Center solely for general
office use in the conduct of the Client's business.
If, for any reason whatsoever, HQ is unable to provide use of the Office
or a mutually agreed upon alternative Office at the time herein agreed,
Client may either extend the Commencement time herein agreed, Client may
either extend the Commencement Date until the Office becomes available or, as
its sole remedy for such failure, cancel and terminate this Agreement if the
use of the Office is not available to Client within five (5) business days
after written notice to HQ by Client, in which case any prior payments shall
be fully refunded. No such failure to provide use of the Office shall subject
HQ to any liability for loss or damage, nor affect the validity of this
Agreement or the obligations of the Client hereunder.
HQ will have the right to relocate Client, AT HQ'S EXPENSE, to another
office in the HQ Business Center, and to substitute such other office for the
Office licensed hereby, provided such other office is substantially similar
in area and configuration to Client's contracted office and provided Client
shall incur no increase in the Monthly Base Services Fee.
3. SERVICES. HQ agrees, in consideration of the Monthly Base Services Fee,
to provide Base Services to Client as described in Schedule "A". From time to
time during the Term, HQ may, at its option, make other services available to
Client of the nature described in Schedule "B", at fees that are from time to
time established by HQ. In the event Client is in default of this Agreement,
HQ may, at its option, cease furnishing any and all services including
telephone services.
Client will not offer to any party in the HQ Business Center or the
Building, any of the services that HQ provides to its clients including, but
not limited to, the services described in Schedule "A" or "B".
HQ will answer all incoming telephone calls, unless otherwise mutually
agreed, during normal business hours, as determined by HQ. Answering service
will be limited to normal business communications, excluding inbound
telemarketing and advertising response which requires pre-approval by HQ and
shall be subject to fees established from time to time by HQ.
Client will use only telecommunications systems and services as provided
by HQ. Client will pay to HQ a monthly equipment rental fee for the use of
each telephone instrument and voice lines. In the event HQ discontinues the
offering of long distance service, Client will provide its own long distance
service through a locally accessed long distance carrier.
Client acknowledges that due to the imperfect nature of verbal, written
and electronic communications, neither HQ nor any of its officers, directors,
employees, shareholders, partners, agents or representatives shall be
responsible for damages, direct or consequential, that may result from the
failure of HQ to furnish any service, including but not limited to the
service of conveying messages, communications and other utility or services
required under this Agreement or agreed to by HQ. Client's sole remedy and
HQ's sole obligation for any failure to render any service, any error or
omission, or any delay or interruption with respect thereto, is limited to an
adjustment to Client's billing in an amount equal to the charge for such
service for the period during which the failure, delay or interruption
continues.
CLIENT EXPRESSLY WAIVES, AND AGREES NOT TO MAKE ANY CLAIM FOR DAMAGES,
DIRECT OR CONSEQUENTIAL, ARISING OUT OF ANY FAILURE TO FURNISH ANY UTILITY,
SERVICE OR FACILITY, ANY ERROR
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OR OMISSION WITH RESPECT THERETO, OR ANY DELAY OR INTERRUPTION OF THE SAME.
4. DURATION OF AGREEMENT. Upon the End of Initial Term, or any extension
thereof, the term of this Agreement and the license herein granted shall be
automatically extended for the same period of time as the Initial Term, upon
the same terms and conditions as contained herein, unless either party gives
notice to the other in writing to the contrary at least sixty (60) days prior
to the End of Initial Term (90 days if Client has licensed the use of three
or more offices).
Tenant hereby agrees to pay HQ, the total monthly rent for each full
month, or part thereof, in which the tenant occupies the premises. Tenant is
deemed to occupy the premises during the required notice period herein,
whether or not tenant is physically in the premises. (Eg: 30 day notice
presented on the 15th day of month 1 requires payment of total monthly rent
for month 2).
Upon any termination of this Agreement, whether by lapse of time or
otherwise, or upon any revocation of Client's license herein granted, the
Client shall cease all use of the Office, the HQ Business Center and all
services immediately. For each and every month or portion thereof that Client
continues use of the Office after the termination of this Agreement by lapse
of time or otherwise, without the express written consent of HQ, Client shall
pay HQ an amount equal to double the Monthly Base Services Fee computed on a
per-month basis for each month or portion thereof that Client continues the
use of the Office.
5. PAYMENTS AND ESCALATIONS. Client agrees to pay to HQ the Monthly Base
Services Fee plus applicable sales or use taxes, in advance, on the first day
of each calendar month during the Initial Term and all extensions thereof,
without any deduction, offset, notice or demand. If the Commencement Date
shall be other than the first day of a month or end of the last day of a
month, fees for any such month shall be prorated. Charges for any Schedule
"B" service purchased by Client from HQ shall be due and payable on the 10th
of the month following the offer for any such service.
One year after the Commencement Date of this Agreement and each and
every anniversary date thereafter, the Monthly Base Service Fee will
automatically increase by FOUR PERCENT (4%) of the Monthly Base Services Fee
due for the month preceding such anniversary date.
All Monthly Base Services Fees and other sums payable hereunder shall be
payable at the office of HQ or at such other location or to any agent
designated in writing by HQ. In addition to any other sums due, Client shall
pay monthly late charges equal to five percent (5%) of all amounts that have
not been paid to HQ within five (5) days of their respective due dates. The
parties agree that such late charges are fair and reasonable compensation for
costs incurred by HQ where there is default in any payment due under this
Agreement.
Upon the execution of this Agreement, Client shall pay HQ or its agent
the Refundable Services Retainer. The Refundable Services Retainer need not
be kept separate and apart from other funds of HQ, no interest shall be paid
thereon, and may be used by HQ to provide Schedule "A" and "B" services under
this Agreement. In addition to the Refundable Services Retainer, Client will,
upon execution hereof, pay to HQ the Monthly Base Services Fee for the first
full month of the Initial Term.
Client agrees that the Refundable Services Retainer shall not be used by
Client as payment for the Monthly Base Services Fee for the last month of the
Initial Term, or any extension thereof, in the event Client defaults in the
performance of any of the terms hereof, HQ may terminate this Agreement and
the license herein granted and may also use, apply or retain the whole, or
any part, of the Refundable Services Retainer for the payment of any service
fee or any other payment due hereunder, or for payment of any other sum that
HQ may spend by reason of Client's default. If Client shall, at the end of
the term of this Agreement, have fully and faithfully complied with all of
the terms and provisions of this Agreement, and surrendered all keys, access
cards and building passes, the Refundable Services Retainer, or any balance
thereof, shall be returned to Client within forty-five (45) days thereafter.
6. DAMAGES AND INSURANCE. Client will not damage or deface the furnishings,
walls, floors or ceilings, nor make holes for the hanging of pictures or make
or suffer to be made any waste, obstruction or unlawful, improper or
offensive use of the Office or the common area facilities. Client will not
cause damage to any part of the Building or the property of HQ or disturb the
quiet enjoyment of any other licensee or occupant of the Building. At the
termination of this Agreement, the Office shall be in as good condition as
when Client commenced the use thereof, normal wear and tear excepted. Client
agrees to pay for repainting each Office used less than twelve (12) months by
Client, at a cost not to exceed One Hundred Fifty Dollars ($150.00) per
Office. HQ will have the right, at any time and from time to time, to enter
the Office to inspect the same, to make such repairs and alterations as HQ
reasonably deems necessary, and the cost of any such repair resulting from
the act or omission of Client shall be reimbursed to HQ by Client upon
demand. HQ shall have the right to show the Office to prospective Clients,
provided HQ will use reasonable efforts not to disrupt Client's business.
HQ and its respective directors, licensors, officers, agents, servants
and employees shall not, to the extent permitted by law, except upon the
affirmative showing of HQ's gross negligence or willful misconduct, be liable
for, and Client waives all right of recovery against such entities and
individuals for any damage or claim with respect to any injury to person or
damage to, or loss or destruction of any property of Client, its employees,
authorized persons and invitees due to any act, omission or occurrence in or
about the HQ Business Center or the Building. Without limitation of any other
provision hereof, each party hereto hereby agrees to indemnify, defend and
hold harmless the other party hereto, and such other party's officers,
directors, employees, shareholders, partners, agents and representatives from
and against any liability to third parties arising out of, in the case of
Client as an indemnifying party, Client's use and occupancy of the Office or
any negligent act or omission of Client or Client's officers, directors,
employees, shareholders, partners, agents, representatives, contractors,
customers or invitees and, in the case of HQ as an indemnifying party, any
act or omission constituting gross negligence or willful misconduct of HQ or
HQ's officers, directors, employees, shareholders, partners, agents or
representatives. Subject to the foregoing, Client assumes all risk of loss
with respect to all personal property of Client, its agents employees,
contractors, and invitees, within or about the HQ Business Center or the
Building. Client acknowledges that it is the Client's responsibility to
maintain insurance to cover the risks set forth in this paragraph.
HQ and Client each hereby waive any and all rights of recovery against
the other, or against the directors, licensors, officers, agents, servants
and employees of the other, for loss of or damage to its property or the
property of others under its control, to the extent such loss or damage is
covered by any insurance policy.
If the HQ Business Center is made unusable, in whole or in part, by fire
or other casualty not due to negligence of Client, HQ may, at its option,
terminate the Agreement upon notice to Client, effective upon such casualty,
or may elect to repair, restore or rehabilitate, or cause to be repaired,
restored or rehabilitated, the HQ Business Center, without expense to Client,
within ninety (90) days or within such longer period of time as may be
required because of events beyond HQ's control. The Monthly Base Services Fee
shall be abated on a per diem basis for the portions of the Office that are
unusable.
7. DEFAULT. Client shall be deemed to be in default under this Agreement:
(a) if Client defaults in the payment of the Monthly Base Services Fee or
other sums due hereunder or (b) if Client defaults in the prompt and full
performance of any other provision of this Agreement and any such default
continues in excess of five (5) business days after written notice by HQ.
Should Client be in default hereunder, HQ shall have the option to
pursue any one or more of the following remedies
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without any additional notice or demand whatsoever and without limitation to
HQ in the exercise of any remedy.
(1) HQ may, if HQ so elects, without any additional notice of such
election or demand to Client, either forthwith terminate this Agreement and
the license to use any portion of the HQ Business Center, and may enter into
the Office and take and hold possession of the contents thereof, without
releasing Client, in whole or in part, from the Client's obligations
hereunder. In the event of such termination, HQ may, at its option, declare
the entire amount of the Monthly Base Services Fee which would become due
and payable during the remainder of the term, to be due and payable
immediately, in which event, Client agrees to pay the same at once.
(2) Pursue any other remedy now or hereafter available to HQ. HQ's
exercise of any right or remedy shall not prevent it from exercising any
other right or remedy.
Client agrees to pay all costs and expenses, including reasonable
attorneys' fees, expended or incurred by HQ in connection with the
enforcement of this Agreement, the collection of any sums due hereunder, any
action for declaratory relief in any way related to this Agreement, or the
protection or preservation of any rights of HQ hereunder.
8. RESTRICTION ON HIRING. Client agrees that during the term of this
Agreement and within one (1) year of the termination of this Agreement,
neither Client nor any of its principals, employees or affiliates will hire
directly or as an independent contractor, any person who is at that time, or
was during the term of this Agreement, an employee of HQ. In the event of a
breach of any obligation of Client contained in this paragraph. Client shall
be liable to HQ for, and shall pay to HQ, on demand, liquidated damages in
the sum of $10,000.00 for each employee with respect to whom such breach
shall occur, it being mutually agreed that the actual damage that would be
sustained by HQ as the result of any such breach would be, from the nature of
the case, extremely difficult to fix and that the aforesaid liquidated damage
amount is fair and reasonable.
9. MISCELLANEOUS.
A. This is the only Agreement between the parties. No other agreements
are effective. All amendments to this Agreement shall be in writing and
signed by all parties. Any other attempted amendment shall be void. The
invalidity or unenforceability of any provision hereof shall not affect the
remainder hereof.
B. All waivers must be in writing and signed by the waiving party. HQ's
failure to enforce any provision of this Agreement or its acceptance of fees
shall not be a waiver and shall not prevent HQ from enforcing any provision
of this Agreement in the future. No receipt of money by HQ shall be deemed to
waive any default of Client or to extend, reinstate or continue the term
hereof.
C. All Schedules and Addenda attached hereto are hereby incorporated
herein by this reference. The laws of the State in which the HQ Business
Center is located shall govern this Agreement.
D. All parties signing this Agreement as a partnership or co-signing
individuals shall be jointly and severally liable for all obligations of
Client.
E. Client represents and warrants to HQ that there are no agents,
brokers, finders or other parties except _____________ with whom Client has
dealt who are or may be entitled to any commission or fee with respect to
this Agreement.
F. Neither Client nor anyone claiming by, through or under Client shall
assign this Agreement or permit the use of any portion of the HQ Business
Center by any person other than Client; provided, however, Client may assign
this Agreement to an affiliated corporation of Client. In the event of any
such permitted assignment, Client shall not thereby be relieved of any of its
obligations under this Agreement.
G. The Rules and Regulations of the Building and of HQ as defined on
Schedule "C" hereto and any additional schedules that may be attached hereto
are expressly made a part of this Agreement and Client expressly covenants
and agrees to abide by all of such Rules and Regulations and such additional
terms, as well as such reasonable modifications to such Rules and Regulations
as may be hereafter adopted by HQ.
H. All notices hereunder shall be in writing. Notices to Client shall be
deemed to be duly given if mailed by registered or certified mail, postage
prepaid, addressed to Client at:
Summit Bank
0000 Xxxxxxxx
Xxxxxxx, XX 00000
Notice to HQ shall be deemed to be duly given if mailed by registered or
certified mail, postage prepaid, to HQ at the Building and as follows:
HQ Pleasanton
0000 Xxxxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
I. THIS AGREEMENT IS NOT INTENDED TO CREATE A LEASE OR ANY OTHER
INTEREST IN REAL PROPERTY IN FAVOR OF THE CLIENT, BUT MERELY CREATES A
REVOCABLE LICENSE IN ACCORDANCE WITH THE TERMS HEREOF. This Agreement grants
Client the license to use the HQ Business Center and the Office for the
specific purposes herein set forth without diminution of the legal possession
or control thereof by HQ and shall be revocable at the option of HQ upon the
destruction of the HQ Business Center or the breach by Client of any term or
condition herein set forth. This Agreement is subject and subordinate to any
underlying lease or contract of the Building or of the premises comprising
the Office or the HQ Business Center as such lease or contract may be amended
from time to time (such underlying lease or contract together with any
amendments, is hereinafter referred to as the "Master Lease"). This agreement
shall terminate simultaneously with the termination of the HQ Business Center
operation for any reason. Client is not a party to nor shall Client have any
rights under the Master Lease.
J. Client acknowledges that HQ Business Centers will comply with U.S.
Postal Service regulations regarding Client mail and, upon termination of
this Agreement, it will be Client's responsibility to notify all parties of
termination of the use of the above described address, assigned telephone
number, telex and facsimile numbers. For a period of thirty (30) days after
the termination of this Agreement, HQ will, at Client's written request and
cost, provide Client's new telephone number and address to all incoming
callers and will hold or forward to Client once a week all mail, packages,
facsimiles and telexes.
K. HQ may assign this Agreement and/or any fees hereunder and Client
agrees to attorn to any such assignee.
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HQ
Rostex, Inc., dba HQ Business Centers
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A(n) California Corporation
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By: X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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Its: Center Manager
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CLIENT
CORPORATION: Summit Bank
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A(n) [ILLEGIBLE] Corporation
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By: [ILLEGIBLE]
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Its: [ILLEGIBLE]
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PARTNERSHIP: ------------------------------------
A(n) Partnership
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By: ---------------------------------------------
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Its: General Partner
INDIVIDUALS:
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(signature)
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(print name)
Address: ----------------------------------------
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(signature)
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(print name)
Address: ----------------------------------------
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PERSONAL GUARANTEE:
For value received, the undersigned does hereby unconditionally and
irrevocably guarantee the prompt payment and full performance of all terms,
covenants, conditions and agreements as contained herein.
BY: --------------------- BY: ---------------------- BY: ----------------------
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SCHEDULE "A"
BASE SERVICES: see attached - Schedule "A"
in Addition to the following:
- Individual Executive Office
- Professional Receptionist, Message Center Secretaries, and Office Manager
- Prestigious Business Address
- Business Identity on Building Lobby Directory
- Facsimile Number for Client's Use
- Mail and Package Receipt
- Utilities and Janitorial Service
- Building Operating Expenses
SCHEDULE "B"
ADDITIONAL SERVICES
Secretarial Services and Errands
Binding Services
Postage for Outgoing Mail (plus 20%)
Express Delivery Services (plus 20%)
UPS Services (plus 20%)
Mail Reads and Mail Checks
Handling all Pick-up and Deliveries
Paging and Cross Connecting
Specialized Telephone Services
Specialized Equipment Rental
Printing
Office Supplies
Miscellaneous Purchasing Services
Catering
Local and Long Distance Telephone Services
Other Tenant Requested Services
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