Exhibit 10.6
SUBLEASE
(AU #91832)
By and Between
XXXXX FARGO BANK, N.A.
and
BUSINESS BANK OF CALIFORNIA
Subleased Premises for
Bank Branch Building Known As
00000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx
SUBLEASE
(AU # 91832)
1. Basic Sublease Information.
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1.1 Basic Monthly Rent: Three Thousand One Hundred Fifty-Five
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and 60/100 Dollars ($3,155.60)
1.2 Broker(s): CB Commercial Real Estate Group, Inc. on
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behalf of Sublandlord and Subtenant
1.3 Building/Center: 00000 Xxxx Xxxxxx
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Hesperia, California
(Sometimes referred to as 00000 Xxxx
Xxxxxx)
1.4 Commencement Date: The earlier of (i) July 31, 2001 or (ii)
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the termination of the Sublease dated as
of even date herewith between
Sublandlord and Subtenant, relating to
the parking area adjacent to the
Subleased Premises.
1.5 Contingency Removal Date: November 15, 1997
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1.6 Expiration Date: The earlier of (i) July 31, 2001 or (ii)
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the termination of the Sublease dated as
of even date herewith between
Sublandlord and Subtenant relating to
the parking area adjacent to the
Subleased Premises.
1.7 Landlord: Xxxxxx Xxxxxxxx and Xxxx Xxxxxxxx,
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Co-Trustees of the Xxxxxxxx Family Trust
under Trust Instrument dated November 2,
1992
1.8 Lease: That certain Lease Dated November
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27, 1990 between Xxxxxxx Xxxxxx and Xxx
Xxxxxx, predecessors in interests to
Landlord, as Lessor, and First
Interstate Bank of California,
predecessor in interest to Sublandlord,
as Lessee, as amended by an Addendum to
Lease dated November 27, 1990, copies of
which are attached hereto as Exhibit A.
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1.9 Permitted Use: General banking business.
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1.10 Rent commencement Date: The earlier of (i) thirty (30) days
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after the Commencement Date and (ii)
January 1, 1998
1.11 Security Deposit: NONE
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1.12 Sublandlord: Xxxxx Fargo Bank, N.A.; a national
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banking association
1.13 Sublandlord's Address: Xxxxx Fargo Bank, N.A.
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Corporate Properties Group
000 Xxxxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
1.14 Sublease Term: Approximately forty-four (44) months
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commencing on the Commencement Date and
ending, unless earlier terminated
pursuant to the terms hereof, on the
earlier of (i) July 31, 2001 or (ii) the
termination of the Sublease dated as of
even date herewith between Sublandlord
and Subtenant, relating to the parking
area adjacent to the Subleased Premises.
1.15 Subleased Premises: The building known as 00000 Xxxx Xxxxxx,
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Hesperia, California ("Building"),
consisting of approximately five
thousand one hundred fifty-two (5,152)
square feet of space, and the land on
which the Building is located. The
Subleased Premises are the entire
premises leased to Sublandlord under the
Lease.
1.16 Subtenant: Business Bank of California
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1.17 Subtenant's Address and Telephone No.:
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000 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxx X. Xxxx
Telephone No.: (000) 000-0000
1.18 Subtenant's Percentage Share: One hundred percent (100%)
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Exhibits: Exhibit A- Lease
Exhibit B- Due to Diligence Materials
Exhibit C- Form of Lease Termination Letter
TABLE OF CONTENTS
Page
1. Basic Sublease Information............................................ 1
1.1 Basic Monthly Rent............................................... 1
1.2 Broker (s)....................................................... 1
1.3 Building......................................................... 1
1.4 Commencement Date................................................ 1
1.5 Contingency Removal Date......................................... 1
1.6 Expiration Date.................................................. 1
1.7 Landlord......................................................... 1
1.8 Lease............................................................ 1
1.9 Permitted Use.................................................... 2
1.10 Rent commencement Date........................................... 2
1.11 Security Deposit................................................. 2
1.12 Sublandlord...................................................... 2
1.13 Sublandlord's Address............................................ 2
1.14 Sublease Term.................................................... 2
1.15 Subleased Premises............................................... 2
1.16 Subtenant........................................................ 2
1.17 Subtenant's Address and Telephone No............................. 2
1.18 Subtenant's Percentage Share..................................... 2
2. Demise; Conditions.................................................... 3
2.1 Demise........................................................... 3
2.2 Acceptance of Subleased Premises................................. 4
2.3 Conditions Precedent............................................. 5
2.4 Failure of Conditions............................................ 6
2.5 Compliance with Laws............................................. 7
3. Lease................................................................. 7
3.1 Incorporation by Reference; Assumption........................... 7
3.2 Assumption of Lease Obligations.................................. 7
3.3 No Assumption by Sublandlord..................................... 8
3.4 Landlord Default; Consents....................................... 8
3.5 Termination of Lease............................................. 8
4. Rent.................................................................. 8
4.1 Basic Monthly Rent............................................... 9
4.2 Additional Rental................................................ 9
4.3 Late Charges..................................................... 9
4.4 Intentionally Omitted............................................ 9
Page
5. Covenant of Quiet Enjoyment........................................... 9
6. Hazardous Substances.................................................. 10
6.1 Definitions...................................................... 10
6.2 Compliance with Environmental Laws............................... 10
6.3 Response to Environmental Claims................................. 10
7. Intentionally Omitted................................................. 10
8. Indemnity............................................................. 10
9. Attorneys' Fees....................................................... 11
10. No Encumbrance........................................................ 11
11. Assignment and Subletting............................................. 11
11.1 Restriction on Assignment and Subletting......................... 11
11.2 Determining Factors.............................................. 11
11.3 Consents......................................................... 12
11.4 Profit Sharing................................................... 12
12. Alterations........................................................... 13
12.1 Alterations and Improvements by Subtenant........................ 13
12.2 Disposition on Termination....................................... 13
13. Removal of Personal Property.......................................... 13
14. Holding Over.......................................................... 14
15. Liens................................................................. 14
16. Maintenance and Repairs............................................... 14
17. Insurance............................................................. 15
17.1 Coverage......................................................... 15
17.2 Policies......................................................... 15
17.3 Subrogation...................................................... 15
17.4 Primary Coverage................................................. 16
18. Events of Default..................................................... 16
19. Remedies of Sublandlord on Default.................................... 17
19.1 Termination of Sublease.......................................... 17
19.2 Continue Sublease in Effect...................................... 18
Page
19.3 Other Remedies................................................... 18
20. Estoppel Certificates................................................. 18
20.1 Obligation to Provide............................................ 18
20.2 Failure to Provide............................................... 19
20.3 Financial Information............................................ 19
21. Real Estate Brokers................................................... 19
22. Miscellaneous......................................................... 19
22.1 Notices.......................................................... 19
22.2 Governing Law.................................................... 19
22.3 Exhibits......................................................... 20
22.4 Waiver of Trial by Jury.......................................... 20
22.5 Prohibition on Solicitation of Sublandlord's Customers........... 20
22.6 Signs............................................................ 20
22.7 Authority........................................................ 21
THIS SUBLEASE, dated as of October 24, 1997, is entered into by and between
XXXXX FARGO BANK, N.A., a national banking association ("Sublandlord") and
BUSINESS BANK OF CALIFORNIA, a California state banking corporation
("Subtenant").
RECITALS
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A. Xxxxxxx Xxxxxx and Xxx Xxxxxx, predecessor in interest to Landlord, as
lessor, and First Interstate Bank of California, predecessor in interest to
Sublandlord, as lessee, entered into a written lease dated November 27, 1990, a
copy of which is attached hereto as Exhibit A ("Lease"), covering premises
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described in the Lease.
B. The Lease was amended on November 27, 1990, pursuant to an Addendum to
Lease. Such Addendum to Lease is included in the reference to Lease.
C. Subtenant desires to sublet all of the premises described in the Lease
from Sublandlord on the terms and conditions contained in this Sublease.
NOW, THEREFORE, in consideration of the premises subleased to Subtenant
hereunder and the mutual covenants and conditions herein contained, Sublandlord
and Subtenant agree as follows:
2. Demise; Conditions.
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2.1 Demise. Sublandlord hereby subleases to Subtenant and Subtenant
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hereby hires from Sublandlord the Subleased Premises for the Sublease Term,
subject to the terms, covenants and conditions set forth herein. Subtenant
covenants that, as a material part of the consideration for this Sublease, it
shall keep and perform each and all of such terms, covenants and keep and
perform each and all of such terms, covenants and conditions by it to be kept
and performed, and that this Sublease is made upon the condition of such
performance. Subtenant acknowledges that Sublandlord's obligation to perform
services, provide utilities, make repairs and carry insurance shall be satisfied
only to the extent that the Landlord under the Lease satisfies those same
obligations. Subtenant assumes and agrees to perform the tenant's obligations
under the Lease during the Sublease Term to the extent such obligations are
applicable to the Subleased premiss, except to the extent specifically
contradicted herein. Subtenant shall not commit or suffer any act or omission
that will violate any of the provisions of the Lease. In the event of any
discrepancy between the square footage of the Subleased Premises set forth in
the Lease and the square footage set forth herein, this Sublease shall govern.
2.2 Acceptance of Subleased Premises. Subtenant agrees to accept the
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Subleased premises in an "as is" condition including the teller counters, steel
cabinetry, vaults and night-drop depository existing in the Building as of
September 10, 1997. Without limiting the foregoing, Subtenant's rights in the
Subleased Premises are subject to all local, state and federal laws, regulations
and ordinances governing and regulating the use and occupancy of the Subleased
premises and subject to all matters now or hereafter of record. Subtenant
acknowledges that neither Sublandlord nor Sublandlord's agent has made any
representation or warranty as to:
a. The present or future suitability of the Subleased Premises
for the conduct of Subtenant's business;
b. the physical condition of the Subleased Premises;
c. the expenses of operation of the Subleased Premises;
d. the safety of the Subleased premises, whether for the use of
Subtenant or any other person, including Subtenant's employees, agents, invitees
or customers;
e. The compliance of the Subleased Premises with any applicable
laws, regulations or ordinances; or
f. Any other matter or thing affecting or related to the
Subleased Premises.
Subtenant acknowledges that no rights, easements or licenses are acquired by
Subtenant by implication or otherwise except as expressly set forth herein.
Subtenant shall, prior to delivery of possession of the Subleased premises,
inspect the Subleased Premises and become thoroughly acquainted with their
condition. Subtenant acknowledges that the taking of possession of the Subleased
Premises by Subtenant shall be conclusive evidence that the Subleased Premises
were in good and satisfactory condition at the time such possession was taken.
Subtenant specifically agrees that, except as specifically provided by laws in
force as of the date hereof, Sublandlord has no duty to make any disclosures
concerning the condition of the Building and the Subleased premises and/or the
fitness of the Building and the Subleased Premises for Subtenant's intended use
and Subtenant expressly waives any duty which Sublandlord might have to make any
such disclosures; provided, however, nothing in this sentence shall relieve
Sublandlord of any liability based on fraud by Sublandlord. Any information
disclosed by Sublandlord is not intended and shall not be construed as a
representation or warranty regarding the Subleased Premises. Subtenant further
agrees that, in the event Subtenant subleases all or any portion of the
Subleased Premises, Subtenant shall indemnify and defend Sublandlord (in
accordance with Paragraph 8 hereof) for, from and against any matters which
arise as a result of subtenant's failure to disclose any relevant information
about the Building or the Subleased Premises to any subtenant or assignee.
Subtenant shall comply with all laws and regulations relating to the use or
occupancy of the subleased Premises, including, without limitation, making
structural alterations or providing auxiliary aids and services to the Subleased
Premises as required by the Americans with Disabilities Act of 1990, 42 U.S.C. s
12101 et seq. (the "ADA"). Subtenant further agrees that all telephone and other
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communication installation and use requirements shall be compatible with the
Building and that Subtenant shall be solely responsible for all of its telephone
and communication installation and usage costs.
2.3 Conditions Precedent. The parties' obligations hereunder are expressly
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conditioned upon the satisfaction of the following conditions precedent:
a. Landlord's Written consent. Within fifteen (15) days after
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execution of this sublease, Landlord's execution of a written consent to this
Sublease, and satisfaction of any condition to this Sublease;
b. Financial Statements. Within five (5) days after execution of
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this Sublease, delivery of Subtenant's most recent annual report (if any),
financial statements or federal tax returns for the two (2) year period prior to
the Commencement Date plus the current calendar year, including balance sheets
and profit and loss statements, prepared in accordance with generally accepted
accounting principles, consistently applied, a list of Subtenant's banking
references, the social security numbers of Subtenant and the principals of
Subtenant and any other information reasonably requested by Sublandlord, and
within ten (10) days after receipt thereof Sublandlord's written approval
thereof;
c. Authority. If requested by Sublandlord, within ten (10) days
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after execution of this Sublease, delivery to Sublandlord of (i) if Subtenant is
a corporation, certified copies of Subtenant's Articles of Incorporation,
Certificate of good Standing and a resolution of Subtenant's Board of Directors,
certified by the corporate secretary of Subtenant, authorizing or ratifying the
execution of this Sublease by Subtenant, or (ii) if Subtenant is a partnership,
such partnership documents as Sublandlord may reasonably request to review,
including, but not limited to, Subtenant's partnership agreement and any state
filings establishing the identity and qualification of the partnership to
transact business in the location in which the Subleased Premises are located,
and the identity and authority of the partners of the partnership, and
Sublandlord's approval of such organizational documents;
d. Physical Inspection. Subtenant's approval, on or before the
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Contingency Removal Date, of the physical condition of the Subleased premises
and any and all use permits, governmental approvals, bank regulatory approvals,
environmental inspections, corporate approval s, title matters and other matters
reasonably related to Subtenant's intended use of the Subleased Premises for the
Permitted Use. Upon execution of this Sublease, Sublandlord shall provide
Subtenant with an asbestos report and any building plans in Sublandlord's
immediate possession relating to the Subleased Premises. Subtenant acknowledges
receipt of the reports relating to the Subleased Premises which are listed on
Exhibit B, attached hereto: Subtenant acknowledges that such disclosures are not
intended and shall not be construed as a representation or warranty by
Sublandlord regarding the condition of the Subleased premises;
e. Lease. The agreement between Landlord and Subtenant, on or before
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the contingency Removal Date, on the terms of a direct lease for the Subleased
Premises, commencing upon the expiration of the sublease Term; and
f. Satisfaction of Conditions for Parking Sublease. The satisfaction
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or waiver, on or before the Contingency Removal Date, of all conditions
precedent set forth in Paragraph 2.3 of the Sublease dated as of even date
herewith between Sublandlord and Subtenant, relating to the parking area
adjacent to the Subleased Premises.
2.4 Failure of Conditions. The conditions precedent specified in
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Paragraphs 2.3.b and
2.3.c run to the benefit of Sublandlord. The condition precedent specified in
Paragraph 2.3.1 runs to the benefit of both parties, and sublandlord shall use
commercially reasonable efforts to obtain Landlord's consent within the fifteen
(15) day period set forth in Paragraph 2.3.a. The conditions precedent specified
in Paragraph 2.3 is not satisfied by the date specified in and in accordance
with Paragraph 2.3, and the time period for the satisfaction of the condition is
not extended or waived in writing by the party of parties to whom the benefit of
the condition runs, then the party or parties to whom the benefit of the
condition runs, shall have the right to terminate this Sublease in writing prior
to or on the applicable date set forth in Paragraph 2.3 and neither Sublandlord
nor Subtenant shall have any further obligations hereunder (except for
Subtenant's indemnity obligations hereunder).
2.5 Compliance with Laws. At its own expense, Subtenant shall procure,
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maintain in effect and comply with all conditions of any and all permits,
licenses and other governmental and regulatory approvals required for
Subtenant's use of the Subleased Premises.
3. Lease.
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3.1 Incorporation by Reference; Assumption. All of the Sections and
Articles of the Lease are incorporated into this Sublease with respect to the
rights and obligations between Sublandlord and Subtenant as if fully set forth
in this Sublease except for the following: Sections I; II; and III; Articles 1,
2, 3, 4, 5, 6, 7, 9, 12, 13, 14, 15, 17.B, 18, 19, 20, 21, 22, 24, 25, 26, 29,
30, 31, 32, 33, 34, 35, 36, and 37 of Article IV; and the Addendum to Lease.
Where applicable, reference in the Lease to Lessor shall mean Sublandlord and to
Lessee shall mean Subtenant.
If any provisions of this Sublease conflict with any portion of the Lease
as incorporated herein, the terms of this Sublease shall govern.
3.2 Assumption of Lease Obligations. Subtenant shall assume and perform to
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Sublandlord the lessee's obligations under the Lease and perform to Sublandlord
to the lessee's obligations under the Lease during the Sublease Term to the
extent such obligations are applicable to the Subleased Premises. Subtenant
shall pay to Sublandlord Subtenant's Percentage Share of operating expenses and
taxes and any other sums payable by Sublandlord under the Lease not later than
ten (10) days prior to the date any such amounts are due and payable by
Sublandlord. Subtenant shall not commit or suffer any act or omission that will
violate any of the provisions of the Lease.
3.3 No Assumption by Sublandlord. Sublandlord does not assume the
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obligations of the Landlord under the Lease. Subtenant acknowledges that
Sublandlord's obligation to perform services, provide utilities, make repairs
and carry insurance shall be satisfied only to the extent that the Landlord
under the Lease satisfies those same obligations. With respect to the
performance by Landlord of its obligations under the Lease, Sublandlord's sole
obligation with respect thereto shall be to request the same, on request in
writing by Subtenant, and to use reasonable efforts to obtain the same from
Landlord; provided, however, Sublandlord shall have
no obligation to institute legal action against Landlord. Notwithstanding the
foregoing, Sublandlord agrees to perform the obligations of Sublandlord as
lessee under the Lease to the extent such obligations are not assumed by
Subtenant hereunder.
3.4 Landlord Default; Consents. Notwithstanding any provision of this
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sublease to the contrary, (i) Sublandlord shall not be liable or responsible in
any way for any loss, damage, cost, expense, obligation or liability suffered by
Subtenant by reason or as the result of any breach, default or failure to
perform by the Landlord under the Lease, and (ii) whenever the consent or
approval of Sublandlord and Landlord is required for a particular act, event or
transaction (A) any such consent or approval by Sublandlord shall be subject to
the consent or approval of Landlord, and (B) should Landlord refuse to grant
such consent or approval, under all circumstances, Sublandlord shall be released
from any obligation to grant its consent or approval.
3.5 Termination of Lease. If the Lease terminates under the specific
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provisions under the Lease, this Sublease shall terminate, unless the Landlord
elects to accept this Sublease as direct lease between Landlord and Subtenant,
and the parties shall be relieved from all liabilities and obligations under
this Sublease excepting obligations which have accrued as of the date of
termination; except that if this Sublease terminates as a result of a default of
one of the parties under this Sublease or by Sublandlord under the Lease, the
defaulting party shall be liable to the non-defaulting party for all damage
suffered by the non-defaulting party as a result of the termination. Subtenant
acknowledges that as of the executive of this Sublease and satisfaction of all
of the Conditions Precedent, Sublandlord will exercise its right to terminate
the Lease effective as of July 31, 2001, by delivering to Landlord a termination
notice in the form of Exhibit C, attached hereto.
4. Rent.
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4.1 Basic Monthly Rent. As of the Rent Commencement Sate, Subtenant shall
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pay the Basic Monthly Rent to Sublandlord without demand, deduction, set-off or
counter claim, in advance on the first day of each calendar month during the
Sublease Term. Notwithstanding the foregoing, Subtenant shall pay Sublandlord
the Basic Monthly Rent due hereunder for the month of December, 1997 on or
before the Contingency Removal Date, if this Sublease is still in full force and
effect. In the event of a partial rental month, rent shall be prorated on the
basis of a thirty (30) day month. All installments of Basic Monthly Rent shall
be delivered to Sublandlord s address, or at such other place as may be
designated in writing from time to time by Sublandlord, in lawful money of the
United States and without deduction or offset for any cause whatsoever.
4.2 Additional Rental. Commencing on the Rent commencement Date, Subtenant
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shall be responsible for Subtenant's Percentage Share of all costs and expenses
of every kind and nature which may be imposed, at any time, on Sublandlord with
respect to the Subleased premises (except for base rent, as defined in the
Lease) including, but not limited to, additional rent, common operating
expenses, insurance premiums and tax costs. Subtenant shall be responsible for,
and shall pay prior to delinquency, all taxes imposed upon, levied with respect
to, or assessed against Subtenant's personal property and trade fixtures and the
value of Subtenant's
improvements, if any, to the subleased Premises. To the extent that such taxes
are not separately assessed or billed to Subtenant, Subtenant shall pay the
amount thereof as invoiced by Landlord or Sublandlord within then (10) days
after submission of the invoice to Subtenant. As hereinafter used, "Rent" shall
include Basic Monthly Rent and all additional charges to be paid by Subtenant
pursuant to this Paragraph 4.2.
4.3 Late Charges. The parties agree that late payments by Subtenant to
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Sublandlord of rent shall cause Sublandlord to incur costs not contemplated by
this Sublease, the amount of which is extremely difficult to ascertain.
Therefore, the parties agree that if any installment of Basic Monthly Rent or
additional rent is not received by Sublandlord within ten (10) days after due,
Subtenant shall pay to Sublandlord a late charge equal to five percent (5%) of
the late payment. Interest on any amounts payable by Subtenant under this
Sublease shall accrue at the rate of twelve percent (12%) per annum from the
date delinquent until paid in full. So long as Subtenant pays rent due under
this Sublease on a timely basis, Subtenant shall not be responsible for any late
charges payable under the Lease as a result of Sublandlord failure to pay rent
due under the Lease on a timely basis.
4.4 Intentionally Omitted.
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5. Covenant of quiet Enjoyment. Sublandlord represents that the Lease is in
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full force and effect and that there are no defaults on Sublandlord's part under
it as of the Commencement Date. Subject to this Sublease terminating in the
event the Lease is terminated, if Subtenant performs all the provisions in this
Sublease to be performed by Subtenant, Subtenant shall have and enjoy throughout
the Sublease Term the quiet and undisturbed possession of the subleased
Premises. Sublandlord shall have the right to enter the Subleased Premises at
any time, in the case of an emergency, and otherwise at reasonable times, for
the purpose of inspecting the condition of the Subleased Premises and for
verifying compliance by Subtenant with this Sublease and the Lease and
permitting Sublandlord to perform it obligations under this Sublease and the
Lease.
6. Hazardous Substances.
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6.1 Definitions. For the purposes of this Sublease, the following terms
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have the following meanings:
a. "Environmental Laws" means any and all laws, statutes, ordinances
or regulations pertaining to health, industrial hygiene or the new environment
including, without limitation, CERCLA (Comprehensive Environmental Response
Compensation and Liability Act of 1980) and RCRA (Resources Conservation and
Recovery Act of 1976).
b. "Hazardous Substances" means asbestos or any substance, material
or waste which is or becomes designated, classified or regulated as being
"toxic" or "hazardous" or a "pollutant" or which is or becomes similarly
designated, classified or regulated under any federal, state or local law,
regulation or ordinance.
6.2 Compliance with Environmental Law. Subtenant shall, in all respects,
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handle, treat,
deal with and manage any and all Hazardous Substances in, on, under or about the
Subleased Premises in total conformity with all applicable Environmental Laws
and prudent industry practices regarding management of such Hazardous
Substances. Upon expiration or earlier termination of the Sublease Term,
Subtenant shall cause all Hazardous Substances placed on, under or about the
Subleased Premises by Subtenant or at Subtenant's direction to be removed and
transported for use storage or disposal in accordance and compliance with all
applicable environmental Laws.
6.3 Response to Environmental Claims. Subtenant shall not take any
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remedial action in response to the presence of any Hazardous Substances in or
about the Subleased Premises, nor enter into any settlement agreement, consent
decree or other compromise in respect to any claims relating to any Hazardous
substances in any way connected with the Subleased premises without first
notifying Landlord and Sublandlord of Subtenant's intention to do so and
affording landlord and Sublandlord ample opportunity to appear, intervene or
otherwise appropriately assert and protect Landlord's and Sublandlord's
interests with respect thereto.
7. Intentionally Omitted.
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8. Indemnity. Subtenant shall indemnify, defend (by counsel reasonably
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acceptable to Sublandlord), protect and hold Sublandlord harmless from and
against any and all liabilities, claims, demands, losses, damages, costs and
expenses (including attorneys' fees) arising out of or relating to (i) the death
of or injury to any person or damage to any property on or about the Subleased
Premises or (ii) Subtenant's breach or default under this sublease (including,
without limitation, Subtenant's breach incorporated herein, the Lease.
9. Attorneys' Fees. If there is any legal action or proceeding between
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Sublandlord and Subtenant to enforce any provision of this sublease or to
protect or establish any right or remedy of either Sublandlord or Subtenant
hereunder, the non-prevailing party to such action or proceeding shall pay to
the prevailing party all costs and expenses, including reasonable attorneys'
fees incurred by such prevailing party in such action or proceeding and in any
appearance in connection therewith, and if the prevailing party recovers a
judgement in any such action, proceeding or appeal, such costs, expenses and
attorney's fees shall be determined by the court or arbitration panel handling
the proceeding and shall be included in and as a part of the judgement.
10. No Encumbrance. Subtenant shall not voluntarily, involuntarily or by
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operation of law mortgage or otherwise encumber all or any part of Subtenant's
interest in the Sublease or the subleased Premises.
11. Assignment and Subletting.
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11.1 Restriction on Assignment and Subletting. Subtenant shall not
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voluntarily, involuntarily or by operation of law assign this sublease or any
interest therein and shall not sublet the Subleased Premises or any part
thereof, or any right or privilege appurtenant thereto, without first obtaining
the written consent of Sublandlord, which consent shall not be unreasonably
withheld or delayed. The transfer of more than a fifty percent (50%) partnership
interest in
Subtenant, if Subtenant is a partnership, or more than fifty percent (50%) of
the stock of Subtenant, if Subtenant is a corporation, shall be deemed to be an
assignment for purposes of this Paragraph 11.1.
11.2 Determining Factors. In determining whether or not to consent to
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a proposed assignment or subletting, Sublandlord may consider the following
factors, among others, all of which are deemed reasonable:
a. whether the proposed use of the Subleased Premises by the
proposed sublessee or assignee is consistent with the Permitted Use set forth in
Paragraph 1.9;
b. whether Sublandlord's consent will result in a breach of the
Lease in any other lease or agreement to which Sublandlord is a party affecting
the Building or Subleased Premises; and
c. whether Landlord has consented in writing to proposed
assignment or subletting, if necessary.
11.3 Consents. Any attempted assignment or subletting without
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Sublandlord's consent shall be null and void and of no effect. No permitted
assignment or subletting of Subtenant's interest in this Sublease shall relieve
Subtenant of its obligations to pay the rent or other sum or charge due
hereunder and to perform all the other obligations to be performed by Subtenant
here under. The acceptance of rent by Sublandlord from any other person shall
not be deemed to be a waiver by Sublandlord or any provision of this Sublease or
to be a consent to any subletting or assignment. Consent to one sublease or
assignment shall not be deemed to constitute consent to any subsequent attempted
subletting or assignment.
11.4 Profit Sharing.
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a. Within thirty (30) days following the date received by
Subtenant from any assignee or sublessee, Subtenant shall pay to Sublandlord as
additional rent, one hundred percent (100%) of the amount by which the rent
payable by the assignee or sublessee to Subtenant exceeds the rent payable by
Subtenant to Sublandlord under this sublease until the rent paid by Subtenant to
Sublandlord equals the amount paid by Sublandlord to Landlord under the Lease
and thereafter, fifty percent (50%) of the amount by which the rent payable by
the assignee or sublessee to subtenant throughout the Sublease Term exceeds the
rent paid by Subtenant to Sublandlord under this Sublease. If Subtenant receives
a lump sum payment in connection with an assignment, the amount of the payment
shall be allocated between Subtenant and Sublandlord, in the same manner taking
into account the total rents payable during the remaining terms of the Lease and
Sublease.
b. Notwithstanding the provisions set forth in subparagraph (a)
above, Subtenant shall not be obligated to pay Sublandlord any portion of
appreciated rents until Subtenant has recovered any costs it has reasonably
incurred in connection with the subletting of the Subleased Premises to any
third party broker or for improvements to the Subleased Premises. Any costs to
be deducted from appreciated rents shall be submitted to Sublandlord and shall
be subject to Sublandlord's reasonable approval.
c. The profit-sharing provisions set forth in subparagraph (a)
above is a freely negotiated agreement between Subtenant and Sublandlord
respecting the allocation of appreciated rents. This covenant shall survive the
expiration of the Sublease Term.
12. Alterations.
-----------
12.1 Alterations and Improvements by Subtenant. Subtenant shall
-----------------------------------------
not make any alterations, additions or improvements to the Subleased Premises
("Alterations") without obtaining the prior written consent of Landlord and
Sublandlord thereto, which consent shall not be unreasonably withheld or delayed
by Landlord or Sublandlord. The term "Alterations" includes any alterations,
additions or improvements made by Subtenant to comply with the ADA as required
by this Sublease. All Alterations, must be constructed (A) in a good and
workmanlike manner using materials of a quality comparable to those on the
Subleased Premises, (B) in conformance with all relevant codes, regulations and
ordinances and (C) only after necessary permits licenses and approvals have been
obtained by Subtenant from appropriate governmental agencies. All Alterations
shall be made at Subtenant's sole cost (including all costs relating to the
removal of asbestos, if any, in connection with the Alterations) and diligently
prosecuted to completion. Any contractor or other person making any Alterations
must first be approved in writing by Sublandlord, and Sublandlord may require
that all work be performed under Sublandlord's supervision.
12.2 Disposition on Termination. Upon the expiration of the sublease
--------------------------
Term or earliler termination of this Sublease Subtenant shall, to the extent
required under the Lease, promptly remove any or all of the Alterations
designated by Sublandlord to be removed, in which case Subtenant must, at
Subtenant's sole cost, repair and restore the Subleased Premises to their
condition as of the Commencement Date, reasonable wear and tear excepted.
13. Removal of Personal Property. All articles of personal property, and
----------------------------
all business and trade fixtures, machinery and equipment, cabinet work,
furniture and movable partitions, if any, owned or installed by Subtenant at its
expense in the Subleased Premises shall be and remain the property of subtenant
and may be removed by Subtenant at any time, provided that Subtenant at its
expense, must repair any damage to the Subleased Premises caused by such removal
or by the original installation. Sublandlord may elect to require Subtenant to
remove all or any part of Subtenant's personal property at the expiration of the
Sublease Term or sooner termination of this Sublease, in which event the removal
shall be done at Subtenant's expense and Subtenant, prior to the end of the
Sublease Term or upon sooner termination of this Sublease, shall repair any
damage to the Subleased Premises caused by its removal.
14. Holding Over. If Subtenant holds over after the expiration date of the
------------
Sublease Term or earlier termination of this Sublease, with or without the
express or implied consent of Sublandlord, then at the option of Sublandlord,
Subtenant shall become and be only a month-to-month tenant at a rent equal to
one hundred and fifty percent (150%) of the rent payable by
Subtenant immediately prior to such expiration or termination, and otherwise
upon the terms, covenants and conditions herein specified. Notwithstanding any
provision to the contrary contained herein, (A) Sublandlord expressly reserves
the right to require Subtenant to surrender possession of the Subleased Premises
upon the expiration of Sublease Term or upon the earlier termination of this
Sublease and the right to assert any remedy at law or in equity to evict
Subtenant and/or collect damages in connection with any holding over, and (B)
Subtenant shall indemnify, defend and hold Sublandlord harmless from and against
any and all liabilities, claims, demands, actions, losses, damages obligations,
costs and expenses, including, without limitation, attorneys' fees (including
the allocated costs of Sublandlord's in-house attorneys) incurred or suffered by
Sublandlord by reason of Subtenant's failure to surrender the Subleased Premises
on the expiration of the Sublease Term or earlier termination of this Sublease.
15. Liens. Subtenant shall keep the Subleased Premises and the Building
-----
free from any liens arising out of any work performed, materials furnished, or
obligations incurred by Subtenant. If a lien is filed, Subtenant shall discharge
the lien or post a bond with ten (10) days after receiving a request from
Sublandlord or Landlord to do so. Sublandlord has the right to post and keep
posted on the Subleased Premises any notices that may be provided by law or
which Sublandlord may deem to be proper for the protection of Sublandlord, the
Subleased Premises and the Building from such liens.
16. Maintenance and Repairs. At all times during the Sublease Term,
-----------------------
Subtenant, at its sole cost, shall maintain the Subleased Premises and every
part thereof and all equipment, fixtures and improvements therein in good
condition and repair. At the end of the Sublease Term, Subtenant shall surrender
the Subleased Premises in as good condition as when received, reasonable wear
and tear excepted. Subtenant shall be responsible for all repairs required to be
performed by the lessee under the Lease.
17. Insurance.
----------
17.1 Coverage. At all times during the Sublease Term, Subtenant shall,
--------
at its sole cost, procure and maintain the following types and amounts of
insurance coverage (but in no event less than the types and amounts of coverage
required from time to time under the Lease):
a. Comprehensive general liability insurance against damages
and liability, including attorneys' fees, on account or arising out of injuries
to or the death of any person or damage to property in, on or about the
Subleased Premises with at least a single combine liability and property damage
limit of Two Million Dollars ($2,000,000).
b. Insurance on all plage or tempered glass in or enclosing the
Subleased Premises, for the replacement cost of such glass.
c. A policy or policies, including the basic form, broad form
and special form of coverage ("All Risks") including vandalism and malicious
mischief, theft, sprinkler leakage and water damage coverage in an amount equal
to the full replacement value, new without deduction for depreciation, of the
building comprising the Subleased Premises and all trade fixtures,
furniture and equipment in the Subleased Premises, and all alterations,
additions and improvements to the Subleased Premises installed by or for
Subtenant or provided to Subtenant.
d. Employer's liability insurance and worker's compensation
insurance as required by applicable law.
17.2 Policies. All insurance required to be carried by Subtenant must
--------
be in a form reasonably satisfactory to Sublandlord and carried with companies
reasonably acceptable to Sublandlord. Subtenant must provide Sublandlord with a
certificate of insurance showing Sublandlord as additional insured. The
certificate must provide for a thirty (30) day written notice to Sublandlord in
the event of a cancellation or material change of coverage.
17.3 Subrogation. Sublandlord and Subtenant shall each obtain from
-----------
their respective insurers under all policies of fire, theft, public liability,
workers' compensation and other insurance maintained by either of them at any
time during the Sublease Term hereof insuring or covering the Subleased
Premises, a waiver of all rights of subrogation which the insurer of one party
might otherwise have, if at all, against the other party.
17.4 Primary Coverage. All insurance to be maintained by Subtenant
----------------
shall be primary, without right of contribution from any insurance maintained by
Sublandlord.
18. Events of Default. If one or more of the following events ("Event of
-----------------
Default") occurs, such occurrence constitutes a breach of this Sublease by
Subtenant:
a. Subtenant abandons or vacates the Subleased Premises without
payment of rent; or
b. Subtenant fails to pay any installment of Rent as when the same
become due and payable, and such failure continues for more than ten (10) days
after Sublandlord gives written notice thereof to Subtenant; or
c. Subtenant fails to pay any other sum or charge payable by
Subtenant hereunder as and when the same becomes due and payable, and such
failure continues for more than thirty (30) days after Sublandlord gives written
notice thereof to Subtenant; or
d. Subtenant fails to perform or observe any other agreement,
covenant, condition or provision of this Sublease to be performed or observed by
Subtenant as and when performance or observance is due, and such failure
continues for more than thirty (30) days after Sublandlord gives written notice
thereof to Subtenant, or if the default cannot be cured within said thirty (30)
day period and Subtenant fails within said period to commence with due diligence
and dispatch the curing of such default or, having so commenced, thereafter
fails to prosecute or complete with due diligence and dispatch the during of
such default; or
e. Subtenant (i) files or consents by answer or otherwise to the
filing against it of a petition for relief or reorganization or arrangement or
any other petition in bankruptcy or liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction;
(ii) makes an assignment for the benefit of its creditors; (iii) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers of itself or of any substantial part of its property; or (iv) takes
action for the purpose of any of the foregoing; or
f. A court or governmental authority of competent jurisdiction,
without consent by Subtenant, enters an order appointing a custodian, receiver,
trustee or other officer with similar powers with respect to it or with respect
to any substantial portion of its property, or constituting an order for relief
or approving a petition for relief or reorganization or any other petition in
bankruptcy or insolvency law or any jurisdiction, or ordering the dissolution,
winding up or liquidation of Subtenant, or if any such petition is filed against
Subtenant and such petition is not dismissed within ninety (90) days;
g. This Sublease or any estate of Subtenant hereunder is levied upon
under any attachment or execution and such attachment or execution is not
vacated within ninety (90) days; or
h. An event of default has occurred under the Sublease dated as of
even date herewith between Sublandlord and Subtenant, relating to the parking
area adjacent to the Subleased Premises.
19. Remedies of Sublandlord on Default.
----------------------------------
19.1 Termination of Sublease. In the event of any breach of this
-----------------------
Sublease by Subtenant, Sublandlord may, at its option, terminate the Sublease
and recover from Subtenant:
a. the worth at the time of award of the unpaid rent which had been
earned at the time of termination; plus
b. the worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of the award
exceeds the amount of such rental loss that Subtenant proves could have been
reasonably avoided; plus
c. the worth at the time of award of the amount by which the unpaid
rent for the balance of the Sublease Term after the time of award exceeds the
amount of such rental loss that subtenant proves could be reasonably avoided;
plus
d. any other amount necessary to compensate Sublandlord for all
detriment proximately caused by Subtenant's failure to perform its obligations
under this Sublease or which in the ordinary course of things would be likely to
result therefrom (specifically including, without limitation, the unamortized
portion of any brokerage commissions paid by Sublandlord for this Sublease,
brokerage commissions and advertising expenses incurred for a new sublease,
expenses of remodelling the Subleased Premises or any portion thereof for a new
subtenant, whether for the same or a different use, and any special concessions
made to obtain a new subtenant); and
e. at Sublandlord's election, such other amounts in addition to or
in lieu of the
foregoing as may be permitted from time to time under the laws and judicial
decisions of the state in which the Subleased Premises are located. The term
"rent" as used in this Paragraph 19.1 shall be deemed to be and to mean all sums
of every nature required to be paid by Subtenant pursuant to the terms of this
Sublease, whether to Sublandlord or to others. As used in subparagraphs (a) and
(b) above, the "worth at the time of the award" shall be computed by allowing
interest at the maximum annual interest rate allowed by law. As used in
subparagraph (c) above, the "worth at the time of the award" shall be computed
by discounting such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent (1%). If Sublandlord
terminates this Sublease or Subtenant's right to possession, Sublandlord shall
use reasonable efforts to mitigate Sublandlord's damages, and Subtenant shall be
entitled to submit proof of Sublandlord's failure to mitigate as a defense to
Sublandlord's claims hereunder, if mitigation of damages by Sublandlord is
required by applicable law.
19.2 Continue Sublease in Effect. Sublandlord shall have the remedy
---------------------------
described in California Civil Code Section 1951.4 (a lessor may continue lease
in effect after lessee's breach and abandonment and recover rent as it becomes
due, if lessee has the right to sublet or assign, subject only to reasonable
limitations). Accordingly, if Sublandlord does not elect to terminate this
Sublease on account of any default, by Subtenant, Sublandlord may, from time to
time, without terminating this Sublease, enforce all of its rights and remedies
under this Sublease, including the right to recover all rent as it becomes due.
If the default continues, Sublandlord may, at any time thereafter, elect to
terminate the Sublease. Sublandlord shall not be deemed to have terminated this
Sublease or the liability of Subtenant to pay rent or any other amounts due
hereunder by any reentry or by any action in unlawful detainer, unless
Sublandlord has specifically notified Subtenant in writing that Sublandlord has
elected to terminate this Sublease.
19.5 Other Remedies. Sublandlord shall at all times have the rights and
--------------
remedies (which shall be cumulative with each other and cumulative and in
addition to those rights and remedies available under Paragraphs 19.1 and 19.2
above, or under any law or other provision of this Sublease), without prior
demand or notice except as required by applicable law, to seek any declaratory,
injunctive or other equitable relief, and specifically enforce this Sublease, or
restrain or enjoin a violation or breach of any provision hereof.
20. Estoppel Certificates.
---------------------
20.1 Obligation to Provide. Subtenant shall at any time upon not less
---------------------
than ten (10) days' prior written notice from Sublandlord execute, acknowledge
and deliver to Sublandlord a statement in writing (i) certifying that this
Sublease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Sublease, as so
modified, is in full force and effect), the amount of any security deposit, and
the date to which the rent and other charges are paid in advance, if any, and
(ii) acknowledging that there are not, to Subtenant's knowledge, any uncured
defaults on the part of Sublandlord hereunder or of Landlord under the Lease, or
specifying such defaults if any are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer to the
Subleased Premises.
20.2 Failure to Provide. At Sublandlord's option, Subtenant's failure
------------------
to deliver a statement within the time required by Paragraph 20.1 above, shall
be conclusive upon Subtenant (i) that this Sublease is in full force and effect,
without modification except as may be represented by Sublandlord, (ii) that
there are no uncured defaults in Sublandlord's performance hereunder or in
Landlord's performance under the Lease, and (iii) that not more than one month's
rent has been paid in advance, or such failure may be considered by Sublandlord
as a material default by Subtenant under this Sublease.
20.3 Financial Information. If the Landlord desires to finance,
---------------------
refinance, or sell the Subleased Premises, or any part thereof, Subtenant hereby
agrees to deliver to any lender or purchaser designated by Landlord such
financial statements of Subtenant as may be reasonably required by such lender
or purchaser. Such statements shall include the past three (3) years' financial
statements of Subtenant.
21. Real Estate Brokers. Each party warrants to the other that there are
-------------------
not brokerage commissions or fees payable in connection with this Sublease
except to the Brokers identified in paragraph 1.2. Each party further agrees to
indemnify and hold the other party harmless, from any cost, liability and
expense (including attorneys' fees) which the other party may incur as the
result of any breach of this paragraph 21.
22. Miscellaneous.
-------------
22.1 Notices. All notices or other communications required or
-------
permitted hereunder must be in writing, and be personally delivered (including
by means of professional messenger service) or sent by registered or certified
mail, postage prepaid, return receipt requested to the addresses set forth in
Paragraph 1.13 or 1.17, as relevant. All notices shall be deemed received on the
date sent.
22.2 Governing Law. This Sublease shall be governed by and construed
-------------
in accordance with the laws of the state of California applicable to contracts
entered into in California between parties residing in California. Subtenant
hereby consents to the personal jurisdiction and venue of any California state
court located in the County of San Bernardino and United States District Courts
for the Southern District of California, and any successor court, and the
service or process by any means authorized by such court.
22.3 Exhibits. All exhibits and any schedules or riders attached to
--------
this Sublease are incorporated herein by this reference and made a part hereof,
and any reference in the body of the Sublease or in the exhibits, schedules or
riders to the Sublease shall mean this Sublease, together with all exhibits,
schedules riders.
22.4 Waiver of Trial by Jury. Subtenant hereby waives any and all
-----------------------
rights it may have under applicable law to trail by jury with respect to any
dispute with Sublandlord arising directly or indirectly in connection with this
Sublease, the Lease, or the Subleased Premises.
22.5 Prohibition on Solicitation of Sublandlord's Customers. Subtenant
------------------------------------------------------
agrees that prior
to the commencement date Subtenant shall not specifically target and solicit any
banking business from any customers of Sublandlord or first Interstate Bank
("FIB") who conducted banking business at the Subleased Premises. As it relates
to the above prohibition, Subtenant agrees (i) not to use or advertise the name
or address of the Subleased Premises, and (ii) not to use or advertise the trade
or service name or marks of WFB, Xxxxx Fargo, Xxxxx Fargo Bank, Xxxxx Fargo &
Company, the Xxxxx Fargo stagecoach, the stagecoach, First Interstate Bank,
First Interstate, FIB or any combination of the foregoing at the Subleased
Premises or within the same market area. Subtenant agrees that in the event that
Subtenant breaches the terms of this Xxxxxxxxx 00.0, Xxxxxxxxxxx shall be
entitled to the remedy of self-help, and the right to terminate the Sublease.
Sublandlord shall also be entitled to recover attorneys' fees and court costs
related to its enforcement of the terms of this Paragraph 22.5.
22.6 Signs. Subtenant shall have the right, at its sole cost and
-----
expense, to erect place, replace and maintain upon the subleased Premises or any
portion thereof its usual identification and other signs advertising the
business of Subtenant within the Subleased Premises. All signs erected by
Subtenant shall conform to applicable legal requirements. If Subtenant fails to
remove such sign(s) upon the expiration or earlier termination of this Sublease
and repair any damage caused by such removal, Sublandlord may, to the extent
required under the Lease, do so at Subtenant's expense, which expense, together
with interest thereon at the rate described herein, shall by paid by Subtenant
to Sublandlord upon demand.
22.7 Authority. The persons signing this Sublease on behalf of
---------
Sublandlord and Subtenant each represent and warrant that (i) he or she has
authority to execute this Sublease and (ii) the execution of this Sublease has
been authorized by all necessary corporate action.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease
as of the date first above written.
"Sublandlord"
XXXXX FARGO BANK, N.A., a national
banking association
By: /s/
---------------------------------
Name:_______________________________
Title:______________________________
By: /s/
---------------------------------
Name:_______________________________
Title:______________________________
"Subtenant"
BUSINESS BANK OF CALIFORNIA,
a California state banking corporation
By: /s/
---------------------------------
Name:_______________________________
Title:______________________________
By: /s/
---------------------------------
Name:_______________________________
Title:______________________________
CONSENT OF LANDLORD
-------------------
XXXXXX XXXXXXXX AND XXXX XXXXXXXX, CO-TRUSTEES OF THE XXXXXXXX FAMILY TRUST
UNDER TRUST INSTRUMENT DATED NOVEMBER 2, 1992 (collectively, "Landlord"), hereby
consent to the foregoing Sublease and represent and warrant to Sublandlord and
Subtenant that no other consents to the foregoing Sublease are required,
including without limitation, the consent of any lender on the Subleased
premises. Capitalized terms not defined in this Consent of Landlord shall have
the meaning set forth in the Sublease.
Landlord agrees that upon Sublandlord's default under the Lease, Landlord
shall give Subtenant notice of such default. If Sublandlord does not cure the
default within the applicable cure period and Landlord elects to pursue its
remedy to terminate the Lease, then so long as Subtenant is not in default under
the Sublease, the Sublease shall continue in full force and effect as a direct
lease between Landlord and Subtenant upon and subject to all of the terms,
covenants and conditions of the Sublease.
Date: October ___, 1997 "LANDLORD"
/s/
-------------------------------
XXXXXX XXXXXXXX, TRUSTEE
/s/
-------------------------------
XXXX XXXXXXXX, TRUSTEEEX10.06
