EXHIBIT 10.3
LEASE AGREEMENT
0000 Xx Xxxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxxx
THIS LEASE is made this 31st , day of August, 2000, between WASHINGTON
MUTUAL BANK, FA ("Landlord"), and XXXXXXX XXXXXXX, XXXXX XXXXXXXX, XXXXX XXXX,
XXXXX XXXXXX, XXXXXXX XXX, XXXXXX XXX, XXXXXX XXXXX, XXXXXXX XXXXX AND XXXXX
XXXXXX, individuals who are jointly and severally liable hereunder (collectively
"Tenant").
Landlord and Tenant agree;
1. BASIC LEASE INFORMATION AND EXHIBITS. The following terms as used
herein shall have the meanings provided in this Section 1, unless otherwise
specifically modified by provisions of this Lease:
(a) ADDRESS OF TENANT: c/o 0000 Xx Xxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
(b) LANDLORD: Washington Mutual Bank, FA
(c) ADDRESS OF LANDLORD: 0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Corp. Property Services
Manager
(d) PREMISES; That certain real property consisting
of Approximately 5,433 square feet,
including all improvements, located
at 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxxx,
Xxxxxxxxxx (the "Building"); as
further described in Exhibit A
attached hereto (the "Premises").
(e) LEASE TERM: The lease term shall commence upon
substantial completion of Landlord
Work described in Section 9(the
"Commencement Date") If such Landlord
Work is not substantially complete on
or before October 1, 2000, Tenant may
terminate this Lease by written
notice to Landlord. The Term shall
terminate at midnight on September
30, 2010 (the "Termination Date").
(f) BASIC RENT: As provided in Section 4 hereof.
(g) ADDITIONAL RENT: All other costs, other than
Basic Rent, payable by Tenant
to Landlord hereunder,
(h) MASTER LEASE That certain Lease Agreement by and
between Home Facilities Corporation,
as landlord, (together with any
successors and assigns, which as of
the date hereof is Metropolitan Life
Insurance Company, "Master Landlord")
and Home Savings of America, F.A., as
tenant, dated as of August 1, 1990,
as it may be amended, modified or
supplemented from time to time.
(i) SECURITY DEPOSIT $19, 332.13 and an irrevocable letter
of credit in the amount of $100,000
which may be drawn upon without
condition by Landlord. Such letter of
credit shall be surrendered to Tenant
when Tenant has received all
necessary governmental approvals to
operate as a bank at the Premises and
initial capital funding of not less
than $10,000,000. It shall be a
default hereunder if Tenant does not
replace such letter of credit not
less than ten (10) days prior to its
expiration date.
(j) EXHIBITS Exhibit A - Legal Description of Land
Exhibit B - Tenant's Workletter
Agreement
2. PREMISES. Landlord does hereby lease to Tenant, and Tenant does
hereby lease from Landlord, upon the terms and conditions herein set forth, the
Premises described in Section 1 hereof. Tenant shall be permitted reasonable
access to inspect the Premises prior to the Commencement Date. Tenant agrees
that in the event that the actual square footage of the Premises is less the
amount referenced in Section 1 of this Lease, there shall be no reduction in the
Basic Rent hereunder.
3. COMMENCEMENT AND EXPIRATION DATES. The term of this Lease shall
commence on the Commencement Date set forth in Section 1 above. If for any
reason Landlord cannot deliver possession of the Premises to Tenant, Landlord
shall not be subject to any liability therefore, nor shall such failure affect
the validity of this Lease or the obligations of Tenant hereunder or extend the
Termination Date, but in such case Tenant shall not be obligated to pay Rent
until possession of the Premises is tendered to Tenant. The Lease shall expire
on the Termination Date set forth in Section 1 above.
4. RENT. From the Commencement Date to the day prior to the first
anniversary of the Commencement Date, Basic Rent shall be $13,582.50 per month.
On each anniversary of the Commencement Date, the Basic Rent shall be increased
by 4% of the amount charged as Basic Rent during the prior year. Tenant shall
pay Landlord without notice the Basic Rent and Additional Rent (together,
"Rent") stated in Section 1 hereof without deduction or offset on the
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first day of each calendar month during the term. Rent due for any partial month
shall be prorated in proportion to the number of days in such month.
5. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall deposit
with Landlord the Security Deposit to be held by Landlord during the Term as set
forth below. The Security Deposit shall be held by Landlord without liability
for interest and as security for the performance by Tenant of Tenant's covenants
and obligations hereunder, it being expressly understood that the Security
Deposit shall not be considered as a measure of Tenant's damages in case of
default by Tenant. Landlord may, in its sole discretion, from time to time
without prejudice to any other remedy, use the Security Deposit to the extent
necessary to make good any default under this Lease or to satisfy any other
covenant or obligation of Tenant hereunder. Following any such application of
the Security Deposit, Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount. If
Tenant is not in default at the termination of this Lease, the balance of the
Security Deposit remaining after any such application shall be returned to
Tenant within a reasonable period after such termination, after deducting
therefrom any unpaid obligation of Tenant to Landlord as may arise under this
Lease, including, without limitation, the obligation of Tenant to restore the
Premises upon termination of this Lease. If Landlord transfers its interest in
the Premises during the term of this Lease, Landlord may assign the Security
Deposit to the transferee provided that such transferee accepts, in writing, to
bound by the terms of this Lease as the landlord hereunder.
6. TAX COSTS AND INSURANCE COSTS. In addition to Basic Rent, Tenant
shall pay to Landlord from and after the Rent Commencement Date, without any
deduction or offset within fifteen (15) days of receiving written notice from
Landlord of the amount then due, or within fifteen (15) days of the date such
amounts are payable by Landlord, whichever is later, all Tax Costs and Insurance
Costs (each as defined below). Any and all amounts due and payable by Tenant
pursuant to this Section shall be deemed "Additional Rent" (and together with
the Basic Rent, shall sometimes be referred to herein as the "Rent"), and
Landlord shall be entitled to exercise the same rights and remedies upon default
in payments of Additional Rent as Landlord is entitled to exercise with respect
to defaults in Basic Rental payments.
As used herein, the term "Tax Costs" and "Insurance Costs" shall be
defined as follows;
(a) "Tax Costs" shall mean any and all real estate taxes and other
similar charges on real property or improvements, assessments, water and sewer
charges, and all other charges assessed, reassessed or levied upon the Premises
and appurtenances thereto and the parking or other facilities thereof, or the
real property thereunder (collectively, "Real Property") or attributable thereto
or on the rents, issues, profits or income received or derived therefrom which
are assessed, reassessed or levied by the United States, the State of California
or any local government authority or agency or any political subdivision
thereof, excluding any federal, state or local income or franchise taxes and any
increased property taxes by reason of a transfer of the ownership interest in
the Premises, and shall include Landlord's reasonable legal fees, costs and
disbursements incurred in connection with proceedings for reduction of Tax Costs
or any part thereof.
(b) "Insurance Costs" shall mean all costs and charges incurred by
Landlord with respect to the insurance policies required to be carried by
Landlord pursuant to the terms of the Master Lease.
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7. SERVICES AND UTILITIES.
(a) UTILITIES. Tenant shall pay for all water, gas, heat, light, power
(including HVAC), telephone, trash disposal and other utilities and services
supplied to the Premises, together with any taxes thereon.
(b) INTERRUPTION OF SERVICES. Landlord shall not be liable for any
loss, injury or damage to person or property caused by or resulting from any
variation, interruption, or failure of such services due to any cause
whatsoever, other than the gross negligence or willful misconduct of Landlord,
and rent shall not xxxxx as a result thereof nor shall Tenant have the right to
terminate this Lease and Tenant shall not be released or in any way excused from
its obligations under this Lease.
8 USES.
(a) USES. The Premises are to be used only for retail banking purposes
and for any other business or purpose permitted under the Master Lease. Tenant
shall not commit any act that will increase the then existing rate of insurance
on the Premises and will immediately pay any such increase. Tenant shall
promptly pay upon demand the amount of any increase in insurance rates caused by
any act or acts of Tenant. Tenant shall not commit or allow to be committed any
waste upon the Premises, or any public or private nuisance or which is unlawful.
(b) COMPLIANCE WITH LAW. Tenant shall, at Tenant's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders
and requirements, including without limitation laws and regulations prohibiting
discrimination on the basis of race, gender, religion, national origin, age or
disability, in effect during the term hereof, including without limitation the
Americans With Disabilities Act, regulating the use, occupancy or improvement of
the Premises by Tenant, Landlord or otherwise and Tenant shall be fully
responsible for the cost of complying therewith.
(c) DAMAGE AND OVERLOADING. Neither Tenant nor any agent, employee,
officer or contractor of Tenant, nor any other person acting for, on behalf or
at the request of, or pursuant to actual or apparent authority of Tenant
(collectively, "Tenant's Representatives"), shall do anything that will cause
damage to the Premises. Neither the floor nor any other portion of the Premises
shall be overloaded. No machinery, apparatus, or other appliance shall be used
or operated in or on the Premises that will in any manner injure, vibrate or
shake the Premises. If Tenant or Tenant's Representatives cause damage to any
portion of the Premises, then Landlord shall have the right but not the
obligation to repair such damage and Tenant shall promptly reimburse Landlord
for Landlord's actual cost of such repair.
(d) COMPLIANCE WITH RULES AND REGULATIONS. Tenant shall observe and
comply with all reasonable rules and regulations put into effect by Landlord.
9. INITIAL TENANT IMPROVEMENTS.
(a) Tenant's initial tenant improvements to the Premises ("Initial
Tenant Improvements") shall be installed by Tenant at Tenant's sole expense in
accordance with the Tenant Workletter Agreement attached hereto as Exhibit B.
Plans and specifications for the
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Initial Tenant Improvements, and the contractors and subcontractors utilized by
Tenant, shall be subject to the prior approval of Landlord, which approval shall
not be unreasonably withheld.
(b) Landlord shall install a new roof for the Building and replace any
ceiling tiles damaged by previous roof leaks prior to the Commencement Date
("Landlord's Work").
(c) Upon execution of this Lease, Tenant may conduct architectural and
other construction studies necessary to construct the Initial Tenant
Improvements. Such studies shall be completed at Tenant's sole cost and expense.
Tenant shall indemnify and hold Landlord harmless from any and all liens, costs
and liabilities incurred in connection with such studies.
(d) Upon expiration or sooner termination of this Lease, all
improvements and additions to the Premises, except Tenant's trade fixtures,
shall be deemed the property of Landlord, provided that Tenant shall remove any
such improvements installed by Tenant which are required to be removed by
Landlord or the Master Landlord and shall repair any damage to the Premises
caused by such removal.
10. ACCEPTANCE OF PREMISES. Landlord agrees that on the Commencement
Date the building systems and components shall be in good working order and
repair, including but not limited to HVAC, electrical, lighting and plumbing.
Landlord shall also be responsible for removing any abandoned vehicles on the
Premises. Except as herein expressly provided, and except for Landlord's Work as
provided above, Tenant hereby accepts the Premises "AS IS" in its condition
existing as of the date of the execution hereof, and acknowledges that Landlord
shall have no other obligation of any kind to alter, repair, improve, or rebuild
the Premises or such systems in connection with Tenant's occupancy thereof.
Tenant shall be fully responsible for any work necessary to bring the Premises
into compliance with all governmental laws and ordinances. Tenant acknowledges
that neither Landlord nor Landlord's agent has made any representation or
warranty as to the suitability of the Premises for the conduct of Tenant's
business, and Tenant hereby waives any rights, claims or actions against
Landlord under any express or implied warranties of suitability
11. CARE OF PREMISES.
(a) Tenant shall, at Tenant's sole cost and expense and at all times,
keep the Premises and every part thereof in good order, condition and repair.
Tenant's obligations shall include restorations, replacements or renewals when
necessary to keep the Premises and all improvements and equipment thereon or a
part thereof in good order, condition and state of repair. If Tenant fails to
maintain or repair the Premises as provided above, then after the expiration of
any applicable notice and cure period set forth in this Lease, Landlord shall
have the right, but not the obligation, to maintain or repair the Premises and
Tenant shall promptly reimburse Landlord for Landlord's actual cost of such
maintenance or repair, plus a management fee in the amount of 15% of such actual
cost.
(b) Tenant shall, at Tenant's sole expense, procure and maintain
contracts, with copies to Landlord, in customary form and substance for, and
with contractors specializing and experienced in the maintenance of the
following equipment and improvements, if any, if and when installed on the
Premises: (i) HVAC equipment, (ii) boiler, and pressure vessels, (iii) fire
extinguishing systems, including fire alarm and/or smoke detection, (iv)
landscaping and irrigation systems, (v) driveways and parking lots, (vi)
clarifiers, and (vii) basic utility feed to the perimeter of the Premises.
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(c) Landlord shall not be liable for injury to Tenant's business, or
loss of income therefrom, or, except in connection with damage or injury
resulting from the gross negligence or willful misconduct of Landlord, or its
authorized agents, for damage that may be sustained by the person, goods, wares,
merchandise or property of Tenant, its employees, invitees, customers, agents,
or contractors, or any other person in, on or about the Premises directly or
indirectly caused by or resulting from fire, steam, electricity, gas, water or
rain which may leak or flow from or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning, light fixtures, or mechanical or
electrical systems or from intrabuilding network cable, whether such damage or
injury results from conditions arising upon the Premises or from other sources
or places and regardless of whether the cause of such damage or injury or the
means or repairing the same is inaccessible to Tenant.
12. ALTERATIONS AND ADDITIONS.
(a) Tenant shall not make any alterations, improvements, additions, or
utility installations in or about the Premises (collectively, "Alterations")
without first obtaining the written consent of Landlord , which consent shall
not be unreasonably withheld, and, where appropriate, in accordance with plans
and specifications approved by Landlord. Any alterations required to be made to
the Premises by any applicable building, health, safety, fire,
nondiscrimination, or similar law or regulation ("Law") shall be made at
Tenant's sole expense and shall be subject to the prior written consent of
Landlord which consent shall not be unreasonably withheld. Tenant shall
reimburse Landlord for any sums expended for examination and approval or
architectural or mechanical plans and specifications of the Alterations.
Landlord may require a lien and completion bond for such construction, or
require the improvements be removed at the expiration of the Term. Landlord's
approval of the plans, specifications and working drawings for Tenant's
alterations shall create no responsibility or liability on the part of Landlord
for their completeness, design sufficiency, or compliance with all laws, rules
and regulations of governmental agencies or authorities.
(b) Tenant shall pay, when due, all claims for labor or materials
furnished to or for Tenant at or for use in the Premises, which claims are or
may be secured by any mechanics' or material men's liens against the Premises or
any interest therein.
(c) Landlord or the Master Landlord may require the removal of any
Alterations to the Premises installed by Tenant. Any Alterations not so removed
shall become the property of Landlord and remain upon and be surrendered with
the Premises at the expiration of the term.
(d) Any and all Alterations shall comply with all applicable provisions
of the Master Lease, including, without limitation, any provisions requiring the
consent of the landlord under the Master Lease. Master Landlord may require the
removal of any Alterations to the Premises installed by Tenant. Any Alterations
not so removed shall become the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the term.
13. ACCESS. Tenant shall permit Landlord and its agents to enter the
Premises at all reasonable times for the purpose of inspecting, cleaning,
repairing, altering or improving the Premises. Landlord may temporarily close
any portion of the Premises without liability to Tenant by reason of such
closure, and such closure shall not constitute an eviction of Tenant or release
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Tenant from any Rent hereunder. Landlord shall have the right at any and all
times to enter the Premises for emergency entry.
14. DAMAGE OR DESTRUCTION.
(a) In the event any portion of the Premises is damaged by fire or any
other cause Landlord shall within thirty (30) days after such event, give
written notice to Tenant advising Tenant of the estimated time to repair and
restore the Premises to a complete architectural unit of the same value,
condition and character that existed immediately prior to such casualty. If such
repair and restoration may be completed in less than two hundred ten (210) days
after such notice is given, or if Landlord is required to repair such damage by
the terms of the Master Lease, then Landlord shall, at Landlord's expense,
repair such damage as soon as reasonably possible and this Lease shall continue
in full force and effect. In the event, however, that Landlord is not required
to repair such damage under the Master Lease and such damage cannot be repaired
in less than two hundred ten (210) days, Landlord may within thirty (30) days
after such damage, by written notice to Tenant, terminate this Lease.
(b) In the event any portion of the Premises is damaged by fire or any
other cause and, as reasonably determined by Landlord, the Premises may not be
restored to a complete architectural unit of the same value, condition and
character that existed immediately prior to such casualty in less than two
hundred ten (210) days, and Landlord is not obligated to restore the Premises by
the Master Lease, then Tenant shall have the option to damage or to terminate
this Lease within thirty (30) days after such written notice is received by
Tenant.
(c) Notwithstanding any other provision of this Lease that may be
construed to the contrary, if any destruction to the Premises occurs during the
last year of the Lease Term, either Landlord or Tenant may terminate this Lease
by giving notice to the other not more than 30 days after such destruction, in
which case (a) Landlord shall have no obligation to restore the Premises, (b)
Landlord may retain all insurance proceeds relating to such destruction, and (c)
this Lease shall terminate as of 30 days after such notice of termination.
(d) Landlord shall not be required and will not carry insurance of any
kind on any improvements paid for by Tenant or on Tenant's furniture,
furnishings, fixtures, equipment, appurtenances or other personal property of
Tenant under this Lease and Landlord shall not be obligated to repair any damage
thereto or replace the same.
(e) Rent shall xxxxx to the extent that the Premises are unusable by
Tenant. Tenant waives the provisions of California Civil Code Sections 1932(2)
and 1933(4) with respect to any partial or total destruction of the Premises.
15. CONDEMNATION.
(a) CONTROLLING TERMS. If during the Lease Term, or during the period
of time between the execution of this Lease and the Commencement Date, there is
any taking of all or any part of the Premises or any interest in this Lease by
Condemnation (as defined below), this Section shall determine the rights and
obligations of Tenant and Landlord, subject to applicable provisions of the
Master Lease. "Condemnation" shall mean the exercise of any governmental power
to take title to any portion of the Premises, whether by legal proceedings or
otherwise, by a Condemnor (as defined below) or a voluntary sale or transfer by
Landlord to any Condemnor,
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either under threat of a Condemnor's exercise of such power or while legal
proceedings are pending for the exercise of such power. "Condemnor" shall mean
any public or quasi-public authority, or private corporation or individual,
having the power of Condemnation.
(b) TOTAL TAKING. If the Premises are totally taken by Condemnation,
this Lease shall terminate on the date the Condemnor has a right to possession
of the Premises (the "Date of Taking").
(c) PARTIAL TAKING. If any portion, but not all, of the Premises is
taken by Condemnation, this Lease shall remain in effect, except that Tenant may
elect to terminate this Lease if the remaining portion of the Premises is
rendered reasonably unsuitable for Tenant's continued use of the Premises. If
Tenant elects to so terminate this Lease, Tenant must exercise its right to
terminate by giving notice to Landlord within 30 days after the date that the
nature and the extent of the Condemnation have been determined (the
"Determination Date"), which notice shall set forth the date of termination.
Such termination date shall not be earlier than 30 days nor later than 90 days
after Tenant has notified Landlord of its election to terminate; except that
this Lease shall terminate on the Date of Taking if the Date of Taking falls on
a date before the date of termination as designated by Tenant. If Tenant does
not so notify Landlord within 30 days after the Determination Date, all
obligations of Tenant under this Lease shall remain in effect, except that Basic
Rent shall be reduced by the ratio of (i) the rentable area of the Premises
taken to (ii) the rentable area of the Premises immediately prior to the Date of
Taking.
(d) RESTORATION. Notwithstanding the preceding paragraph, if, within 60
days after the Determination Date, Landlord notifies Tenant that Landlord at its
cost will add to the remaining Premises so that the area of the Premises will be
substantially the same after the Date of Taking as they were before the Date of
Taking, and Landlord commences the restoration promptly and, subject to
reasonable allowance for delays that are not caused by Landlord, completes it
within 180 days after Landlord so notifies Tenant, this Lease shall continue in
effect. Unless Landlord restores the Premises pursuant to the preceding
sentence, if there is a partial taking of the Premises and this Lease remains in
effect, Tenant at its sole cost shall accomplish all necessary restoration to
enable Tenant to use the Premises. All obligations of Tenant under this Lease
shall remain in effect, except that Basic Rent shall be abated or reduced during
the period from the Date of Taking until the completion of such restoration by
the ratio of (a) the rentable area of the Premises taken to (b) the rentable
area of the Premises immediately prior to the Date of Taking.
(e) AWARD. The Award (as defined below) shall belong to and be paid to
Landlord, Tenant shall have no right to any part of the Award, and Tenant
assigns to Landlord all of Tenant's right, title and interest in and to any part
of the Award, except that Tenant shall receive from the Award any sum paid
expressly to Tenant from the Condemnor for relocation, and the unamortized cost
of tenant improvements and other Alterations which were paid for by Tenant and
not part of any tenant improvement allowance extended by Landlord to Tenant
under this Lease. "Award" shall mean all compensation, sums or anything of value
awarded, paid or received on a total or partial Condemnation of the Premises.
(f) WAIVER OF STATUTE. Landlord and Tenant hereby waive the provision
of California Code of Civil Procedure Section 1265.130 allowing Landlord or
Tenant to petition the superior court to terminate this Lease in the event of a
partial taking of the Premises.
16. INDEMNIFICATION.
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(a) INDEMNITY . Tenant shall indemnify, defend and hold Landlord and
Master Landlord harmless from and against all loss, cost and expense, including
attorneys fees, arising from any act, omission, or negligence of Tenant or its
officers, contractors, licensees, agents, servants, employees, guests, invitees,
or visitors in or about the Premises, or arising from any injury or damage to
any person or property, occurring in or about the Premises as a result of any
act, omission or negligence of Tenant, or its officers, contractors, licensees,
agents, employees, guests, or visitors or arising from any breach or default
under this Lease by Tenant. The foregoing provisions shall not be construed to
make Tenant responsible for loss, damage, liability or expense resulting from
injuries to third parties caused solely by the gross negligence or intentional
misconduct of Landlord, or its officers, contractors, licensees, agents,
employees and invitees.
(b) EXEMPTION OF LANDLORD FROM LIABILITY. As a material part of the
consideration to Landlord, Tenant hereby agrees that, except for Landlord's
gross negligence or willful misconduct, Landlord shall in no event be liable for
injury to Tenant's business or assets or any loss of income therefrom or for
damage to Tenant's employees, invitees, customers, or any other person in or
about the Premises, whether such damage, loss or injury results from conditions
arising upon the Premises, or from other sources or places, and regardless of
whether the cause of such damage, loss or injury or the means of repairing the
same is inaccessible to Tenant. Tenant further agrees that notwithstanding
anything to the contrary in this Lease, Landlord shall in no event be liable for
any injury or damage to any person or property of Tenant, Tenant's employees,
invitees, customers, agents or contractors arising from any act or neglect of
any third person.
(c) WAIVER OF SUBROGATION. Landlord and Tenant each hereby waive their
rights of subrogation against one another to the extent it is covered by the
property insurance policies required to be carried hereunder or actually carried
by such party. Landlord and Tenant agree to use reasonable efforts to cause
their insurance carriers to consent to the foregoing waiver of rights of
subrogation against the other party.
17. HAZARDOUS MATERIALS. Tenant shall not dispose of or otherwise allow
the release of any hazardous waste or materials in, on or under the Premises, or
any adjacent property. Tenant represents and warrants to Landlord that Tenant's
intended use of the Premises does not involve the use, production, disposal or
bringing on to the Premises of any hazardous waste or materials. As used herein,
the term "hazardous waste or materials" includes any substance, waste or
material defined or designated as hazardous, toxic or dangerous (or any similar
term) by any federal, state or local statute, regulation, rule or ordinance now
or hereafter in effect. Tenant shall promptly comply with all applicable laws
and with all orders, decrees or judgments of governmental authorities or courts
having jurisdiction relating to hazardous waste or materials.
Landlord agrees to indemnify, defend and hold harmless Tenant against
any and all loss, cost and expense (including, without limitation, consultant
fees, attorneys' fees and disbursements) which may be imposed on, incurred or
paid by or asserted against Tenant or the Premises by reason of or in connection
with any hazardous materials released on or about the Premises prior to the
Commencement Date, provided, however, that nothing herein shall require Landlord
to remediate unless required to do so by law.
18. INSURANCE.
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(a) Coverage Required. Tenant shall maintain in full force and effect
at all times during the Term at its own expense, for the protection of Tenant
and Landlord, as their interests may appear, policies of insurance issued by a
responsible carrier or carriers who are qualified to do business in the state in
which the premises are situated and otherwise acceptable to Landlord (whose
acceptance will not be unreasonably withheld or delayed), which policies shall
afford the following coverages:
(i) Workers' Compensation Insurance as required by applicable state
law, with employer's contingent liability (stop gap) coverage of $500,000; and
(ii) Broad Form Commercial General Liability Insurance, including a
Blanket Contractual Liability endorsement covering Tenant's indemnity
obligations under this Lease, Broad Form Property Damage, Personal Injury,
Completed Operations, Products Liability, and Fire Damage in an amount not less
than One Million Dollars ($1,000,000) Combined Single Limit for both bodily
injury and property damage, which policy is payable on an "occurrence" rather
than a "claims made" basis; and
(iii) What is commonly referred to as "all risk" coverage property
insurance (excluding earthquake and flood) covering Tenant's alterations,
additions and improvements to the Premises, furniture, fixtures, equipment,
inventory and other personal property located on the Premises, in the greater
amount of (A) one hundred percent (100%) of the current replacement value
thereof, with inflation endorsements, or (B) one hundred thousand dollars
($100,000).
(b) INSURANCE REQUIREMENTS. All insurance policies required to be
maintained by Tenant under this Lease shall be issued by insurance companies
which have a Best's Rating of "A" or better and are included within Best's
Financial Size "Class X" or larger in the most current available "Best's
Insurance Reports," and which are qualified to do business in the state in which
the Premises are situated and shall not contain a deductible unless such
deductible is expressly approved in writing by Landlord. All liability policies
shall contain a provision that Landlord, although listed as an additional
insured, shall nevertheless be entitled to recover under said policies for any
loss occasioned to it, its servants, agents and employees by reason of the
negligence of Tenant. All liability and property damage and other casualty
policies of Tenant shall be written as primary policies, not contributing with,
and not in excess of coverage which Landlord may carry. If Tenant fails to
acquire or maintain any insurance or provide any certificate required by this
section, Landlord may, but shall not be required to, obtain such insurance for
Landlord's benefit and Tenant shall reimburse Landlord for the costs of the
premiums of such insurance within ten (10) days of receipt of a written request
for reimbursement from Landlord. Such amounts shall be additional rent payable
by Tenant hereunder and in the event of non-payment thereof, Landlord shall have
rights with respect to such non-payment as it has with respect to any other
non-payment of rent hereunder.
(c) CERTIFICATES. Tenant shall deliver to Landlord on the Commencement
Date of this Lease and thereafter at least fifteen (15) days prior to expiration
of any insurance required to be carried hereunder, certificates of insurance
evidencing this coverage with limits not less than those specified above. These
certificates (with the exception of Workers' Compensation) shall list Landlord
and Master Landlord as additional insureds. Further, all certificates shall
expressly provide that no less than thirty (30) days' prior written notice shall
be given Landlord
10
in the event of material change to, expiration or cancellation of the coverages
or policies evidenced by the certificates.
19. ASSIGNMENT AND SUBLETTING.
(a) Upon formation of Bridge Bank and issuance of all necessary
governmental regulations permitting its operation as a national bank and the
receipt by such bank of not less than $10,000,000 as the bank's initial capital,
this Lease may be assigned by Tenant to Bridge Bank with Bridge Bank assuming
all liabilities and obligations of Tenant hereunder and the original parties who
are Tenant hereunder shall thereafter have no further liability hereunder.
Except as hereinabove provided, Tenant shall not assign, mortgage, encumber or
otherwise transfer this Lease or sublet the whole or any part of the Premises
without in each case first obtaining Landlord's prior written consent, which
consent shall not be unreasonably withheld. Except as hereinabove provided, no
assignment, subletting or other transfer shall relieve Tenant of any liability
under this Lease. Consent to any such assignment, subletting or transfer shall
not operate as a waiver of the necessity for consent to any subsequent
assignment, subletting or transfer. In connection with each request for an
assignment or subletting, Tenant shall pay the reasonable cost of processing
such assignment or subletting, including attorneys fees, upon demand of
Landlord. Notwithstanding the foregoing, Tenant may assign its interest in this
Lease or sublet the Premises to an affiliate of Tenant that is controlled by, or
under common control with, Tenant or in connection with a merger or
consolidation or sale of Tenant's business, without Landlord's prior consent
provided that Tenant provides Landlord with prior notice of such assignment or
sublease. For the purposes of this section, "control" shall mean the ownership
of not less than 50% of the beneficial interest of such entity. Any assignee or
subtenant shall assume all of Tenant's obligations under this Lease and be
jointly and severally liable with Tenant hereunder. Any assignment or subletting
by Tenant shall be contingent upon Tenant obtaining any required consent of the
landlord under the Master Lease.
(b) If Landlord withholds or conditions its consent and Tenant believes
that Landlord did so contrary to the terms of this Lease, Tenant may, as its
sole remedy, prosecute an action for declaratory relief to determine if Landlord
properly withheld or conditioned its consent, and Tenant hereby waives all other
remedies, including, without limitation, those set forth in California Civil
Code Section 1995.310.
20. LIENS AND INSOLVENCY. Tenant shall keep its interest in this Lease
and any Property of Tenant (other than unattached personal property) and the
Premises free from any liens arising out of any work performed or materials
ordered or obligations incurred by or on behalf of Tenant and hereby indemnifies
and holds Landlord harmless from any liability from any such lien.
21. REMEDIES.
(a) The occurrence of any one or more of the following events shall
constitute a material default and breach of this Lease by Tenant: (i); the
failure by Tenant to make any payment of Rent or any other payment required to
be made by Tenant hereunder, within five (5) days after the date due; (ii) the
failure by Tenant to observe or perform any of the other covenants, conditions
or provisions of the Lease, where such failure shall continue for a period of
five (5) days; provided, however, if more than five (5) days are reasonably
required for
11
its cure then Tenant shall not be deemed to be in default if Tenant commences
such cure within said 5-day period and thereafter diligently prosecutes such
cure to completion; (iii) the making by Tenant of any general assignment or
general arrangement for the benefit of creditors; (iv) the abandonment of the
Premises by Tenant for more than thirty (30) consecutive days; (v) the filing by
or against Tenant of a petition to have Tenant adjudged bankrupt or a petition
for reorganization or arrangement under any law relating to bankruptcy (unless,
in the case of a petition filed against Tenant, the same is dismissed within
sixty (60) days); (vi) the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in the Lease, where possession is not restored to Tenant
within thirty (30) days; or (vii) the attachment, execution or other judicial
seizure of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where such seizure is not discharged within
thirty (30) days.
(b) Upon occurrence of an Event of Default under this Lease as provided
in Article 19 hereof, Landlord may exercise all of its remedies as may be
permitted by law, including, but not limited to, the remedy provided by Section
1951.4 of the California Civil Code, and including, without limitation,
terminating this Lease, re-entering the Premises and removing all persons and
property therefrom, which property may be stored by Landlord at a warehouse or
elsewhere at the risk, expense and for the account of Tenant. If Landlord elects
to terminate this Lease, Landlord shall be entitled to recover from Tenant the
aggregate of all amounts permitted by law, including, but not limited to (i) the
worth at the time of the amount of any unpaid rent which had been earned at the
time of such termination; plus (ii) the worth at the time of award of the amount
by which the unpaid rent which would have been earned after termination until
the time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus (iii) the worth at the time of award of
the amount by which the unpaid rent for the balance of the Lease Term after the
time of award exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided; plus (iv) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which in the ordinary course of things would
be likely to result therefrom, specifically including, but not limited to,
brokerage commissions and advertising expenses incurred, expenses of remodeling
the Premises or any portion thereof for a new tenant, whether for the same or a
different use, and any special concessions made to obtain a new tenant; and (v)
at Landlord's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable law. The term
"rent" as used in this Article shall be deemed to be and to mean all sums of
every nature required to be paid by Tenant pursuant to the terns of this Lease,
whether to Landlord or to others. As used in Items (i) and (ii) above, the
"worth at the time of award" shall be computed by allowing interest at the rate
of twelve per cent (12%) per annum, but in no case greater than the maximum
amount of such interest permitted by law. As used in Item (iii) above, the
"worth at the time of 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%).
(c) Nothing in this Article 20 shall be deemed to affect Landlord's
right to indemnification for liability or liabilities arising prior to the
termination of this Lease for personal injuries or property damage under the
indemnification clause or clauses contained in this Lease.
(d) Notwithstanding anything to the contrary set forth herein,
Landlord's reentry to perform acts of maintenance or preservation of or in
connection with efforts to relet the
12
Premises or any portion thereof, or the appointment of a receiver upon
Landlord's initiative to protect Landlord's interest under this Lease shall not
terminate Tenant's right to possession of the Premises or any portion thereof
and, until Landlord does elect to terminate this Lease, this Lease shall
continue in full force and effect, and Landlord may enforce all of Landlord's
rights and remedies hereunder including, without limitation, the remedy
described in California Civil Code Section 1951.4 (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 Landlord does not elect to terminate this Lease on
account of any default by Tenant, Landlord may, from time to time, without
terminating this Lease, enforce all of its rights and remedies under this Lease,
including the right to recover all rent as it becomes due.
(e) Notwithstanding anything to the contrary herein, after this Lease
is assigned to Bridge Bank in accordance with Section 19(a) hereof, if (a)
Bridge Bank or its successors or assigns shall become insolvent or bankrupt, or
if the interest of Bridge Bank or that of Bridge Bank's successors or assigns in
this Lease shall be levied upon or sold under execution or other legal process,
or (b) the depository institution then operating on the Premises is closed at
the request of, or is taken over by, any depository institution supervisory
authority ("Authority"), Landlord may, in either such event, terminate this
Lease only with the concurrence of any receiver or liquidator appointed by such
Authority; provided, further, that if this Lease is terminated in the foregoing
manner, the maximum claim of Landlord for rent, damages or indemnity for injury
resulting from the termination, rejection, or abandonment of the unexpired Lease
shall not be greater than the amount of all unpaid Rent which has accrued to the
date of termination.
22. PRIORITY. This Lease and Tenant's rights under this Lease are
subject and shall continue to be subordinate to the Master Lease, a copy of
which Tenant has received. Tenant shall be bound with respect to the Premises as
to all the terms, covenants and conditions (other than the payment of rent)
applicable to Landlord thereunder, including without limitation the provisions
of Articles XI thereof pertaining to use of the Premises. At Landlord's
election, this Lease and Tenant's rights under this Lease shall be subject and
subordinate to any mortgage, loan secured by a deed of trust, or other written
security instrument or agreement affecting the Premises (each, a "MORTGAGE");
provided, however, that in the event Landlord elects to have this Lease be
subordinate to any Mortgage, such subordination shall be made pursuant to the
terms of a subordination, non-disturbance and attornment agreement which (i)
Landlord and Tenant shall in good faith diligently endeavor to obtain with the
holder of the beneficiary's interest in the Mortgage, and (ii) shall provide,
among other things, that for so long as Tenant has faithfully, promptly and
completely performed each and every covenant and obligation under this Lease,
Tenant's use, possession, and quiet enjoyment of the Premises shall not be
disturbed by the holder of the beneficiary's interest in the Mortgage.
Landlord warrants to Tenant that (a) the Master Lease described in
Section 1(i) has not been amended or modified, (b) Landlord is not now, and as
of the Commencement Date will not be, in default or breach of any of the
provisions of the Master Lease, nor has any act or event occurred which, with
the passage of time or the giving of notice or both, could be a default by
Landlord, (c) Landlord has no knowledge of any claim by Master Landlord that
Landlord is in default or breach of any of the provisions of the Master Lease,
and (d) all Schedule G Alterations (as defined in the Master Lease) have been
completed in accordance with the terms of the Master
13
Lease. Landlord agrees (a) to maintain the Master Lease during the entire term
hereof and (b) not to modify or surrender the Master Lease without the prior
written consent of Tenant.
23. ESTOPPEL CERTIFICATES,
(a) DELIVERY OF ESTOPPEL. Tenant shall, from time to time, upon written
request of Landlord, execute, acknowledge and deliver to Landlord or its
designee a written statement certifying that: (i) this Lease is in full force
and effect and has not been assigned or amended in any way (or specifying the
date and terms of agreement so AFFECTING THIS Lease); (ii) this Lease represents
the entire agreement between the parties as to this leasing; that all
obligations under this Lease to be performed by the Landlord have been
satisfied; or, if not, specifying which obligations remain unsatisfied; (iii) on
this date there are no existing claims, defenses or offsets which the Tenant has
against the enforcement of this Lease by the Landlord, or specifying what
claims, defenses or offsets exist;; (iv) no Rent has been paid more than one
month in advance; and that no security has been deposited with Landlord (or, if
so, the amount thereof); and (v) such other items as Landlord shall reasonably
request. It is intended that any such statement delivered pursuant to this
Section may be relied upon by a prospective purchaser of Landlord's interest or
holder of any mortgage upon Landlord's interest in the Premises.
(b) FAILURE TO DELIVER ESTOPPEL. If Tenant shall fail to respond twenty
(20) days of receipt by Tenant of a written request by Landlord as herein
provided, Tenant shall be deemed to have given such certificate as above
provided without modification and shall be deemed to have admitted the accuracy
of any information supplied by Landlord to a prospective purchaser or mortgagee
and to have certified that this Lease is in full force and effect, that there
are no uncured defaults in Landlord's performance, that the security deposit is
as stated in the Lease, and that not more than one month's Rent has been paid in
advance.
24. SURRENDER OF POSSESSION. Subject to the terms of Section 14 (Damage
and Destruction), upon expiration of the term of this Lease, whether by lapse of
time or otherwise, Tenant shall promptly and peacefully surrender the Premises
to Landlord "broomclean" and in as good condition as when received by Tenant
from Landlord or as thereafter improved, reasonable use, wear and tear excepted.
If the Master Landlord requires that any alterations or trade fixtures installed
by Tenant be removed in accordance with the Master Lease, Tenant shall, at its
cost, remove such alterations and trade fixtures and repair any damage caused
thereby. In any event, Tenant may remove all of its personal property and trade
fixtures from the Premises at the expiration of the term and any property not so
removed shall be deemed abandoned and may be sold or otherwise disposed of as
Landlord deems advisable.
25. NON-WAIVER. Waiver by Landlord of any term, covenant or condition
herein contained or any breach thereof shall not be deemed to be a waiver of
such term, covenant, or condition or of any subsequent breach of the same or any
other term, covenant, or condition herein contained.
26. HOLDOVER. Tenant shall have no right to holdover.
27. LANDLORD'S LIABILITY. Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and agreements herein made on the part
of Landlord are made and intended not as personal covenants, undertakings and
agreements for the purpose of binding Landlord personally or the assets of
Landlord except Landlord's interest in the
14
Premises, but are made and intended for the purpose of binding only the
Landlord's interest in the Premises, as the same may from time to time be
encumbered.
28. TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer of
Landlord's interest in the Premises, the transferor shall be automatically
relieved of any and all obligations and liabilities on the part of Landlord
accruing from and after the date of such transfer and such transferee shall have
no obligation or liability with respect to any matter occurring or arising prior
to the date of such transfer. Tenant agrees to attorn to the transferee.
29. RIGHT TO PERFORM. If Tenant shall fail to pay any sum of money
required to be paid by it hereunder or shall fail to perform any other act on
its part to be performed hereunder, and such failure shall continue for ten (10)
days after notice thereof by Landlord, Landlord may, but shall not be obligated
so to do, and without waiving or releasing Tenant from any obligations of
Tenant, make such payment or perform any such other act on Tenant's part to be
made or performed as provided in this Lease.
30. SECURITY MEASURES. Tenant acknowledges (a) that Landlord shall have
no obligation to provide any security measures for any portion of the Premises
and (b) that Landlord has made no representation to Tenant regarding the safety
or the security of the Premises. If Landlord provides any security measures at
any time, then Landlord shall not be obligated to provide such security measures
with any particular standard of care. Tenant assumes all responsibility for the
security and safety of Tenant and each of Tenant's representatives and/or each
of their licensees or invitees. Tenant releases Landlord from all claims for
damage, loss or injury to Tenant, Tenant's representatives and/or each of their
licensees or invitees and/or to the personal property of Tenant and/or Tenant's
representatives, even if such damage, loss or injury is caused by or results
from the criminal or negligent acts of third parties. Landlord shall have no
duty to warn Tenant of any criminal acts or dangerous conduct that has occurred
in or near the Premises, regardless of Landlord's knowledge of such crimes or
conduct.
31. SIGNAGE. Tenant shall be permitted, at its own cost, to install at
the Premises reasonably appropriate signs that conform with any and all
applicable law and ordinances and the provisions of the Master Lease.
32. NO RENEWAL OPTION. Nothing herein shall be construed as permitting
Tenant hereunder to exercise any extension or renewal rights, and in no event
shall Landlord be obligated to extend the term of the Master Lease for any
reason.
33. REGULATORY CHANGES. If this Lease is assigned to Bridge Bank in the
manner set forth in Section 19(a), this Lease shall be amended to comply with
any changes required, and which are customary, by any regulatory agency which
regulates banks or other financial institutions.
34. RIGHT OF RE-ENTRY. Except in case of an emergency, Landlord shall
exercise any right of re-entry granted to Landlord herein only if Landlord has
given Tenant at least twenty-four hours prior notice thereof and only during
Tenant's normal business hours.
35. QUIET ENJOYMENT. So long as Tenant is not in default hereunder,
Tenant shall have the right to the quiet and peaceful enjoyment and possession
of the Premises during the term of this Lease, subject to the terms and
conditions of this Lease.
15
36. GENERAL.
(a) HEADINGS. Titles to Sections of this Lease are not a part of this
Lease and shall have no effect upon the construction or interpretation of any
part hereof.
(b) HEIRS AND ASSIGNS. All of the covenants, agreements, terms and
conditions contained in this Lease shall inure to and be binding upon the
Landlord and Tenant and their respective heirs, executors, administrators,
successors and assigns.
(c) AUTHORITY. Each individual executing this Lease on behalf of Tenant
represents and warrants that he or she is duly authorized to execute and deliver
this Lease on behalf of Tenant, and that this Lease is binding upon Tenant in
accordance with its terms.
(d) NO BROKERS. Each party represents and warrants to the other party
that, other than BT Commercial which has been engaged by Tenant and CB
Commercial, which has been engaged by Landlord, it has not engaged any broker,
finder or other person who would be entitled to any commission or fees in
respect of the negotiation, execution or delivery of this Lease and shall
indemnify and hold harmless the other party against any loss, cost, liability or
expense incurred by the other party as a result of any claim asserted by any
such broker, finder or other person on the basis of any arrangements or
agreements made or alleged to have been made by or on behalf of either party.
(e) ENTIRE AGREEMENT. This Lease is the final and complete expression
of Landlord and Tenant relating in any manner to the leasing, use and occupancy
of the Premises, to Tenant's use of the Premises and other matters set forth in
this Lease. No prior agreements or understanding pertaining to the same shall be
valid or of any force or effect and the covenants and agreements of this Lease
shall not be altered, modified or added to except in writing signed by both
Landlord and Tenant.
(f) SEVERABILITY. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof and the remaining provisions hereof shall nevertheless remain
in full force and effect.
(g) FORCE MAJEURE. Except for the payment of Rent, Additional Rent or
other sums payable by Tenant to Landlord, time periods for Tenant's or
Landlord's performance under any provisions of this Lease shall be extended for
periods of time during which Tenant's or Landlord's performance is prevented due
to strikes, embargoes, acts of God, war or other strife.
(h) NOTICES. All notices under this Lease shall be in writing and
delivered in person or sent by registered or certified mail, postage prepaid, to
Landlord and to Tenant at the Addresses provided in Section (provided that after
the Commencement Date any such notice shall be mailed or delivered by hand to
Tenant at the Premises) and to the holder of any mortgage or deed of trust at
such place as such holder shall specify to Tenant in writing; or such other
addresses as may from time to time be designated by any such party in writing.
Notices mailed as aforesaid shall be deemed given on the date of such mailing.
(i) COSTS AND ATTORNEYS FEES. If Tenant or Landlord shall bring any
action for any relief against the other, declaratory or otherwise, arising out
of this Lease, including any suit by Landlord for the recovery of Rent,
Additional Rent or other payments hereunder or possession of the Premises each
party shall, and hereby does, to the extent permitted by law,
16
waive trial by jury and the losing party shall pay the prevailing party a
reasonable sum for attorneys fees in such suit, at trial and on appeal, and such
attorneys fees shall be deemed to have accrued on the commencement of such
action.
(j) GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the internal laws of the state in which the Premises are
situated.
(k) RECORDING. Tenant shall not record this Lease or a memorandum
hereof without Landlord's prior written consent and such recordation shall, at
the option of Landlord, constitute a non-curable default of Tenant hereunder.
(1) WAIVERS. No waiver by Landlord of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Tenant of the same or any other provision. Landlord's consent to or approval of
any act shall not be deemed to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act by Tenant. The acceptance of rent
hereunder by Landlord shall not be a waiver of any preceding breach at the time
of acceptance of such rent.
(m) TIME OF ESSENCE. Time is of the essence for the performance of all
of the obligations specified hereunder.
(n) MERGER. The voluntary or other surrender of this Lease by Tenant,
or a mutual cancellation thereof, shall not work a merger and shall, at the
option of Landlord, terminate all or any existing subtenancies or may, at the
option of Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
(o) INTEREST. Late Charge. Any Rent, Basic Rent, Additional Rent or
other sums payable by Tenant to Landlord which shall not be paid within five (5)
days of the due date thereof shall bear interest at a rate equal to twelve
percent (12%) per annum calculated from the date of delinquency to the date of
payment. In addition, in such event, Tenant shall pay to Landlord a late charge
equal to five percent (5%) of the amount so delinquent, which late charge shall
be liquidated damages (and not a penalty) to compensate Landlord for the costs
of handling such delinquency, the parties agreeing that actual damages would be
inconvenient, uncertain, and difficult to ascertain. Such interest and late
charges shall be deemed additional rent due upon forth demand, and Landlord
shall have rights with respect to such non-payment as it has with respect to any
other non-payment of rent hereunder. Any payments of any kind returned for
insufficient finds will be subject to an additional handling charge of $25.00,
and thereafter, Landlord may require Tenant to pay all future payments of rent
or other sums due by money order or cashier's check.
(SIGNATURES ARE ON FOLLOWING PAGE)
17
IN WITNESS WHEREOF this Lease has been executed the day and year first above set
forth.
LANDLORD: WASHINGTON MUTUAL BANK, FA
By: /s/ H. XXXXXX XXXX
__________________________
Name: H. Xxxxxx Xxxx
Its: Vice President
TENANT: /s/ XXXXXXX XXXXXXX
__________________________
Xxxxxxx Xxxxxxx
/s/ XXXXX XXXXXXXX
__________________________
Xxxxx Xxxxxxxx
/s/ XXXXX XXXX
__________________________
Xxxxx Xxxx
/s/ XXXXX XXXXXX
__________________________
Xxxxx Xxxxxx
/s/ XXXXXXX XXX
__________________________
Xxxxxxx Xxx
/s/ XXXXXX XXX
__________________________
Xxxxxx Xxx
/s/ XXXXXX XXXXX
__________________________
Xxxxxx Xxxxx
/s/ XXXXXXX XXXXX
__________________________
Xxxxxxx Xxxxx
/s/ XXXXX XXXXXX
__________________________
Xxxxx Xxxxxx
18
EXHIBIT "A"
That real property situate in the city of Santa Xxxxx, County of Santa Xxxxx,
State of California, described as follows:
COMMENCING at an iron pipe in the Southerly line of the U. S. HIGHWAY No. 101',
also know as EL CAMINO REAL (100 feet wide), in the City of Santa Clara,
California, at the Northwesterly corner of that certain parcel of land conveyed
by XXXXXXX XXXXX XX. and XXXXXXXXX XXXXX, his wife, to the FIRST NATIONAL BANK
of San Xxxx, a national banking association, by Deed recorded February 24, 1955
in Book 3094 Official Records, page 189, id the Xxxxx Xxxxx Xxxxxx Xxxxxxxx'x
Xxxxxx, Xxx Xxxx, Xxxxxxxxxx; thence North 89(degree) 49' 10" West on and along
the said Southerly line of EL CAMINO REAL, a distance of 99.00 feet, to a 3/4
inch iron pipe; thence leaving the said Southerly line of EL CAMINO REAL,. South
0(degree) 10' 50" West a distance of 10.00 feet to a 3/4 inch iron pipe; thence
on a curve with a radius of 20.00 feet deflecting to the left from a tangent
bearing North 89(degree) 49' 10" West, through a central angle of 90(degree) 00'
00", an arc distance of 31.42 feet to a 3/4 inch iron pipe set on the Easterly
line of XxXXXXXXX DRIVE, as said Drive was established in the Deed from X. X.
XXXXXXX et ux, to City of Santa Xxxxx, a Municipal corporation, recorded August
15, 1958 in Book 4150 Official Records, Page 397, Santa Xxxxx County Records;
thence South 0(degree) 10' 50" West along said Easterly line of XxXXXXXXX DRIVE
315.00 feet to a 3/4 inch iron pipe; thence on a curve with a radius of 20.00
feet deflecting to the left from a tangent bearing South 0(degree) 10' 50" West,
through a central angle of 90(degree) 00' 00", for arc distance of 31.42 feet to
a 3/4 inch iron pipe set on the Northerly line of XXXX DRIVE, as said Drive was
established in the Deed to said City of Santa Xxxxx, above referred to; thence
South 89(degree) 49' 10" East along said Northerly line of XXXX DRIVE 99.00 feet
to a point in the Southerly prolongation of the Westerly boundary of the
hereinbefore mentioned parcel conveyed to the FIRST NATIONAL BANK of San Xxxx;
thence North 0(degree) 10' 50" East on and along said prolongation and said
Westerly boundary a distance of 365.00 feet to the point of COMMENCEMENT.
CONTAINING APPROXIMATELY 0.989 acres and being a portion of the Southwest 1/4 of
Xxxxxxx 0, Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx, X. D.M.
EXCEPTING THEREFORM all that portion of Premises lying within. the bounds of EL
CAMINO REAL as described in the Deed to the City of Santa Xxxxx on-May 4, 1961
in Book 5157 of official Records, Page 518 of Santa Xxxxx County Records and
described as follows:
EXHIBIT "A" CONTINUED
BEGINNING at the northwest corner of that certain parcel of land conveyed to the
FIRST NATIONAL BANK OF SAN XXXX by Deed filed for record in the Office of the
County Recorder said County in Book 3094 Official Records at Page 189 therein,
which corner lies in the Southerly line of EL CAMINO REAL (100 feet wide) as
shown on that certain Record of Survey filed for record in the office of said
County Recorder in Book 95 of Maps at Page 34 therein; thence N 89(degree) 49'
10" W, 99.00 feet following the laid Southerly line of EL CAMINO REAL to a
Northeasterly corner of that certain 3.371 acre tract of land conveyed to said
City of Santa Xxxxx by Deed filed for record in the office of said county
Recorder in Book 4150 Official Records at Pages 397 and 398 therein; thence
following an easterly line of said 3.371 acre tract of land S 0(degree) 10' 50"
W, to the' point of intersection thereof with a' line drawn parallel to and
distant Southerly 60 feet measured at right angles from the center line of said
EL CAMINO REAL; thence S 89(degree) 49' 10" E, 99.00 feet following said
parallel line to a point in the West line of said Parcel of land conveyed to the
FIRST NATIONAL BANK OF SAN XXXX; thence N 0(degree) 10' 50" E, 10 feet following
said West line to the POINT OF BEGINNING and containing 990 square feet of land.
EXHIBIT B
WORKLETTER AGREEMENT
All capitalized terms herein that are defined in the Lease to which this
Exhibit is attached shall have the meanings provided for them in the Lease. The
term "Tenant's Work" shall mean any work performed by Tenant, whether Tenant's
work with respect to Initial Tenant's Improvements, if applicable, or work
subsequent thereto.
SECTION I DELIVERY OF PREMISES BY LANDLORD
1. Except as otherwise specifically set forth in the Lease, Tenant shall take
the Premises in the presently existing "AS IS" condition and all work to be
performed at the Premises shall be performed by Tenant at Tenant's sole cost and
expense.
2. Landlord does not warrant any information Landlord may have furnished or will
furnish Tenant regarding the Premises. It shall be Tenant's responsibility to
verify existing field conditions and measurements of the Premises, prior to the
Commencement Date. Tenant's failure to verify the existing conditions and
measurements of the Premises shall not relieve Tenant of any expenses or
responsibilities resulting from such failure, nor shall Landlord have any
liability or obligations to Tenant arising from such failure.
SECTION II TENANT'S WORK
1. Tenant shall perform Tenant's Work in accordance with all laws, rules and
ordinances ("Laws") applicable to the Premises, including, without limitation,
the building codes of the jurisdiction in which the Premises is located and all
requirements of the American With Disabilities Act.
2. Tenant's Work and, except to the extent as may be specifically otherwise
provided in the Lease, all subsequent work in the Premises which Tenant may wish
to perform, shall be subject to the advance written approval by Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed.
3. Tenant shall, prior to commencement of Tenant's Work and at Tenant's sole
cost and expense, obtain all required building and other permits and post said
permits at the Premises as required.
4. The loads imposed by Tenant's Work (including dead and live loads) shall not
exceed the allowable load capacity of the existing structural systems and
components thereof. Tenant shall ensure at its sole cost that all floors in the
Premises remain level at all times.
5. Tenant shall use only new or like-new materials for Tenant's Work, including
improvements, equipment, trade fixtures and all other fixtures. Notwithstanding
the
EXHIBIT B - Page 1
foregoing, Tenant may reuse portions of existing improvements subject to
Landlord's prior written approval, which approval not to be unreasonably
withheld, conditioned or delayed, provided that said approval shall in no manner
relieve Tenant from the requirement that Tenant's Work comply with this Lease
and all applicable laws. Landlord makes no warranty or representation as to the
condition or suitability of existing improvements reused by Tenant.
6. Tenant shall make no marks or penetrations into the roof, upper floor decks,
exterior walls, or floors, unless approved by Landlord in advance, which
approval shall not be unreasonably withheld, conditioned or delayed.
7. If any Tenant's Work being performed by Tenant to connect to Landlord's
utilities requires access through space occupied by any other tenant or
otherwise will affect any other tenant and Landlord has approved such Tenant's
Work, Tenant shall be responsible for coordinating such Work with such other
tenant, restoring said tenant's premises to its original condition following
such Work, repairing any damages to said tenant's personal property and
compensating said other tenant for any costs or expenses incurred by it on
account of such Work.
8. Tenant shall retain Landlord's identification signs or, at Tenant's cost,
provide new signs for Landlord's utilities, valves, and other such devices in
the Premises.
9. Landlord may, at its election, require testing as to the affect of Tenant's
Work on the structural components of the building (the "Building") and/or the
Premises and major Building systems (i.e., fire/life safety issues, code
compliance, and plumbing and electrical systems), and Tenant shall cooperate
with any reasonable testing procedure.
10. No approval from Landlord with respect to any aspect of Tenant's Work shall
be valid unless in writing and signed by an authorized representative of
Landlord.
11. Tenant acknowledges that the Lease Commencement Date shall not be delayed
due solely to the fact that Tenant's Work has not been completed by such dates
or due solely to the fact that Tenant is not open for business as of such dates.
SECTION III PROCEDURES AND SCHEDULES FOR THE
COMPLETION OF PLANS AND SPECIFICATIONS
1. Tenant shall submit to Landlord such information on Tenant's planned
electrical and mechanical usages at the Premises as may be reasonably requested
by Landlord (herein referred to as "Plans"). Tenant shall accurately indicate on
the Plans any existing equipment or conditions that Tenant proposes to reuse.
2. Tenant shall submit its Plans to Landlord prior to commencement of any work.
The Plans shall include interior floor plans, mechanical plans, electrical
plans, plumbing plans, and signage design, size and location. Landlord shall use
reasonable efforts to send notification to Tenant that it approves or
disapproves the Plans within ten (10)
EXHIBIT B - Page 2
business days after receipt thereof (Landlord's approval not to be unreasonably
withheld), If Landlord disapproves, Tenant shall within ten (10) days after
receipt of Landlord's disapproval, send Landlord revised Plans addressing
Landlord's comments. This procedure shall be repeated until Landlord has
approved the Plans.
3. The approval by Landlord or Landlord's agent of the Plans shall not
constitute an implication, representation or certification by Landlord or
Landlord's agent that the Plans are accurate, sufficient, efficient or in
compliance with insurance and indemnity requirements, or any Laws the
responsibility for which belongs solely to Tenant.
SECTION IV PERMITS AND APPROVALS
Tenant, at Tenant's cost, shall apply for, seek and obtain all permits,
licenses and approvals required for applicable governmental entities for
construction of Tenant's Work. Copies of all such permits and approvals shall be
submitted to Landlord before any construction work for Tenant's Work commences.
Tenant's Work shall comply in all respects with the following: (i) the Code and
other state, federal, city or quasi-governmental laws, codes, ORDINANCES AND
regulations, as each may apply according to the rulings of the controlling
public official, agent or other person; (ii) applicable standards of the
American Insurance Association (formerly, the National Board of Fire
Underwriters) and the National Electrical Code; and (iii) Project material
manufacturer's specifications.
SECTION V CONSTRUCTION
1. Tenant hereby appoints ("Tenant's Representative") to act on its behalf and
represent its interests with respect to all matters requiring Tenant actions in
this Agreement. All matters requiring the consent, authorization or other
actions by Tenant with respect to matters set forth in this Agreement shall be
in writing and signed by the Tenant's Representative. No consent, authorization,
or other action by Tenant with respect to the matters set forth in this
Agreement shall bind Tenant unless in writing and signed by the Tenant's
Representative. Landlord hereby appoints to act on its behalf and represent its
interests with respect to all matters requiring Landlord action in this
Agreement ("Landlord's Representative"). All matters requiring the consent,
authorization or other actions by Landlord with respect to matters set forth in
this Agreement shall be in writing and signed by the Landlord's Representative.
No consent, authorization, or other action by Landlord with respect to the
matters set forth in this Agreement shall bind Landlord unless in writing and
signed by the Landlord's Representative.
2. Prior to commencement of Tenant's Work at the Premises, Tenant shall, in
addition to complying with all other terms and conditions herein, furnish
Landlord the following:
a. Evidence of insurance evidencing the insurance required of Tenant and
Tenant's general contractors as provided in this Exhibit.
EXHIBIT B - Page 3
b. A copy of the building permit(s), license(s) and approvals.
3. Tenant shall coordinate Tenant's Work with other construction work at the
Building, if any.
4. Prior to the commencement of construction, Landlord shall have the right to
post, in a conspicuous location, on the Premises, a notice of
non-responsibility.
5. Tenant shall place all trash in trash containers at a pick-up area or areas
designated by Landlord. Tenant shall furnish its own trash containers at its
cost unless Landlord elects to furnish the containers. Tenant shall provide
trash removal service at Tenant's own cost from the pick-up areas unless
Landlord elects to provide the trash removal service. Tenant shall not permit
trash to accumulate within the Premises or in the Common Areas or exterior areas
of the Building. Tenant shall be solely responsible for removal from the
Premises and legal disposal of any containers considered as hazardous waste by
applicable law and Tenant shall take all precautions to assure that such
containers are not placed in Landlord's disposal containers.
6. All Tenant's Work shall be performed so as to cause the least possible
interference with Landlord's existing business operations in the Building and
other tenants of the Building, if applicable, and Landlord shall have the right
to impose reasonable requirements with respect to timing and performance of the
Work in order to minimize such interference. Tenant's Work causing noise, odor
or vibration at the Premises (e.g., concrete cutting) shall be performed only
during hours as directed by Landlord.
7. Construction equipment and materials are to be located in confined areas and
truck traffic is to be routed to and from the site as directed by Landlord so as
not to burden the construction or operation of the Building. All Work shall be
confined to the Premises.
8. Tenant shall cause its general contractor and all subcontractors to maintain
during the construction period the following insurance: (i) commercial general
liability insurance, with limits of not less than $2,000,000 per occurrence (the
portion of such coverage over $1,000,000 may be provided under an umbrella or
excess liability policy), for personal injury, bodily injury or death or
property damage or destruction, arising out of or relating to the contractor's
work at or in connection with the Premises and completed operations for one (1)
year following job completion and shall provide for a waiver of subrogation by
the insurance company; (ii) worker's compensation insurance with respect to each
contractor's workers at the site or involved in the Tenant's Work, in the amount
required by statute; (iii) employer's liability insurance in the amount of at
least $1,000,000 per accident and at least $1,000,000 for disease, each
employee; (iv) comprehensive automobile liability insurance covering all owned,
hired or non-owned vehicles, including the loading and unloading thereof, with
limits of not less than $2,000,000 per occurrence (the portion of such coverage
over $1,000,000 may be proved under an umbrella or excess liability policy); and
(v) builder's risk property insurance
EXHIBIT B - Page 4
upon the entire Tenant's Work to the full replacement cost value thereof.
Landlord, Landlord's managing agent, and other such parties as designated by
Landlord, shall be additional insureds under the insurance required under clause
(i) of this paragraph, naming owner/Landlord, tenant, general contractor, and
all subcontractors. All insurance required hereunder shall be provided by
responsible insurers rated at least "A" and "VIII" in the then current edition
of Best's Key Rating Insurance Guide and shall be licensed in the State in which
the Building is located. Tenant shall provide, or cause its contractors to
provide, evidence of such insurance prior to any Tenant's Work being performed
at the Premises. Such evidence shall state that the coverage may not be changed
or cancelled without at least thirty (30) day's prior written notice to
Landlord. Certificates for all insurance carried pursuant to this section shall
be delivered to Landlord before the commencement of any of Tenant's Work and
before any equipment is moved onto or adjacent to the Premises for the purposes
of such Tenant's Work.
9. Upon substantial completion of Tenant Improvements, as evidenced by a tenant
certificate of occupancy or a temporary certificate of occupancy for the
Premises, Tenant shall notify Landlord. Tenant shall furnish Landlord a copy of
a certificate of occupancy for the Premises before Tenant opens for business.
10. Costs of all Tenant Work shall be paid promptly by Tenant, and Tenant shall
have no authority to cause liens or other encumbrances to attach as to the
Premises. Tenant shall reimburse Landlord for the reasonable fees and expenses
payable by Landlord in connection with Landlord's approvals and inspections
hereunder. Prior to Tenant's opening for business, Tenant shall deliver to
Landlord mechanic's lien releases or other evidence reasonably satisfactory to
Landlord that no liens have been filed in connection with the Tenant's Work and
that no liens can reasonably be expected to be filed.
11. Landlord shall have the right to inspect the Tenant Work at all times,
provided however, that Landlord's failure to inspect the Tenant Work shall in no
event constitute a waiver of any of Landlord's rights hereunder nor shall
Landlord's inspection of the Tenant's Work constitute Landlord's approval of the
same. In addition, if the laws, ordinances, rules, regulations or orders of any
public authority having jurisdiction require any of the Tenant's work to be
inspected, tested or approved, Tenant shall give Landlord timely notice of its
readiness and of the date arranged in order that Landlord may observe such
inspection, testing or approval. Tenant shall reimburse Landlord for the
reasonable fees and expenses payable by Landlord's inspection hereunder. Should
Landlord disapprove any portion of the Tenant's Work, Landlord shall notify
Tenant in writing of such disapproval and shall specify the items disapproved.
Any defects or deviations in, and/or disapproved by Landlord of, the Tenant's
Work shall be rectified by Tenant at no expense to Landlord, provided however,
that in the event Landlord determines that a defect or deviation exists or
disapproves of any matter in connection with any portion of the Tenant's Work
and such defect, deviation or matter might adversely affect the mechanical,
electrical, plumbing, heating, ventilating and air conditioning or life-safety
systems of the Project, the structure or exterior appearance of the Project or
any other tenant's use of such other tenant's leased premises, Landlord may,
take such action as Landlord deems necessary, at Tenant's expense and without
incurring any liability on
EXHIBIT B - Page 5
Landlord's part, to correct any such defect, deviation and/or matter, including,
without limitation, causing the cessation of performance of the construction of
the Tenant's Work until such time as the defect, deviation and/or matter is
corrected to Landlord's satisfaction.
12. Tenant's indemnity of Landlord as set forth in the Lease shall also apply
with respect to any and all costs, losses, damages, injuries and liabilities
related in any way to any act or omission of Tenant or Tenant's Agent, or anyone
directly or indirectly employed by any of them, or in connection with Tenant's
non-payment of any amount arising out of the Tenant's Work and/or Tenant's
disapproval of all or any portion of any request for payment. Such indemnity by
Tenant, as set forth in this Lease, shall also apply with respect to any and all
costs, losses, damages, injuries and liabilities related in any way to
Landlord's performance of any ministerial acts reasonably necessary (i) to
permit Tenant to complete the Tenant Work, and (ii) to enable Tenant to obtain
any permit or certificate of occupancy for the Premises.
13. Unless otherwise indicated, all references herein to a "number of days"
shall mean and refer to calendar days. If any item requiring approval is timely
disapproved by Landlord, the procedure for preparation of the document and
approval thereof shall be repeated until the document is approved by Landlord.
14. Notwithstanding any provision to the contrary contained in this Lease, if an
event of default as described in the Lease or this Agreement has occurred at any
time on or before the substantial completion of the Premises, then all other
obligations of Landlord under the terms of this Agreement shall be forgiven
until such time as such default is cured pursuant to the terms of this Lease (in
which case, Tenant shall be responsible for any delay in the substantial
completion of the Premises caused by such inaction by Landlord).
15. Landlord shall have no responsibility for the Tenant's Work and Tenant will
remedy, at Tenant's own expense, and be responsible for any and all defects in
the Tenant's Work that may appear during or after the completion thereof
whether, the same shall affect the Tenant's Work in particular or any part of
the Premises in general. Tenant shall indemnify, hold harmless and reimburse
Landlord for any costs or expenses incurred by Landlord by reason of any defect
in any portion of the Tenant's Work constructed by Tenant or Tenant's contractor
or subcontractors, or by reason of inadequate cleanup following completion of
the Tenant's Work.
16. All of Tenant's contractors, subcontractors, employees, servants and agents
must work in harmony with and shall not interfere with any labor employed by
Landlord, or Landlord's contractors or by any other tenant or its contractors
with respect to any portion of the Project. Nothing in this Agreement shall,
however, require Tenant to use union labor.
17. Any work to be performed in areas adjacent to the Premises shall be
performed only after obtaining Landlord's express written permission, which
shall not be
EXHIBIT B - Page 6
unreasonably withheld, conditioned or delayed, and shall be done only if an
agent or employee of Landlord is present; Tenant will reimburse Landlord for the
expense of any such employee or agent.
18. Tenant agrees to be entirely responsible for the maintenance or the
balancing of any heating, ventilating or air conditioning system installed by
Tenant and/or maintenance of the electrical or plumbing work installed by Tenant
and/or for maintenance of lighting fixtures, partitions, doors, hardware or any
other installations made by Tenant.
19. Landlord will not check Tenant drawings for building code compliance.
Approval of the Construction Drawings by Landlord is not a representation that
the drawings are in compliance with the requirements of governing authorities,
and it shall be Tenant's responsibility to meet and comply with all federal,
state, and local code requirements. Approval of the Construction Drawings does
not constitute assumption of responsibility by Landlord or its architect for
their accuracy, sufficiency or efficiency, and Tenant shall be solely
responsible for such matters.
EXHIBIT B - Page 7
