FIRST AMENDMENT
FIRST
AMENDMENT
THIS FIRST
AMENDMENT
(this
“Amendment”)
is
made and entered into as of March 9, 2006 for reference purposes only, by and
between PAOC,
LLC, a Delaware limited liability company
(“Landlord”),
and
BRIDGE
BANK OF SILICON VALLEY N.A., a federally chartered national bank
(“Tenant”).
RECITALS
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A.
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Landlord
(as successor in interest to C.M Capital Corporation, a California
corporation) and Tenant are parties to that certain lease dated October
15, 2001 and accompanied by an Addendum of the same date (collectively,
the “Lease”).
Pursuant to the Lease, Landlord has leased to Tenant space currently
containing approximately 2,975 rentable square feet (the “Original
Premises”)
described as Suite Nos. 101 and 103 on the first floor of the building
commonly known as the Palo Alto Office Center located at 000 Xxxxxxxxxx
Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx (the “Building”).
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B.
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Tenant
and Landlord have agreed to relocate Tenant from the Original Premises
to
space containing approximately 6,495
rentable square feet described as Suite No. 31 of the Building, as
shown
on Exhibit A
hereto (the “Substitution
Space”),
and that the Lease be appropriately amended on the following terms
and
conditions.
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C.
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The
Lease by its terms shall expire on November 30, 2006 (the “Prior
Termination Date”),
and the parties desire to extend the Term of the Lease, all on the
following terms and conditions.
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NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:
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1.
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Substitution
Space.
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(a) Effective
as of the Substitution Effective Date (defined below), the Substitution Space
is
substituted for the Original Premises and, from and after the Substitution
Effective Date, the “Premises”, as defined in the Lease and as used herein,
shall be deemed to mean the Substitution Space containing approximately
6,495
rentable
square feet and described as Suite No. 31 of the Building.
(b) Subject
to Section 8 below, the Term (“Substitution
Space Term”)
for
the Substitution Space shall commence on February 1, 2007 (the “Substitution
Effective Date”)
and
end on the Extended Termination Date (defined below). The Substitution Space
is
subject to all the terms and conditions of the Lease except as expressly
modified herein and except that Tenant shall not be entitled to receive any
allowances, abatements or other financial concessions granted with respect
to
the Original Premises unless such concessions are expressly provided for herein
with respect to the Substitution Space. Effective as of the Substitution
Effective Date, the Lease shall be terminated with respect to the Original
Premises, and the “Premises”, as defined in the Lease and as used herein shall
mean the Substitution Space. Tenant shall vacate the Original Premises as of
the
date that is not later than seventy-five (75) days following the Substitution
Effective Date (such date that Tenant is required to vacate the Original
Premises being referred to herein as the “Original
Premises Vacation Date”)
and
return the same to Landlord in “broom clean” condition and otherwise in
accordance with the terms and conditions of the Lease, as amended hereby;
provided however that in the event that Tenant is delayed in occupying in
Substitution Space due to a Force Majeure Event (defined below), Tenant shall
be
entitled to delay the Original Premises Vacation Date for a period not to exceed
thirty (30) days so long as Tenant provides Landlord with written notice of
the
need for such delay and documentation reasonably satisfactory to Landlord
evidencing such Force Majeure Event prior to the expiration of such seventy-five
(75) day period. Notwithstanding anything to the contrary contained herein,
if
the Original Premises Vacation Date is subsequent to the Substitution Effective
Date (such period commencing on the Substitution Effective Date and ending
on
the Original Premises Vacation Date is referred to herein as the “Vacation
Period”),
then
during the Vacation Period, Tenant shall comply with all terms and provisions
of
the Lease, as amended hereby, with respect to the Original Premises as though
the Original Premises were still deemed part of the Premises hereunder, and
Tenant shall pay Rent with respect to the Original Premises during the Vacation
Period in accordance with the Lease, as amended hereby. Following the Vacation
Period, Tenant’s obligation for payment of Rent shall be determined in
accordance with Section 12 below. As used herein, a “Force
Majeure Event”
shall
mean an act of God, shortage of labor or materials, war, terrorist act or civil
disturbance; provided that a delay cause by a Force Majeure Event shall not
include any delay in obtaining any permits or other governmental approvals
with
respect to the Substitution Space and/or the Tenant Improvements (as defined
in
Exhibit
B
attached
hereto). Tenant shall provide Landlord with not less than ten (10) business
days’ prior written notice of the date Tenant reasonably anticipates that Tenant
will vacate the Original Premises pursuant to this Section
1(b).
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(c) The
Substitution Effective Date shall be delayed to the extent that Landlord fails
to deliver possession of the Substitution Space for any reason, including but
not limited to, holding over by prior occupants and
Landlord
shall use commercially reasonable efforts to obtain timely possession of the
Substitution Space. Any such delay in the Substitution Effective Date shall
not
subject Landlord to any liability for any loss or damage resulting therefrom.
If
the Substitution Effective Date is delayed, the Extended Termination Date shall
be similarly extended.
(d) Upon
written notice from Tenant, Landlord shall use commercially reasonable efforts
to facilitate access to the Substitution Space by Tenant prior to the
Substitution Effective Date solely for preliminary space planning purposes;
provided that any such access to the Substitution Space shall be subject to
the
prior written consent of Citibank (as defined in Section 8 below), any
conditions imposed thereon by Citibank, and the remaining terms of this Section
1(d). Tenant hereby acknowledges and agrees that during such time that Tenant
and Tenant’s Agents have early access to the Substitution Space pursuant to this
Section, neither Landlord nor any Landlord’s Agents shall be directly or
indirectly liable to Tenant or any other person and Tenant hereby waives any
and
all claims, known or unknown, against and releases Landlord and Landlord’s
Agents from any and all claims arising as a consequence of or related to (a)
access to the Substitution Space by Tenant and any Tenant’s Agents prior to the
Substitution Effective Date, (b) Tenant’s inability to access the Substitution
Space, including without limitation as a result of any refusal by Citibank
to
grant such access to Tenant or Tenant’s Agents, and (c) any and all losses,
claims, damages, costs or expenses sustained by Tenant, any Tenant’s Agents or
any third party resulting from any other act or omission (regardless of whether
same constitutes negligence) of Citibank, its agents, employees and contractors.
Tenant shall be liable for and Tenant’s indemnity obligation pursuant to
Paragraph 7(b) of the Lease shall apply to any Losses relating to or arising
from any access to the Substitution Space by Tenant and any Tenant’s Agents
pursuant to this Section 1(d).
2. Extension.
The Term
of the Lease is hereby extended for a period of eighty-six (86) months and
shall
expire on January 31, 2014 (the “Extended
Termination Date”),
unless sooner terminated in accordance with the terms of the Lease. That portion
of the Term commencing December 1, 2006 (the “Extension
Date”)
and
ending on the Extended Termination Date shall be referred to herein as the
“Extended
Term”.
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3.
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Base
Rent.
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(a) Original
Premises Through the Original Premises Vacation Date.
Base
Rent (subject to adjustments pursuant to Section 3(d) below), Monthly,
Additional Rent, Additional Rent and all other charges under the Lease shall
be
payable as provided therein with respect to the Original Premises through and
including the Original Premises Vacation Date.
(b) Substitution
Space From the Substitution Effective Date.
As of
the Substitution Effective Date, the schedule of Base Rent payable with respect
to the Substitution Space during the first twelve (12) months of the
Substitution Space Term is the following, subject to adjustments pursuant to
Section 3(d) below:
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Period
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Monthly
Rate
Per
Square Foot
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Annual
Base
Rent
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Monthly
Base
Rent
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Substitution
Effective Date - Month 12
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$4.50
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$350,730.00
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$29,227.50
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(c) Notwithstanding
anything in the Lease or this Amendment to the contrary, so long as Tenant
is
not in default under the Lease, as amended hereby, Tenant shall be entitled
to
an abatement of Base Rent in the amount of $29,227.50 (the “Abated
Base Rent”)
and
Tenant’s percentage share of Operating Expenses, in each case solely with
respect to the Substitution Space (collectively, the “Abated
Rent”),
for
the first two (2) full calendar months of the Substitution Space Term (the
“Rent
Abatement Period”).
In
addition, in the event the Substitution Effective Date occurs prior to February
1, 2007 pursuant to Section 8 below, following the expiration of the Rent
Abatement Period, Tenant shall be entitled to an additional abatement of Base
Rent and Tenant’s percentage share of Operating Expenses (in each case, solely
with respect to the Substitution Space) equal to seven (7) days of the sum
of
(i) the Base Rent payable for the Substitution Space, in the amount of $974.25
per day, and (ii) Tenant’s percentage share of Operating Expenses for the
Substitution Space, prorated on a per diem basis, for every thirty (30) day
period between the actual Substitution Effective Date and February 1, 2007
(the
“Early
Commencement Abated Rent”).
By
way of example only, if in accordance with Section 8 below, the Substitution
Effective Date is October 1, 2006, then commencing as of January 1, 2007, Tenant
shall be entitled to twenty-one (21) days of Early Commencement Abated Rent
in
an amount equal to $20,459.25 plus Tenant’s percentage share of Operating
Expenses for the Substitution Space that would otherwise be payable during
such
21-day period. If Tenant defaults at any time during the original Term or the
Extended Term and fails to cure such default within any applicable notice and
cure period under the Lease, as amended hereby, all Abated Rent and any Early
Commencement Abated Rent shall immediately become due and payable. The payment
by Tenant of the Abated Rent and any Early Commencement Abated Rent in the
event
of a default shall not limit or affect any of Landlord's other rights, pursuant
to the Lease, as amended hereby, or at law or in equity. Only Base Rent and
Tenant’s percentage share of Operating Expenses for the Substitution Space shall
be abated as set forth above, and Base Rent and Monthly Additional Rent for
the
Original Premises, and all other Additional Rent payable pursuant to the Lease,
as amended hereby, shall remain as due and payable pursuant to the provisions
of
the Lease, as amended hereby.
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(d) Commencing
as of the first anniversary of the Substitution Effective Date and continuing
during each subsequent anniversary of the Substitution Effective Date during
the
Substitution Space Term (each, an “Adjustment
Date”),
Base
Rent for the Substitution Space shall be adjusted in accordance with Paragraph
4(e) of the Lease; provided that during such period, (i) the definition of
“Adjustment
Date”
set
forth in
Paragraph 4(e) of the Lease shall be deleted in its entirety and replaced with
the definition of Adjustment Date set forth in this Section 3(d), and (ii)
the
definition of “Beginning
Index”
set
forth in Paragraph
4(e)
of
the Lease as to the first Adjustment Date of the Substitution Space Term shall
be amended to be the CPI Index most recently published prior to the Substitution
Effective Date. Notwithstanding the forgoing, if the Original Premises Vacation
Date is subsequent to the Extension Date, Base Rent for the Original Premises
shall be subject to adjustment pursuant to Paragraph 4(e) of the Lease, without
reference to the above set modifications with respect to the definitions of
Adjustment Date and Beginning Index.
4. Additional
Security Deposit.
No
additional security deposit shall be required in connection with this Amendment.
5. Tenant’s
Percentage Share.
For the
period commencing with the Substitution Effective Date and ending on the
Extended Termination Date, Tenant’s percentage share for the Premises is amended
to be 3.81%.
6. Operating
Expenses.
(a) Original
Premises.
Until
the Original Premises Vacation Date, Tenant shall pay Monthly Additional Rent
applicable to the Original Premises in accordance with the terms of the Lease,
as amended hereby.
(b) Substitution
Space From Substitution Effective Date Through Extended Termination
Date.
For the
period commencing with the Substitution Effective Date and ending on the
Extended Termination Date, Tenant shall pay Monthly Additional Rent applicable
to the Substitution Space in accordance with the terms of the Lease, as amended
hereby.
7. Improvements
to Substitution Space.
(a) Condition
of Substitution Space. Tenant
has inspected the Substitution Space and agrees to accept the same “as is”
without any agreements, representations, understandings or obligations on the
part of Landlord to perform any alterations, repairs or improvements, except
as
may be expressly provided in this Amendment. Tenant hereby acknowledges and
agrees that Landlord shall have no obligation to remove the vault currently
existing in the Substitution Space. Notwithstanding anything to the contrary
set
forth in the Lease, as amended hereby, except to the extent caused by Tenant
or
any of the Tenant’s Agents, the base Building electrical, heating, ventilation
and air conditioning, mechanical and plumbing systems servicing the Substitution
Space shall be in good and working order as of the date
Landlord delivers possession of the Substitution Space to Tenant.
If the
foregoing are not in good and working order as provided above, Landlord shall
be
responsible for repairing or restoring same at its cost and expense, provided
that Tenant has delivered written notice thereof to Landlord not later than
thirty (30) days following the date substantially completes the Tenant
Improvements with respect to the Substitution Space. Notwithstanding the
foregoing, Tenant, and not Landlord, shall be responsible, at its cost, for
any
repairs or the correction of any defects that arise out of or in connection
with
the specific nature of Tenant’s business, the acts or omissions of Tenant or any
Tenant’s Agents, Tenant’s arrangement of any furniture, equipment or other
property in the Substitution Space, any repairs, alterations, additions or
improvements performed by or on behalf of Tenant including the Tenant
Improvements (defined below), and any design or configuration of the
Substitution Space created by or for Tenant which specifically results in the
need for such repair to the correction of such defect in the base Building
systems in the Substitution Space.
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(b) Responsibility
for
Improvements to Substitution Space.
Tenant
may
perform alterations and improvements to the Substitution Space in accordance
with Exhibit B
attached
hereto (the “Tenant
Improvements”)
and
Tenant shall be entitled to an improvement allowance in connection with such
work as more fully described in Exhibit B.
Upon
full execution of this Amendment by the parties hereto, Tenant shall proceed
with due diligence to obtain all permits and any other required governmental
approvals with respect to the Tenant Improvements so long as such permits shall
remain valid until the outside date that the Substitution Space may be delivered
to Tenant and Tenant may substantially complete the Tenant Improvements in
accordance with this Amendment. Notwithstanding anything to the contrary set
forth in the Lease, in the event that as a result of the construction of any
Standard Office Improvements (defined below), any alterations, additions or
improvements are necessary to comply with Laws (as defined in Section 9(a)
below) (collectively, the “Compliance
Modifications”)
with
respect to (i) the common areas of the Building, including any base Building
mechanical, electrical, plumbing or fire/life safety systems (the “Common
Areas”),
or
(ii) the Substitution Space, Tenant shall not be required to perform such
Compliance Modifications except as provided below. Accordingly, except as
provided below, in the event that, as a result of the construction of any
Standard Office Improvements, any Compliance Modifications are required to
the
Common Areas or the Substitution Space to comply with Laws, Landlord, at
Landlord's expense (except to the extent properly included in Operating
Expenses), shall be responsible for performing such Compliance Modifications,
if
any. Landlord shall have the right to contest any alleged violation of Laws
in
good faith, including, without limitation, the right to apply for and obtain
a
waiver or deferment of compliance, the right to assert any and all defenses
allowed by Law and the right to appeal any decisions, judgments or rulings
to
the fullest extent permitted by Law. Landlord, after the exhaustion of any
and
all rights to appeal or contest, will make any Compliance Modifications
necessary to comply with the terms of any final order or judgment. Notwithstanding
the foregoing, (i) Tenant, not Landlord, shall be responsible for compliance
with Title 24 of the California Code of Regulations (“Title
24”)
with
respect to the Substitution Space and shall perform any Compliance Modifications
to the Substitution Space that are required by Title 24, and (ii) Tenant, not
Landlord, shall perform at its sole cost any Compliance Modifications related
to
(A) any Tenant Improvements that do not constitute Standard Office Improvements,
and (B) any future alterations, additions or improvements performed by or on
behalf of Tenant. As used herein “Standard
Office Improvements”
shall
mean the Tenant Improvements described on the Space Plans (as defined in
Exhibit
B),
as of
the date of this Amendment and any other Tenant Improvements that are Building
standard office improvements substantially the same as the Tenant Improvements
shown on the Space Plans as of the date hereof and approved by Landlord in
accordance with Exhibit
B.
Nothing
contained herein shall be deemed to modify, diminish or excuse Tenant’s
obligation to perform the Tenant Improvements in compliance with Laws and
otherwise in accordance with Exhibit
B.
8. Early
Availability.
Tenant
acknowledges that the Substitution Space is currently leased by Landlord (as
successor in interest to CM Capital Corporation) to Citibank (West), FSB
(“Citibank”)
pursuant to the terms of a lease dated January 2, 1997, as the same may be
amended from time to time (the “Existing
Lease”).
Notwithstanding anything herein to the contrary, if the Existing Lease
terminates (or Citibank’s right to possession is terminated) prior to its stated
expiration date, Landlord, at its option, may provide Tenant with written notice
of such prior termination (the “Prior
Termination Notice”).
If
Landlord provides Tenant with a Prior Termination Notice, the Substitution
Effective Date shall be accelerated to be the date Landlord delivers possession
of the Substitution Space to Tenant; provided that notwithstanding the
foregoing, in no event shall the Substitution Effective Date be earlier than
the
date that is the later of (a) June 1, 2006 or (b) sixty (60) days following
the
date Landlord delivers a Prior Termination Notice to Tenant.
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9.
Signage.
(a) As
of the
Substitution Effective Date, Tenant shall remove, at its sole cost and expense,
its existing sign located on the Building (the “Existing
Sign”)
and,
upon removal of Citibank’s signs by Landlord at its sole cost, install new signs
(collectively, the “Building
Signage”)
on to
the portions of the Building in which Citibank’s signs are currently located, as
depicted on Exhibit
C-1
attached
hereto (the “Substitution
Space Sign Location”),
which
removal and installation shall be subject to the terms of this Section 9. The
general approved sign specifications for the New Signs are set forth on
Exhibit
C-2
attached
hereto. The exact location of the Building Signage shall be subject to all
applicable federal, state and local laws, ordinances, codes, rules and
regulations (collectively, “Laws”)
and
Landlord’s prior written approval (if the location or specifications must be
changed to comply with such Laws), which approval shall not be unreasonably
withheld, provided that the location does not unreasonably detract from the
first-class quality of the Building. Such right to Building Signage is personal
to Tenant (and any bank to which Tenant assigns the Lease with Landlord’s
approval pursuant to Paragraph 14 of the Lease (a “Bank Transferee”))
and
is subject to the following terms and conditions: (i) Tenant shall submit plans
and drawings for the Building Signage to the City of Palo Alto and to any other
public authorities having jurisdiction and shall obtain written approval from
each such jurisdiction prior to installation, and shall fully comply with all
applicable Laws; (ii) Tenant shall, at Tenant’s sole cost and expense, design,
construct and install the Building Signage; (iii) the Building Signage shall
be
subject to Landlord’s prior written approval (except for such approval that has
been granted above), which shall not be unreasonably withheld or delayed; and
(iv) Tenant shall maintain the Building Signage in good condition and repair,
and all costs of maintenance and repair shall be borne by Tenant. Maintenance
shall include, without limitation, cleaning at reasonable intervals. Tenant
shall be responsible for any electrical energy used in connection with the
Building Signage. Tenant must adhere to Landlord’s Building rules as previously
agreed to regarding the installation of the Building Signage (i.e. Building
Signage shall not be attached directly onto the Building exterior granite).
At
Landlord’s option, Tenant’s right to the Building Signage may be revoked and
terminated upon occurrence of any of the following events: (A) Tenant shall
be
in default under the Lease beyond any applicable cure period; (B) Tenant
occupies less than the entire Premises (unless Tenant or a Bank Transferee
occupies the balance of the Premises); or (C) the Lease shall terminate or
otherwise no longer be in effect.
(b) Tenant
shall promptly repair, at its sole cost and expense, any damage to the Building
as a result of Tenant’s removal of the Existing Sign and restore the Building to
its condition existing prior to the installation of the Existing Sign; provided,
however, Tenant need not replace the mullions to which the Existing Sign is
attached as long as Tenant shall reasonably patch the screw holes in such
mullions which were used to attach the Existing Sign. Upon the expiration or
earlier termination of the Lease or at such other time that Tenant’s signage
rights are terminated pursuant to the terms hereof, if Tenant fails to remove
the Exiting Sign and/or the Building Signage and repair the Building in
accordance with the terms of this Section, Landlord shall have the right, but
not the obligation, to cause the Existing Sign and/or the Building Signage,
as
applicable, to be removed from the Building and the Building to be repaired
and
restored to the condition which existed prior to the installation of the
Existing Sign and/or Building Signage (including, if necessary, the replacement
of any precast concrete panels if Tenant made holes in such panels), as
applicable. Such work shall be performed at the sole cost and expense of Tenant
and otherwise in accordance with the Lease, as amended hereby, without further
notice from Landlord notwithstanding anything to the contrary contained in
the
Lease, as amended hereby; provided, however, that the mullions to which the
Existing Sign and/or the Building Signage is attached shall not be replaced
and
the screw holes in such mullions which were used to remove and/or attach the
Existing Sign and/or the Building Signage shall be reasonably patched). Tenant
shall pay all costs and expenses for such removal and restoration within five
(5) days following delivery of an invoice therefor.
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(c) The
rights provided in this Section 9 shall be non-transferable, except to a Bank
Transferee, unless otherwise agreed by Landlord in writing in its sole
discretion.
10.
Parking.
(a) Effective
as of the Substitution Effective Date, the number of non-exclusive parking
spaces in the parking garage for the Building (the “Parking
Garage”)
allocated to Tenant pursuant to the Lease shall be amended to be eighteen (18)
unreserved parking spaces on levels B, C and C1 (the “General
Parking Spaces”).
Upon
not less than thirty (30) days prior written notice to Landlord and subject
to
Tenant’s obligation to pay any monthly charge for such reserved spaces as set
forth below, Tenant may exchange (i) up two (2) of the Paid General Parking
Spaces (defined below) for up to two (2) reserved parking spaces on level B-1
of
the Parking Garage, as depicted on Exhibit
D
attached
hereto (the “Xxxxx
X-0 Reserved Spaces”)
and
(ii) up to four (4) Paid General Parking Spaces for up to four (4) reserved
parking spaces on level A (“Level
A Reserved Spaces”).
The
Xxxxx X-0 Reserved Spaces and the Level A Reserved Spaces are collectively
referred to herein as the “Reserved
Spaces”.
The
parking spaces allocated to Tenant hereunder are collectively referred to as
the
“Parking
Spaces”).
Tenant’s use of the Parking Spaces shall be in common with other tenants of the
Building and tenants of the building located adjacent to the Building (subject
to Tenant’s rights with respect to any Reserved Spaces), upon reasonable terms
and conditions as may be established from time to time by Landlord. During
the
Substitution Space Term, there shall be no charge for Tenant’s use of seven (7)
of the General Parking Spaces. Tenant shall pay as Additional Rent the standard
rate for the remaining eleven (11) General Parking Spaces (“Paid
General Parking Spaces”)
(or so
many thereof that are not exchanged for Reserved Space in accordance with this
Section) and for any Level A Reserved Spaces and Xxxxx X-0 Reserved Spaces.
The
current rate for the General Parking Spaces is $100.00 per month per Parking
Space, $110.00 per month per Xxxxx X-0 Reserved Space, and $120.00 per month
per
Level A Reserved Space, subject to adjustment from time to time, which amount
shall be payable by Tenant to Landlord or any third party operator of the
Parking Garage, as applicable, without demand, offset, or deduction. Tenant
shall be entitled to designate any Level A Reserved Spaces as “visitor” spaces
for Tenant’s visitors, provided that the design, size, color and location of any
signage identifying such visitor spaces shall be subject to Landlord’s prior
written approval, which approval shall not be unreasonably withheld.
(b) Landlord
reserves the right in its discretion to determine whether the Parking Garage
is
becoming crowded and to allocate and assign the previously unassigned parking
spaces among Tenant and the other tenants or to restrict the use of certain
parking spaces for certain tenants; provided, however, except as required by
applicable Laws or in the event of a casualty or a taking by eminent domain,
the
foregoing reconfigurations of the Parking Garage will not reduce the number
of
Parking Spaces allocated to Tenant hereunder or the location of any Reserved
Spaces. Landlord shall have no responsibility or liability to Tenant for (i)
any
use, occupancy, or misuse (including but not limited to any overnight parking)
by others of any parking spaces in the Parking Garage, including but not limited
to those spaces assigned to Tenant, if any, (ii) any personal injuries or death
arising out of any matter relating to the Parking Garage, or (iii) loss or
damage to any property (including any loss or damage to any motor vehicle or
the
contents thereof due to theft, vandalism or accident) arising from or related
to
use of the Parking Garage by Tenant and
Tenant’s
Agents. Landlord reserves the right to assign specific parking spaces and to
reserve parking spaces (other than the Reserved Spaces, if any) for visitors,
small cars, persons with disabilities, and for other tenants or third parties
from time to time and neither Tenant nor Tenant’s Agents shall park in any
location designated by Landlord for such purposes. Landlord reserves the right
to establish in the rules and regulations for the Parking Garage and impose
reasonable fines for any violation of the rules and regulations relating to
parking by Tenant or any of Tenant’s Agents. Tenant shall promptly pay, upon
written demand by Landlord, any fine so established from time to time by
Landlord for any violation of the rules and regulations relating to parking
by
Tenant or any of Tenant’s Agents. In the event Tenant surrenders any or all of
the Parking Spaces under the Lease, as amended hereby, during the Extended
Term,
Tenant shall have no further right under the Lease, as amended hereby, to use
such Parking Spaces. Tenant hereby acknowledges and agrees that expenses related
to the Parking Garage are specifically included in Operating Expenses and such
expenses are not offset by Landlord in any way by any charges or fees paid
by
Tenant or other tenants or guests in the Building to Landlord.
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11. ATM.
Following the Substitution Effective Date, Tenant shall have the right, subject
to the provisions hereof, to install and operate, at Tenant’s sole cost and
expense, one (1) “point-of-sale” electronic fund transfer processing system
utilizing debit and credit cards (which system together will all related
equipment, wiring, accessories and identifying signage, shall hereinafter be
defined individually as an “ATM”)
in a
location where Citibank’s ATM is currently located, as depicted on Exhibit
C-1
attached
hereto. Landlord shall use commercially reasonable efforts to remove Citibank’s
ATM on or before the date that is thirty (30) days following the Substitution
Effective Date and Tenant shall have no right to install the ATM until
Citibank’s ATM is so removed.
(a) Compliance
with Paragraph 6. The
installation of the ATM shall comply with the provisions of Paragraph 6 of
the
Lease and this Section 11; provided, however, that Tenant shall be required
to
provide at least sixty (60) days’ prior written notice to Landlord of Tenant’s
proposed installation of the ATM. Tenant shall reimburse Landlord for any
reasonable costs associated with Landlord’s review and supervision of Tenant’s
plans and specifications and the installation of the ATM.
(b) Permits
and Approvals; Compliance with Laws; Taxes. Tenant
shall, at Tenant’s sole cost and expense, obtain all necessary federal, state
and local permits, licenses and approvals before installing the ATM. Tenant
shall, at Tenant’s sole cost and expense, comply with all Laws, applicable to
the installation, use and operation of the ATM, including, without limitation,
the Americans With Disabilities Act. Tenant shall pay all real property,
personal property and any other taxes or fees assessed or imposed in connection
with the ATM or the use thereof.
(c) Maintenance.
Tenant
shall maintain, at Tenant’s sole cost and expense, the ATM, the areas in the
immediate vicinity thereof to the extent such maintenance is required as a
result of the use of the ATM and the ATM Signage (as defined below) in a clean,
first-class condition and shall service the ATM and fill it with necessary
cash
and supplies. Tenant shall also clean its ATM supplies in the immediate area
of
the ATM if they are discarded by users of the ATM. Landlord shall have no
responsibility for the ATM and shall not be liable for any damage or disruption
to it however caused, including without limitation, due to a disruption in
electrical or telecommunications service.
8
(d) Signage.
Subject
to Landlord’s prior written approval (which shall not be unreasonably withheld),
and subject to obtaining any permits or governmental or quasi-governmental
approvals required for such signage, Tenant shall be permitted to install,
at
Tenant’s sole cost and expense, reasonable and customary signage at the ATM (the
“ATM
Signage”).
(e) Access
to ATMs’ Security.
Tenant’s
employees shall be permitted access to the ATM only during normal business
hours
for the Building (or other times in the case of an emergency pursuant to
customary practices of Landlord for the same), as the same may be established
by
Landlord from time to time. Tenant shall provide all security measures that
are
customary for similar facilities in the vicinity of ATM, including, without
limitation, mirrors, surveillance cameras, door locks and adequate lighting,
as
may be applicable. Tenant shall pay any reasonable costs incurred by Landlord,
including the costs of retaining consultants, in connection with reviewing
and
approving Tenant’s security measures.
(f) Restriction
or Discontinuance of ATM. Landlord
may restrict the hours of operation of the ATM or require Tenant to temporarily
discontinue service in connection with Landlord’s maintenance and repair of the
Building, or if necessary in Landlord’s good faith and reasonable judgment for
the security of the Building or its occupants or contents, without such action
being deemed an eviction of Tenant or a disturbance of Tenant’s use of the
Premises or entitling Tenant to any abatement of rental or other
monies.
(g) Indemnification.
Tenant
shall be responsible for assuring that the installation, maintenance, operation,
use and removal of the ATM shall in no way damage any portion of the Building.
Tenant agrees to be responsible for any damage or loss caused to the Building,
or any of its occupants or contents, in connection with the installation,
maintenance, operation, use or removal of the ATM and Tenant agrees to
indemnify, defend and hold harmless Landlord and Landlord’s Agents from all
liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including, without limitation, reasonable architects’, consultants and
attorneys’ fees (if and to the extent permitted by law), which may be imposed
upon, incurred by, or asserted against Landlord or any of the Landlord’s Agents
in connection with the installation, maintenance, operation, use or removal
of
the ATM. If for any reason, the installation or use of the ATM shall result
in
an increase in the amount of the premiums for any insurance coverage maintained
by landlord on the building, then Tenant shall be liable for the full amount
of
any such reasonably documented and actual increase; provided that in the event
Landlord requires Tenant to pay the cost of such increase in insurance premiums
pursuant to this Section, Landlord will not discriminate against Tenant in
comparison with any other tenant with an ATM located at the
Building.
(h) Insurance.
Tenant
shall cause the insurance policies required to be maintained by Tenant pursuant
to the Lease, as amended hereby, to cover the ATM.
(i) Removal.
Tenant
shall, at Tenant’s sole cost and expense, remove the ATM prior to the expiration
or earlier termination of the Extended Term, as may be further extended, and
restore the affected areas to their previous condition, reasonable wear and
tear
excepted, and the provisions of Paragraph 6 of the Lease shall apply with
respect to Tenant’s repair and restoration obligations described herein.
Notwithstanding the foregoing to the contrary, Tenant shall repair any damage
caused by such removal, including the patching of any walls and holes to match,
as closely as possible, the color surrounding the areas where the ATM was
installed.
9
(j) No
Representations.
Landlord
makes no representations as to the suitability of the Building for the ATM,
whether or not an ATM may be installed under applicable zoning ordinances or
other laws, or to the safety or security of the Building and how the same would
be affected by the installation of the ATM.
12. Holding
Over.
If
Tenant continues to occupy the Original Premises after the Original Premises
Vacation Date (except as expressly provided in Section 1(b) with respect to
a
Force Majeure Event), occupancy of the Original Premises subsequent to the
Original Premises Vacation Date shall be considered a holding over and the
provisions of Paragraph 23 of the Lease shall apply. No holding over by Tenant
in the Original Premises or payments of money by Tenant to Landlord after the
Original Premises Vacation Date shall be construed to prevent Landlord from
recovery of immediate possession of the Original Premises by summary proceedings
or otherwise. Tenant shall indemnify, defend and hold Landlord harmless from
and
against any and all claims made by any other tenant or prospective tenant
against Landlord for delay by Landlord in delivering possession of the Original
Premises to such other tenant or prospective tenant.
13. Option
to Renew.
During
the Extended Term, Tenant shall continue to have the option to renew the Term
of
the Lease in accordance with and subject to the terms and conditions set forth
in Paragraph 41 of the Lease; provided that (a) the definition of the “Extension
Term” set forth in Paragraph 41 of the Lease is hereby amended to be a period of
seven (7) years commencing upon the expiration of the Extended Term (the
“Second
Extension Term”),
(b)
all references to “Extension Term” set forth in Paragraph 41 of the Lease are
hereby amended to mean and refer to the Second Extension Term, (c)
notwithstanding anything to the contrary set forth in Paragraph 41 of the Lease,
Tenant shall deliver its Exercise Notice not
earlier than twelve (12) full calendar months prior to the expiration of the
Extended Term and not less than ten (10) full calendar months prior to the
expiration of the Extended Term, and (d) no provisions relating to the initial
delivery of the Substitution Space to Tenant (including, without limitation,
any
Landlord construction obligations or tenant improvement allowance provisions)
shall be applicable to the Second Extension Term. Notwithstanding anything
to
the contrary set forth in the Lease, Tenant’s renewal option pursuant to this
Section 13 shall be personal to the originally named Tenant hereunder and to
a
Bank Transferee so long as such Bank Transferee shall have a net worth which
is
at least equal to the greater of Tenant's net worth at the date of this
Amendment or Tenant's net worth as of the day prior to the assignment of the
Lease to such Bank Transferee.
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14.
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Other
Pertinent Provisions.
Landlord and Tenant agree that, effective as of the date of this
Amendment, the Lease shall be amended in the following additional
respects:
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(a)
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Waivers.
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(i) Tenant
hereby waives any and all rights under and benefits of Section 1950.7 (Security
Deposit) of the California Civil Code, and Section 1265.130 (Condemnation)
of
the California Code of Civil Procedure, or any similar or successor Laws now
or
hereinafter in effect.
(ii) TENANT
HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF THE CIVIL CODE
OF
CALIFORNIA AND BY SECTIONS 1174 (C) AND 1179 OF THE CODE OF CIVIL PROCEDURE
OF
CALIFORNIA AND ANY AND ALL OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN
EFFECT DURING THE LEASE TERM, AS AMENDED HEREBY, PROVIDING THAT TENANT SHALL
HAVE ANY RIGHT TO REDEEM, REINSTATE OR RESTORE THIS LEASE FOLLOWING ITS
TERMINATION BY REASON OF TENANT’S BREACH. TENANT ALSO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION
ARISING OUT OF OR RELATING TO THE LEASE, AS HEREBY AMENDED.
10
(b) Remedies.
Paragraph
18(c) of the Lease is hereby amended to add the following after the first
sentence thereof: “Landlord shall have the remedy described in California Civil
Code Section 1951.4 (“Landlord may continue this Lease in effect after Tenant’s
breach and abandonment and recover Rent as it becomes due, if Tenant has the
right to sublet or assign, subject only to reasonable limitations”), or any
successor code section.”
(c) Existing
Tenant Improvements. Tenant
hereby acknowledges that Landlord has fulfilled all of its obligations with
respect to the tenant improvement work set forth in Paragraph 38 of the
Lease.
(d) Deletions.
Paragraph 37 (Termination
Right) and Paragraph 39 (Right of First Offer) of
the
Lease are hereby deleted in their entireties and shall be of no further force
and effect.
(e) CPI
Notice Contest.
The
seventh (7th)
sentence of Paragraph 4(e) of the Lease is hereby deleted in its entirety and
replaced with the following: “Unless Tenant notifies Landlord of Tenant’s
objection to the Base Rent set forth in an Adjustment Notice within thirty
(30)
days after delivery thereof, Tenant shall be deemed to have accepted the
correctness of Landlord’s determination of the Base Rent.”
(f) Alterations.
Notwithstanding
anything to the contrary contained in Paragraph 6(b) of the Lease, as
of the
Original Premises Vacation Date, Landlord
will not require Tenant to remove any of the alterations, improvements or
changes currently existing in the Original Premises other than the safe
currently located therein. In addition, Tenant shall have no obligation to
remove any of the Tenant Improvements in the Substitution Space described on
the
Space Plans as of the date hereof or to remove the vault currently located
in
the Substitution Space. With respect to any Tenant Improvements constructed
by
Tenant pursuant to Exhibit
B
attached
hereto that are not described on the Space Plans as of the date hereof,
notwithstanding anything to the contrary contained in Paragraph 6(b) of the
Lease, so long as Tenant’s written request for consent for such Tenant
Improvements expressly requests that Landlord inform Tenant whether Landlord
shall require such Tenant Improvements to be removed at the expiration or
earlier termination of the Lease, at the time Landlord gives its consent for
the
Tenant Improvements, if it so does, Tenant shall also be notified whether or
not
Landlord will require that the Tenant Improvements (or any portion thereof)
be
removed upon the expiration or earlier termination of the Lease. If Tenant’s
written notice strictly complies with the foregoing and if Landlord fails to
notify Tenant whether Tenant shall be required to remove the subject Tenant
Improvements at the expiration or earlier termination of the Lease within ten
(10) business days following Tenant’s request, it shall be assumed that Landlord
shall require the removal of such Tenant Improvements, except as otherwise
agreed to in writing by Landlord. Notwithstanding
the foregoing, Tenant
may, within ten (10) days following the expiration of the ten (10) business
day
period described above, provide to Landlord a second written notice which shall
comply with the requirements stated above in this Section. If Tenant’s second
written notice strictly complies with the terms of this Section and if (a)
Landlord fails to notify Tenant within five (5) business days of Landlord’s
receipt of such second written notice whether Tenant shall be required to remove
the subject Tenant Improvements at the expiration or earlier termination of
the
Lease, and (b) the subject Tenant Improvements are Building standard office
improvements substantially similar to the Tenant Improvements described on
the
Space Plans as of the date hereof, Tenant shall not be require to remove the
subject Tenant Improvements at the expiration or earlier termination of the
Lease.
11
(g) Insurance.
Paragraph 8 of the Lease is hereby deleted in its entirety and replaced by
the
following:
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“8.
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Insurance.
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(a) Tenant
shall maintain in full force and effect at all times during the Term (including
any extension(s)), 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 reasonably acceptable to Landlord, which afford
the following coverages: (i) Workers’ Compensation and occupational disease
insurance, employee benefit insurance or any other insurance in the statutory
amounts required by the laws of the state in which the Building is located,
with
broad form all-states endorsement and employer’s liability insurance with a
limit of $1,000,000.00 for each accident; (ii) Commercial General Liability
insurance with respect to the Premises and the business operated by Tenant
and
any subtenants, licenses and concessionaires of Tenant, including coverage
for
bodily injury, personal injury and death, property damage and contractual
liability recognizing provisions of this Lease written on an occurrence form
with limits of not less than $1,000,000.00 for each occurrence and $3,000,000.00
general aggregate per location, naming Landlord, Landlord’s Agents, and
Landlord’s lender as additional insureds; (iii) Automobile Liability Policy,
covering all owned, non-owned, borrowed or hired vehicles, including loading
and
unloading thereof, with a combined single limit of $1,000,000 for bodily injury
and property damage arising out of ownership, maintenance or use of any auto;
(iv) “All Risk” insurance against fire with extended coverage, vandalism,
malicious mischief and all risk endorsements (Special Form), including
terrorism, in an amount adequate to cover the full replacement value of all
alterations, improvements and additions to the Premises made by or on behalf
of
Tenant, including the Tenant Improvements, Tenant’s personal property, fittings,
installations, decorations, alterations, betterments, contents and signs, plate
glass for all plate glass at the Premises and any other personal property in
or
on the Premises in the event of fire or other casualty; (v) Business
Interruption insurance sufficient to reimburse Tenant for direct or indirect
costs (including rental obligations) and loss of income attributable to all
events/perils or to prevention of access to the Premises or to the Property
as a
result of such perils; and (vi) Business Interruption insurance (including
Extra
Expense) fully compensating for the amount of charges and additional rent owned
to Landlord by Tenant for a period of not less than twelve (12) months. Tenant’s
insurance pursuant to clause (iv) above shall be in the full amount of the
replacement cost, reviewed on an annual basis to account for inflation, and
shall name Landlord, Landlord’s Agents and Landlord’s lender as additional
insureds.
(b) All
insurance shall be in a form reasonably satisfactory to Landlord. All policies
shall consist of “occurrence” based coverage, without provision for subsequent
conversion to “claims” based coverage. All policies required by Paragraph 8(a)
shall be carried with companies that have a general policy holder’s rating of
not less than “A” and a financial rating of not less than Class “X” in the most
current edition of Best’s Insurance Reports and shall not provide for a
deductible under co-insurance provision in excess of $10,000.00. All policies
required by Paragraph 8(a) shall provide that the policies shall not be subject
to reduction or cancellation except after at least thirty (30) days’ prior
written notice to Landlord, and they shall be primary as to Landlord. If Tenant
fails to procure and maintain the insurance required hereunder, Landlord may,
but shall not be required to, order such insurance at Tenant’s expense and
Tenant shall reimburse Landlord for the same. Such reimbursement shall include
all sums incurred by Landlord, including reasonable attorneys’ fees. Landlord
makes no representation that the limits of liability specified to be carried
by
Tenant under the terms of this Lease are adequate to protect Tenant or Landlord,
and in the event Tenant believes that any such insurance coverage called for
under this Lease is insufficient, Tenant shall provide, at its own expense,
such
additional insurance as Tenant deems adequate. Tenant shall give prompt written
notice to Landlord in the case of a casualty, accident or repair needed in
the
Property.
12
(c) Landlord
shall keep in force throughout the Term General Liability coverage for the
common areas of the Building in such amounts and with such deductibles as
Landlord determines from time to time in accordance with sound and reasonable
risk management principles and Special Form Property coverage for the Building
at 100% of replacement cost. The carrying of the insurance described herein
shall in no way be interpreted as relieving Tenant of any responsibility or
liability under this Lease. The cost of all such insurance is included in
Operating Expenses. Notwithstanding anything to the contrary contained in this
Lease, Landlord, on its own behalf and on behalf of Landlord’s Agents, hereby
waives all rights of recovery against Tenant on account of loss and damage
occasioned to Landlord and Landlord’s Agents for its property or the property of
others under its control to the extent that such loss or damage is insured
against (or required to be insured against pursuant to this Lease) under any
insurance policies which may be in force at the time of such loss or damage
provided that such waiver by Landlord shall not extend to the amount of any
reasonable deductibles on any insurance coverage carried by Landlord. Tenant
hereby waives all rights of recovery against Landlord and Landlord’s Agents on
account of loss and damage occasioned to Tenant or its property or the property
of others under its control to the extent that such loss or damage is insured
against (or required to be insured against pursuant to this Lease) under any
insurance policies which may be in force at the time of such loss or damage.
Tenant and Landlord shall, upon obtaining policies of insurance required
hereunder, give notice to the insurance carrier that the foregoing mutual waiver
of subrogation is contained in this Lease and Tenant and Landlord shall cause
each insurance policy obtained by such party to provide that the insurance
company waives all right of recovery by way of subrogation against either
Landlord and Landlord’s Agents or Tenant in connection with any damage covered
by such policy.”
(h) Insurance
Certificate.
Not
later than thirty (30) days prior to the Substitution Effective Date,
Tenant
shall provide Landlord with a certificate of insurance evidencing that the
Substitution Space is covered by Tenant’s insurance required pursuant to
Paragraph 8 of the Lease, as amended pursuant to Section 14(g) above, and
thereafter as necessary to assure that Landlord always has current certificates
evidencing Tenant’s insurance.
(i) Maintenance.
Subject
to the limitation set forth in the second sentence of Paragraph 9(a) of the
Lease, in addition to Landlord’s maintenance obligations pursuant to such
paragraph, Landlord shall maintain the structural parts of the Building (of
which the Premises is a part), which structural parts include only the
foundation and the roof of the Building and, except to the extent any repair
is
caused by the acts of omissions of Tenant or any Tenant’s Agents, the
subflooring and load bearing walls of the Building and the Premises. The cost
of
such maintenance shall be included in Operating Expenses to the extent permitted
pursuant to the terms of the Lease.
(j) Destruction
of Premises.
The
second to the last sentence of Paragraph 12(b) of the Lease is hereby deleted
in
its entirety and replaced by the following:
13
“If
Landlord determines that the repair and restoration work to be performed by
Landlord in accordance with Paragraph 12(a) hereof cannot, as reasonably
estimated by Landlord (the “Completion
Estimate”),
be
completed such that the Premises or any Common Areas necessary to provide access
to the Premises cannot be made tenantable within one hundred eighty (180) days
from the date the repair is started, then Tenant shall have the right to
terminate this Lease upon written notice to the other within ten (10) days
after
receipt of the Completion Estimate. Tenant, however, shall not have the right
to
terminate this Lease if the Casualty was caused by the negligence or intentional
misconduct of Tenant or any Tenant’s Agents. In addition, Tenant shall have the
right to terminate this Lease if: (a) a substantial portion of the Premises
has been damaged by fire or other casualty and such damage cannot reasonably
be
repaired (as reasonably determined by Landlord) within sixty (60) days after
Landlord’s receipt of all required permits to restore the Premises;
(b) there is less than one (1) year of the Term remaining on the date of
such casualty; (c) the casualty was not caused by the negligence or willful
misconduct of Tenant or Tenant’s Agents; and (d) Tenant provides Landlord
with written notice of its intent to terminate within thirty (30) days after
the
date of the fire or other casualty. If neither party exercises the right to
terminate this Lease in accordance with this Paragraph 12(b), Landlord shall
repair such damage and restore the Building and the Premises in accordance
with
Paragraph 12(a) hereof and this Lease shall, subject to Paragraph 12(a) hereof,
remain in full force and effect.”
(k) Capital
Improvements.
Notwithstanding anything to the contrary set forth in the Lease, Operating
Expenses shall not include any capital improvements except for those capital
improvements expressly included in Operating Expenses pursuant to Paragraph
34(b) of the Lease.
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18.
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Miscellaneous.
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(a) This
Amendment, including Exhibits
A
(Outline
and Location of Substitution Space), B
(Tenant
Alterations), B-1
(Space
Plans), C-1
and
C-2
(Location of Building Signage and ATM) and D
(Location of Reserved Spaces) attached hereto, sets forth the entire agreement
between the parties with respect to the matters set forth herein. There have
been no additional oral or written representations or agreements. Under no
circumstances shall Tenant be entitled to any rent abatement, improvement
allowance, leasehold improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in connection with
entering into the Lease, unless specifically set forth in this
Amendment.
(b) Except
as
herein modified or amended, the provisions, conditions and terms of the Lease
shall remain unchanged and in full force and effect.
(c) In
the
case of any inconsistency between the provisions of the Lease and this
Amendment, the provisions of this Amendment shall govern and
control.
(d) Submission
of this Amendment by Landlord is not an offer to enter into this Amendment
but
rather is a solicitation for such an offer by Tenant. Landlord shall not be
bound by this Amendment until Landlord has executed and delivered the same
to
Tenant.
(e) The
capitalized terms used in this Amendment shall have the same definitions as
set
forth in the Lease to the extent that such capitalized terms are defined therein
and not redefined in this Amendment.
14
(f) Tenant
hereby represents to Landlord that Tenant has dealt with no broker in connection
with this Amendment other than Colliers International representing Landlord.
Tenant agrees to indemnify and hold Landlord, its members, principals,
beneficiaries, partners, officers, directors, employees, mortgagee(s) and
agents, and the respective principals and members of any such agents
(collectively, the “Landlord
Related Parties”)
harmless from all claims of any brokers claiming to have represented Tenant
in
connection with this Amendment.
(g) Each
signatory of this Amendment represents hereby that he or she has the authority
to execute and deliver the same on behalf of the party hereto for which such
signatory is acting.
(h) Redress
for any claim against Landlord under the Lease and this Amendment shall be
limited to and enforceable only against and to the extent of Landlord’s interest
in the Building (as defined in the Lease). The obligations of Landlord under
the
Lease, as amended, are not intended to and shall not be personally binding
on,
nor shall any resort be had to the private properties of, any of its trustees
or
board of directors and officers, as the case may be, its property manager,
the
general partners thereof, or any beneficiaries, stockholders, employees, or
agents of Landlord or the property manager.
[SIGNATURE
PAGE FOLLOWS]
15
IN
WITNESS WHEREOF, Landlord and Tenant have entered into and executed this
Amendment as of the date first written above.
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LANDLORD:
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TENANT: | ||||
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PAOC,
LLC,
a
Delaware limited liability company
|
BRIDGE
BANK OF SILICON VALLEY N.A.,
a
federally chartered national bank
|
||||
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By:
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By:
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||||
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Name:
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Name:
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||||
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Title:
|
Title:
|
||||
|
Dated:
|
______________________________, 2006 |
Dated:
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____________________________, 2006 | ||
16
EXHIBIT
A
OUTLINE
AND LOCATION OF SUBSTITUTION SPACE
A-1
EXHIBIT
B
TENANT
IMPROVEMENTS
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1.
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Tenant,
following the later of (i) full and final execution and delivery
of the
Amendment to which this Exhibit is attached and all prepaid rental
and
insurance certificates required under the Amendment and (ii) the
Substitution Effective Date, shall have the right to perform Tenant
Improvements to the Substitution Space. The Substitution Space is
referred
to herein as the “Premises.” Notwithstanding the foregoing, Tenant and its
contractors shall not have the right to perform the Tenant Improvements
in
the Premises unless and until Tenant has complied with all of the
terms
and conditions of Paragraph 6 of
the Lease, including, without limitation, approval by Landlord of
the
final plans for the Tenant Improvements and the contractors to be
retained
by Tenant to perform such Tenant Improvements. Landlord approves
the space
plans attached as Exhibit
B-1 (the
“Space
Plans”).
Tenant shall be responsible for all elements of the design of Tenant’s
plans (including, without limitation, compliance with Law, functionality
of design, the structural integrity of the design, the configuration
of
the premises and the placement of Tenant’s furniture, appliances and
equipment), and Landlord’s approval of Tenant’s plans shall in no event
relieve Tenant of the responsibility for such design. Tenant’s plans for
the Substitution Space shall include any safe, fireproof files night
drop
vault. The plans shall also include the ATM if Tenant desires to
install
the ATM in connection with the Tenant Improvements (subject to the
terms
and conditions set forth in Section 11 of the Amendment); otherwise
Tenant
shall comply with the terms of the Amendment and the Lease at such
time
that Tenant might desire to install the ATM. The parties agree that
Landlord’s approval of the general contractor to perform the Tenant
Improvements shall not be considered to be unreasonably withheld
if any
such general contractor (a) does not have trade references reasonably
acceptable to Landlord, (b) does not maintain insurance as required
pursuant to the terms of this Lease, (c) does not have the ability to
be bonded for the work in an amount of no less than 150% of the total
estimated cost of the Tenant improvements, (d) does not provide
current financial statements reasonably acceptable to Landlord, or
(e) is not licensed as a contractor in the state/municipality in
which the Premises is located. Tenant acknowledges the foregoing
is not
intended to be an exclusive list of the reasons why Landlord may
reasonably withhold its consent to a general contractor. Notwithstanding
the foregoing, Landlord hereby approves SC Builders as the general
contractor for the Tenant
Improvements.
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2.
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Provided
Tenant is not in default under the Lease as amended, Landlord
agrees to contribute the sum of $201,425.00
(i.e., $35.00 per useable square foot of the Premises) (the “Allowance”)
toward the cost of performing the Tenant Improvements. The Allowance
may
only be used for the cost of preparing design and construction documents
and mechanical and electrical plans for the Tenant Improvements and
for
hard costs in connection with the Tenant Improvements. The Allowance
shall
be paid to Tenant or, at Landlord’s option, to the order of the general
contractor that performed the Tenant Improvements, within thirty
(30) days
following receipt by Landlord of (a) receipted bills covering all
labor and materials expended and used in the Tenant Improvements;
(b) a sworn contractor’s affidavit from the general contractor and a
request to disburse from Tenant containing an approval by Tenant
of the
work done; (c) full and final waivers of lien; (d) as-built
plans of the Tenant Improvements; and (e) the certification of Tenant
and its architect that to the best of their knowledge after due inquiry,
the Tenant Improvements have been installed in accordance with the
approved plans, and in accordance with applicable laws, codes and
ordinances. The Allowance shall be disbursed in the amount reflected
on
the receipted bills meeting the requirements above. Notwithstanding
anything herein to the contrary, Landlord shall not be obligated
to
disburse any portion of the Allowance during the continuance of an
uncured
default under the Lease, and Landlord’s obligation to disburse shall only
resume when and if such default is
cured.
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B-1
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3.
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In
no event shall the Allowance be used for the purchase of equipment,
furniture or other items of personal property of Tenant. If Tenant
does
not submit a request for payment of the entire Allowance to Landlord
in
accordance with the provisions contained in this Exhibit by the later
of
(a) December 31, 2007 and
(b) the date that is twelve (12) months following the Substitution
Effective Date, any unused amount shall accrue to the sole benefit
of
Landlord, it being understood that Tenant shall not be entitled to
any
credit, abatement or other concession in connection therewith. Tenant
shall be responsible for all applicable state sales or use taxes,
if any,
payable in connection with the Tenant Improvements and/or Allowance.
|
|
4.
|
Tenant
agrees to accept the Premises in its “as-is” condition and configuration,
it being agreed that Landlord shall not be required to perform any
work
or, except as provided above with respect to the Allowance, incur
any
costs in connection with the construction or demolition of any
improvements in the Premises.
|
|
5.
|
This
Exhibit shall not be deemed applicable to any additional space added
to
the Premises at any time or from time to time, whether by any options
under the Lease or otherwise, or to any portion of the original Premises
or any additions to the Premises in the event of a renewal or extension
of
the original Term of the Lease, whether by any options under the
Lease or
otherwise, unless expressly so provided in the Lease or any amendment
or
supplement to the Lease.
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
B-2
EXHIBIT
B-1
SPACE
PLANS
B-3
EXHIBIT
C-1
LOCATION
OF BUILDING SIGNAGE AND ATM
C-1
EXHIBIT
C-2
APPROVED
SIGN SPECIFICATIONS
C-2
EXHIBIT
D
LOCATION
OF LEVEL A AND LEVEL B RESERVED SPACES
D-1
