LEASE
PARTIES
THIS LEASE, executed in duplicate at Windsor, California this 30 day of
April, 1992, by and between XXXXXXXXXX AND XXXXXX, INC. and WINDSOR OAKS
NATIONAL BANK hereinafter called respectively Lessor and Lessee, without regard
to number or gender,
USE AND PREMISES
WITNESSETH: That Lessor hereby leases to Lessee, and Lessee hires from
Lessor, for the purpose of conducting therein banking or other office uses, and
for no other purpose, those certain premises with the appurtenances, situated in
WINDSOR, State of California, and more particularly described as follows, to
wit:
0000 Xxxxxxxx Xxxxx, Xxxxx X (downstairs) to Suite X (xxxxxxxx)
Xxxxxxx, XX 00000 approx. 4480 sq. ft. (HAND NOTE: not incl. conf.
rm. or closet)
TERM
The initial term shall be for 120 Months, commencing on the 1st day of
February, 1993, and ending on the 1st day of February, 2003.
RENTAL
Lessee agrees to pay Lessor, without deduction or offset, at such place or
places as may be designated from time to time by Lessor, monthly installments of
$6,201.04 (includes load factors set forth in Exhibit "A" attached hereto) plus
its pro rata share of common area expenses INFRA in dollars, lawful money of the
United States of America.
Fixed minimum rental during the primary term of lease shall be $1.20 per
square foot of leased space plus a proportionate share of the common area
expenses as follows: taxes, insurance, maintenance, (NOTE: does not include
capital improvements such as reroofing, paving or structural repairs) utilities,
cleaning, landscaping and garbage; based on the square footage of the space
actually occupied by Lessee.
SECURITY DEPOSIT
Lessee has deposited with Lessor $6,201.04 as security for the full and
faithful performance of each and every term, provision, covenant and condition
of this lease. In the event Lessee defaults in respect of any of the terms,
provisions, covenants or conditions of this lease, including, but not limited to
the payment of rent, Lessor may use, apply or retain the whole or any part of
such security for the payment of any rent in default or for any other sum which
Lessor may spend or be required to spend by reason of Lessee's default. Should
Lessee faithfully and fully comply with all of the terms, provisions, covenants
and conditions of this lease, the security or any balance thereof shall be
returned to Lessee or, at the option of Lessor, to the last assignee of Lessee's
interest in this lease at the expiration of the term hereof. Lessee shall be
entitled to 5% interest on said security deposit.
It is further mutually agreed between the parties as follows:
POSSESSION
1. See addendum.
ACCEPTANCE OF PREMISES AND COVENANT TO SURRENDER
2. By entry hereunder, the Lessee accepts the premises as being in good and
sanitary order, condition and repair, and accepts the building and other
improvements in their present condition. Any exceptions to the foregoing must be
submitted to the Lessor in written form, signed and dated by the Lessee, and
approved by the Lessor, prior to, or concurrently with, the execution of this
Lease provided there are no changes or alterations other than agreed upon tenant
improvements prior to occupancy by the Lessee. The Lessee agrees on the last day
of the term hereof, or on sooner termination of this lease, to surrender the
premises, together with all alterations, additions, and improvements which may
have been made in, or on the premises by Lessor or Lessee, unto Lessor in good
and sanitary order, condition and repair, excepting for such wear and tear as
would be normal for the period of the Lessee's occupancy. The Lessee, on or
before the end of the term or sooner termination of this Lease, shall remove all
of his or its personal property and trade fixtures from the premises and all
property not so removed shall be deemed to be abandoned by the Lessee. If the
premises be not surrendered at the end of the term or sooner termination of this
lease, the Lessee shall indemnify the Lessor against loss or liability resulting
from delay by the Lessee in so surrendering the premises including, without
limitation, any claims made by any succeeding tenant founded on such delay.
USES PROHIBITED
3. Lessee shall not commit, or suffer to be committed, any waste upon the
said premises, or any nuisance, or other act or thing which may disturb the
quiet enjoyment of any other tenant in or around the
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buildings in which the demised premises may be located, or allow any sale by
auction upon the premises, or allow the premises to be used for any improper,
immoral, unlawful or objectionable purpose, or place any loads upon the floor,
walls, or ceiling which endanger the structure, or place any harmful liquids in
the drainage system of the building. No waste materials or refuse shall be
dumped upon or permitted to remain upon any part of the leased premises outside
of the building proper. No materials, supplies, equipment, finished products or
semi-finished products, raw materials or articles of any nature shall be stored
upon or permitted to remain on any portion of the leased premises outside of the
buildings proper.
ALTERATIONS AND ADDITIONS
4. The Lessee shall not make, or suffer to be made, any alterations or
additions to the said premises, or any part thereof, without the written consent
of the Lessor first had and obtained by the Lessee; any addition or alteration
to the said premises, except movable furniture, the vault, and trade fixtures,
shall become at once a part of the realty and belong to the Lessor. Alterations
and additions which are not to be deemed as trade fixtures shall include
heating, lighting, electrical systems, air-conditioning, partitioning,
carpeting, or any other installation which has become an integral part of the
leased premises. The lessee will at all times permit notices of
non-responsibility to be posted and to remain posted until the completion of
alterations or additions which have been approved by the Lessor. Lessor and
Lessee may agree in advance to allow Lessee to remove certain tenant
improvements.
MAINTENANCE OF PREMISES
5. Lessor shall, at his sole cost, keep and maintain said premises and
appurtenances and every part thereof, including, but not limited to, glazing,
sidewalks, parking areas, plumbing, electrical systems, heating and air
conditioning installations, any store front, and the interior of the premises in
good and sanitary order, condition, and repair. The Lessee hereby waives all
right to make repairs at the expense of Lessor as provided in Section 1942 of
the Civil Code of the State of California, and all rights provided for by
Section 1941 of said Civil Code.
FIRE AND EXTENDED COVERAGE INSURANCE AND SUBROGATION
6. Lessee shall not use, or permit said premises, or any part thereof, to
be used, for any purpose other than that for which the said premises are hereby
leased; and no use shall be made or permitted to be made of the said premises,
nor acts done, which will cause a cancellation of any insurance policy covering
said building, or any part thereof, nor shall Lessee sell or permit to be kept,
used or sold, in or about said premises, any article which may be prohibited by
the standard form of fire insurance policies. Lessee shall, at his sole cost and
expense, comply with any and all requirements, pertaining to said premises, of
any insurance organization or company, necessary for the maintenance of
reasonable fire and public liability insurance, covering said building and
appurtenances. The Lessor agrees to purchase and keep in force fire, earthquake
and extended coverage insurance covering the leased premises in amounts not to
exceed the actual insurable value of said premises as determined by insurance
company appraisers. The Lessee agrees to pay to the Lessor as additional rent,
on demand the full cost of said insurance as evidenced by insurance xxxxxxxx to
the Lessor. If said insurance xxxxxxxx cover the entire building, and this lease
does not cover the entire building, the insurance premiums allocated to the
leased premises shall be pro-rated on a square footage or other equitable basis,
as calculated by Lessor. It is understood and agreed that Lessee's obligation
under this paragraph will be pro-rated to reflect the commencement and
termination dates of this lease. Lessor and Lessee each hereby waives its rights
of subrogation on any loss or damage, caused by the negligence of the other, to
the herein demised premises or its contents to the extent said loss or damage is
covered by valid Fire, Extended Coverage, Vandalism or Malicious Mischief
Insurance, provided such waiver shall not offset the right of the insured to
recover thereunder.
ABANDONMENT
7. Lessee shall not vacate or abandon the premises at any time during the
term; and if Lessee shall abandon, vacate or surrender said premises, or be
dispossessed by process of law, or otherwise, any personal property belonging to
Lessee and left on the premises shall be deemed to be abandoned, at the option
of Lessor, except such property as may be mortgaged to Lessor.
FREE FROM LIENS
8. Lessee shall keep the demised premises and the property in which the
demised premises are situated, free from any liens arising out of any work
performed, materials furnished, or obligations incurred by Lessee.
CQMPLIANCE WITH GOVERNMENTAL REGULATIONS
9. Lessee shall, at his sole cost and expense, comply with all of the
requirements of all Municipal, State and Federal authorities now in force, or
which may hereafter be in force, pertaining to the said premises, and shall
faithfully observe in the use of the premises all Municipal ordinances and State
and Federal statutes now in force or which may hereafter be in force.
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INDEMNIFICATION OF LESSOR AND LESSEE'S LIABILITY INSURANCE.
10. See addendum.
ADVERTISEMENTS AND SIGNS.
11. See addendum.
UTILITIES
12. See common area expenses under "rental" SUPRA.
ATTORNEY'S FEES
13. In case suit should be brought for the possession of the premises, for
the recovery of any sum due hereunder, or because of the breach of any other
covenant herein, the losing party shall pay to the prevailing party a reasonable
attorney's fee, which shall be deemed to have accrued on the commencement of
such action and shall be enforceable whether or not such action is prosecuted to
judgment.
INSOLVENCY OR BANKRUPTCY
14. Either (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Lessee, or (b) a general assignment by Lessee
for the benefit of creditors, or (c) any action taken or suffered by Lessee
under any insolvency or bankruptcy act shall constitute a breach of this lease
by Lessee. Upon the happening of any such event this lease shall terminate ten
(10) days after written notice of termination from Lessor to Lessee.
DEFAULT
15. In the event of any breach of this lease by the Lessee, which is not
cured within thirty (30) days of notification in writing by Lessor, or an
abandonment of the premises by the Lessee, the Lessor has the option of 1)
removing all persons and property from the premises and repossessing the
premises in which case any of the Lessee's property which the Lessor removes
from the premises may be stored in a public warehouse or elsewhere at the cost
of, and for the account of Lessee, or 2) allowing the Lessee to remain in full
possession and control of the premises. If the Lessor chooses to repossess the
premises, the lease will automatically terminate in accordance with provisions
of the California Civil Code, section 1951.2. In the event of such termination
of the lease, the Lessor may recover from the Lessee: 1) the worth at the time
of award of the unpaid rent which had been earned at the time of termination
including interest at 10% per annum; 2) 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 the Lessee
proves could have been reasonably avoided including interest at 10% per annum;
3) the worth at the time of award of the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of such rental
loss that the Lessee proves could be reasonably avoided; and 4) any other amount
necessary to compensate the Lessor for all the detriment proximately caused by
the Lessee's failure to perform his obligations under the lease or which in the
ordinary course of things would be likely to result therefrom. If the Lessor
chooses not to repossess the premises, but allows the Lessee to remain in full
possession and control of the premises, then in accordance with provisions of
the California Civil Code, section 1951.4, the Lessor may treat the lease as
being in full force and effect, and may collect from the Lessee all rents as
they become due through the termination date of the lease as specified in the
lease. For the purposes of this paragraph, the following do not constitute a
termination of Lessee's right to possession:
a) Acts of maintenance or preservation or efforts to relet the
property.
b) The appointment of a receiver on the initiative of the Lessor to
protect his interest under this lease.
SURRENDER OF LEASE
16. The voluntary or other surrender of this lease by Lessee, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Lessor, terminate all or any existing subleases or subtenancies, or may, at the
option of Lessor, operate as an assignment to him of any or all such subleases
or subtenancies.
TAX INCREASES
17. Lessee agrees to pay to Lessor on demand, as additional rental, any
increase in real estate taxes which are assessed to the leased premises in
excess of the amount of said taxes for the fiscal year save and except for those
increases caused by a sale of said premises, building or parcel. Lessee also
agrees to pay the yearly installments of any assessments levied against the
leased premises after the commencement date of this lease. If said taxes and
assessment installments are assessed against the entire building and building
site, and this lease does not cover the entire building and building site, the
taxes and assessment installments allocated to the leased premises shall be
pro-rated on a square footage basis on the area actually occupied by Lessee. It
is understood
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and agreed that Lessee's obligation under this paragraph will be pro rated to
reflect the commencement and termination date of this lease.
NOTICES
18. All notices to be given to Lessee may be given in writing personally or
by depositing the same in the United States mail, postage prepaid, and addressed
to Lessee at the said premises, whether or not Lessee has departed from,
abandoned or vacated the premises.
ENTRY BY LESSOR
19. Lessee shall permit Lessor and his agent to enter into and upon said
premises at all reasonable times for the purpose of inspecting the same or for
the purpose of maintaining the building in which said premises are situated, or
for the purpose of making repairs, alterations or additions to any other portion
of said building, including the erection and maintenance of such scaffolding,
canopies, fences and props as may be required, and shall permit Lessor and his
agents, at any time within ninety days prior to the expiration of this lease, to
place upon said premises any usual or ordinary "For Sale" or "to lease" signs
and exhibit the premises to prospective tenants at reasonable hours; provided at
least 24 hours' notice to Lessee is provided.
DESTRUCTION OF PREMISES
20. In the event of a partial destruction of the said premises during the
said term from any cause, Lessor shall forthwith repair the same, provided such
repairs can be made within six (6) months under the laws and regulations of
State, Federal, County or Municipal authorities, but such partial destruction
shall in no way annul or void this lease, except that Lessee shall be entitled
to a proportionate reduction of rent while such repairs are being made, such
proportionate reduction to be based upon the extent to which the making of such
repairs shall interfere with the business carried on by Lessee in the said
premises. In the event that Lessor does not so elect to make such repairs, or
such repairs cannot be made under such laws and regulations, this lease may be
terminated at the option of either party. In respect to any partial destruction
which Lessor is obligated to repair or may elect to repair under the terms of
this paragraph, the provision of Section 1932, Subdivision 2, and of Section
1933, Subdivision 4, of the Civil Code of the State of California are waived by
Lessee. A total destruction of the building in which the said premises may be
situated shall terminate this lease. In the event of any dispute between Lessor
and Lessee relative to the provisions of this paragraph, they shall each select
an arbitrator, the two arbitrators so selected shall select a third arbitrator
and the three arbitrators so selected shall hear and determine the controversy
and their decision thereon shall be final and binding upon both Lessor and
Lessee, who shall bear the cost of such arbitration equally between them.
ASSIGNMENT AND SUBLETTING
21. Lessee shall not assign this lease, or any interest therein, and shall
not sublet the said premises or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person (the agents and servants of
Lessee excepted) to occupy or use the said premises, or any portion thereof,
without the written consent of Lessor first had and obtained, and a consent to
one assignment, subletting, occupation or use by any other person, shah not be
deemed to be a consent to any subsequent assignment, subletting, occupation or
use by another person. Any such assignment or subletting without such consent
shall be void, and shall, at the option of the Lessor, terminate this lease.
This lease shall not, nor shall any interest therein, be assignable, as to the
interest of Lessee, by operation of law, without the written consent of Lessor.
The Lessor, however, cannot unreasonably withhold consent to sublet, assign, or
both.
CONDEMNATION
22. If any part of the premises shall be taken for any public or
quasi-public use, under any statute or by right of eminent domain or private
purchase in lieu thereof, and a part thereof remains which is susceptible of
occupation hereunder, this lease shall, as to the part so taken, terminate as of
the date title shall vest in the condemnor or purchaser, and the rent payable
hereunder shall be adjusted so that the Lessee shall be required to pay for the
remainder of the term only such portion of such rent as the value of the part
remaining after such taking bears to the value of the entire premises prior to
such taking; but in such event Lessor shall have the option to terminate this
lease as of the date when title to the part so taken vests in the condemnor or
purchaser. If all of the premises, or such part thereof be taken so that there
does not remain a portion susceptible for occupation hereunder, this lease shall
thereupon terminate. If a part or all of the premises be taken, all compensation
awarded upon such taking shah go to the Lessor and the Lessee shall have no
claim thereto, except for compensation pertaining to goodwill, loss of business
and relocation expenses pertaining to Lessee which shall be paid to Lessee.
EFFECT OF CONVEYANCE
23. The term "Lessor" as used in this lease, means only the owner for the
time being of the land and building containing the premises, so that, in the
event of any sale of said land or building, or in the event of a lease of said
building, the Lessor shall be and hereby is entirely freed and relieved of all
covenants and obligations of the Lessor hereunder, and it shall be deemed and
construed, without further agreement between the parties and the purchaser at
any such sale, or the lessee of the building, that the purchaser or Lessee of
the building has assumed and agreed to carry out any and all covenants and
obligations of the Lessor hereunder. If any security be given by the Lessee to
secure the faithful performance of all or any of the covenants of this
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lease on the part of Lessee, the Lessor shall transfer and deliver the security,
as such, to the purchaser at any such sale or the Lessee of the building, and
thereupon the Lessor shall be discharged from any further liability in reference
thereto.
SUBORDINATION
24. Lessee agrees that this lease may, at the option of Lessor, be subject
and subordinate to any mortgage, deed of trust or other instrument of security
which has been or shall be placed on the land and building or land or building
of which the premises form a part, and this subordination is hereby made
effective without any further act of Lessee. The Lessee shall, at any time
hereinafter, on demand, execute any instruments, releases, or other documents
that may be required by any mortgagee, mortgagor, or trustor or beneficiary
under any deed of trust for the purpose of subjecting and subordinating this
lease to the lien of any such mortgage, deed of trust or other instrument of
security, and the failure of the Lessee to execute any such instruments,
releases or documents, shall constitute a default hereunder.
INTEREST UPON FAILURE TO PAY
25. If Lessee defaults in the payment of any amounts due to Lessor, such
amounts due shall bear interest at the rate of 10% per annum from the date it is
due until actually paid. All other obligations, benefits or monies which may
become due to Lessor from Lessee under the terms of this lease agreement or
which are paid by Lessor because of Lessee's default of this agreement shall
bear interest at the rate of 10% per annum from the due date until paid, or in
the case of sums paid by Lessor because of Lessee's default from the date such
payments were made by Lessor until the date Lessor is reimbursed by Lessee.
WAIVER
26. The waiver by Lessor of any breach of any term, covenant or condition,
herein contained shall not be deemed to be a waiver of such term, covenant or
condition or any subsequent breach of the same or any other term, covenant or
condition therein contained. The subsequent acceptance of rent hereunder by
Lessor shall not be deemed to be a waiver of any preceding breach by Lessee of
any term, covenant or condition of this lease, other than the failure of Lessee
to pay the particular rental so accepted, regardless of Lessor's knowledge of
such preceding breach at the time of acceptance of such rent.
HOLDING OVER
27. Any holding over after the expiration of the said term, with the
consent of Lessor, shall be construed to be a tenancy from month to month, at a
rental to be negotiated by Lessor and Lessee prior to the expiration of said
term, and shall otherwise be on the terms and conditions herein specified, so
far as applicable.
SUCCESSORS AND ASSIGNS
28. The covenants and conditions herein contained shall, subject to the
provisions as to assignment, apply to and bind the heirs, successors, executors,
administrators and assigns of all of the parties hereto; and all of the parties
hereto shall be jointly and severally liable hereunder.
TIME
29. Time is of the essence of this lease.
MARGINAL CAPTIONS
30. The marginal headings or titles to the paragraphs of this lease are not
a part of this lease and shall have no effect upon the construction or
interpretation of any part thereof. This instrument contains all of the
agreements and conditions made between the parties hereto and may not be
modified orally or in any other manner than by an agreement in writing signed by
all of the parties hereto or their respective successors in interest.
COST OF LIVING
31. Minimum rent shall be adjusted every year (the "Adjustment Date") of
this Lease to reflect any upward change in the cost of living. The adjustment,
if any, shall be calculated upon the basis of the United States Department of
Labor, Bureau of Labor Statistics Consumer Price Index, entitled "CPI-W", San
Francisco Bay Area average. The index published for the month prior to the
Commencement Date shall be considered the '"base". Minimum rent for each period
shall be adjusted by the percentage increase, if any, in the index as of the
adjustment date over the "base". In no event shall minimum rent be less than the
amount specified, notwithstanding that the index may as of some adjustment date
be less than the base. If on any rental adjustment date there shall not exist
the CPI-W, we shall substitute any official index published by the Bureau of
Labor Statistics or successor or similar governmental agency as may then be in
existence and most nearly equivalent thereto. Said annual adjustment shall be no
less than 3%, nor more than 7% per annum.
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SAVINGS CLAUSE
32. The invalidity or unenforceability of any provision of this lease shall
not affect or impair the validity of any other provisions.
IN WITNESS WHEREOF, Lessor and Lessee have executed these presents, the day
and year first above
written.
LESSOR LESSEE
XXXXXXXXXX and XXXXXX, INC. WINDSOR OAKS NATIONAL BANK
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
President
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ADDENDUM
THIS ADDENDUM ("Addendum") is made to that certain Commercial Lease and
Deposit Receipt (the "Lease"), dated concurrently with this Addendum, between
Xxxxxxxxxx and Xxxxxx ("Lessor") and Windsor Oaks National Bank ("Lessee").
Lessor is a corporation, organized under the laws of the state of California,
with principal offices at 0000 X Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx. Lessee is
a national bank with principal offices at 9101 Los Amigos, X.X. Xxx 000,
Xxxxxxx, Xxxxxxxxxx 00000. Lessee and Lessor hereby agree that, notwithstanding
anything contained in the Lease to the contrary, the provisions set forth below
will be deemed to be part of the Lease and shall supersede, to the extent they
differ, any contrary provisions in the Lease. All references in the Lease and in
this Addendum to "Lease" shall be construed to mean the Lease and Exhibits, as
amended and supplemented by this Addendum. All terms used in this Addendum,
unless specifically defined in this Addendum, shall have the same meaning as the
terms used in the Lease.
1. MAINTENANCE, REPAIRS AND ALTERATIONS. Notwithstanding any provision of
the Lease to the contrary:
Lessee shall have the right to terminate this Lease at any time if, for any
reason, Lessee does not receive all permits and entitlements to operate a
national bank on the premises in a commercially reasonable time using
commercially reasonable efforts.
2. ENTRY AND INSPECTION. Notwithstanding any provision of the Lease to the
contrary, Lessor's rights and remedies hereunder, including the right to reenter
or to inspect the premises, shall be exercised in accordance with all applicable
State and Federal laws and regulations applicable to Lessee and, whether or not
Lessee is in default hereunder, Lessee shall have the sole right, at all times,
to possess and to remove the contents of Lessees' vault, safe deposit boxes,
money, papers and files.
3. HAZARDOUS MATERIALS. Lessor warrants that the premises do not contain
hazardous materials and that
the Lessor has complied with all applicable laws regarding the treatment and
disposition of such materials.
4. INDEMNITY. Paragraph 10 of the Lease is amended to read as follows:
10. Lessee shall indemnify, defend, protect and hold Lessor harmless from
all claims and liabilities which meet all the following criteria:
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/s/
/s/
/s/
a. they are for personal injury, death, or property damage;
b. they are for incidents occurring in or about the premises
or the Building; and
c. they are caused by the negligence or willful misconduct of
Lessee, its agents, employees, or invitees.
When the claim or liability is caused by the joint negligence or wilful
misconduct of Lessee and Lessor or Lessee and a third party unrelated
to Lessee, except Lessee's agents, employees, or invitees, Lessee's
duty to defend, indemnify, protect and hold Lessor harmless shall be in
proportion to lessee's allocable share of the joint negligence or
willful misconduct.
Lessee shall maintain during the Term comprehensive (or commercial)
general liability insurance, with limits of not less than $1,000,000
combined single limit for personal injury, bodily injury or death, or
property damage or destruction (including loss of use thereof) for any
one occurrence. Lessee shall also maintain during the Term worker
compensation insurance as required by statute, and primary,
contributory, "all-risk" property damage insurance covering Lessee's
personal property, business records, fixtures and equipment, for damage
or other loss caused by fire or other casualty or cause including, but
not limited to, vandalism and malicious mischief, theft, water damage
of any type, including sprinkler leakage, bursting or stoppage of
pipes, explosion, business interruption, and other insurable risks in
amounts not less than the full insurable replacement value of such
property and full insurable value of such other interests of Lessee
(subject to reasonable deductible amounts). Lessee, shall maintain
during the term comprehensive (or commercial) general liability
insurance, with limits of not less than $1,000,000 combined single
limit for personal injury, bodily injury or death, or property damage
or destruction (including loss of use thereof) for any one occurrence.
Lessor shall also maintain during the term worker compensation
insurance as required by statute, and primary, non-contributory,
extended coverage or "all-risk" property damage insurance, and subject
to reasonable deductible amounts), or such other amount necessary to
prevent Lessor from being a co-insured, and such other coverage as
Lessor shall deem appropriate.
2
/s/
/s/
/s/
Lessee shall provide Lessor with certificates evidencing such coverage
prior to the Commencement Date, which shall state that such insurance
coverage may not be changed or cancelled without at least twenty (20)
days' prior written notice to Lessor, and shall provide renewal
certificates to lessor at least twenty (20) days prior to expiration of
such policies. Except as provided to the contrary herein, any insurance
carried by Lessor or Lessee shall be for the sole benefit of the party
carrying such insurance. Any insurance policies hereunder may be
"blanket policies." All insurance required hereunder shall be provided
by responsible insurers. By this Paragraph, Lessor and Lessee intend
that their respective property loss risks shall be borne by responsible
insurance carriers to the extent above provided, and Lessor and Lessee
hereby agree to look solely to, and seek recovery only from, their
respective insurance carriers in the event of a property loss to the
extent that such coverage is agreed to be provided hereunder. The
parties each hereby waive all rights and claims against each other for
such losses, and waive all rights of subrogation of their respective
insurers, provided such waiver of subrogation shall not affect the
right of the insured to recover thereunder. The parties agree that
their respective insurance policies are now, or shall be, endorsed such
that said waiver of subrogation shall not affect the right of the
insured to recover thereunder, so long as no material additional
premium is charged therefor."
5. POSSESSION. Paragraph 1 of the Lease is amended to read as follows:
"1. POSSESSION: If Lessor is unable to deliver possession of the
premises at the commencement hereof, Lessor shall be liable for any
damage caused thereby. Lessee shall not be liable for any rent until
possession is delivered. Lessee may terminate this lease if possession
is not delivered within sixty days of the commencement date of the term
hereof."
6. SIGNS. Paragraph 11 of the Lease is amended to read as follows:
"Signs: Lessee may place on the premises any sign allowed by applicable
law. Lessor shall be responsible for the costs of removal of the
outside sign on the southern side of the building which indicates
'Xxxxxx Realty' at its expense to include repainting the area covered
by said sign currently. Lessee shall be
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/s/
/s/
/s/
responsible for erecting its sign 'Windsor Oaks National Bank' in that
area at its sole expense. Lessor shall leave all wiring, hardware, and
time clocks currently available for the operation of the outside sign
in place.
Lessor shall remove its sign from the primary monument sign for the
building and Lessor shall be entitled to utilize that space for its
primary sign."
7. NONDISTURBANCE. On or before the commencement of the term hereof, Lessor
shall obtain commercially reasonable nondisturbance agreements in favor of
Lessee from each person or entity which is the mortgagee, beneficiary or ground
lessor under any mortgage, deed of trust, ground lease or other financing
against the premises which nondisturbance agreements shall provide that, so long
as Lessee is not in default hereunder, Lessee's rights hereunder shall not be
terminated or otherwise impaired by any foreclosure, termination or other remedy
exercised in connection with such mortgage, deed of trust or ground lease.
8. OPTION TO EXTEND LEASE TERM
Lessee is hereby granted and shall, if not then in default under this
Lease, have an option to extend the term of this Lease for an additional period
of ten years from the original expiration date of this Lease in successive
periods of five years each on the same terms, covenants and conditions contained
in this Lease, provided however, that the minimum monthly rent to be paid by
Lessee to Lessor shall be as agreed upon by Lessee and Lessor, or if the parties
are unable to agree, fixed by appraisal in the following matter:
(1) The successive options set forth herein shall be exercised only by a
Lessee delivering to Lessor one hundred eighty (180) days before the expiration
of the term hereof written notice of Lessee's election to renew the term of this
lease as provided in this Article.
(2) On or before 90 days before the commencement of the extended term
Lessor and Lessee shall each appoint an appraiser and give written notice of the
name and address of that appraiser to the other party to this lease. The two
appraisers shall, within 30 days after appointment of the last of the two
appraiser to be appointed, appoint a third appraiser and serve written notice of
the name and address of that appraiser upon the Lessee and Lessor in the manner
prescribed by this Lease for service of notice on one party of the Lease by the
other. All appraisers appointed under this Article shall be, at the time of
their appointment, licensed Real Estate Appraiser, certified by the State of
California.
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Within 30 days after the appointment of the third appraiser, the appraisers
shall confer and each submit in writing to the Lessor and the Lessee his or her
appraisal of the fair rental value of the leased premises which, in this case,
be defined as the "price a willing lessee would pay a willing lessor for the
leased premises for the uses, regardless of the highest and best potential use
of the premises, as specified in this lease. The appraised value agreed upon in
writing by any two of the three appointed appraisers shall be conclusive and
binding and shall establish the fair rental value of the leased premises. If no
two of the three appraisers are able to agree on the fair rental value of the
leased premises, both the highest appraisal and the lowest appraisal submitted
by any of the three appraisers shall be disregarded and the remaining appraisal
shall be binding and conclusive upon the parties to this lease.
If either Lessor or Lessee fail to appoint an appraiser as required under
this Article, the appraiser so appointed by the other party shall act for both
Lessor and Lessee and his decision as to the determination of fair rental value
will be final and binding on both parties.
Lessor and Lessee shall each pay the fee and all expenses incurred by the
appraiser appointed by each of them and one-half of all expenses and the fee
incurred by the third appraiser appointed pursuant to this Article.
9. OPTION TO LEASE ADDITIONAL SPACE
Lessor hereby grants to Lessee the option to lease the following additional
square footage of rentable floor space located in the building of which the
leased premises are a part on the same terms and conditions of this lease in the
cumulative
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amounts as hereinafter set forth and described as optional square footage:
Additional/
Total Optional
Term of Lease Square Footage Square Footage
Third or Fourth 5670 1190
successive twelve
month period
Fifth successive 6948 1278
twelve month period
Sixth successive 8204 1256
twelve month period
The successive options set forth herein shall be exercised by Lessee
delivering to Lessor ninety (90) days before the expiration of the prior
successive 12 month period written notice of Lessee's election to obtain the
additional/optional square footage as provided in this Article.
---------------------------------------
1,2,3, - as designated on Exhibit B attached hereto.
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10. RIGHT OF FIRST REFUSAL
In further consideration of the rents, covenants and conditions to be paid,
performed, and observed by Lessee hereunder, Lessor hereby grants to tenant a
right of first refusal to lease any additional space in the building in which
the leased premises are located in excess of the initial square footage or the
optional square footage previously referred to in this Lease. Said right of
first refusal would be on the same terms and conditions as the third party
offer. Lessor shall notify Lessee in writing of any offers including the amount
of rent offered and other terms and conditions of said offer. Lessee shall have
twenty (20) business days within which to notify Lessor in writing whether
Lessee agrees to the same terms and conditions as the third party offer. In the
event Lessee fails to give written notice of its election to lease the
additional space within the above-referenced time frame, Lessor shall be free to
accept the bona fide offer and lease additional space to the third party
offeror. If the additional space or other additional space subsequently becomes
available again during the term of this Lease or any options thereof, Tenant
shall have the same right of first refusal granted herein with respect to a
subsequent bona fide offer to lease the additional space by a subsequent third
party offeror.
11. CONSTRUCTION OF TENANT IMPROVEMENTS
It is understood by and between Lessor and Lessee that Lessor shall
complete tenant improvements as agreed upon by both Lessor and Lessee. Said
agreement to tenant improvements shall be in the form of written specifications
executed by both parties hereto and attached as an Exhibit to this Lease
document.
12. NONCOMPETITION
The leased premises are a part of other real property owned by Lessor on
the same parcel. Lessor covenants and agrees that during the entire term of this
Lease and any extensions of the term, Lessor shall not rent or lease or
permit occupation by Lessor or others of any portion of the adjoining property
for the purposes of operating or conducting the primary business of a banking
facility or other financial institution.
Notwithstanding any other provision in this Lease, these covenants shall be
binding on the Lessor and each successive owner, if any, during his or her
ownership of the property or any portion of the property.
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13. PARCEL TRAFFIC IMPROVEMENTS
Lessor and Lessee agree that Lessee may, at its cost, evaluate and study
the traffic and parking patterns of the parcel on which the premises are located
to include the entrances thereto; and that Lessor and Lessee will share equally
the cost of any improvements which are made to said parcel as a result of those
studies and/or evaluations.
14. OCC APPROVAL
The final acceptance of the terms and conditions of the lease are expressly
conditioned upon its approval by the Office of the Comptroller of the Currency.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date
first above written.
LESSEE
LESSOR
Xxxxxxxxxx and Xxxxxx, Inc. Windsor Oaks National Bank
By /s/ XXXXXX X. XXXXXX By /s/ XXXX XXXXXXXXXXX
--------------------------- -----------------------
Xxxxxx X. Xxxxxx Xxxx Xxxxxxxxxxx
President CEO
By /s/ XXXXXXX X. XXXXXXX
-----------------------
Xxxxxxx X. Xxxxxxx,
Vice Chairman
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WONB - Rent Calcs
Downstairs Sq. Feet Rent & Extension Rent / $1.20 % Calcs
Occupied Space 3462 100% 3462 $4,154.40
Load 1604 33% 527.48305 $632.98 0.32885476
0 $0.00
Upstairs 0 $0.00
Occupied Space 1018 l00. 1018 $1,221.60
Load 1655 10160.055618 $192.06 0.09670913
Totals $6,201.04
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Exhibit A
WINDSOR OAKS NATIONAL BANK
PHASED SECOND FLOOR TENANT IMPROVEMENT
DEVELOPMENT PLAN
[GRAPHIC OMITTED]
EXHIBIT B
ADDENDUM II
The parties hereto agree to the leasing of additional space under item 10 of the
addendum (Right of First Refusal) to that certain commercial lease and deposit
receipt (hereinafter "lease") and Addendum (hereinafter "Addendum") concurrently
dated the 30th day of April, 1992, by and between Xxxxxxxxxx & Xxxxxx
(hereinafter "Xxxxxx") and Windsor Oaks National Bank (hereinafter "Leasee").
Xxxxxx and Leasee hereby agree that, the bank shall lease as additional space
the conference room which is part of suite C, on the commencement date of said
lease and occupancy thereunder, and under the following terms and conditions:
TOTAL MONTHLY BASE RENT WITH COMMON AREA $ 445.20(1)
LESS CREDIT MONTHLY FOR 12 MONTHS $-222.60
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TOTAL MONTHLY RENT LESS CREDIT (1st 12 months) $ 222.60(2)
TOTAL MONTHLY BASE RENT (13th and
subsequent months - subject $ 445.20(2)
to annual adjustments as outlined
in primary lease)
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l Common area allocations are set forth on Attachment A, which is affixed
hereto and made a part hereof.
2 Cost of living adjustment shall commence, as to this additional monthly
base rent, following the 24th month of occupancy.
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ATTACHMENT A
XXXXXX BUILDING - TENANT IMPROVEMENTS
A. WINDSOR OAKS NATIONAL BANK USABLE AREA 322 SF = 3.06%
B. TOTAL BUILDING USABLE AREA 10,526 SF
COMMON AREA
FIRST FLOOR RESTROOMS
RESTROOM HALL
TELEPHONE ROOM
ELECTRICAL ROOM
LOBBY
ELEVATOR AND STAIRS
FIRST FLOOR
TOTAL COMMON AREA 1604.60
3.06% OF COMMON AREA 49 SF
TOTAL RENTABLE AREA 322 SF
------
371 SF
MONTHLY RENT WITH COMMON AREA $ 445.20
LESS CREDIT MONTHLY FOR 12 MONTHS -222.60
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TOTAL RENT LESS CREDIT $ 222.60
IN WITNESS WHEREOF, the parties have executed Addendum II as set forth
below.
Dated: XXXXXXXXXX & XXXXXX, INC.
/s/ Xxxxxx X. Xxxxxx
-------------------------
By
Xxxxxx
Dated: WINDSOR OAKS NATIONAL BANK
/s/ Xxxx Xxxxxxxxxxx
--------------------------
By Xxxx Xxxxxxxxxxx, CEO
Leasee
Dated: /s/ Xxxxxxx X. Calletti,
--------------------------
By Xxxxxxx X. Calletti,
Vice Chairman
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