EXHIBIT 10.16
OFFICE LEASE
439 ALVARADO STREET, MONTEREY, CALIFORNIA
CALIFORNIA BANK & TRUST, a California corporation
as Landlord,
and
CENTRAL COAST BANCORP.,
a California corporation dba
COMMUNITY BANK OF CENTRAL CALIFORNIA,
as Tenant.
SUMMARY OF BASIC LEASE INFORMATION
The undersigned hereby agree to the following terms of this
Summary of Basic Lease Information (the "Summary"). This Summary
is hereby incorporated into and made a part of the attached
Office Lease (this Summary and the Office Lease to be known
collectively as the "Lease") which pertains to the office
building (the "Building") which is located at 439 Alvarado
Street, Monterey, California 93940. Each reference in the Office
Lease to any term of this Summary shall have the meaning as set
forth in this Summary for such term. In the event of a conflict
between the terms of this Summary and the Office Lease, the terms
of the Office Lease shall prevail. Any capitalized terms used
herein and not otherwise defined herein shall have the meaning as
set forth in the Office Lease.
TERMS OF LEASE
(References are to the Office
Lease) DESCRIPTION
1. Date: November 18, 2002.
2. Landlord: CALIFORNIA BANK & TRUST, a
California corporation.
3. Address of Landlord California Bank & Trust
(Section 29.19): 300 Lakeside Drive, 8th Floor
Oakland, California 94612
Attention: Ms. Victoria Underwood,
Vice President
with a copy to:
California Bank & Trust
11622 El Camino Real, Suite 200
San Diego, California 92130
Attention: Mr. David Russell
Senior Vice President,
Director
of Corporate Real Estate
Facilities
4. Tenant: CENTRAL COAST BANCORP., a
California corporation, dba
COMMUNITY BANK OF CENTRAL
CALIFORNIA
5. Address of Tenant 301 Main Street
(Section 29.19): Salinas, California 93901
Attention: Mr. Harry Wardwell
(Prior to Lease Commencement Date)
and
439 Alvarado Street
Monterey, California 93940
Attention: Branch Manager
(After Lease Commencement Date)
6. Premises (Article 1): Approximately 5,731 rentable
square feet of space located on
the first floor, as set forth in
Exhibit A attached hereto.
7. Term (Article 2).
7.1 Lease Term: Five (5) years.
7.2 Lease Commencement The earlier of (i)the date
Date: Tenant commences business in the
Premises, and (ii) January 1,
2003.
7.3 Lease Expiration Date: The last day of the month in
which the 5th anniversary of the
Lease Commencement Date occurs.
8. Base Rent (Article 3):
Monthly
Monthly Rental Rate
Annual Installment per Rentable
Lease Year Base Rent of Base Rent Square Foot
1 $168,491.40 $14,040.95 $2.45*
* Subject to increase as provided in Section 3.2 of the Office Lease
9. Tenant's Share of Direct Approximately 49%
Expenses
(Article 4):
10. Security Deposit: Waived.
11. Parking Pass Ratio Thirteen (13) unreserved parking
(Article 28): passes.
12. Brokers None.
(Section 29.23):
The foregoing terms of this Summary are hereby agreed to by
Landlord and Tenant.
"Landlord":
CALIFORNIA BANK & TRUST,
a California corporation
By: /s/ DAVID RUSSELL
David Russell, Sr. Vice
President, Director of Corporate
Real Estate Facilities
By: /s/ VICTORIA UNDERWOOD
Victoria Underwood, Vice
President
"Tenant":
CENTRAL COAST BANCORP., a
California corporation, dba
COMMUNITY BANK OF CENTRAL CALIFORNIA
By: /s/ HARRY O. WARDWELL
Its: S.V.P. Branch Administrator
By: /s/ CAROL FRANCHI
Its: S.V.P. Operations
Administrator
Table of Contents
ARTICLE 1 REAL PROPERTY, BUILDING AND PREMISES..................1
ARTICLE 2 LEASE TERM............................................1
ARTICLE 3 BASE RENT.............................................3
ARTICLE 4 ADDITIONAL RENT.......................................4
ARTICLE 5 USE OF PREMISES.......................................7
ARTICLE 6 SERVICES AND UTILITIES................................8
ARTICLE 7 REPAIRS...............................................9
ARTICLE 8 ADDITIONS AND ALTERATIONS.............................9
ARTICLE 9 COVENANT AGAINST LIENS...............................10
ARTICLE 10 INSURANCE............................................11
ARTICLE 11 DAMAGE AND DESTRUCTION...............................12
ARTICLE 12 NONWAIVER............................................13
ARTICLE 13 CONDEMNATION.........................................14
ARTICLE 14 ASSIGNMENT AND SUBLETTING............................14
ARTICLE 15 SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF
TRADE FIXTURES.......................................17
ARTICLE 16 HOLDING OVER.........................................17
ARTICLE 17 ESTOPPEL CERTIFICATES................................17
ARTICLE 18 SUBORDINATION........................................18
ARTICLE 19 DEFAULTS; REMEDIES...................................18
ARTICLE 20 COVENANT OF QUIET ENJOYMENT..........................20
ARTICLE 21 ENVIRONMENTAL WORK...................................20
ARTICLE 22 TERMINATION ON SALE..................................20
ARTICLE 23 SIGNS................................................21
ARTICLE 24 COMPLIANCE WITH LAW..................................21
ARTICLE 25 LATE CHARGES.........................................21
ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY
TENANT...............................................22
ARTICLE 27 ENTRY BY LANDLORD....................................22
ARTICLE 28 TENANT PARKING.......................................22
ARTICLE 29 MISCELLANEOUS PROVISIONS.............................23
ARTICLE 30 PURCHASE OPTION......................................25
EXHIBITS
EXHIBIT A..OUTLINE OF FLOOR PLAN OF PREMISES
EXHIBIT B..NOTICE OF LEASE TERM DATES
EXHIBIT C..RULES AND REGULATIONS
Index
Additional Rent..................................................5
Affiliate.......................................................22
Affiliated Assignee.............................................22
Alterations.....................................................12
Ancillary Areas.................................................10
Base Rent........................................................4
BOMA.............................................................1
Brokers.........................................................33
Building.........................................................1
Bureau...........................................................5
Calendar Year....................................................5
Common Areas.....................................................1
Control.........................................................22
Direct Expenses..................................................5
Environmental Work..............................................26
Estimate.........................................................8
Estimate Statement...............................................8
Estimated Expense................................................9
Expense Year.....................................................5
Five Star.......................................................27
Force Majeure...................................................32
Holidays........................................................10
Index............................................................5
Interest Notice..................................................3
Landlord.........................................................1
Landlord Parties................................................14
Lease............................................................1
Lease Commencement Date..........................................2
Lease Expiration Date............................................2
Lease Term.......................................................2
Lease Year.......................................................2
Notices.........................................................32
Operating Expenses...............................................6
Option Notice....................................................2
Option Rent......................................................2
Option Rent Notice...............................................3
Option Terms.....................................................2
Original Tenant..................................................2
Outside Agreement Date...........................................3
Parking Facilities...............................................1
Premises.........................................................1
Proposition 13...................................................7
Real Property....................................................1
Rent.............................................................5
Rules and Regulations............................................9
Statement........................................................8
Subject Space...................................................19
Subleasing Costs................................................20
Summary..........................................................1
Systems and Equipment............................................7
Tax Expenses.....................................................7
Tenant...........................................................1
Tenant Improvements.............................................12
Tenant's Share...................................................8
Tenant's Signage................................................27
Transfer Notice.................................................19
Transfer Premium................................................20
Transferee......................................................19
Transfers.......................................................19
OFFICE LEASE
This Office Lease, which includes the preceding Summary of
Basic Lease Information (the "Summary") attached hereto and
incorporated herein by this reference (the Office Lease and
Summary to be known sometimes collectively hereafter as the
"Lease"), dated as of the date set forth in Section 1 of the
Summary, is made by and between CALIFORNIA BANK & TRUST, a
California corporation ("Landlord"), and CENTRAL COAST BANCORP.,
a California corporation dba COMMUNITY BANK OF CENTRAL CALIFORNIA
("Tenant").
ARTICLE 1..
REAL PROPERTY, BUILDING AND PREMISES
1.1 Real Property, Building and Premises. Upon and subject to
the terms, covenants and conditions hereinafter set forth in this
Lease, Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the premises set forth in Section 6 of the Summary
(the "Premises"), which Premises are located in the "Building,"
as that term is defined in the Summary. The outline of the floor
plan of the Premises is set forth in Exhibit A attached hereto.
The Building, the parking facilities serving the Building
("Parking Facilities"), the outside areas, land and other
improvements surrounding the Building which are designated from
time to time by Landlord as common areas appurtenant to or
servicing the Building, and the land upon which any of the
foregoing are situated, are herein sometimes collectively
referred to as the "Real Property." Tenant is hereby granted the
right to the nonexclusive use of the common corridors and
hallways, stairwells, elevators, restrooms and other public or
common areas located on the Real Property ("Common Areas");
provided, however, that the manner in which such Common Areas are
maintained and operated shall be at the sole discretion of
Landlord and the use thereof shall be subject to such Rules and
Regulations as Landlord may make from time to time. Landlord
reserves the right to make alterations or additions to or to
change the location of elements of the Real Property and the
Common Areas.
1.2 Condition of the Premises. Tenant agrees to lease the
Premises in its current "as is" condition and Tenant acknowledges
that the Premises is acceptable for the conduct of Tenant's
intended business operations. Except as specifically set forth
in this Lease, Landlord shall not be obligated to provide or pay
for any improvement work or services related to the improvement
of the Premises. Tenant also acknowledges that Landlord has made
no representation or warranty regarding the condition of the
Premises or the Building except as specifically set forth in this
Lease.
1.3 Verification of Rentable Square Feet of Premises and
Building. For purposes of this Lease, "rentable square feet"
shall be calculated pursuant to the Standard Method for Measuring
Floor Area in Office Buildings, ANSI Z65.1 - 1996 ("BOMA"). At
Landlord's discretion, the number of rentable square feet of the
Premises and the Building shall be subject to verification from
time to time by Landlord's space measurement consultant, and such
verification shall be made in accordance with the provisions of
this Article 1. Tenant's architect may consult with Landlord's
space measurement consultant regarding verification of the number
of rentable square feet of the Premises; however, the
determination of Landlord's space measurement consultant shall be
conclusive and binding upon the parties. In the event that
Landlord's space measurement consultant determines that the
amounts thereof shall be different from those set forth in this
Lease, Landlord shall modify all amounts, percentages and figures
appearing or referred to in this Lease to conform to such
corrected rentable square footage (including, without limitation,
the amount of the "Rent," as that term is defined in Article 4 of
this Lease). If such modification is made, it will be confirmed
in writing by Landlord to Tenant.
ARTICLE 2..
LEASE TERM
2.1 Initial Term. The terms and provisions of this Lease shall
be effective as of the date of this Lease except for the
provisions of this Lease relating to the payment of Rent. The
term of this Lease (the "Lease Term") shall be as set forth in
Section 7.1 of the Summary and shall commence on the date (the
"Lease Commencement Date") set forth in Section 7.2 of the Summary
and shall terminate on the date (the "Lease Expiration Date") set
forth in Section 7.3 of the Summary, unless this Lease is sooner
terminated as hereinafter provided. For purposes of this Lease,
the term "Lease Year" shall mean each consecutive twelve (12)
month period during the Lease Term; provided, however, that the
first Lease Year shall commence on the Lease Commencement Date
and end on the last day of the eleventh month thereafter and the
second and each succeeding Lease Year shall commence on the first
day of the next calendar month; and further provided that the
last Lease Year shall end on the Lease Expiration Date. At any
time during the Lease Term, Landlord may deliver to Tenant a
notice of Lease Term dates in the form as set forth in Exhibit C,
attached hereto, which notice Tenant shall execute and return to
Landlord within five (5) days of receipt thereof.
2.2 Option Terms. Landlord hereby grants to the originally
named Tenant ("Original Tenant") three (3) options to extend the
Lease Term for periods of five (5) years each (the "Option
Terms"), which options shall be exercisable only by written notice
("Option Notice") delivered by Tenant to Landlord as provided in
Section 2.2.2 below, provided that, as of the date of delivery of
such notice and, at Landlord's option, as of the last day of the
initial Lease Term (or previous Option Term, as applicable),
Tenant is not in default under this Lease after expiration of
applicable cure periods. The rights contained in this
Section 2.2 shall be personal to the Original Tenant and may only
be exercised by the Original Tenant (and not any assignee,
sublessee or other transferee of the Original Tenant's interest
in this Lease) if the Original Tenant occupies the entire
Premises as of the date of the Option Notice. In no event shall
Tenant (i) be entitled to exercise the second (2nd) option unless
the Lease Term has been previously extended for the first Option
Term, (ii) be entitled to exercise the third (3rd) option unless
the first Option Term has been previously extended for the second
(2nd) Option Term, or (iii) be entitled to extend the Lease Term
beyond the third (3rd) Option Term.
2.2.1......Option Rent. The initial Base Rent payable by Tenant
during each Option Term (the "Option Rent") shall be equal to the
then prevailing fair market rent for the Premises as of the
commencement date of the Option Term, but not below Base Rent
payable by Tenant immediately prior to the applicable Option
Term. The initial Base Rent for each Option Term shall then be
subject to increase as provided in Section 3.2 of this Lease
below. The then prevailing fair market rent shall be the rental
rate, including all escalations, at which tenants, as of the
commencement of the Option Term, are entering into leases for
non-sublease, non-encumbered space comparable in size, location
and quality to the Premises for a term of approximately the
Option Term, which comparable space is located in comparable
buildings in Monterey, California, taking into consideration the
following concessions: (a) rental abatement concessions, if any,
being granted such tenants in connection with such comparable
space and (b) tenant improvements or allowances provided or to be
provided for such comparable space, taking into account, and
deducting the value of, the existing improvements in the
Premises, with such value to be based upon the age, quality and
layout of the improvements and the extent to which the same could
be utilized by Tenant based upon the fact that the precise tenant
improvements existing in the Premises are specifically suitable
to Tenant.
2.2.2......Exercise of Options. The options contained in this
Section 2.2 shall be exercised by Tenant, if at all, only in the
following manner: (i) Tenant shall deliver written notice
("Interest Notice") to Landlord on or before the date which is
twelve (12) months prior to the expiration of the initial Lease
Term (or previous Option Term, as applicable), stating that
Tenant is interested in exercising its option; (ii) Landlord,
after receipt of Tenant's notice, shall deliver notice (the
"Option Rent Notice") to Tenant not less than ten (10) months
prior to the expiration of the initial Lease Term (or previous
Option Term, as applicable), setting forth the Option Rent; and
(iii) if Tenant wishes to exercise such option, Tenant shall, on
or before the earlier of (A) the date occurring eight (8) months
prior to the expiration of the initial Lease Term (or previous
Option Term, as applicable), and (B) the date occurring thirty
(30) days after Tenant's receipt of the Option Rent Notice,
exercise the option by delivering the Option Notice to Landlord
and upon, and concurrent with such exercise, Tenant may, at its
option, object to the Option Rent contained in the Option Rent
Notice. Failure of Tenant to deliver the Interest Notice to
Landlord on or before the date specified in (i) above or to
deliver the Option Notice to Landlord on or before the date
specified in (iii) above shall be deemed to constitute Tenant's
failure to exercise its option to extend. If Tenant timely and
properly exercises its option to extend, the Lease Term or
previous Option Term (as applicable) shall be extended for the
Option Term upon all of the terms and conditions set forth in
this Lease, except that the Rent shall be as indicated in the
Option Rent Notice unless Tenant, concurrently with Tenant's
Option Notice, objects to the Option Rent contained in the Option
Rent Notice, in which case the parties shall follow the procedure
and the Option Rent shall be determined, as set forth in
Section 2.2.3 below.
2.2.3......Determination of Option Rent. If Tenant timely and
appropriately objects to the Option Rent in Tenant's Option
Notice, Landlord and Tenant shall attempt to agree upon the
Option Rent using their best good-faith efforts. If Landlord and
Tenant fail to reach agreement within thirty (30) days following
Tenant's Option Notice ("Outside Agreement Date"), then each
party shall make a separate determination of the Option Rent
which shall be submitted to each other and to arbitration in
accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten
(10) days of the Outside Agreement Date, one arbitrator who
shall by profession be a current real estate broker or
appraiser of comparable commercial properties in the
immediate vicinity of the Building, and who has been active
in such field over the last five (5) years. The
determination of the arbitrators shall be limited solely to
the issue of whether Landlord's or Tenant's submitted Option
Rent is the closest to the actual Option Rent as determined
by the arbitrators, taking into account the definition of
prevailing fair market rent in Section 2.2.1 above (i.e.,
the arbitrators may only select Landlord's or Tenant's
determination of Option Rent and shall not be entitled to
make a compromise determination).
(ii) The two arbitrators so appointed shall within five
(5) business days of the date of the appointment of the last
appointed arbitrator agree upon and appoint a third
arbitrator who shall be qualified under the same criteria
set forth hereinabove for qualification of the initial two
arbitrators.
(iii)The three arbitrators shall within fifteen (15)
days of the appointment of the third arbitrator reach a
decision as to whether the parties shall use Landlord's or
Tenant's submitted Option Rent, and shall notify Landlord
and Tenant thereof.
(iv) The decision of the majority of the three
arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an
arbitrator within ten (10) days after the applicable Outside
Agreement Date, the arbitrator appointed by one of them
shall reach a decision, notify Landlord and Tenant thereof,
and such arbitrator's decision shall be binding upon
Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and
appoint a third arbitrator, or both parties fail to appoint
an arbitrator, then the appointment of the third arbitrator
or any arbitrator shall be dismissed and the matter to be
decided shall be forthwith submitted to arbitration under
the provisions of the American Arbitration Association, but
subject to the instruction set forth in this Section 2.2.3.
(vii)The cost of arbitration shall be paid by Landlord
and Tenant equally.
ARTICLE 3..
BASE RENT
3.1 Initial Base Rent. Tenant shall pay, without notice or
demand, to Landlord at such place as Landlord may from time to
time designate in writing, in currency or a check for currency
which, at the time of payment, is legal tender for private or
public debts in the United States of America, base rent ("Base
Rent") as set forth in Section 8 of the Summary, payable in equal
monthly installments as set forth in Section 8 of the Summary in
advance on or before the first day of each and every month during
the Lease Term, without any setoff or deduction whatsoever. The
Base Rent for the first full month of the Lease Term shall be
paid at the time of Tenant's execution of this Lease. If any
rental payment date (including the Lease Commencement Date) falls
on a day of the month other than the first day of such month or
if any rental payment is for a period which is shorter than one
month, then the rental for any such fractional month shall be a
proportionate amount of a full calendar month's rental based on
the proportion that the number of days in such fractional month
bears to the number of days in the calendar month during which
such fractional month occurs. All other payments or adjustments
required to be made under the terms of this Lease that require
proration on a time basis shall be prorated on the same basis.
3.2 Base Rent Increases. The Base Rent shall be increased on
the first day of each anniversary of the Lease Commencement Date
throughout the Term, including any applicable Option Term, if
applicable, in accordance with percentage increases, if any, in
the Consumer Price Index-Urban Wage Earners and Clerical Workers
(San Francisco-Oakland-San Jose, CA, All Items, Base 1982-1984 =
100) (the "Index"), as published by the United States Department
of Labor, Bureau of Labor Statistics (the "Bureau"). The Index
for each September during the Term, and the Option Terms, if
applicable, shall be compared with the Index for September, 2002
and effective as of the next anniversary of the Lease
Commencement Date, the Base Rent shall be increased for the next
Lease Year in accordance with the percentage increase, if any,
between such Indexes; provided, however, that in no event shall
the increase in Base Rent be less than three percent (3%) per
annum nor greater than six percent (6%) per annum of the Base
Rent payable for the immediately preceding Lease Year. Landlord
shall use commercially reasonable efforts to calculate and give
Tenant written notice of any such increase in Base Rent prior to
each Lease Year. Should the Bureau discontinue the publication
of the Index, or publish the same less frequently or on a
different schedule, or alter the same in some other manner,
including, but not limited to, changing the name of the Index or
the geographic area covered by the Index, Landlord, in its sole
discretion, shall adopt a substitute index or procedure which
reasonably reflects and monitors consumer prices.
ARTICLE 4..
ADDITIONAL RENT
4.1 Additional Rent. In addition to paying the Base Rent
specified in Article 3 of this Lease, Tenant shall pay as
additional rent "Tenant's Share" of the annual "Direct Expenses,"
as those terms are defined in Sections 4.2.6 and 4.2.2 of this
Lease, respectively. Such additional rent, together with any and
all other amounts payable by Tenant to Landlord pursuant to the
terms of this Lease, shall be hereinafter collectively referred
to as the "Additional Rent." The Base Rent and Additional Rent
are herein collectively referred to as the "Rent." All amounts
due under this Article 4 as Additional Rent shall be payable for
the same periods and in the same manner, time and place as the
Base Rent. Without limitation on other obligations of Tenant
which shall survive the expiration of the Lease Term, the
obligations of Tenant to pay the Additional Rent provided for in
this Article 4 shall survive the expiration of the Lease Term.
4.2 Definitions. As used in this Article 4, the following terms
shall have the meanings hereinafter set forth:
4.2.1......"Calendar Year" and "Expense Year" shall mean each
calendar year in which any portion of the Lease Term falls,
through and including the calendar year in which the Lease Term
expires.
4.2.2......"Direct Expenses" shall mean "Operating Expenses" and
"Tax Expenses."
4.2.3......"Operating Expenses" shall mean all expenses, costs and
amounts of every kind and nature which Landlord shall pay during
any Expense Year because of or in connection with the ownership,
management, maintenance, repair, restoration or operation of the
Real Property, including, without limitation, any amounts paid
for (i) the cost of supplying all utilities, the cost of
operating, maintaining, repairing, renovating and managing the
utility systems, mechanical systems, sanitary and storm drainage
systems, and the cost of supplies and equipment and maintenance
and service contracts in connection therewith; (ii) the cost of
licenses, certificates, permits and inspections and the cost of
contesting the validity or applicability of any governmental
enactments which may affect Operating Expenses; (iii) the cost of
insurance carried by Landlord, in such amounts as Landlord may
reasonably determine or as may be required by any mortgagees or
the lessor of any underlying or ground lease affecting the Real
Property and/or the Building; (iv) the cost of landscaping,
relamping, and all supplies, tools, equipment and materials used
in the operation, repair and maintenance of the Building; (v) the
cost of parking area repair, restoration, and maintenance,
including, but not limited to, repainting, restriping, and
cleaning; (vi) fees, charges and other costs, including
consulting fees, legal fees and accounting fees, of all
contractors engaged by Landlord in connection with the
management, operation, maintenance and repair of the Building and
Real Property; (vii) any equipment rental agreements or
management agreements (including the cost of any management fee
and the fair rental value of any office space provided
thereunder); (viii) wages, salaries and other compensation and
benefits of all persons engaged in the operation, management,
maintenance or security of the Building; (ix) payments under any
easement, license, operating agreement, declaration, restrictive
covenant, underlying or ground lease (excluding rent), or
instrument pertaining to the sharing of costs by the Building;
(x) operation, repair, maintenance and replacement of all "Systems
and Equipment," as that term is defined in Section 4.2.4 of this
Lease, and components thereof; (xi) the cost of alarm and
security service, window cleaning, trash removal, replacement of
wall and floor coverings, ceiling tiles and fixtures in lobbies,
corridors, restrooms and other common or public areas or
facilities, maintenance and replacement of curbs and walkways,
repair to roofs and re-roofing; (xii) amortization (including
interest on the unamortized cost) of the cost of acquiring or the
rental expense of personal property used in the maintenance,
operation and repair of the Building and Real Property; and
(xiii) the cost of any capital improvements or other costs
(i) which are intended as a labor-saving device or to effect other
economies in the operation or maintenance of the Building, or
(ii) made to the Building after the Lease Commencement Date that
are required under any governmental law or regulation; provided,
however, that if any such cost described in (I) or (II) above is
a capital expenditure, such cost shall be amortized (including
interest on the unamortized cost) over its useful life as
Landlord shall reasonably determine. If Landlord is not
furnishing any particular work or service (the cost of which, if
performed by Landlord, would be included in Operating Expenses)
to a tenant who has undertaken to perform such work or service in
lieu of the performance thereof by Landlord, Operating Expenses
shall be deemed to be increased by an amount equal to the
additional Operating Expenses which would reasonably have been
incurred during such period by Landlord if it had at its own
expense furnished such work or service to such tenant. If the
Building is not fully occupied during all or a portion of any
Expense Year, Landlord shall make an appropriate adjustment to
the variable components of Operating Expenses for such year or
applicable portion thereof, employing sound accounting and
management principles, to determine the amount of Operating
Expenses that would have been paid had the Building been fully
occupied. Notwithstanding the foregoing or anything to the
contrary contained herein, Operating Expenses shall not include
any costs incurred by Landlord in connection with the
Environmental Work (as that term is defined in Article 21 below)
or any other costs incurred in connection with the abatement or
remediation of hazardous or toxic materials; however, Tenant
shall be solely responsible for any and all costs incurred in
connection with removal or remediation of hazardous or toxic
materials introduced into the Premises or the Real Property by
Tenant as further provided in Section 5.2 below.
4.2.4......"Systems and Equipment" shall mean any plant,
machinery, transformers, duct work, cable, wires, and other
equipment, facilities, and systems designed to supply heat,
ventilation, air conditioning and humidity or any other services
or utilities, or comprising or serving as any component or
portion of the electrical, gas, steam, plumbing, sprinkler,
communications, alarm, security, or fire/life safety systems or
equipment, or any other mechanical, electrical, electronic,
computer or other systems or equipment which serve the Building
in whole or in part.
4.2.5......"Tax Expenses" shall mean all federal, state, county,
or local governmental or municipal taxes, fees, charges or other
impositions of every kind and nature, whether general, special,
ordinary or extraordinary, (including, without limitation, real
estate taxes, general and special assessments, transit taxes,
leasehold taxes or taxes based upon the receipt of rent,
including gross receipts or sales taxes applicable to the receipt
of rent, unless required to be paid by Tenant, personal property
taxes imposed upon the fixtures, machinery, equipment, apparatus,
systems and equipment, appurtenances, furniture and other
personal property used in connection with the Building), which
Landlord shall pay during any Expense Year because of or in
connection with the ownership, leasing and operation of the Real
Property or Landlord's interest therein. For purposes of this
Lease, Tax Expenses shall be calculated as if the tenant
improvements in the Building were fully constructed and the Real
Property, the Building, and all tenant improvements in the
Building were fully assessed for real estate tax purposes, and
accordingly, during the portion of any Expense Year occurring
during the Base Year, Tax Expenses shall be deemed to be
increased appropriately.
4.2.5.1....Tax Expenses shall include, without limitation:
(i) Any tax on Landlord's rent, right to rent or other income
from the Real Property or as against Landlord's business of
leasing any of the Real Property;
(ii) Any assessment, tax, fee, levy or charge in addition to, or
in substitution, partially or totally, of any assessment, tax,
fee, levy or charge previously included within the definition of
real property tax, it being acknowledged by Tenant and Landlord
that Proposition 13 was adopted by the voters of the State of
California in the June 1978 election ("Proposition 13") and that
assessments, taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection,
street, sidewalk and road maintenance, refuse removal and for
other governmental services formerly provided without charge to
property owners or occupants. It is the intention of Tenant and
Landlord that all such new and increased assessments, taxes,
fees, levies, and charges and all similar assessments, taxes,
fees, levies and charges be included within the definition of Tax
Expenses for purposes of this Lease; and
(iii) Any assessment, tax, fee, levy, or charge allocable to or
measured by the area of the Premises or the rent payable
hereunder, including, without limitation, any gross income tax
with respect to the receipt of such rent, or upon or with respect
to the possession, leasing, operating, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises,
or any portion thereof.
4.2.5.2....If Tax Expenses for any period during the Lease Term or
any extension thereof are increased after payment thereof by
Landlord for any reason, including, without limitation, error or
reassessment by applicable governmental or municipal authorities,
Tenant shall pay Landlord upon demand Tenant's Share of such
increased Tax Expenses.
4.2.5.3....Notwithstanding anything to the contrary contained in
this Section 4.2.5, there shall be excluded from Tax Expenses
(i) all excess profits taxes, franchise taxes, gift taxes, capital
stock taxes, inheritance and succession taxes, estate taxes,
federal and state income taxes, and other taxes to the extent
applicable to Landlord's general or net income (as opposed to
rents, receipts or income attributable to operations at the
Building), (ii) any items included as Operating Expenses, and
(iii) any items paid by Tenant under Section 4.4 of this Lease.
4.2.6......"Tenant's Share" shall mean the percentage set forth in
Section 9 of the Summary. Tenant's Share was calculated by
multiplying the number of rentable square feet of the Premises by
100 and dividing the product by the total rentable square feet in
the Building.
4.3 Calculation and Payment of Additional Rent.
4.3.1......Calculation of Excess. For each Expense Year ending or
commencing within the Lease Term, Tenant shall pay to Landlord,
in the manner set forth in Section 4.3.2, below, and as
Additional Rent, an amount equal to Tenant's Share of Direct
Expenses.
4.3.2......Statement of Actual Direct Expenses and Payment by
Tenant. Landlord shall endeavor to give to Tenant on or before
the first day of April following the end of each Expense Year, a
statement (the "Statement") which shall state the Direct Expenses
incurred or accrued for such preceding Expense Year. Upon
receipt of the Statement for each Expense Year ending during the
Lease Term Tenant shall pay, with its next installment of Base
Rent due, the full amount of Tenant's Share of Direct Expenses
for such Expense Year, less the amounts, if any, paid during such
Expense Year as Estimated Expense. The failure of Landlord to
timely furnish the Statement for any Expense Year shall not
prejudice Landlord from enforcing its rights under this
Article 4. Even though the Lease Term has expired and Tenant has
vacated the Premises, when the final determination is made of
Tenant's Share of the Direct Expenses for the Expense Year in
which this Lease terminates, Tenant shall promptly pay to
Landlord an amount as calculated pursuant to the provisions of
Section 4.3.1 of this Lease. The provisions of this
Section 4.3.2 shall survive the expiration or earlier termination
of the Lease Term.
4.3.3......Statement of Estimated Direct Expenses. Landlord shall
have the option, but not the obligation, to give Tenant a yearly
expense estimate statement (the "Estimate Statement") which shall
set forth Landlord's reasonable estimate (the "Estimate") of what
the total amount of Direct Expenses for the then-current Expense
Year shall be (the "Estimated Expense"). If Landlord exercises
its option to so provide Tenant with an Estimate Statement,
Tenant shall pay, with its next installment of Base Rent due, a
fraction of the Estimated Expense for the then-current Expense
Year (reduced by any amounts paid pursuant to the last sentence
of this Section 4.3.3). Such fraction shall have as its
numerator the number of months which have elapsed in such current
Expense Year to the month of such payment, both months inclusive,
and shall have twelve (12) as its denominator. Until a new
Estimate Statement is furnished, Tenant shall pay monthly, with
the monthly Base Rent installments, an amount equal to
one-twelfth (1/12) of the total Estimated Expense set forth in
the previous Estimate Statement delivered by Landlord to Tenant.
4.4 Taxes and Other Charges for Which Tenant Is Directly
Responsible. Tenant shall reimburse Landlord upon demand for any
and all taxes or assessments required to be paid by Landlord
(except to the extent included in Tax Expenses by Landlord),
excluding state, local and federal personal or corporate income
taxes measured by the net income of Landlord from all sources and
estate and inheritance taxes, when:
4.4.1......Said taxes are measured by or reasonably attributable
to the cost or value of Tenant's equipment, furniture, fixtures
and other personal property located in the Premises, or by the
cost or value of any leasehold improvements made in or to the
Premises by or for Tenant; or
4.4.2......Said taxes are assessed upon or with respect to the
possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or
any portion of the Real Property (including the Parking
Facilities).
ARTICLE 5..
USE OF PREMISES
5.1 Permitted Use. Tenant shall use the Premises solely for
operation of a commercial bank branch and associated ancillary
uses permitted by law and consistent with the character of the
Building as a first-class office building, and Tenant shall not
use or permit the Premises to be used for any other purpose or
purposes whatsoever. Tenant's permitted use shall include
automated teller machine(s) and/or night depository facilities
with necessary lighting and appurtenant fixtures, machinery and
equipment, subject to Tenant's receipt of all applicable permits
and approvals and Landlord's approval of plans and specifications
therefore, subject to Tenant's removal obligations under
Section 8.5 below.
5.2 Prohibited Uses. Tenant further covenants and agrees that
it shall not use, or suffer or permit any person or persons to
use, the Premises, the Parking Facilities or any other Common
Areas or any part thereof for any use or purpose contrary to the
provisions of Exhibit C attached hereto ("Rules and
Regulations"), or in violation of the laws of the United States of
America, the State of California, or the ordinances, regulations
or requirements of the local municipal or county governing body
or other lawful authorities having jurisdiction over the
Building. Tenant shall comply with all recorded covenants,
conditions, and restrictions, and the provisions of all ground or
underlying leases, now or hereafter affecting the Real Property.
Tenant shall not use or allow another person or entity to use any
part of the Premises for the storage, use, treatment, manufacture
or sale of any hazardous or toxic material. Tenant shall be
solely responsible for removal or remediation as may be required
by law should hazardous or toxic materials be introduced into the
Premises or the Real Property by Tenant, its agents, employees or
independent contractors provided that nothing contained herein
shall permit Tenant to utilize or release hazardous or toxic
materials.
5.3 Use of Ancillary Areas. In addition to Tenant's use of the
Premises, Tenant shall have the exclusive right, throughout the
Lease Term, to use of the conference room on the second (2nd)
floor of the Building and the non-exclusive right to use the
restrooms and kitchen areas on the mezzanine level of the
Building, in common with other tenants and occupants of the
Building; provided, however, if Tenant constructs, pursuant to
Article 8 below, restroom facilities within its Premises, then
Tenant shall no longer have the right to use such mezzanine
restrooms. Such second (2nd) floor conference room and mezzanine
restrooms and mezzanine kitchen area may be collectively referred
to herein as the "Ancillary Areas."
ARTICLE 6..
SERVICES AND UTILITIES
6.1 Standard Tenant Services. Landlord shall provide the
following services on all days during the Lease Term, unless
otherwise stated below.
6.1.1......Subject to all governmental rules, regulations and
guidelines applicable thereto, Landlord shall provide heating and
air conditioning when necessary for normal comfort for normal
office use in the Premises, from Monday through Friday, during
the period from 8 a.m. to 6 p.m., and on Saturday during the
period from 9:00 a.m. to 12:00 noon, except for the date of
observation of New Year's Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas Day and
other locally or nationally recognized holidays (collectively,
the "Holidays").
6.1.2......Landlord shall provide adequate electrical wiring and
facilities and power for normal general office use as determined
by Landlord. Tenant shall bear the cost of replacement of lamps,
starters and ballasts for lighting fixtures within the Premises.
6.1.3......Landlord shall provide city water from the regular
Building outlets for drinking, lavatory and toilet purposes.
Tenant acknowledges that Tenant shall be solely
responsible for providing janitorial service to the Premises and
Landlord shall have no responsibility therefor.
6.2 Overstandard Tenant Use. Tenant shall not, without
Landlord's prior written consent, use heat-generating machines,
machines other than normal office machines, or equipment or
lighting other than building standard lights in the Premises,
which may affect the temperature otherwise maintained by the air
conditioning system or increase the water normally furnished for
the Premises by Landlord pursuant to the terms of Section 6.1 of
this Lease. If such consent is given, Landlord shall have the
right to install supplementary air conditioning units or other
facilities in the Premises, including supplementary or additional
metering devices, and the cost thereof, including the cost of
installation, operation and maintenance, increased wear and tear
on existing equipment and other similar charges, shall be paid by
Tenant to Landlord upon billing by Landlord. If Tenant uses
electricity, water or heat or air conditioning in excess of that
supplied by Landlord pursuant to Section 6.1 of this Lease,
Tenant shall pay to Landlord, upon billing, the cost of such
excess consumption, the cost of the installation, operation, and
maintenance of equipment which is installed in order to supply
such excess consumption, and the cost of the increased wear and
tear on existing equipment caused by such excess consumption, and
Landlord may install devices to separately meter any increased
use and in such event Tenant shall pay the increased cost
directly to Landlord, on demand, including the cost of such
additional metering devices. If Tenant desires to use heat,
ventilation or air conditioning during hours other than those for
which Landlord is obligated to supply such utilities pursuant to
the terms of Section 6.1 of this Lease, Tenant shall give
Landlord such prior notice, as Landlord shall from time to time
establish as appropriate, of Tenant's desired use and Landlord
shall supply such utilities to Tenant at such hourly cost to
Tenant as Landlord shall from time to time establish. Amounts
payable by Tenant to Landlord for such use of additional
utilities shall be deemed Additional Rent hereunder and shall be
billed on a monthly basis. Landlord may increase the hours or
days during which air conditioning, heating and ventilation are
provided to the Premises and the Building to accommodate the
usage by tenants occupying two-thirds or more of the rentable
square feet of the Building or to conform to practices of other
buildings in the area comparable to the Building.
6.3 Interruption of Use. Tenant agrees that Landlord shall not
be liable for damages, by abatement of Rent or otherwise, for
failure to furnish or delay in furnishing any service (including
telephone and telecommunication services), or for any diminution
in the quality or quantity thereof, when such failure or delay or
diminution is occasioned, in whole or in part, by repairs,
replacements, or improvements, by any strike, lockout or other
labor trouble, by inability to secure electricity, gas, water, or
other fuel at the Building after reasonable effort to do so, by
any accident or casualty whatsoever, by act or default of Tenant
or other parties, or by any other cause beyond Landlord's
reasonable control; and such failures or delays or diminution
shall never be deemed to constitute an eviction or disturbance of
Tenant's use and possession of the Premises or relieve Tenant
from paying Rent or performing any of its obligations under this
Lease. Furthermore, Landlord shall not be liable under any
circumstances for a loss of, or injury to, property or for injury
to, or interference with, Tenant's business, including, without
limitation, loss of profits, however occurring, through or in
connection with or incidental to a failure to furnish any of the
services or utilities as set forth in this Article 6.
ARTICLE 7..
REPAIRS
Tenant shall, at Tenant's own expense, keep the Premises,
including all improvements, fixtures and furnishings therein, in
good order, repair and condition at all times during the Lease
Term. In addition, Tenant shall, at Tenant's own expense but
under the supervision and subject to the prior approval of
Landlord, and within any reasonable period of time specified by
Landlord, promptly and adequately repair all damage to the
Premises and replace or repair all damaged or broken fixtures and
appurtenances; provided however, that, at Landlord's option, or
if Tenant fails to make such repairs, Landlord may, but need not,
make such repairs and replacements, and Tenant shall pay Landlord
the cost thereof, including a percentage of the cost thereof (to
be uniformly established for the Building) sufficient to
reimburse Landlord for all overhead, general conditions, fees and
other costs or expenses arising from Landlord's involvement with
such repairs and replacements forthwith upon being billed for
same. Landlord may, but shall not be required to, enter the
Premises at all reasonable times to make such repairs,
alterations, improvements and additions to the Premises or to the
Building or to any equipment located in the Building as Landlord
shall desire or deem necessary or as Landlord may be required to
do by governmental or quasi-governmental authority or court order
or decree. Tenant hereby waives and releases its right to make
repairs at Landlord's expense under Sections 1941 and 1942 of the
California Civil Code or under any similar law, statute, or
ordinance now or hereafter in effect.
ARTICLE 8..
ADDITIONS AND ALTERATIONS
8.1 Landlord's Consent to Alterations. Tenant may not make any
improvements, alterations, additions or changes to the Premises
(collectively, the "Alterations") without first procuring the
prior written consent of Landlord to such Alterations, which
consent shall be requested by Tenant not less than thirty (30)
days prior to the commencement thereof, and which consent shall
not be unreasonably withheld by Landlord. The existing leasehold
improvements in the Premises together with any Alterations
thereto made by Tenant pursuant to this Article 8 may be referred
to herein as the "Tenant Improvements."
8.2 Manner of Construction. Landlord may impose, as a condition
of its consent to all Alterations or repairs of the Premises or
about the Premises, such requirements as Landlord in its sole
discretion may deem desirable, including, but not limited to, the
requirement that upon Landlord's request, Tenant shall, at
Tenant's expense, remove such Alterations upon the expiration or
any early termination of the Lease Term, and/or the requirement
that Tenant utilize for such purposes only contractors and
materials approved by Landlord. Tenant shall construct such
Alterations and perform such repairs in conformance with any and
all applicable rules and regulations of any federal, state,
county or municipal code or ordinance and pursuant to a valid
building permit (a copy of which shall be delivered to Landlord),
issued by the appropriate governmental authorities, in
conformance with Landlord's construction rules and regulations.
Landlord's approval of the plans, specifications and working
drawings for Tenant's Alterations shall create no responsibility
or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with all laws, rules and
regulations of governmental agencies or authorities. All work
with respect to any Alterations must be done in a good and
workmanlike manner and diligently prosecuted to completion. In
performing the work of any such Alterations, Tenant shall have
the work performed in such manner as not to obstruct access to
the Building or the common areas for any other tenant of the
Building, and as not to obstruct the business of Landlord or
other tenants in the Building, or interfere with the labor force
working in the Building. Upon completion of any Alterations,
Tenant agrees to cause a Notice of Completion to be recorded in
the office of the County Recorder in accordance with Section 3093
of the Civil Code of the State of California or any successor
statute, and Tenant shall deliver to Landlord a reproducible copy
of the "as built" drawings of the Alterations.
8.3 Payment for Improvements. In the event Tenant orders any
Alteration or repair work directly from Landlord, or from the
contractor selected by Landlord, the charges for such work shall
be deemed Additional Rent under this Lease, payable upon billing
therefor, either periodically during construction or upon the
substantial completion of such work, at Landlord's option. Upon
completion of such work, Tenant shall deliver to Landlord, if
payment is made directly to contractors, evidence of payment,
contractors' affidavits and full and final waivers of all liens
for labor, services or materials. Whether or not Tenant orders
any work directly from Landlord, Tenant shall pay to Landlord a
percentage of the cost of such work (such percentage, which shall
vary depending upon whether or not Tenant orders the work
directly from Landlord, to be established on a uniform basis for
the Building) sufficient to compensate Landlord for all overhead,
general conditions, fees and other costs and expenses arising
from Landlord's involvement with such work.
8.4 Construction Insurance. In the event that Tenant makes any
Alterations, Tenant agrees to carry "Builder's All Risk"
insurance in an amount approved by Landlord covering the
construction of such Alterations, and such other insurance as
Landlord may require, it being understood and agreed that all of
such Alterations shall be insured by Tenant pursuant to
Article 10 of this Lease immediately upon completion thereof. In
addition, Landlord may, in its discretion, require Tenant to
obtain a lien and completion bond or some alternate form of
security satisfactory to Landlord in an amount sufficient to
ensure the lien-free completion of such Alterations and naming
Landlord as a co-obligee.
8.5 Landlord's Property. All Alterations, improvements,
fixtures and/or equipment which may be installed or placed in or
about the Premises, and all signs installed in, on or about the
Premises, from time to time, shall be at the sole cost of Tenant
and shall be and become the property of Landlord, except that
upon expiration or earlier termination of this Lease and upon
request from Landlord, Tenant shall remove any wiring, cabling,
decals, signage and similar items introduced by Tenant into the
Premises and shall also remove any automated teller machine(s)
and after-hours depositories from the Building and any associated
machinery, lightening and equipment, and shall repair damage
resulting from such removal and match finishes of the Building to
Landlord's reasonable satisfaction. Furthermore, Landlord may,
by written notice to Tenant prior to the end of the Lease Term,
or given upon any earlier termination of this Lease, require
Tenant at Tenant's expense to remove any Alterations and to
repair any damage to the Premises and Building caused by such
removal. If Tenant fails to complete such removal and/or to
repair any damage caused by the removal of any Alterations,
Landlord may do so and may charge the cost thereof to Tenant.
ARTICLE 9..
COVENANT AGAINST LIENS
Landlord shall have the right at all times to post and keep
posted on the Premises any notice which it deems necessary for
protection from such liens. Tenant covenants and agrees not to
suffer or permit any lien of mechanics or materialmen or others
to be placed against the Real Property, the Building or the
Premises with respect to work or services claimed to have been
performed for or materials claimed to have been furnished to
Tenant or the Premises, and, in case of any such lien attaching
or notice of any lien, Tenant covenants and agrees to cause it to
be immediately released and removed of record. Notwithstanding
anything to the contrary set forth in this Lease, in the event
that such lien is not released and removed within ten (10) days
after the date notice of such lien is delivered by Landlord to
Tenant, Landlord, at its sole option, may immediately take all
action necessary to release and remove such lien, without any
duty to investigate the validity thereof, and all sums, costs and
expenses, including reasonable attorneys' fees and costs,
incurred by Landlord in connection with such lien shall be deemed
Additional Rent under this Lease and shall immediately be due and
payable by Tenant.
ARTICLE 10.
INSURANCE
10.1 Indemnification and Waiver. To the extent not prohibited by
law, Landlord, its partners and their respective officers,
agents, servants, employees, and independent contractors
(collectively, "Landlord Parties") shall not be liable for any
damage either to person or property or resulting from the loss of
use thereof, which damage is sustained by Tenant or by other
persons claiming through Tenant. Tenant shall indemnify, defend,
protect, and hold harmless Landlord Parties from any and all
loss, cost, damage, expense and liability (including without
limitation court costs and reasonable attorneys' fees) incurred
in connection with or arising from any cause in, on or about the
Premises and/or the Ancillary Areas (including, without
limitation, those incurred in connection with or arising from the
Environmental Work) either prior to, during, or after the
expiration of the Lease Term, provided that the terms of the
foregoing indemnity shall not apply to the gross negligence or
willful misconduct of Landlord. The provisions of this
Section 10.1 shall survive the expiration or sooner termination of
this Lease with respect to any claims or liability occurring
prior to such expiration or termination.
10.2 Tenant's Compliance with Landlord's Fire and Casualty
Insurance. Tenant shall, at Tenant's expense, comply with all
insurance company requirements pertaining to the use of the
Premises. If Tenant's conduct or use of the Premises causes any
increase in the premium for such insurance policies, then Tenant
shall reimburse Landlord for any such increase. Tenant, at
Tenant's expense, shall comply with all rules, orders,
regulations or requirements of the American Insurance Association
(formerly the National Board of Fire Underwriters) and with any
similar body.
10.3 Tenant's Insurance. Tenant shall maintain the following
coverages in the following amounts.
10.3.1.....Commercial General Liability Insurance covering the
insured against claims of bodily injury, personal injury and
property damage arising out of Tenant's operations, assumed
liabilities or use of the Premises, including a Broad Form
Commercial General Liability endorsement covering the insuring
provisions of this Lease and the performance by Tenant of the
indemnity agreements set forth in Section 10.1 of this Lease, for
limits of liability not less than:
Bodily Injury and
Property Damage Liability $3,000,000 each
occurrence
$3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each
occurrence
$3,000,000 annual aggregate
0% Insured's participation
10.3.2.....Physical Damage Insurance covering (i) all office
furniture, trade fixtures, office equipment, merchandise and all
other items of Tenant's property on the Premises installed by,
for, or at the expense of Tenant, (ii) the Tenant Improvements,
including any Tenant Improvements which Landlord permits to be
installed above the ceiling of the Premises or below the floor of
the Premises, and (iii) all other improvements, alterations and
additions to the Premises, including any improvements,
alterations or additions installed at Tenant's request above the
ceiling of the Premises or below the floor of the Premises. Such
insurance shall be written on an "all risks" of physical loss or
damage basis, for the full replacement cost value new without
deduction for depreciation of the covered items and in amounts
that meet any co-insurance clauses of the policies of insurance
and shall include a vandalism and malicious mischief endorsement,
sprinkler leakage coverage and earthquake sprinkler leakage
coverage.
10.3.3.....Loss of income and extra expense insurance in such
amounts as will reimburse Tenant for direct or indirect loss of
earnings attributable to all perils commonly insured against by
prudent tenants or attributable to prevention of access to the
Premises or to the Building as a result of such perils.
10.3.4.....Workers' Compensation and Employer's Liability coverage
in amounts required by law.
10.4 Form of Policies. The minimum limits of policies of
insurance required of Tenant under this Lease shall in no event
limit the liability of Tenant under this Lease. All insurance
shall (i) be issued by an insurance company having a rating of
not less than A-X in Best's Insurance Guide or which is otherwise
acceptable to Landlord and licensed to do business in the State
of California; and (ii) provide that said insurance shall not be
canceled or coverage changed unless thirty (30) days' prior
written notice shall have been given to Landlord and any
mortgagee or ground or underlying lessor of Landlord. In
addition, the insurance described in Section 10.3.1 above shall
(a) name Landlord, and any other party specified by Landlord, as
an additional insured; (b) specifically cover the liability
assumed by Tenant under this Lease including, but not limited to,
Tenant's obligations under Section 10.1 of this Lease; (c) be
primary insurance as to all claims thereunder and provide that
any insurance required by Landlord is excess and is
non-contributing with any insurance requirement of Tenant; and
(d) contain a cross-liability endorsement or severability of
interest clause acceptable to Landlord. Tenant shall deliver all
policies or certificates thereof to Landlord on or before the
Lease Commencement Date and at least thirty (30) days before the
expiration dates thereof. In the event Tenant shall fail to
procure such insurance, or to deliver such policies or
certificate, Landlord may, at its option, procure such policies
for the account of Tenant, and the cost thereof shall be paid to
Landlord as Additional Rent within five (5) days after delivery
to Tenant of bills therefor.
10.5 Subrogation. Landlord and Tenant agree to have their
respective insurance companies issuing property damage and loss
of income and extra expense insurance waive any rights of
subrogation that such companies may have against Landlord or
Tenant, as the case may be, so long as the insurance carried by
Landlord and Tenant, respectively, is not invalidated thereby.
As long as such waivers of subrogation are contained in their
respective insurance policies, Landlord and Tenant hereby waive
any right that either may have against the other on account of
any loss or damage to the extent such loss or damage is insurable
under such policies of insurance.
10.6 Additional Insurance Obligations. Tenant shall carry and
maintain during the entire Lease Term, at Tenant's sole cost and
expense, increased amounts of the insurance required to be
carried by Tenant pursuant to this Article 10, and such other
reasonable types of insurance coverage and in such reasonable
amounts covering the Premises and Tenant's operations therein, as
may be reasonably requested by Landlord.
ARTICLE 11.
DAMAGE AND DESTRUCTION
11.1 Repair of Damage to Premises by Landlord. Tenant shall
promptly notify Landlord of any damage to the Premises resulting
from fire or any other casualty. If the Premises or any common
areas of the Building serving or providing access to the Premises
shall be damaged by fire or other casualty, Landlord shall
promptly and diligently, subject to reasonable delays for
insurance adjustment or other matters beyond Landlord's
reasonable control, and subject to all other terms of this
Article 11, restore the base, shell, and core of the Premises and
such common areas. Such restoration shall be to substantially
the same condition of the base, shell, and core of the Premises
and common areas prior to the casualty, except for modifications
required by zoning and building codes and other laws or by the
holder of a mortgage on the Building, or the lessor of a ground
or underlying lease with respect to the Real Property and/or the
Building, or any other modifications to the common areas deemed
desirable by Landlord, provided access to the Premises and any
common restrooms serving the Premises shall not be materially
impaired. Notwithstanding any other provision of this Lease, upon
the occurrence of any damage to the Premises, Tenant shall assign
to Landlord (or to any party designated by Landlord) all
insurance proceeds payable to Tenant under Tenant's insurance
required under Section 10.3.2(ii) and (iii) of this Lease, and
Landlord shall repair any injury or damage to the Tenant
Improvements installed in the Premises and shall return such
Tenant Improvements to their original condition; provided that if
the cost of such repair by Landlord exceeds the amount of
insurance proceeds received by Landlord from Tenant's insurance
carrier, as assigned by Tenant, the cost of such repairs shall be
paid by Tenant to Landlord prior to Landlord's repair of the
damage. In connection with such repairs and replacements, Tenant
shall, prior to the commencement of construction, submit to
Landlord, for Landlord's review and approval, all plans,
specifications and working drawings relating thereto, and
Landlord shall select the contractors to perform such improvement
work. Such submittal of plans and construction of improvements
shall be performed in accordance with procedures reasonably
designated by Landlord. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or its visitors, or injury
to Tenant's business resulting in any way from such damage or the
repair thereof; provided however, that if such fire or other
casualty shall have damaged the Premises or common areas
necessary to Tenant's occupancy, and if such damage is not the
result of the negligence or willful misconduct of Tenant or
Tenant's employees, contractors, licensees, or invitees, Landlord
shall allow Tenant a proportionate abatement of Rent to the
extent Landlord is reimbursed from the proceeds of rental
interruption insurance purchased by Landlord as part of Operating
Expenses, during the time and to the extent the Premises are
unfit for occupancy for the purposes permitted under this Lease,
and not occupied by Tenant as a result thereof.
11.2 Landlord's Option to Repair. Notwithstanding the terms of
Section 11.1 of this Lease, Landlord may elect not to rebuild
and/or restore the Premises and/or Building and instead terminate
this Lease by notifying Tenant in writing of such termination
within sixty (60) days after the date Landlord learns of the
necessity for repairs as the result of damage, such notice to
include a termination date giving Tenant ninety (90) days to
vacate the Premises, but Landlord may so elect only if the
Building shall be damaged by fire or other casualty or cause,
whether or not the Premises are affected, and one or more of the
following conditions is present: (i) repairs cannot reasonably
be completed within one hundred twenty (120) days after the date
Landlord learns of the necessity for repairs as the result of
damage (when such repairs are made without the payment of
overtime or other premiums); (ii) the holder of any mortgage on
the Building or ground or underlying lessor with respect to the
Real Property and/or the Building shall require that the
insurance proceeds or any portion thereof be used to retire the
mortgage debt, or shall terminate the ground or underlying lease,
as the case may be; or (iii) the damage is not fully covered,
except for deductible amounts, by Landlord's insurance policies.
11.3 Waiver of Statutory Provisions. The provisions of this
Lease, including this Article 11, constitute an express agreement
between Landlord and Tenant with respect to any and all damage
to, or destruction of, all or any part of the Premises, the
Building or any other portion of the Real Property, and any
statute or regulation of the State of California, including,
without limitation, Sections 1932(2) and 1933(4) of the
California Civil Code, with respect to any rights or obligations
concerning damage or destruction in the absence of an express
agreement between the parties, and any other statute or
regulation, now or hereafter in effect, shall have no application
to this Lease or any damage or destruction to all or any part of
the Premises, the Building or any other portion of the Real
Property.
11.4 Damage Near End of Term. In the event that the Premises or
the Building is destroyed or damaged to any substantial extent
during the last twelve (12) months of the Lease Term, then
notwithstanding anything contained in this Article 11, Landlord
shall have the option to terminate this Lease by giving written
notice to Tenant of the exercise of such option within thirty
(30) days after Landlord learns of the necessity for repairs as
the result of such damage or destruction, in which event this
Lease shall cease and terminate as of the date of such notice,
Tenant shall pay the Base Rent and Additional Rent, properly
apportioned up to such date of damage, and both parties hereto
shall thereafter be freed and discharged of all further
obligations hereunder, except as provided for in provisions of
this Lease which by their terms survive the expiration or earlier
termination of the Lease Term.
ARTICLE 12.
NONWAIVER
No waiver of any provision of this Lease shall be implied by
any failure of Landlord to enforce any remedy on account of the
violation of such provision, even if such violation shall
continue or be repeated subsequently, any waiver by Landlord of
any provision of this Lease may only be in writing, and no
express waiver shall affect any provision other than the one
specified in such waiver and that one only for the time and in
the manner specifically stated. No receipt of monies by Landlord
from Tenant after the termination of this Lease shall in any way
alter the length of the Lease Term or of Tenant's right of
possession hereunder or after the giving of any notice shall
reinstate, continue or extend the Lease Term or affect any notice
given Tenant prior to the receipt of such monies.
ARTICLE 13.
CONDEMNATION
13.1 Permanent Taking. If the whole or any part of the Premises
or Building shall be taken by power of eminent domain or
condemned by any competent authority for any public or
quasi-public use or purpose, or if any adjacent property or
street shall be so taken or condemned, or reconfigured or vacated
by such authority in such manner as to require the use,
reconstruction or remodeling of any part of the Premises or
Building, or if Landlord shall grant a deed or other instrument
in lieu of such taking by eminent domain or condemnation,
Landlord shall have the option to terminate this Lease upon
ninety (90) days' notice, provided such notice is given no later
than one hundred eighty (180) days after the date of such taking,
condemnation, reconfiguration, vacation, deed or other
instrument. If more than twenty-five percent (25%) of the
rentable square feet of the Premises is taken, or if access to
the Premises is substantially impaired, Tenant shall have the
option to terminate this Lease upon ninety (90) days' notice,
provided such notice is given no later than one hundred eighty
(180) days after the date of such taking. Landlord shall be
entitled to receive the entire award or payment in connection
therewith, except that Tenant shall have the right to file any
separate claim available to Tenant for any taking of Tenant's
personal property and fixtures belonging to Tenant and removable
by Tenant upon expiration of the Lease Term pursuant to the terms
of this Lease, and for moving expenses, so long as such claim
does not diminish the award available to Landlord, its ground
lessor with respect to the Real Property or its mortgagee, and
such claim is payable separately to Tenant. All Rent shall be
apportioned as of the date of such termination, or the date of
such taking, whichever shall first occur. If any part of the
Premises shall be taken, and this Lease shall not be so
terminated, the Rent shall be proportionately abated. Tenant
hereby waives any and all rights it might otherwise have pursuant
to Section 1265.130 of The California Code of Civil Procedure.
13.2 Temporary Taking. Notwithstanding anything to the contrary
contained in this Article 13, in the event of a temporary taking
of all or any portion of the Premises for a period of one hundred
and eighty (180) days or less, then this Lease shall not
terminate but the Base Rent and the Additional Rent shall be
abated for the period of such taking in proportion to the ratio
that the number of rentable square feet of the Premises taken
bears to the total number of rentable square feet of the
Premises. Landlord shall be entitled to receive the entire award
made in connection with any such temporary taking.
ARTICLE 14.
ASSIGNMENT AND SUBLETTING
14.1 Transfers. Tenant shall not, without the prior written
consent of Landlord, assign, mortgage, pledge, hypothecate,
encumber, or permit any lien to attach to, or otherwise transfer,
this Lease or any interest hereunder, permit any assignment or
other such foregoing transfer of this Lease or any interest
hereunder by operation of law, sublet the Premises or any part
thereof, or permit the use of the Premises by any persons other
than Tenant and its employees (all of the foregoing are
hereinafter sometimes referred to collectively as "Transfers" and
any person to whom any Transfer is made or sought to be made is
hereinafter sometimes referred to as a "Transferee"). If Tenant
shall desire Landlord's consent to any Transfer, Tenant shall
notify Landlord in writing, which notice (the "Transfer Notice")
shall include (i) the proposed effective date of the Transfer,
which shall not be less than forty-five (45) days nor more than
one hundred eighty (180) days after the date of delivery of the
Transfer Notice, (ii) a description of the portion of the
Premises to be transferred (the "Subject Space"), (iii) all of
the terms of the proposed Transfer and the consideration
therefor, including a calculation of the "Transfer Premium," as
that term is defined in Section 14.3 below, in connection with
such Transfer, the name and address of the proposed Transferee,
and a copy of all existing and/or proposed documentation
pertaining to the proposed Transfer, including all existing
operative documents to be executed to evidence such Transfer or
the agreements incidental or related to such Transfer, and
(iv) current financial statements of the proposed Transferee
certified by an officer, partner or owner thereof, and any other
information required by Landlord, which will enable Landlord to
determine the financial responsibility, character, and reputation
of the proposed Transferee, nature of such Transferee's business
and proposed use of the Subject Space, and such other information
as Landlord may reasonably require. Any Transfer made without
Landlord's prior written consent shall, at Landlord's option, be
null, void and of no effect, and shall, at Landlord's option,
constitute a default by Tenant under this Lease. Whether or not
Landlord shall grant consent, Tenant shall pay Landlord's review
and processing fees, as well as any reasonable legal fees
incurred by Landlord, within thirty (30) days after written
request by Landlord.
14.2 Landlord's Consent. Landlord shall not unreasonably
withhold its consent to any proposed Transfer of the Subject
Space to the Transferee on the terms specified in the Transfer
Notice. The parties hereby agree that it shall be reasonable
under this Lease and under any applicable law for Landlord to
withhold consent to any proposed Transfer where one or more of
the following apply, without limitation as to other reasonable
grounds for withholding consent:
14.2.1.....The Transferee is of a character or reputation or
engaged in a business which is not consistent with the quality of
the Building, or would be a significantly less prestigious
occupant of the Building than Tenant;
14.2.2.....The Transferee intends to use the Subject Space for
purposes which are not permitted under this Lease;
14.2.3.....The Transferee is either a governmental agency or
instrumentality thereof;
14.2.4.....The Transfer will result in more than a reasonable and
safe number of occupants per floor within the Subject Space;
14.2.5.....The Transferee is not a party of reasonable financial
worth and/or financial stability in light of the responsibilities
involved under the Lease on the date consent is requested;
14.2.6.....The proposed Transfer would cause Landlord to be in
violation of another lease or agreement to which Landlord is a
party, or would give an occupant of the Building a right to
cancel its lease; or
14.2.7.....Either the proposed Transferee, or any person or entity
which directly or indirectly, controls, is controlled by, or is
under common control with, the proposed Transferee, is
negotiating with Landlord to lease space in the Building at such
time.
If Landlord consents to any Transfer pursuant to the terms
of this Section 14.2 (and does not exercise any recapture rights
Landlord may have under Section 14.4 of this Lease), Tenant may
within six (6) months after Landlord's consent, but not later
than the expiration of said six-month period, enter into such
Transfer of the Premises or portion thereof, upon substantially
the same terms and conditions as are set forth in the Transfer
Notice furnished by Tenant to Landlord pursuant to Section 14.1
of this Lease, provided that if there are any changes in the
terms and conditions from those specified in the Transfer Notice
(i) such that Landlord would initially have been entitled to
refuse its consent to such Transfer under this Section 14.2, or
(ii) which would cause the proposed Transfer to be more favorable
to the Transferee than the terms set forth in Tenant's original
Transfer Notice, Tenant shall again submit the Transfer to
Landlord for its approval and other action under this Article 14
(including Landlord's right of recapture, if any, under
Section 14.4 of this Lease). Notwithstanding any contrary
provision of this Lease, if Tenant or any proposed Transferee
claims that Landlord has unreasonably withheld or delayed its
consent to a proposed Transfer or otherwise has breached its
obligations under this Article 14, Tenant's and such Transferee's
only remedy shall be to seek a declaratory judgment and/or
injunctive relief, and Tenant, on behalf of itself and, to the
extent permitted by law, such proposed Transferee waives all
other remedies against Landlord, including without limitation,
the right to seek monetary damages or to terminate this Lease.
14.3 Transfer Premium. If Landlord consents to a Transfer, as a
condition thereto which the parties hereby agree is reasonable,
Tenant shall pay to Landlord fifty percent (50%) of any "Transfer
Premium," as that term is defined in this Section 14.3, received
by Tenant from such Transferee. "Transfer Premium" shall mean
all rent, additional rent or other consideration payable by such
Transferee in excess of the Rent and Additional Rent payable by
Tenant under this Lease on a per rentable square foot basis if
less than all of the Premises is transferred, after deducting the
reasonable expenses incurred by Tenant for (i) any changes,
alterations and improvements to the Premises in connection with
the Transfer, and (ii) any brokerage commissions in connection
with the Transfer (collectively, the "Subleasing Costs").
"Transfer Premium" shall also include, but not be limited to, key
money and bonus money paid by Transferee to Tenant in connection
with such Transfer, and any payment in excess of fair market
value for services rendered by Tenant to Transferee or for
assets, fixtures, inventory, equipment, or furniture transferred
by Tenant to Transferee in connection with such Transfer.
14.4 Landlord's Option as to Subject Space. Notwithstanding
anything to the contrary contained in this Article 14, Landlord
shall have the option, by giving written notice to Tenant within
thirty (30) days after receipt of any Transfer Notice, to
(i) recapture the Subject Space, or (ii) take an assignment or
sublease of the Subject Space from Tenant. Such recapture, or
sublease or assignment notice shall cancel and terminate this
Lease, or create a sublease or assignment, as the case may be,
with respect to the Subject Space as of the date stated in the
Transfer Notice as the effective date of the proposed Transfer
until the last day of the term of the Transfer as set forth in
the Transfer Notice. In the event of a recapture by Landlord, if
this Lease shall be canceled with respect to less than the entire
Premises, the Rent reserved herein shall be prorated on the basis
of the number of rentable square feet retained by Tenant in
proportion to the number of rentable square feet contained in the
Premises, and this Lease as so amended shall continue thereafter
in full force and effect, and upon request of either party, the
parties shall execute written confirmation of the same. If the
Subject Space shall be assigned or subleased by Tenant to
Landlord, the rent for the Subject Space payable by Landlord to
Tenant shall be the lesser of (i) the effective Base Rent plus
the Additional Rent payable by Tenant under this Lease for the
Subject Space on a prorated basis based upon the number of
rentable square feet in the Subject Space, or (ii) the effective
rent (taking into account all concessions made by Tenant to the
Transferee) set forth in the Transfer Notice, and all other
provisions of this Lease shall remain in full force and effect,
and upon request of either party, the parties shall execute a
written confirmation of the same. If Landlord declines, or fails
to elect in a timely manner to recapture, sublease or take an
assignment of the Subject Space under this Section 14.4, then,
provided Landlord has consented to the proposed Transfer, Tenant
shall be entitled to proceed to transfer the Subject Space to the
proposed Transferee, subject to provisions of the last paragraph
of Section 14.2 of this Lease.
14.5 Effect of Transfer. If Landlord consents to a Transfer,
(i) the terms and conditions of this Lease shall in no way be
deemed to have been waived or modified, (ii) such consent shall
not be deemed consent to any further Transfer by either Tenant or
a Transferee, (iii) Tenant shall deliver to Landlord, promptly
after execution, an original executed copy of all documentation
pertaining to the Transfer in form reasonably acceptable to
Landlord, (iv) Tenant shall furnish upon Landlord's request a
complete statement, certified by an independent certified public
accountant, or Tenant's chief financial officer, setting forth in
detail the computation of any Transfer Premium Tenant has derived
and shall derive from such Transfer, and (v) no Transfer relating
to this Lease or agreement entered into with respect thereto,
whether with or without Landlord's consent, shall relieve Tenant
or any guarantor of the Lease from liability under this Lease.
Landlord or its authorized representatives shall have the right
at all reasonable times to audit the books, records and papers of
Tenant relating to any Transfer, and shall have the right to make
copies thereof. If the Transfer Premium respecting any Transfer
shall be found understated, Tenant shall, within thirty (30) days
after demand, pay the deficiency and Landlord's costs of such
audit, and if understated by more than ten percent (10%),
Landlord shall have the right to cancel this Lease upon thirty
(30) days' notice to Tenant.
14.6 Affiliate Transfers. Notwithstanding anything to the
contrary contained in this Article 14, an assignment or
subletting of all or a portion of the Premises to an affiliate
("Affiliate") of Tenant (an entity which is controlled by,
controls, or is under common control with, Tenant), shall not be
deemed a Transfer under this Article 14, provided that (i) Tenant
notifies Landlord of any such assignment or sublease and promptly
supplies Landlord with any documents or information requested by
Landlord regarding such assignment or sublease or such affiliate,
(ii) such Affiliate has a net worth calculated in accordance with
generally accepted accounting principles which is at least equal
to that of Tenant as of the date of this Lease, and (iii) such
assignment or sublease is not a subterfuge by Tenant to avoid its
obligations under this Lease. An assignee of Tenant's entire
interest in this Lease pursuant to the immediately preceding
sentence may be referred to herein as an "Affiliated Assignee."
"Control," as used in this Article 15, shall mean the ownership,
directly or indirectly, of greater than fifty percent (50%) of
the voting securities of, or possession of the right to vote, in
the ordinary direction of its affairs, of greater than fifty
percent (50%) of the voting interest in, an entity.
ARTICLE 15.
SURRENDER OF PREMISES; OWNERSHIP AND
REMOVAL OF TRADE FIXTURES
15.1 Surrender of Premises. No act or thing done by Landlord or
any agent or employee of Landlord during the Lease Term shall be
deemed to constitute an acceptance by Landlord of a surrender of
the Premises unless such intent is specifically acknowledged in a
writing signed by Landlord. The delivery of keys to the Premises
to Landlord or any agent or employee of Landlord shall not
constitute a surrender of the Premises or effect a termination of
this Lease, whether or not the keys are thereafter retained by
Landlord, and notwithstanding such delivery Tenant shall be
entitled to the return of such keys at any reasonable time upon
request until this Lease shall have been properly terminated.
The voluntary or other surrender of this Lease by Tenant, whether
accepted by Landlord or not, or a mutual termination hereof,
shall not work a merger, and at the option of Landlord shall
operate as an assignment to Landlord of all subleases or
subtenancies affecting the Premises.
15.2 Removal of Tenant Property by Tenant. Upon the expiration
of the Lease Term, or upon any earlier termination of this Lease,
Tenant shall, subject to the provisions of this Article 15, quit
and surrender possession of the Premises to Landlord in as good
order and condition as when Tenant took possession and as
thereafter improved by Landlord and/or Tenant, reasonable wear
and tear and repairs which are specifically made the
responsibility of Landlord hereunder excepted. Upon such
expiration or termination, Tenant shall, without expense to
Landlord, remove or cause to be removed from the Premises all
debris and rubbish, and such items of furniture, equipment,
free-standing cabinet work, and other articles of personal
property owned by Tenant or installed or placed by Tenant at its
expense in the Premises, and such similar articles of any other
persons claiming under Tenant and Tenant shall repair at its own
expense all damage to the Premises and Building resulting from
such removal.
ARTICLE 16.
HOLDING OVER
If Tenant holds over after the expiration of the Lease Term
hereof, with or without the express or implied consent of
Landlord, such tenancy shall be at sufferance only, and shall not
constitute a renewal hereof or an extension for any further term,
and in such case Base Rent shall be payable at a monthly rate
equal to twice the Base Rent applicable during the last rental
period of the Lease Term under this Lease. Such month-to-month
tenancy shall be subject to every other term, covenant and
agreement contained herein. Nothing contained in this Article 16
shall be construed as consent by Landlord to any holding over by
Tenant, and Landlord expressly reserves the right to require
Tenant to surrender possession of the Premises to Landlord as
provided in this Lease upon the expiration or other termination
of this Lease. The provisions of this Article 16 shall not be
deemed to limit or constitute a waiver of any other rights or
remedies of Landlord provided herein or at law. If Tenant fails
to surrender the Premises upon the termination or expiration of
this Lease, in addition to any other liabilities to Landlord
accruing therefrom, Tenant shall protect, defend, indemnify and
hold Landlord harmless from all loss, costs (including reasonable
attorneys' fees) and liability resulting from such failure,
including, without limiting the generality of the foregoing, any
claims made by any succeeding tenant founded upon such failure to
surrender, and any lost profits to Landlord resulting therefrom.
ARTICLE 17.
ESTOPPEL CERTIFICATES
Within ten (10) days following a request in writing by
Landlord, Tenant shall execute and deliver to Landlord an
estoppel certificate, which, as submitted by Landlord, shall be
in a form designated by Landlord or by any prospective mortgagee
or purchaser of the Project, or any portion thereof, and shall
also contain any other information reasonably requested by
Landlord or Landlord's mortgagee or prospective mortgagee.
Tenant shall execute and deliver whatever other instruments may
be reasonably required for such purposes. Failure of Tenant to
timely execute and deliver such estoppel certificate or other
instruments shall constitute an acceptance of the Premises and an
acknowledgment by Tenant that statements included in the estoppel
certificate are true and correct, without exception.
ARTICLE 18.
SUBORDINATION
This Lease is subject and subordinate to all present and
future ground or underlying leases of the Real Property and to
the lien of any mortgages or trust deeds, now or hereafter in
force against the Real Property and the Building, if any, and to
all renewals, extensions, modifications, consolidations and
replacements thereof, and to all advances made or hereafter to be
made upon the security of such mortgages or trust deeds, unless
the holders of such mortgages or trust deeds, or the lessors
under such ground lease or underlying leases, require in writing
that this Lease be superior thereto. Tenant covenants and agrees
in the event any proceedings are brought for the foreclosure of
any such mortgage, or if any ground or underlying lease is
terminated, to attorn, without any deductions or set-offs
whatsoever, to the purchaser upon any such foreclosure sale, or
to the lessor of such ground or underlying lease, as the case may
be, if so requested to do so by such purchaser or lessor, and to
recognize such purchaser or lessor as the lessor under this
Lease. Tenant shall, within five (5) days of request by
Landlord, execute such further instruments or assurances as
Landlord may reasonably deem necessary to evidence or confirm
such attornment and/or the subordination or superiority of this
Lease to any such mortgages, trust deeds, ground leases or
underlying leases. Tenant hereby irrevocably authorizes Landlord
to execute and deliver in the name of Tenant any such instrument
or instruments if Tenant fails to do so, provided that such
authorization shall in no way relieve Tenant from the obligation
of executing such instruments of subordination or superiority.
Tenant waives the provisions of any current or future statute,
rule or law which may give or purport to give Tenant any right or
election to terminate or otherwise adversely affect this Lease
and the obligations of the Tenant hereunder in the event of any
foreclosure proceeding or sale.
ARTICLE 19.
DEFAULTS; REMEDIES
19.1 Events of Default. The occurrence of any of the following
shall constitute a default of this Lease by Tenant:
19.1.1.....Any failure by Tenant to pay any Rent or any other
charge required to be paid under this Lease, or any part thereof,
when due; or
19.1.2.....Any failure by Tenant to observe or perform any other
provision, covenant or condition of this Lease to be observed or
performed by Tenant where such failure continues for fifteen (15)
days after written notice thereof from Landlord to Tenant;
provided however, that any such notice shall be in lieu of, and
not in addition to, any notice required under California Code of
Civil Procedure Section 1161 or any similar or successor law; and
provided further that if the nature of such default is such that
the same cannot reasonably be cured within a fifteen (15)-day
period, Tenant shall not be deemed to be in default if it
diligently commences such cure within such period and thereafter
diligently proceeds to rectify and cure said default as soon as
possible; or
19.1.3.....Abandonment or vacation of the Premises by Tenant.
Abandonment is herein defined to include, but is not limited to,
any absence by Tenant from the Premises for three (3) business
days or longer while in default of any provision of this Lease.
19.2 Remedies Upon Default. Upon the occurrence of any event of
default by Tenant, Landlord shall have, in addition to any other
remedies available to Landlord at law or in equity, the option to
pursue any one or more of the following remedies, each and all of
which shall be cumulative and nonexclusive, without any notice or
demand whatsoever.
19.2.1.....Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant
fails to do so, Landlord may, without prejudice to any other
remedy which it may have for possession or arrearages in rent,
enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying the
Premises or any part thereof, without being liable for
prosecution or any claim or damages therefor; and Landlord may
recover from Tenant the following:
(i) The worth at the time of award of any unpaid rent which has
been earned at the time of such termination; plus
(ii) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until
the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which the
unpaid rent for the balance of the Lease Term after the time of
award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus
(iv) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which in the ordinary course
of things would be likely to result therefrom, specifically
including but not limited to, brokerage commissions and
advertising expenses incurred, expenses of remodeling the
Premises or any portion thereof for a new tenant, whether for the
same or a different use, and any special concessions made to
obtain a new tenant; and
(v) At Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by
applicable law.
The term "rent" as used in this Section 19.2 shall be deemed to
be and to mean all sums of every nature required to be paid by
Tenant pursuant to the terms of this Lease, whether to Landlord
or to others. As used in Paragraphs 19.2.1(i) and (ii), above,
the "worth at the time of award" shall be computed by allowing
interest at the rate set forth in Article 25 of this Lease, but
in no case greater than the maximum amount of such interest
permitted by law. As used in Paragraph 19.2.1(iii) above, the
"worth at the time of award" shall be computed by discounting
such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent (1%).
19.2.2.....Landlord shall have the remedy described in California
Civil Code Section 1951.4 (lessor may continue lease in effect
after lessee's breach and abandonment and recover rent as it
becomes due, if lessee has the right to sublet or assign, subject
only to reasonable limitations). Accordingly, if Landlord does
not elect to terminate this Lease on account of any default by
Tenant, Landlord may, from time to time, without terminating this
Lease, enforce all of its rights and remedies under this Lease,
including the right to recover all rent as it becomes due.
19.3 Sublessees of Tenant. If Landlord elects to terminate this
Lease on account of any default by Tenant, as set forth in this
Article 19, Landlord shall have the right to terminate any and
all subleases, licenses, concessions or other consensual
arrangements for possession entered into by Tenant and affecting
the Premises or may, in Landlord's sole discretion, succeed to
Tenant's interest in such subleases, licenses, concessions or
arrangements. In the event of Landlord's election to succeed to
Tenant's interest in any such subleases, licenses, concessions or
arrangements, Tenant shall, as of the date of notice by Landlord
of such election, have no further right to or interest in the
rent or other consideration receivable thereunder.
19.4 Form of Payment After Default. Following the occurrence of
an event of default by Tenant, Landlord shall have the right to
require that any or all subsequent amounts paid by Tenant to
Landlord hereunder, whether in the cure of the default in
question or otherwise, be paid in the form of cash, money order,
cashier's or certified check drawn on an institution acceptable
to Landlord, or by other means approved by Landlord,
notwithstanding any prior practice of accepting payments in any
different form.
19.5 Waiver of Default. No waiver by Landlord or Tenant of any
violation or breach of any of the terms, provisions and covenants
herein contained shall be deemed or construed to constitute a
waiver of any other or later violation or breach of the same or
any other of the terms, provisions, and covenants herein
contained. Forbearance by Landlord in enforcement of one or more
of the remedies herein provided upon an event of default shall
not be deemed or construed to constitute a waiver of such
default. The acceptance of any Rent hereunder by Landlord
following the occurrence of any default, whether or not known to
Landlord, shall not be deemed a waiver of any such default,
except only a default in the payment of the Rent so accepted.
19.6 Efforts to Relet. For the purposes of this Article 19,
Tenant's right to possession shall not be deemed to have been
terminated by efforts of Landlord to relet the Premises, by its
acts of maintenance or preservation with respect to the Premises,
or by appointment of a receiver to protect Landlord's interests
hereunder. The foregoing enumeration is not exhaustive, but
merely illustrative of acts which may be performed by Landlord
without terminating Tenant's right to possession.
ARTICLE 20.
COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant, on paying the Rent, charges
for services and other payments herein reserved and on keeping,
observing and performing all the other terms, covenants,
conditions, provisions and agreements herein contained on the
part of Tenant to be kept, observed and performed, shall, during
the Lease Term, peaceably and quietly have, hold and enjoy the
Premises subject to the terms, covenants, conditions, provisions
and agreements hereof without interference by any persons
lawfully claiming by or through Landlord. The foregoing covenant
is in lieu of any other covenant express or implied.
ARTICLE 21.
ENVIRONMENTAL WORK
Tenant acknowledges that Landlord will be removing an
underground storage tank(s) from the Real Property and will also
be performing associated environmental work (collectively, the
"Environmental Work"). Such Environmental Work may prevent Tenant
from utilizing the Parking Facilities for an undetermined period
of time. Consequently, Tenant shall not be required to pay for
parking under this Lease until the Environmental Work has been
completed to a level sufficient for the Parking Facilities to be
reopened, as determined by Landlord and Landlord has received any
other necessary clearances to reopen the Parking Facilities.
While Landlord agrees to use commercially reasonable efforts to
minimize any disruption to Tenant's business operations
throughout the course of the Environmental Work, Tenant shall not
otherwise be entitled to any abatement of rent as a result of
such work nor shall Tenant be deemed to be constructively evicted
from the Premises as a result of such work and Tenant agrees to
hold Landlord harmless from any and all claims arising from the
presence of environmental products in the soil of the Real
Property and from such Environmental Work.
ARTICLE 22.
TERMINATION ON SALE
Landlord and Tenant acknowledge that Landlord was previously
in escrow to sell the Real Property to Five Star, LLC ("Five
Star") and that Tenant was previously in discussions to lease the
Premises from Five Star upon Five Star's close of escrow for the
Real Property. If Landlord, in its sole discretion, ultimately
sells the Real Property to Five Star, or any person or company
which is affiliated with, related to, employed by, controlled by,
controlling or under common control with Five Star, then this
Lease shall automatically terminate upon the close of escrow for
such sale. However, if Landlord, in its sole discretion, sells
the Real Property to any other purchaser, this Lease between
Landlord and Tenant shall remain in full force and effect through
the Lease Expiration Date (as may be extended pursuant to
Section 2.2 above) and the immediately preceding sentence of this
Article 22 shall be null and void and of no further force and
effect. Tenant agrees to indemnify, defend and hold Landlord
harmless from and against any and all claims, costs, expenses and
liabilities asserted or alleged by Five Star and/or any of its
affiliates, employees, members, officers or principals arising
out of or in connection (i) with Landlord and Tenant entering
into this Lease, (ii) Landlord's grant of the Purchase Option to
Tenant, (iii) Tenant's exercise of the Purchase Option, and/or
(iv) Tenant's purchase of the Real Property as a result of
Tenant's exercise of the Purchase Option, such defense to be
provided by counsel acceptable to Landlord in its sole and
absolute discretion.
ARTICLE 23.
SIGNS
23.1 In General. Tenant shall be entitled, at its sole cost and
expense, to the following (collectively, "Tenant's Signage"):
(i) signs on the exterior of the Building at the approximate
location of the signs which were previously installed when
Landlord operated a bank branch at the Building and
(ii) identification signage within the Premises. The location,
quality, design, style, lighting and size of Tenant's Signage
shall be subject to Landlord's prior written approval, in its
reasonable discretion. Tenant's rights to Tenant's Signage shall
be personal to Original Tenant and may not be transferred. Upon
the expiration or earlier termination of this Lease, Tenant shall
be responsible, at its sole cost and expense, for the removal of
Tenant's Signage and the repair of all damage to the Building
caused by such removal. If Tenant fails to timely remove
Tenant's Signage, Landlord may cause such signage to be removed
and to repair damage resulting from such removal, in which case
Tenant shall be responsible for all such costs so incurred by
Landlord.
23.2 Prohibited Signage and Other Items. Any signs, notices,
logos, pictures, names or advertisements which are installed and
that have not been individually approved by Landlord may be
removed without notice by Landlord at the sole expense of Tenant.
ARTICLE 24.
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done
in or about the Premises which will in any way conflict with any
law, statute, ordinance or other governmental rule, regulation or
requirement now in force or which may hereafter be enacted or
promulgated. At its sole cost and expense, Tenant shall promptly
comply with all such governmental measures, other than the making
of structural changes or changes to the Building's life safety
system. Should any standard or regulation now or hereafter be
imposed on Landlord or Tenant by a state, federal or local
governmental body charged with the establishment, regulation and
enforcement of occupational, health or safety standards for
employers, employees, landlords or tenants, then Tenant agrees,
at its sole cost and expense, to comply promptly with such
standards or regulations. The judgment of any court of competent
jurisdiction or the admission of Tenant in any judicial action,
regardless of whether Landlord is a party thereto, that Tenant
has violated any of said governmental measures, shall be
conclusive of that fact as between Landlord and Tenant.
ARTICLE 25.
LATE CHARGES
If any installment of Rent or any other sum due from Tenant
shall not be received by Landlord or Landlord's designee within
five (5) days after said amount is due, then Tenant shall pay to
Landlord a late charge equal to five percent (5%) of the amount
due plus any attorneys' fees incurred by Landlord by reason of
Tenant's failure to pay Rent and/or other charges when due
hereunder. The late charge shall be deemed Additional Rent and
the right to require it shall be in addition to all of Landlord's
other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's
remedies in any manner. In addition to the late charge described
above, any Rent or other amounts owing hereunder which are not
paid within three (3) days after the date they are due shall
thereafter bear interest until paid at a rate equal to twelve
percent (12%) per annum, provided that in no case shall such rate
be higher than the highest rate permitted by applicable law.
ARTICLE 26.
LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT
26.1 Landlord's Cure. All covenants and agreements to be kept or
performed by Tenant under this Lease shall be performed by Tenant
at Tenant's sole cost and expense and without any reduction of
Rent. If Tenant shall fail to perform any of its obligations
under this Lease, within a reasonable time after such
performance is required by the terms of this Lease, Landlord may,
but shall not be obligated to, after reasonable prior notice to
Tenant, make any such payment or perform any such act on Tenant's
part without waiving its right based upon any default of Tenant
and without releasing Tenant from any obligations hereunder.
26.2 Tenant's Reimbursement. Except as may be specifically
provided to the contrary in this Lease, Tenant shall pay to
Landlord, within fifteen (15) days after delivery by Landlord to
Tenant of statements therefor sums equal to expenditures
reasonably made and obligations incurred by Landlord in
connection with the remedying by Landlord of Tenant's defaults
pursuant to the provisions of Section 26.1.
ARTICLE 27.
ENTRY BY LANDLORD
Landlord reserves the right at all reasonable times and upon
reasonable notice to the Tenant to enter the Premises to
(i) inspect them; (ii) show the Premises to prospective
purchasers, mortgagees or tenants, or to the ground or underlying
lessors; (iii) post notices of nonresponsibility; or (iv) alter,
improve or repair the Premises or the Building if necessary to
comply with current building codes or other applicable laws, or
for structural alterations, repairs or improvements to the
Building. Notwithstanding anything to the contrary contained in
this Article 27, Landlord may enter the Premises at any time to
(A) perform services required of Landlord; (B) take possession
due to any breach of this Lease in the manner provided herein;
and (C) perform any covenants of Tenant which Tenant fails to
perform. Any such entries shall be without the abatement of Rent
and shall include the right to take such reasonable steps as
required to accomplish the stated purposes. Tenant hereby waives
any claims for damages or for any injuries or inconvenience to or
interference with Tenant's business, lost profits, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss
occasioned thereby. For each of the above purposes, Landlord
shall at all times have a key with which to unlock all the doors
in the Premises, excluding Tenant's vaults, safes and special
security areas designated in advance by Tenant. In an emergency,
Landlord shall have the right to use any means that Landlord may
deem proper to open the doors in and to the Premises. Any entry
into the Premises in the manner hereinbefore described shall not
be deemed to be a forcible or unlawful entry into, or a detainer
of, the Premises, or an actual or constructive eviction of Tenant
from any portion of the Premises.
ARTICLE 28.
TENANT PARKING
Subject to Article 21 above, Tenant shall be entitled to the
parking set forth in Section 11 of the Summary to park in the
Parking Facilities. Subject to Article 21 above, Tenant shall
pay to Landlord for automobile parking passes on a monthly basis
(i) $35.00 per unreserved parking pass per month for the first
three (3) Lease Years, (ii) $38.50 per unreserved parking pass
per month for the fourth (4th) Lease Year, and (iii) the
prevailing rate for parking in the vicinity of the Building
thereafter. Tenant's continued right to use the parking passes
is conditioned upon Tenant abiding by all rules and regulations
which are prescribed from time to time for the orderly operation
and use of the Parking Facilities and upon Tenant's cooperation
in seeing that Tenant's employees and visitors also comply with
such rules and regulations. Landlord specifically reserves the
right to (i) change the size, configuration, design, layout,
location and all other aspects of the Parking Facilities and/or
(ii) perform repairs to the Parking Facilities, and Tenant
acknowledges and agrees that, subject to Article 21 above,
Landlord may, without incurring any liability to Tenant and
without any abatement of Rent under this Lease, from time to
time, close-off or restrict access to the Parking Facilities for
purposes of permitting or facilitating any such construction,
alteration, improvements or repairs with respect to the Parking
Facilities or to accommodate or facilitate renovation,
alteration, construction or other modification of other
improvements or structures located on the Real Property. The
parking rates charged by Landlord for Tenant's parking passes
shall be exclusive of any parking tax or other charges imposed by
governmental authorities in connection with the use of such
parking, which taxes and/or charges shall be paid directly by
Tenant or the parking users, or, if directly imposed against
Landlord, Tenant shall reimburse Landlord for all such taxes
and/or charges concurrent with its payment of the parking rates
described herein.
ARTICLE 29.
MISCELLANEOUS PROVISIONS
29.1 Terms. The necessary grammatical changes required to make
the provisions hereof apply either to corporations or
partnerships or individuals, men or women, as the case may
require, shall in all cases be assumed as though in each case
fully expressed.
29.2 Binding Effect. Each of the provisions of this Lease shall
extend to and shall, as the case may require, bind or inure to
the benefit not only of Landlord and of Tenant, but also of their
respective successors or assigns, provided this clause shall not
permit any assignment by Tenant contrary to the provisions of
Article 14 of this Lease.
29.3 No Air Rights. No rights to any view or to light or air
over any property, whether belonging to Landlord or any other
person, are granted to Tenant by this Lease. If at any time any
windows of the Premises are temporarily darkened or the light or
view therefrom is obstructed by reason of any repairs,
improvements, maintenance or cleaning in or about the Building,
the same shall be without liability to Landlord and without any
reduction or diminution of Tenant's obligations under this Lease.
29.4 Transfer of Landlord's Interest. Tenant acknowledges that
Landlord has the right to transfer all or any portion of its
interest in the Real Property and Building and in this Lease, and
Tenant agrees that in the event of any such transfer, Landlord
shall automatically be released from all remaining liability
under this Lease and Tenant agrees to look solely to such
transferee for the performance of Landlord's obligations
hereunder after the date of transfer. Tenant further
acknowledges that Landlord may assign its interest in this Lease
to a mortgage lender as additional security and agrees that such
an assignment shall not release Landlord from its obligations
hereunder and that Tenant shall continue to look to Landlord for
the performance of its obligations hereunder.
29.5 Prohibition Against Recording. Neither this Lease, nor any
memorandum, affidavit or other writing with respect thereto,
shall be recorded by Tenant or by anyone acting through, under or
on behalf of Tenant.
29.6 Landlord's Title. Landlord's title is and always shall be
paramount to the title of Tenant. Nothing herein contained shall
empower Tenant to do any act which can, shall or may encumber the
title of Landlord.
29.7 Captions. The captions of Articles and Sections are for
convenience only and shall not be deemed to limit, construe,
affect or alter the meaning of such Articles and Sections.
29.8 Relationship of Parties. Nothing contained in this Lease
shall be deemed or construed by the parties hereto or by any
third party to create the relationship of principal and agent,
partnership, joint venturer or any association between Landlord
and Tenant, it being expressly understood and agreed that neither
the method of computation of Rent nor any act of the parties
hereto shall be deemed to create any relationship between
Landlord and Tenant other than the relationship of landlord and
tenant.
29.9 Application of Payments. Landlord shall have the right to
apply payments received from Tenant pursuant to this Lease,
regardless of Tenant's designation of such payments, to satisfy
any obligations of Tenant hereunder, in such order and amounts as
Landlord, in its sole discretion, may elect.
29.10 Time of Essence. Time is of the essence of this Lease and
each of its provisions.
29.11 Partial Invalidity. If any term, provision or condition
contained in this Lease shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of
such term, provision or condition to persons or circumstances
other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every
other term, provision and condition of this Lease shall be valid
and enforceable to the fullest extent possible permitted by law.
29.12 No Warranty. In executing and delivering this Lease, Tenant
has not relied on any representation, including, but not limited
to, any representation whatsoever as to the amount of any item
comprising Additional Rent or the amount of the Additional Rent
in the aggregate or that Landlord is furnishing the same services
to other tenants, at all, on the same level or on the same basis,
or any warranty or any statement of Landlord which is not set
forth herein or in one or more of the exhibits attached hereto.
29.13 Landlord Exculpation. It is expressly understood and agreed
that notwithstanding anything in this Lease to the contrary, and
notwithstanding any applicable law to the contrary, the liability
of Landlord and the Landlord Parties hereunder (including any
successor landlord) and any recourse by Tenant against Landlord
or the Landlord Parties shall be limited solely and exclusively
to an amount which is equal to the lesser of (a) the interest of
Landlord in the Building or (b) the equity interest Landlord
would have in the Building if the Building were encumbered by
third-party debt in an amount equal to eighty percent (80%) of
the value of the Building (as such value is determined by
Landlord), and neither Landlord, nor any of the Landlord Parties
shall have any personal liability therefor, and Tenant hereby
expressly waives and releases such personal liability on behalf
of itself and all persons claiming by, through or under Tenant.
29.14 Entire Agreement. It is understood and acknowledged that
there are no oral agreements between the parties hereto affecting
this Lease and this Lease supersedes and cancels any and all
previous negotiations, arrangements, brochures, agreements and
understandings, if any, between the parties hereto or displayed
by Landlord to Tenant with respect to the subject matter thereof,
and none thereof shall be used to interpret or construe this
Lease. This Lease and any side letter or separate agreement
executed by Landlord and Tenant in connection with this Lease and
dated of even date herewith contain all of the terms, covenants,
conditions, warranties and agreements of the parties relating in
any manner to the rental, use and occupancy of the Premises,
shall be considered to be the only agreement between the parties
hereto and their representatives and agents, and none of the
terms, covenants, conditions or provisions of this Lease can be
modified, deleted or added to except in writing signed by the
parties hereto. All negotiations and oral agreements acceptable
to both parties have been merged into and are included herein.
29.15 Right to Lease. Landlord reserves the absolute right to
effect such other tenancies in the Building as Landlord in the
exercise of its sole business judgment shall determine to best
promote the interests of the Building. Tenant does not rely on
the fact, nor does Landlord represent, that any specific tenant
or type or number of tenants shall, during the Lease Term, occupy
any space in the Building.
29.16 Force Majeure. Any prevention, delay or stoppage due to
strikes, lockouts, labor disputes, acts of God, inability to
obtain services, labor, or materials or reasonable substitutes
therefor, governmental actions, civil commotions, fire or other
casualty, and other causes beyond the reasonable control of the
party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be
paid by Tenant pursuant to this Lease (collectively, the "Force
Majeure"), notwithstanding anything to the contrary contained in
this Lease, shall excuse the performance of such party for a
period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance
of an obligation of either party, that time period shall be
extended by the period of any delay in such party's performance
caused by a Force Majeure.
29.17 Waiver of Redemption by Tenant. Tenant hereby waives for
Tenant and for all those claiming under Tenant all right now or
hereafter existing to redeem by order or judgment of any court or
by any legal process or writ, Tenant's right of occupancy of the
Premises after any termination of this Lease.
29.18 Notices. All notices, demands, statements or communications
(collectively, "Notices") given or required to be given by either
party to the other hereunder shall be in writing, shall be sent
by United States certified or registered mail, postage prepaid,
return receipt requested, or delivered personally (i) to Tenant
at the appropriate address set forth in Section 5 of the Summary,
or to such other place as Tenant may from time to time designate
in a Notice to Landlord; or (ii) to Landlord at the addresses set
forth in Section 3 of the Summary, or to such other firm or to
such other place as Landlord may from time to time designate in a
Notice to Tenant. Any Notice will be deemed given on the date it
is delivered or refused. If Tenant is notified of the identity
and address of Landlord's mortgagee or ground or underlying
lessor, Tenant shall give to such mortgagee or ground or
underlying lessor written notice of any default by Landlord under
the terms of this Lease by registered or certified mail, and such
mortgagee or ground or underlying lessor shall be given a
reasonable opportunity to cure such default prior to Tenant's
exercising any remedy available to Tenant.
29.19 Joint and Several. If there is more than one Tenant, the
obligations imposed upon Tenant under this Lease shall be joint
and several.
29.20 Attorneys' Fees. If either party commences litigation
against the other for the specific performance of this Lease, for
damages for the breach hereof or otherwise for enforcement of any
remedy hereunder, the parties hereto agree to and hereby do waive
any right to a trial by jury and, in the event of any such
commencement of litigation, the prevailing party shall be
entitled to recover from the other party such costs and
reasonable attorneys' fees as may have been incurred, including
any and all costs incurred in enforcing, perfecting and executing
such judgment.
29.21 Governing Law. This Lease shall be construed and enforced
in accordance with the laws of the State of California.
29.22 Submission of Lease. Submission of this instrument for
examination or signature by Tenant does not constitute a
reservation of or an option for lease, and it is not effective as
a lease or otherwise until execution and delivery by both
Landlord and Tenant.
29.23 Brokers. Landlord and Tenant hereby warrant to each other
that they have had no dealings with any real estate broker or
agent in connection with the negotiation of this Lease, excepting
only the real estate brokers or agents specified in Section 12 of
the Summary (the "Brokers"), and that they know of no other real
estate broker or agent who is entitled to a commission in
connection with this Lease. Each party agrees to indemnify and
defend the other party against and hold the other party harmless
from any and all claims, demands, losses, liabilities, lawsuits,
judgments, and costs and expenses (including without limitation
reasonable attorneys' fees) with respect to any leasing
commission or equivalent compensation alleged to be owing on
account of the indemnifying party's dealings with any real estate
broker or agent other than the Brokers.
ARTICLE 30.
PURCHASE OPTION
30.1 Purchase Notice and Price. Landlord hereby grants to Tenant
the one-time right and option to purchase the Real Property (the
"Purchase Option") on the terms set forth in this Section 30.
Landlord shall provide Tenant with written notice ("Trigger
Notice") upon any date selected by Landlord which is on or before
November 30, 2003. The Trigger Notice shall specify the amount
determined by Landlord to be the purchase price ("Purchase
Price") for the Real Property. The Purchase Price shall, in any
event, be a minimum of Two Million Two Hundred Twenty-Five
Thousand Dollars ($2,225,000.00) and the Purchase Price shall be
paid all cash by Tenant as of the close of Escrow. The Purchase
Option shall be exercised by Tenant, if at all, by written notice
("Exercise Notice") to Landlord within ten (10) days after the
Trigger Notice. Tenant's failure to deliver the Exercise Notice
to Landlord within said ten (10) day period shall be deemed to
constitute Tenant's election not to exercise the Purchase Option,
in which case the Purchase Option shall terminate. In any event
the Purchase Option shall be of no force or effect after
December 31, 2003.
30.2 Conditions Precedent to Effectiveness of Purchase Option.
Notwithstanding anything to the contrary contained in this
Section 30, Tenant's exercise of the Purchase Option shall be
effective only if all of the conditions precedent set forth
hereinbelow are true and correct during the period commencing
upon the date Tenant delivers the Exercise Notice and continuing
until the Closing Date (as that term is defined below), unless
Landlord, in Landlord's sole discretion, elects to waive any such
condition precedent in writing:
(i) Tenant shall not then be in default under
this Lease; and
(ii) Tenant shall not have assigned its interest
in this Lease or in the Purchase Option to other than an
Affiliated Assignee.
30.3 Actions of Parties. Within ten (10) days following
Landlord's receipt of the Exercise Notice, the parties shall
proceed to open an escrow for the purchase and sale of the
Premises ("Escrow") with an escrow and title company reasonably
selected by Landlord ("Title/Escrow Holder") by delivering a
fully executed copy of a definitive Purchase and Sale Agreement
and Joint Escrow Instructions (the "Purchase Agreement") to
Title/Escrow Holder. In addition, concurrently with delivery of
the Purchase Agreement to Title/Escrow Holder, Tenant shall
deliver to Title/Escrow Holder a good faith deposit in the amount
of Ninety Thousand Dollars ($90,000.00), which deposit shall be
applied to the Purchase Price and shall be nonrefundable to
Tenant except in the event of Landlord's default under the
Purchase Agreement. The Purchase Agreement shall specify that
said deposit shall be delivered to Landlord by Title/Escrow
Holder as liquidated damages in the event of Tenant's default
under the Purchase Agreement. The Purchase Agreement shall be
prepared by Landlord and incorporate the terms and provisions set
forth in this Section 30 and any other commercially reasonable
and standard provisions approved by the parties.
30.4 Closing Date. The close of Escrow shall occur on or before
the date (the "Closing Date") which is twenty-one (21) days after
Tenant delivers the Exercise Notice to Landlord. This Lease,
including Tenant's obligation to pay Rent, shall remain in effect
until the close of Escrow.
30.5 No Contingencies to Tenant's Obligations. After Tenant's
delivery of the Exercise Notice, there shall be no contingencies
or conditions precedent to Tenant's obligations to close Escrow
except for (i) Landlord's delivery to Title/Escrow Holder on or
before the Closing Date of a duly executed and acknowledged grant
deed conveying title to the Real Property to Tenant and (ii) the
agreement by the Title/Escrow Holder to deliver to Tenant the
Title Policy described in Section 30.6 below. Notwithstanding
the foregoing, upon Tenant's written request, Landlord shall
provide Tenant with copies of any written correspondence then
received by Landlord and in Landlord's possession from
governmental entities regarding the condition of the Real
Property.
30.6 Title. Title to the Real Property shall be evidenced by
either a standard CLTA or ALTA Owner's Form Policy of Title
Insurance issued by the Title/Escrow Holder ("Title Policy") in
the amount of the Purchase Price showing title to the Real
Property vested in Tenant. Tenant shall have the option to
obtain an ALTA Title Policy by providing written notice to
Landlord of Tenant's agreement to pay for the cost of the survey
and the additional cost of an ALTA Title Policy in accordance
with Section 30.7 below.
30.7 Costs and Prorations. Landlord shall pay for all premiums
for a CLTA Title Policy, all documentary transfer and other taxes
imposed in connection with the sale of the Real Property,
one-half (1/2) of all Escrow fees and costs, and any document
recording charges and taxes imposed in connection with the sale
of the Real Property. Tenant shall pay one-half (1/2) of all
Escrow fees and costs, the additional premium imposed in the
event Tenant elects to obtain an ALTA Title Policy over the
premium for a CLTA Title Policy and any costs (including survey
costs) associated with an ALTA Title Policy and the costs
associated with any title endorsements. All other costs and
expenses shall be apportioned between Landlord and Tenant in
accordance with the customary practice for comparable real estate
transactions in Monterey, California.
30.8 Representations. Tenant acknowledges that the Purchase
Option has been granted by Landlord to Tenant based on the
understanding that exercise of the Purchase Option is entirely
voluntary by Tenant, and that the conveyance of the Real Property
by Landlord to Tenant is and shall be on an "AS IS" basis, with
absolutely no representations or warranties, express or implied,
regarding the condition or nature of the Real Property and any
improvements thereon except for the following representations.
(i) Landlord and Tenant each represent to each other
than they have the legal power, right and authority to enter
into this Lease and the instruments referenced in this
Section 30;
(ii) Landlord and Tenant represent to each other that
neither the execution of this Lease and the instruments
referenced herein, nor the incurrence of the obligations set
forth herein, nor the consummation of the transaction herein
contemplated conflict with or result in the material breach
of any terms, conditions or provisions of, or constitute a
default under any agreement or instrument to which Landlord
or Tenant, as applicable, is a party; and
(iii)Any representations and warranties specifically
set forth in this Lease.
The parties agree to indemnify the other, and to defend and
hold the other harmless, from all losses, damages, costs and
expenses incurred relating to the Real Property which arise from
a breach of the representations made above. Such representations
shall survive, and shall not merge into, the close of Escrow and
the recordation of the grant deed for the Real Property.
30.9 Sale to Five Star. Landlord and Tenant acknowledge that
Landlord shall be entitled to sell the Real Property, at
Landlord's sole discretion, to Five Star (as that term is defined
in Article 22 above) or any person or company which is affiliated
with, related to, employed by, controlled by, controlling or
under common control with Five Star, in which case the Purchase
Option shall be null and void and, as indicated in Article 22
above, this Lease shall automatically terminate upon the close of
escrow for such sale.
IN WITNESS WHEREOF, Landlord and Tenant have caused this
Lease to be executed the day and date first above written.
"Landlord":
CALIFORNIA BANK & TRUST,
a California corporation
By: /s/ DAVID RUSSELL
David Russell, Sr. Vice
President, Director of Corporate
Real Estate Facilities
By: /s/ VICTORIA UNDERWOOD
Victoria Underwood, Vice
President
"Tenant":
CENTRAL COAST BANCORP.,
a California corporation, dba
COMMUNITY BANK OF CENTRAL CALIFORNIA
By: /s/ HARRY O. WARDWELL
Its: S.V.P. branch Administrator
By: /s/ CAROL FRANCHI
Its: S.V.P. Operations
Administrator
EXHIBIT A
OUTLINE OF FLOOR PLAN OF PREMISES
[ graphic omitted]
EXHIBIT B
NOTICE OF LEASE TERM DATES
To:
Re: Office Lease dated _______________, 2002, between
_____________________, a
_________________________________________ ("Landlord"),
and _______________________________, a
_____________________ ("Tenant") concerning Suite
_______ on floor(s) _______ of the Office Building
located at _________________________________.
Ladies and Gentlemen:
In accordance with the Office Lease (the "Lease"), we wish
to advise you and/or confirm as follows:
1. That the Lease Term shall commence as of ________________
for a term of _______________ ending on _______________.
2. That in accordance with the Lease, Rent commenced to accrue
on _______________________.
3. If the Lease Commencement Date is other than the first day
of the month, the first billing will contain a pro rata
adjustment. Each billing thereafter, with the exception of the
final billing, shall be for the full amount of the monthly
installment as provided for in the Lease.
4. Rent is due and payable in advance on the first day of each
and every month during the Lease Term. Your rent checks should
be made payable to ____________________________________ at
________________________________.
5. The exact number of rentable square feet within the Premises
is _______ square feet.
6. Tenant's Share as adjusted based upon the exact number of
rentable square feet within the Premises is _______%.
"Landlord":
_________________________________,
a _________________________
By:
Its: ____________________
Agreed to and Accepted as
of _____________, 200_.
"Tenant":
,
a
By:
Its:
By:
Its:
EXHIBIT C
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the
following Rules and Regulations. Landlord shall not be
responsible to Tenant for the nonperformance of any of said Rules
and Regulations by or otherwise with respect to the acts or
omissions of any other tenants or occupants of the Building.
1. Tenant shall not alter any lock or install any new or
additional locks or bolts on any doors or windows of the Premises
without obtaining Landlord's prior written consent. Tenant shall
bear the cost of any lock changes or repairs required by Tenant.
2. All doors opening to public corridors shall be kept closed
at all times except for normal ingress and egress to the
Premises, unless electrical hold backs have been installed.
3. Landlord reserves the right to close and keep locked all
entrance and exit doors of the Building during such hours as are
customary for comparable buildings in the vicinity of the
Building. Tenant, its employees and agents must be sure that the
doors to the Building are securely closed and locked when leaving
the Premises if it is after the normal hours of business for the
Building. The Landlord and its agents shall in no case be liable
for damages for any error with regard to the admission to or
exclusion from the Building of any person. In case of invasion,
mob, riot, public excitement, or other commotion, Landlord
reserves the right to prevent access to the Building during the
continuance of same by any means it deems appropriate for the
safety and protection of life and property.
4. Landlord shall have the right to prescribe the weight, size
and position of all safes and other heavy property brought into
the Building. Safes and other heavy objects shall, if considered
necessary by Landlord, stand on supports of such thickness as is
necessary to properly distribute the weight. Landlord will not
be responsible for loss of or damage to any such safe or property
in any case. All damage done to any part of the Building, its
contents, occupants or visitors by moving or maintaining any such
safe or other property shall be the sole responsibility of Tenant
and any expense of said damage or injury shall be borne by Tenant.
5. Landlord shall have the right to control and operate the
public portions of the Building, the public facilities, the
heating and air conditioning, and any other facilities furnished
for the common use of tenants, in such manner as is customary for
comparable buildings in the vicinity of the Building.
6. Tenant shall not disturb, solicit, or canvass any occupant
of the Building and shall cooperate with Landlord or Landlord's
agents to prevent same.
7. The toilet rooms, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they
were constructed, and no foreign substance of any kind whatsoever
shall be thrown therein. The expense of any breakage, stoppage
or damage resulting from the violation of this rule shall be
borne by the tenant who, or whose employees or agents, shall have
caused it.
8. Tenant shall not overload the floor of the Premises, nor
mark, drive nails or screws, or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part
thereof without Landlord's consent first had and obtained.
9. Except for vending machines intended for the sole use of
Tenant's employees and invitees, no vending machine or machines
of any description other than usual office machines shall be
installed, maintained or operated upon the Premises without the
written consent of Landlord.
10. Tenant shall not use or keep in or on the Premises or the
Building any kerosene, gasoline or other inflammable or
combustible fluid or material.
11. Tenant shall not use any method of heating or air
conditioning other than that which may be supplied by Landlord,
without the prior written consent of Landlord.
12. Tenant shall not use, keep or permit to be used or kept, any
foul or noxious gas or substance in or on the Premises, or permit
or allow the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the
Building by reason of noise, odors, or vibrations, or interfere
in any way with other Tenants or those having business therein.
13. Tenant shall not bring into or keep within the Building or
the Premises any animals, birds, bicycles or other vehicles.
14. No cooking shall be done or permitted by any tenant on the
Premises, nor shall the Premises be used for the storage of
merchandise, for lodging or for any improper, objectionable or
immoral purposes. Notwithstanding the foregoing, Underwriters'
laboratory-approved equipment and microwave ovens may be used in
the Premises for heating food and brewing coffee, tea, hot
chocolate and similar beverages, provided that such use is in
accordance with all applicable federal, state and city laws,
codes, ordinances, rules and regulations, and does not cause
odors which are objectionable to Landlord and other Tenants.
15. Landlord will approve where and how telephone and telegraph
wires are to be introduced to the Premises. No boring or cutting
for wires shall be allowed without the consent of Landlord. The
location of telephone, call boxes and other office equipment
affixed to the Premises shall be subject to the approval of
Landlord.
16. Tenant, its employees and agents shall not loiter in the
entrances or corridors, nor in any way obstruct the sidewalks,
lobby, halls, stairways or elevators, and shall use the same only
as a means of ingress and egress for the Premises.
17. Tenant shall not waste electricity, water or air
conditioning and agrees to cooperate fully with Landlord to
ensure the most effective operation of the Building's heating and
air conditioning system, and shall refrain from attempting to
adjust any controls. This includes the closing of exterior
blinds, disallowing the sun rays to shine directly into areas
adjacent to exterior windows.
18. Tenant shall store all its trash and garbage within the
interior of the Premises. No material shall be placed in the
trash boxes or receptacles if such material is of such nature
that it may not be disposed of in the ordinary and customary
manner of removing and disposing of trash and garbage without
violation of any law or ordinance governing such disposal. All
trash, garbage and refuse disposal shall be made only through
entry-ways and elevators provided for such purposes at such times
as Landlord shall designate.
19. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or
any governmental agency.
20. Tenant shall assume any and all responsibility for
protecting the Premises from theft, robbery and pilferage, which
includes keeping doors locked and other means of entry to the
Premises closed, when the Premises are not occupied.
21. Landlord may waive any one or more of these Rules and
Regulations for the benefit of any particular tenant or tenants,
but no such waiver by Landlord shall be construed as a waiver of
such Rules and Regulations in favor of any other tenant or
tenants, nor prevent Landlord from thereafter enforcing any such
Rules or Regulations against any or all tenants of the Building.
22. No awnings or other projection shall be attached to the
outside walls of the Building without the prior written consent
of Landlord. No curtains, blinds, shades or screens shall be
attached to or hung in, or used in connection with, any window or
door of the Premises without the prior written consent of
Landlord. All electrical ceiling fixtures hung in offices or
spaces along the perimeter of the Building must be fluorescent
and/or of a quality, type, design and bulb color approved by
Landlord.
23. The sashes, sash doors, skylights, windows, and doors that
reflect or admit light and air into the halls, passageways or
other public places in the Building shall not be covered or
obstructed by Tenant, nor shall any bottles, parcels or other
articles be placed on the windowsills.
24. The washing and/or detailing of or, the installation of
windshields, radios, telephones in or general work on,
automobiles shall not be allowed on the Real Property.
25. Tenant shall comply with any non-smoking ordinance adopted
by any applicable governmental authority.
26. Tenant and Tenant's employees, agents, contractors and other
invitees shall not be permitted to bring firearms into the
Building or surrounding areas at any time.
27. Landlord reserves the right at any time to change or rescind
any one or more of these Rules and Regulations, or to make such
other and further reasonable Rules and Regulations as in
Landlord's judgment may from time to time be necessary for the
management, safety, care and cleanliness of the Premises and
Building, and for the preservation of good order therein, as well
as for the convenience of other occupants and tenants therein.
Landlord shall not be responsible to Tenant or to any other
person for the nonobservance of the Rules and Regulations by
another tenant or other person. Tenant shall be deemed to have
read these Rules and Regulations and to have agreed to abide by
them as a condition of its occupancy of the Premises.
GUARANTY OF LEASE
The undersigned ("Guarantor"), as a material inducement to
and in consideration of the execution by CALIFORNIA BANK & TRUST,
a California corporation ("Landlord") of that certain Office
Lease (the "Lease") dated November 18, 2002 between Landlord and
CENTRAL COAST BANCORP., a California corporation, dba COMMUNITY
BANK OF CENTRAL CALIFORNIA ("Tenant"), relating to premises in
that certain building located at 439 Alvarado Street, Monterey,
California, hereby agrees as follows:
1. Guarantor hereby unconditionally guarantees the
performance of, and unconditionally promises to perform, all of
the obligations of Tenant under the Lease and any and all
extensions and modifications thereof, including, but not limited
to, the obligation to pay rent thereunder.
2. In such manner, upon such terms and at such times as
Landlord shall deem best, and without notice to or the consent of
Guarantor, Landlord may alter, compromise, extend or change the
time or manner for the performance of any obligation hereby
guaranteed, substitute or add any one or more guarantors, accept
additional or substituted security for the performance of any
such obligation, or release or subordinate any security therefor,
any and all of which may be accomplished without any effect on
the obligations of Guarantor hereunder. No exercise or
non-exercise by Landlord of any right hereby given, no dealing by
Landlord with Tenant, any other guarantor or other person, and no
change, impairment or suspension of any right or remedy of
Landlord shall in any way affect any of the obligations of
Guarantor hereunder or any security furnished by Guarantor or
give Guarantor any recourse against Landlord.
3. Guarantor hereby waives and agrees not to assert or
take advantage of the following:
(a) Any right to require Landlord to proceed against
Tenant or any other person or to proceed or exhaust any
security held by Landlord at any time or to pursue any other
remedy in Landlord's power before proceeding against
Guarantor, including the provisions of Sections 2845 and
2850 of the Civil Code of California;
(b) Any defense that may arise by reason of the
incapacity, lack of authority, bankruptcy, death or
disability of any other person or persons or the failure of
Landlord to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any
other person or persons, including the provisions of
Section 2810 of the Civil Code of California;
(c) Any right to receive demands, protests and notices
of any kind including, but not limited to, notice of the
existence, creation or incurring of any new or additional
obligation or of any action or non-action on the part of
Tenant, Landlord or any other person;
(d) Any defense based on an election of remedies
including, but not limited to, any action by Landlord which
shall destroy or otherwise impair any subrogation right of
Guarantor or the right of Guarantor to proceed against
Tenant for reimbursement, or both;
(e) Any duty on the part of Landlord to disclose to
Guarantor any facts Landlord may now or hereafter know about
Tenant, regardless of whether Landlord has reason to believe
that such facts materially increase the risk beyond that
which Guarantor intends to assume or has reason to believe
that such facts are unknown to Guarantor or has a reasonable
opportunity to communicate such facts to Guarantor, it being
understood and agreed that Guarantor is fully responsible
for being and keeping informed of the financial condition of
Tenant and of all circumstances bearing on the risk of
nonperformance of any obligation hereby guaranteed;
(f) Any right to receive notice of or to consent to
any amendments that may hereafter be made to the Lease,
including the provisions of Section 2819 of the Civil Code
of California; and
(g) Any defense based on the fact that Guarantor's
obligations hereunder are larger or more burdensome than
that of Tenant's under the Lease, including the provisions
of Section 2809 of the Civil Code of California.
4. Until all obligations hereby guaranteed shall have been
fully performed, Guarantor shall have no right of subrogation and
waives any right to enforce any remedy which Landlord now has or
may hereafter have against Tenant and any benefit of, and any
right to participate in, any security now or hereafter held by
Landlord, including the provisions of Sections 2847, 2848 and
2849 of the Civil Code of California. Guarantor agrees that
nothing contained herein shall prevent Landlord from suing on the
Lease or from exercising any rights available to Landlord
thereunder and that the exercise of any of the aforesaid rights
shall not constitute a legal or equitable discharge of
Guarantor. Guarantor expressly waives any and all benefits under
the second sentence of California Civil Code Section 2822(a). In
addition, Guarantor agrees that Landlord (and not Tenant) shall
have the right to designate the portion of Tenant's obligations
under the Lease that is satisfied by a partial payment by Tenant.
5. All existing and future obligations of Tenant to
Guarantor, or any person owned in whole or in part by Guarantor,
and the right of Guarantor to cause or permit itself or such
person to withdraw any capital invested in Tenant are hereby
subordinated to all obligations hereby guaranteed, and, without
the prior written consent of Landlord, such obligations to
Guarantor shall not be performed, and such capital shall not be
withdrawn, in whole or in part, while Tenant is in default under
the Lease.
6. All rights, powers and remedies of Landlord hereunder
and under any other agreement now or at any time hereafter in
force between Landlord and Guarantor shall be cumulative and not
alternative, and such rights, powers and remedies shall be in
addition to all rights, powers and remedies given to Landlord at
law or in equity. This Guaranty of Lease is in addition to and
exclusive of the guarantee of any other guarantor of any
obligation of Tenant to Landlord.
7. The obligations of Guarantor hereunder are independent
of the obligations of Tenant under the Lease, and, in the event
of any default hereunder or under the Lease, a separate action or
actions may be brought and prosecuted against Guarantor, whether
or not Tenant is joined therein or a separate action or actions
are brought against Tenant. Landlord may maintain successive
actions for other defaults. Landlord's rights hereunder shall
not be exhausted by its exercise of any of its rights or remedies
or by any such action or by any number of successive actions
until and unless all obligations hereby guaranteed shall have
been fully performed.
8. Guarantor shall pay to Landlord, without demand,
reasonable attorneys' fees and all costs and other expenses which
Landlord shall expend or incur in collecting or compromising any
obligation hereby guaranteed or in enforcing this Guaranty of
Lease against Guarantor, whether or not suit is filed including,
but not limited to, attorneys' fees, costs and other expenses
incurred by Landlord in connection with any insolvency,
bankruptcy, reorganization, arrangement or other similar
proceeding involving Guarantor which in any way affects the
exercise by Landlord of its rights and remedies hereunder.
9. Should any one or more provisions of this Guaranty of
Lease be determined to be illegal or unenforceable, all other
provisions shall nevertheless be effective.
10. This Guaranty of Lease shall inure to the benefit of
Landlord and its successors and assigns, and shall bind the
heirs, executors, administrators, successors and assigns of
Guarantor. This Guaranty of Lease may be assigned by Landlord
concurrently with the transfer of title to property covered by
the Lease, and, when so assigned, Guarantor shall be liable to
the assignees without in any manner affecting the liability of
Guarantor hereunder.
11. Upon full performance of all obligations hereby
guaranteed, this Guaranty of Lease shall be of no further force
or effect.
12. No provision of this Guaranty of Lease or right of
Landlord hereunder can be waived or modified, nor can Guarantor
be released from Guarantor's obligations hereunder, except by a
writing duly executed by Landlord.
13. When the context and construction so require, all words
used in the singular herein shall be deemed to have been used in
the plural and the masculine shall include the feminine and
neuter and vice versa. The word "person" as used herein shall
include any individual, company, firm, association, partnership,
corporation, trust or other legal entity of any kind whatsoever.
15. This Guaranty of Lease shall be governed by and
construed in accordance with the laws of the State of
California. In any action brought under or arising out of this
Guaranty of Lease, Guarantor hereby consents to the jurisdiction
of any competent court within the State of California and hereby
consents to service of process by any means authorized by
California law. This Guaranty of Lease shall constitute the
entire agreement of Guarantor with respect to the subject matter
hereof, and no representation, understanding, promise or
condition concerning the subject matter hereof shall be binding
upon Landlord unless expressed herein.
November _25__, 2002 COMMUNITY BANK OF CENTRAL
CALIFORNIA, a California
corporation
By: /s/ HARRY O. WARDWELL
Its: S.V.P. Branch
Administrator
By: /s/ CAROL FRANCHI
Its: S.V.P. Operations
Administrator