(Exhibit 10.1)
LEASE AGREEMENT
BASIC LEASE INFORMATION
DATE: September ______, 1991
LANDLORD: Xxxxx Fargo Bank, N.A., a
national banking association
TENANT: Pacific State Bank, a
California corporation
PREMISES: Building Address: 0 Xxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000
Floor: Ground Floor and
portion of Basement
Rentable Square Feet: 9,457
Request provision for measurement system
should NOT include any basement.
Measure prior to lease signing.
USE: For purposes of operating a Pacific
State Bank branch
TERM: 16 years, 11 months
COMMENCEMENT DATE: November 1, 1991
Monthly
BASE RENT: Months Base Rent
---------- ------ ---------
12 mos 8 mos Free 50[cents] / 1/11/91 - 6/30/92 5,201.35
12-24 mos 2 mos Free 60 [cents] / 7/01/92 - 10/31/92 9,929.85
24-mos 70 [cents] / 11/01/92 - 10/31/93 10,875.55
11/01/93 - 10/31/94 Base rent
11/01/94 - 9/30/2008 Increased
Annually
per CPI,
not to
exceed
(6%) per
annum.
Rent Common Areas
---- ------------
*11/1/91 - 6/30/92 0 5201.35
Common Area is capped at 550/foot plus base 1992 [ILLEGIBLE]
[ILLEGIBLE]
TENANT'S PERCENTAGE SHARE: 15.24% S/B 14.29% (1/7th)
BASE YEAR: Calendar year 1992
SECURITY DEPOSIT: -0-
BROKERS: TRI Commercial
(Xxx Xxxxxx - Agent)
Xxxxxxx & Associates
(Xxxxx Xxxxxxxx - Agent)
ADDRESS FOR NOTICES: Landlord: 000 Xxxxxx Xxxxxx
00xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000
Tenant: The Premises
TENANT IMPROVEMENTS: See Exhibit B
EXHIBITS: Exhibit A - Description of
Premises
Exhibit B - Tenant Improvements
Construction Agreement
Exhibit C - Commencement
Date Memorandum
Exhibit D - Rules and
Regulations
Exhibit E - Diagram of
Parking Spaces
Exhibit F - Athletic Facilities
Agreement
CONDITIONS PRECEDENT: All obligations of Tenant under this
Lease are subject to the occurrence of,
or Tenant's written waiver of, the
following condition precedent: On or
before thirty (30) days after the date
hereof, Tenant's receipt of all
necessary approvals from any applicable
regulatory agencies in connection with
Tenant's use and occupancy of the
Premises, including, without
LEASE AGREEMENT
BASIC LEASE INFORMATION
DATE: September __, 1991
LANDLORD: Xxxxx Fargo Bank, N.A.,
a national banking association
TENANT: Pacific State Bank, a
California corporation
PREMISES: Building Address: 0 Xxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000
Floor: Ground Floor and
portion of Basement
Rentable Square Feet: 9,457
USE: For purposes of operating a Pacific
State Bank branch
TERM: 16 years, 11 months
COMMENCEMENT DATE: November 1, 1991
Monthly
BASE RENT: Months Base Rent
1/11/91 - 6/30/92 5,201.35
7/01/92 - 10/31/92 9,929.85
11/01/92 - 10/31/93 10,875.55
11/01/93 - 10/31/94 11,821.25
11/01/94 - 9/30/2008 Base Rent
Increased
Annually
per CPI,
not to
exceed
(6%) per
annum.
TENANT'S PERCENTAGE SHARE: 15.24%
BASE YEAR: Calendar year 1992
SECURITY DEPOSIT: -0-
BROKERS: TRI Commercial
(Xxx Xxxxxx - Agent)
Xxxxxxx & Associates
(Xxxxx Xxxxxxxx - Agent)
ADDRESS FOR NOTICES: Landlord: 000 Xxxxxx Xxxxxx
00xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000
Tenant: The Premises
TENANT IMPROVEMENTS: See Exhibit B
EXHIBITS: Exhibit A - Description of
Premises
Exhibit B - Tenant Improvements
Construction Agreement
Exhibit C - Commencement
Date Memorandum
Exhibit D - Rules and
Regulations
Exhibit E - Diagram of Parking
Spaces
Exhibit F - Athletic Facilities
Agreement
CONDITIONS PRECEDENT: All obligations of Tenant under this
Lease are subject to the occurrence of,
or Tenant's written waiver of, the
following condition precedent: On or
before thirty (30) days after the date
hereof, Tenant's receipt of all
necessary approvals from any applicable
regulatory agencies in connection with
Tenant's use and occupancy of the
Premises, including, without
limitation, from the California
State Banking Department, the
United States Comptroller of the
Currency and the Federal Deposit
Insurance Corporation.
SIGNATURES:
PACIFIC STATE BANK, a XXXXX FARGO BANK, N.A., a
California corporation national banking association
------------------------------------ ------------------------------------
LANDLORD TENANT
TABLE OF CONTENTS
Page
----
1. Premises ........................................................... 1
2. Term ............................................................... 1
3. Rent ............................................................... 2
4. Base Rent .......................................................... 2
5. Additional Rent - Operating Expenses .............................. 3
6. Proration of Rent .................................................. 6
7. Utilities and Services ............................................. 6
8. Tenant Improvement Allowance and Construction of
Tenant Improvements................................................. 7
9. Use of the Premises................................................. 7
10. Alterations ........................................................ 8
11. Repairs ............................................................ 8
12. Damage or Destruction .............................................. 9
13. Eminent Domain ..................................................... 10
14. Indemnity and Insurance ............................................ 11
15. Assignment or Sublet ............................................... 13
16. Default ............................................................ 13
17. Landlord's Right to Perform Tenant's Covenants ..................... 16
18. Surrender of Premises .............................................. 16
19. Holding Over ....................................................... 16
20. Access to Premises ................................................. 17
21. Signs .............................................................. 17
22. Furniture .......................................................... 18
23. Waiver of Subrogation .............................................. 18
i.
Page
----
24. Subordination ...................................................... 18
25. Transfer of the Property ........................................... 19
26. Estoppel Certificates .............................................. 19
27. Mortgagee Protection ............................................... 19
28. Attorneys' Fees .................................................... 20
29. Brokers ............................................................ 20
30. Parking ............................................................ 20
31. Acceptance ......................................................... 20
32. Use of Athletic Facilities ......................................... 21
33. Recording .......................................................... 21
34. Quitclaim .......................................................... 21
35. Notices ............................................................ 21
36. Landlord's Exculpation ............................................. 21
37. Additional Structures .............................................. 21
38. General ............................................................ 22
ii.
LEASE AGREEMENT
THIS LEASE, which is effective as of the date set forth in the Basic Lease
Information, is entered by Landlord and Tenant, as set forth in the Basic Lease
Information. Terms which are capitalized in this Lease shall have the meanings
set forth in the Basic Lease Information.
1. Premises. Landlord leases to Tenant, and Tenant leases from Landlord, the
Premises described in the Basic Lease Information and shown in Exhibit A,
together with the right in common to use the Common Areas of the Building and
the real property ("Property") on which the Building is located. The "Common
Areas" shall mean the areas and facilities within the Building and the Property
provided and designated by Landlord for the general use, convenience or benefit
of Tenant and other tenants and occupants of the Building (e.g., restrooms;
telephone and electrical closets; and unreserved parking areas). That portion of
the Premises located in the basement of the Building is referenced to herein as
the "Basement Space."
2. Term.
a. Lease Term. The Term of this Lease shall commence on the Commencement
Date (as defined in Subsection 2.b.) and, unless terminated on an earlier date
in accordance with the terms of this Lease, shall extend for the period (i.e.,
Term) specified in the Basic Lease Information.
b. Commencement Date. The "Commencement Date" of this Lease shall be the
earliest to occur of the following, as reasonably determined by Landlord: (i)
the date the applicable local governmental authority (e.g., the city in which
the Building is located) approves the improvements ("Improvements") which
Landlord is to construct pursuant to Exhibit B, as evidenced by a final
signed-off building permit or certificate of occupancy for the Improvements;
(ii) the date Landlords contractor certifies that the Improvements have been
substantially completed (except for punch list items); (iii) the date Tenant
occupies the Premises; or (iv) the date the Commencement Date would have
occurred but for Tenant delays, as described in Exhibit B.
c. Premises Not Delivered. If, for any reason, Landlord cannot deliver
possession of the Premises to Tenant by the Estimated Commencement Date (as set
forth in the Basic Lease Information), (i) Tenant shall not be obligated to pay
Rent until the Commencement Date; (ii) the Term shall not be extended; (iii)
the failure shall not affect the validity of this Lease, or
1.
the obligations of Tenant under this Lease; and (iv) Landlord shall not be
subject to any liability.
d. Commencement Date Memorandum. When the Commencement Date is determined,
the parties shall execute a Commencement Date Memorandum, in the form attached
hereto as Exhibit C, setting forth the Commencement Date and the expiration date
("Expiration Date") of this Lease.
e. Early Entry. If Tenant is permitted to enter the Premises prior to the
Commencement Date for the purposes of fixturing or any purpose other than
occupancy permitted by Landlord, the entry shall be subject to all the terms and
provisions of this Lease, except that the payment of Rent shall commence as of
the Commencement Date.
3. Rent. As used in this Lease, the term "Rent" shall include: (i) the Base
Rent; (ii) Tenant's Percentage Share of the increase in Reimbursable Operating
Expenses (as defined in Section 5.a below) paid or incurred by Landlord during
the calendar year over the Reimbursable Operating Expenses paid or incurred by
Landlord during the Base Year; and (iii) all other amounts which Tenant is
obligated to pay under the terms of this Lease. All amounts of money payable by
Tenant to Landlord shall be paid without prior notice or demand, deduction or
offset. If any installment of Rent is not paid by the fifth (5th) day of the
month, Tenant shall pay to Landlord a late payment charge equal to five percent
(5%) of the amount of the delinquent installment, in addition to the installment
of Rent then owing, regardless of whether a notice of default or notice of
termination has been given by Landlord. In addition to the five percent (5%)
late charge, any Rent or other amounts owing hereunder which are not paid within
five (5) days after the date they are due shall thereafter bear interest at the
rate ("Interest Rate") which is the lesser of eighteen percent (18%) per annum
or the maximum rate permitted by law.
4. Base Rent.
a. Initial Base Rent. Tenant shall pay Base Rent to Landlord (or other
entity designated by Landlord), in advance, on the first day of each calendar
month of the Term, at Landlord's address for notices (as set forth in the Basic
Lease Information) or at such other address as Landlord may designate. The Base
Rent shall be the amount set forth in the Basic Lease Information.
b. Base Rent Abatement. Notwithstanding anything to the contrary contained
in this Lease, provided Tenant is not then in default hereunder, Base Rent for
the months of November and December of 1994 shall be reduced each month by
$6,903.61.
2.
c. CPI Adjustment. The Base Rent shall be increased if, at the
commencement of the fourth lease year of the Term, the Consumer Price Index
("CPI") for All Urban Consumers, All Items, for the Xxx Xxxxxxxxx-Xxxxxxx
Xxxxxxxxxxxx Xxxx (0000 - 84 = 100), as published by the Bureau of Labor
Statistics of the U.S. Department of Labor ("Bureau"), increases over the base
period index ("Base Period Index"). The then existing Base Rent sha1l be
increased at the commencement of each lease year thereafter if the CPI increases
over the Base Period Index. The Base Period Index shall be the CPI for the
calendar month which is four (4) months prior to the third anniversary of the
Commencement Date. The Base Period Index shall be compared with the CPI for the
same calendar month for each subsequent year ("Comparison Month"). If the CPI
for any Comparison Month is higher than the Ease Period Index, then the Base
Rent (i.e., the Base Rent for the third lease year and the then existing Base
Rent for each subsequent lease year) shall be increased by the identical
percentage commencing with the next anniversary of the commencement of this
Lease. In no event shall the Base Rent be less than the Base Rent for the year
immediately preceding the adjustment. The percentage increase in Base Rent shall
not be greater than four percent (4%) per annum. By way of illustration only, if
the Term commences in June, 1991, then the Base Period Index is the CPI for
February 1993 (assume 150.0), and the February 1993 CPI shall be compared to the
CPI for February 1994 (assume 157.5). Because the CPI for February 1994 is five
percent (5%) higher than the CPI for February 1993, commencing June 1994, the
Base Rent shall be increased by four percent (4%) because the actual percentage
increase of five percent (5%) exceeds the maximum yearly percentage increases
allowable hereunder. If the Bureau discontinues the publication of the CPI,
publishes it less frequently or alters the CPI in any manner, Landlord shall
adopt a substitute CPI or procedure which Landlord feels reasonably reflects and
monitors consumer prices.
5. Additional Rent - Operating Expenses.
a. Increase in Operating Expenses. Rent shall include Tenant's Percentage
Share of the total dollar increase, if any, in the Reimbursable Operating
Expenses paid or incurred by Landlord during the calendar year over the
Reimbursable Operating Expenses paid or incurred by Landlord during the Base
Year. As used in this Lease, the term "Reimbursable Operating Expenses" shall
mean seventy-three percent (73%) of total Operating Expenses, it being the
parties intention that Landlord shall not be entitled to pass through to Tenant
or seek reimbursement for twenty-seven percent (27%) of total Operating
Expenses.
3.
b. Operating Expenses. The term "Operating Expenses" shall include all
reasonable expenses and costs of every kind and nature which Landlord shall pay
or become obligated to pay because of or in connection with the ownership and
operation of the Building, Common Areas and Premises, surrounding property and
supporting facilities. Operating Expenses shall include, without limitation, the
following: (i) all impositions relating to the Building, Common Areas and
Premises, including the Real Property Taxes (as defined in Subsection 5.e.);
(ii) premiums for insurance relating to the Building, Common Areas and Premises
as set forth in Subsections 14.b. 14.d. and 14.i.; (iii) wages, salaries and
related expenses and benefits of all on-site and off-site employees engaged in
operation, maintenance and security; (iv) all supplies, materials and equipment
rental used in operations; (v) all maintenance, security and service costs; (vi)
a management cost recovery; (vii) legal and accounting expenses, including the
cost of audits by certified public accountants; (viii) repairs, replacements
and general maintenance (excluding those paid for by proceeds of insurance or
other parties, and alterations attributable solely to other tenants of the
Building; (ix) all maintenance costs relating to the Building and Common Areas,
including sidewalks, landscaping, service areas, mechanical rooms, parking
areas, Building exterior and driveways; (x) amortization of the capital
improvements to the extent the capital improvements reduce other Operating
Expenses or to the extent that they are required by governmental authorities;
(xi) all other operating, management and other expenses incurred by Landlord in
connection with operation of the Building and Common Areas; (xii) all charges
for heat, water, gas, electricity and other utilities used or consumed in the
Building and Common Areas, entranceways, sidewalks, etc. Janitorial expenses are
not included in Operating Expenses, and Tenant shall be responsible for
obtaining and maintaining janitorial services for the Premises, at Tenant's sole
cost and expense.
c. Monthly Increments; Adjustment. Prior to the commencement of each
calendar year, Landlord shall estimate the Operating Expenses payable by Tenant
pursuant to this Section. Tenant shall pay to Landlord, on the first day of each
month, in advance, one-twelfth (1/12) of Landlord's estimated amount. Within
ninety (90) days after (or as soon thereafter as possible) the close of each
accounting year, Landlord shall provide Tenant with a statement to account for
any difference between the actual and the estimated Operating Expenses for the
previous year. If Tenant has overpaid the amount of Operating Expenses owing
pursuant to this Section, Landlord shall credit the overpayment to Tenant within
thirty (30) days after Tenant's receipt of Landlord's statement; provided,
however, that the Rent owed by Tenant shall never be less than the Base Rent
stated in Section 4. If Tenant has underpaid the amount of Operating Expenses
owing pursuant to this Section, Tenant shall, pay the
4.
amount of the underpayment to Landlord, as Additional Rent, within thirty (30)
days after Tenant's receipt of Landlord's statement. If less than one hundred
percent (100%) of the rentable area of the Building is occupied, Operating
Expenses shall be adjusted to equal Landlord's reasonable estimate of Operating
Expenses if one hundred percent (100%) of the total rentable area of the
Building were occupied.
d. Definition of Real Property Taxes. The term "Real Property Taxes"
shall mean any ordinary or extraordinary form of assessment or special
assessment, license fee, rent tax, levy, penalty (if a result of Tenant's
delinquency), or tax, other than net income, estate, succession, inheritance,
transfer or franchise taxes, imposed by any authority having the direct or
indirect power to tax, or by any city, county, state or federal government for
any maintenance or improvement or other district or division thereof. The term
shall include all transit charges, housing fund assessments, real estate taxes
and all other taxes relating to the Premises, Building and/or Property, all
other taxes which may be levied in lieu of real estate taxes, all assessments,
assessment bonds, levies, fees, and other governmental charges (including, but
not limited to, charges for traffic facilities, improvements, child care, water
services studies and improvements, and fire services studies and improvements)
for amounts necessary to be expended because of governmental orders, whether
general or special, ordinary or extraordinary, unforeseen as well as foreseen,
of any kind and nature for public improvement, services, benefits or any other
purposes which are assessed, levied, confirmed, imposed or become a lien upon
the Premises, Building or Property or become payable during the Term.
e. Acknowledgment of Parties. It is acknowledged by Landlord and Tenant
that Proposition 13 was adopted by the voters of the State of California in the
June, 1978 election, and that assessments, taxes, fees, levies and charges may
be imposed by governmental agencies for such purposes as fire protection,
street, sidewalk, road, utility construction and maintenance, refuse removal and
for other governmental services which formerly may have been provided without
charge to property owners or occupants. It is the intention of the parties that
all new and increased assessments, taxes, fees, levies and charges due to
Proposition 13 or any other cause are to be included within the definition of
Real Property Taxes for purposes of this Lease.
f. Taxes on Tenant Improvements and Personal Property. Notwithstanding any
other provision hereof, Tenant shall pay the full amount of any increase in Real
Property Taxes during the Term resulting from any and all alterations and tenant
improvements of any kind whatsoever placed in, on or about the Premises for the
benefit of, at the request of, or by Tenant.
5.
Tenant shall pay, prior to delinquency, all taxes assessed or levied against
Tenant's personal property in, on or about the Premises. When possible, Tenant
shall cause its personal property to be assessed and billed separately from the
real or personal property of Landlord.
6. Proration of Rent. If the Commencement Date is not the first day of the
month, or if the end of the Term is not the last day of the month, Rent shall be
prorated on a monthly basis for the fractional month during the month which this
Lease commences or terminates. The termination of this Lease shall not affect
the obligations of Landlord and Tenant pursuant to Subsection 5.c. which are to
be performed after the termination.
7. Utilities and Services.
a. Standard Services. Provided that there has been no Event of Default,
Landlord shall provide: (i) to the Premises during the Business Hours, as
defined in the Rules and Regulations, electricity, gas, water, lighting,
elevator service, heating, ventilating and air conditioning and other Building
services required in Landlord's reasonable judgment for the comfortable use and
occupancy of the Premises; and, (ii) to the common areas during the Business
Hours, as defined in the Rules and Regulations, utilities and maintenance as
required in Landlord's reasonable judgment for the comfortable use and occupancy
of the Premises. Landlord shall not be liable for, and Tenant shall not be
entitled to any abatement or reduction of Rent by reason of, no eviction of
Tenant shall result from and, further, Tenant shall not be relieved from the
performance of any covenant or agreement in this Lease because of, Landlord's
failure to furnish any of the foregoing when the failure is caused by accident,
breakage, or repairs, strikes, lockouts or other labor disturbance or labor
dispute of any character, governmental regulation, moratorium or other
governmental action, inability despite the exercise of reasonable diligence to
obtain electricity, water or fuel, or by any other cause beyond Landlord's
reasonable control. In the event of any failure, stoppage or interruption
thereof, Landlord shall diligently attempt to resume service.
b. Additional Services. In the event Landlord provides utilities,
elevator, heating, air conditioning and/or other services to Tenant beyond the
standard services related to the operation and management of a first class
office building or at times other than during the Business Hours, as defined in
the Rules and Regulations, Tenant shall pay Landlord's reasonable charge for
such special services as Additional Rent.
c. Utility Consumption. If Tenant is likely to or does consume quantities
of electricity, water or gas in excess of the
6.
amounts customarily consumed by users of office space, Landlord shall have the
right, at Tenant's sole cost and expense, to install separate metering for such
utilities or to separately charge Tenant for any quantity of such utilities
consumed by Tenant beyond the amounts customarily consumed by office users. Any
such charges made by Landlord to Tenant shall be reasonably determined by
Landlord and shall be promptly paid by Tenant to Landlord as Additional Rent.
Landlord may, at Landlord's sole option, elect to rate the quantity of utilities
consumed by Tenant at the Premises. Such consumption shall be determined by one
of the following methods: (i) a rating by an appropriately licensed engineer
with costs to be computed on an average daily basis; (ii) metering by a licensed
utility company responsible for service to the project; or (iii) a rating by an
appropriately licensed engineer and monitored by Landlord's central project
computer. In each such case, the costs for administering such methods shall be
borne by Tenant.
d. Electrical Consumption in Basement. Tenant, at Tenant's sole cost and
expense, shall have the electricity serving the Basement Space, wherein Tenant's
computer room is located, separately metered. Tenant shall pay, as additional
rent hereunder, all electricity charges for the Basement Space, in excess of
Thirty Dollars ($30.00) a month.
8. Tenant Improvement Al1owance and Construction of Tenant Improvements.
Landlord shall provide an allowance ("Tenant Improvements Allowance") equal to
$158,100.00 to Tenant in accordance with the procedure set forth in Exhibit B.
Tenant agrees to construct within the Premises certain improvements to the
Premises ("Tenant Improvements") pursuant to the terms of the Tenant
Improvement Construction Agreement attached hereto as Exhibit B.
9. Use of the Premises.
a. Use. The Premises shall be used solely for the use set forth in the
Basic Lease Information and for no other use.
b. Rules and Regulations; CC&R's. Tenant shall comply with the Rules and
Regulations attached hereto as Exhibit D. In addition, Tenant shall comply with
any covenants, conditions and restrictions ("CC&R's") applicable to the
Building.
c. Compliance. Tenant, at its sole cost and expense, shall promptly comply
with all laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which hereinafter may be in force, with the
requirements of any board of fire underwriters or other similar board now or
hereafter constituted, with any direction or occupancy certificate issued
pursuant to any law by any public officer or
7.
officers, as well as the provisions of all recorded documents affecting the
Premises, insofar as any thereof relate to or affect the condition, use or
occupancy of the Premises.
10. Alterations.
a. Permitted Alterations. Tenant shall give Landlord not less than ten
(10) days' notice of any alteration Tenant desires to make to the Premises.
Tenant shall not make any alteration in, on or about the Premises which (i)
affects the structural portions or mechanical and electrical systems of the
Building or (ii) exceeds Three Thousand Dollars ($3,000,000), without the prior
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Tenant shall comply with all rules, laws, ordinances and requirements
at the time Tenant makes any alteration and shall deliver to Landlord a
complete set of "as built" plans and specifications for each alteration. Tenant
shall be solely responsible for maintenance and repair of all alterations made
by Tenant. As used in this Section, the term "alteration" shall include any
alteration, addition or improvement.
b. Liens. If, because of any act or omission of Tenant or anyone claiming
by, through, or under Tenant, any mechanic's lien or other lien is filed against
the Premises, the Building, the Property or against other property of Landlord
(whether or not the lien is valid or enforceable), Tenant shall, at its own
expense, cause it to be discharged of record within a reasonable time, not to
exceed thirty (30) days, after the date of the filing. In addition, Tenant shall
defend and indemnify Landlord and hold it harmless from any and all claims,
losses, damages, judgments, settlements, costs and expenses, including
attorneys' fees, resulting from the lien.
c. Ownership of Alterations. Any alteration made by Tenant shall
immediately become Landlord's property. Except as provided in Subsection 10. d.,
Landlord may require Tenant, at Tenant's sole expense and by the end of the
Term, to remove any alterations made by Tenant and to restore the Premises to
its condition prior to the alteration.
d. Request Regarding Removal Obligation. At the time that Tenant requests
Landlord's consent to any alteration, Tenant may request that Landlord notify
Tenant if Landlord will require Tenant, at Tenant's sole expense, to remove any
or all of the alteration by the end of the Term, and to restore the Premises to
its condition prior to the alteration.
11. Repairs. Tenant, at all times during the Term and at Tenant's sole cost and
expense, shall keep the Premises and every part thereof in good condition and
repair, ordinary wear and
8.
tear, damage thereto not caused by Tenant by fire, earthquake, acts of God or
the elements excepted. Tenant hereby waives all right to make repairs at the
expense of Landlord or in lieu thereof to vacate the Premises as provided in
California Civil Code Section 1942 or any other law, statute or ordinance now or
hereafter in effect.
12. Damage or Destruction.
a. Landlord's Obligation to Rebuild. If the Premises are damaged or
destroyed, Landlord shall promptly and diligently repair the Premises unless
Landlord has the option to terminate this Lease as provided herein, and Landlord
elects to terminate.
b. Right to Terminate. Landlord and Tenant each shall have the option to
terminate this Lease if the Premises or the Building is destroyed or damaged by
fire or other casualty regardless of whether the casualty is insured against
under this Lease, if Landlord reasonably determines that the repair of the
Premises or the Building cannot be completed within two hundred seventy (270)
days after the casualty. If a party desires to exercise the right to terminate
this Lease as a result of a casualty, the party shall exercise the right by
giving the other party written notice of its election to terminate within thirty
(30) days after the damage or destruction, in which event this Lease shall
terminate fifteen (15) days after the date of the notice. If neither Landlord
nor Tenant exercises the right to terminate this Lease, Landlord shall promptly
commence the process of obtaining necessary permits and approvals, and sha1l
commence repair of the Premises or the Building as soon as practicable and
thereafter prosecute the repair diligently to completion, in which event this
Lease shall continue in full force and effect.
c. Limited Obligation to Repair. Landlord's obligation, should Landlord
elect or be obligated to repair or rebuild shall be limited to the Building
shell and any tenant improvements which are constructed and paid for by
Landlord pursuant to Exhibit B. Tenant, at its option and expense, shall replace
or fully repair all trade fixtures, equipment and other improvements installed
by Tenant and existing at the time of the damage or destruction.
d. Abatement or Rent. In the event of any damage or destruction to the
Premises which does not result in termination of this Lease, the Base Rent shall
be temporarily abated proportionately to the degree the Premises are
untenantable as a result of the damage or destruction, commencing from the date
of the damage or destruction and continuing during the period required by
Landlord to substantially complete its repair and restoration of the Premises;
provided, however, that nothing herein shall
9.
preclude Landlord from being entitled to collect the full amount of any rent
loss insurance proceeds. Tenant shall not be entitled to any compensation or
damages from Landlord for loss of the use of the Premises, damage to Tenant's
personal property or any inconvenience occasioned by any damage, repair or
restoration. Tenant hereby waives the provisions of Section 1932, Subdivision 2,
and Section 1933, Subdivision 4, of the California Civil Code, and the
provisions of any similar law hereafter enacted.
e. Damage Near End of Term and Extensive Damage. In addition to the rights
to termination under Subsection 11.b., Landlord shall have the right to cancel
and terminate this Lease as of the date of the occurrence of destruction or
damage if the Premises or the Building is substantially destroyed or damaged
(i.e., there is damage or destruction which Landlord determines would require
more than six (6) months to repair) and made untenantable during the last twelve
(12) months of the Term. Landlord shall give notice of its election to terminate
this Lease under this Subsection 11.e. within thirty (30) days after Landlord
determines that the damage or destruction would require more than six (6) months
to repair. If Landlord does not elect to terminate this Lease, the repair of the
damage shall be governed by Subsection 12.a. or 12.b., as the case may be.
f. Insurance Proceeds. If this Lease is terminated, Landlord may keep all
the insurance proceeds resulting from the damage, except for those proceeds
which specifically insured Tenant's personal property and trade fixtures.
13. Eminent Domain. If all or any part of the Premises is taken for public or
quasi-public use by a governmental authority under the power of eminent domain
or is conveyed to a governmental authority in lieu of such taking, and if the
taking of conveyance causes the remaining part of the Premises to be
untenantable and inadequate for use by Tenant for the purpose for which they
were leased, then Tenant, at its option and by giving notice within fifteen (15)
days after the taking, may terminate this Lease as of the date Tenant is
required to surrender possession of the Premises. If a part of the Premises is
taken or conveyed but the remaining part is tenantable and adequate for Tenant's
use, then this Lease shall be terminated as to the part taken or conveyed as of
the date Tenant surrenders possession; Landlord shall make such repairs,
alterations and improvements as may be necessary to render the part not taken or
conveyed tenantable; and the Rent shall be reduced in proportion to the part of
the Premises taken or conveyed. All compensation awarded for the taking or
conveyance shall be the property of Landlord without any deduction therefrom for
any estate of Tenant, and Tenant hereby assigns to Landlord all its right, title
and interest in and to the award. Tenant shall have the right, however, to
recover from the
10.
governmental authority, but not from Landlord, such compensation as may be
awarded to Tenant on account of the interruption of Tenant's business, moving
and relocation expenses and removal of Tenant's trade fixtures and personal
property.
14. Indemnity and Insurance.
a. Indemnity. Tenant shall be responsible for, shall insure against, and
shall indemnify Landlord and its constituent parts and hold them harmless from,
any and all liability for any loss, damage or injury to person or property
occurring in, on or about the Premises, and Tenant hereby releases Landlord and
its constituent parts from any and all liability for the same. Tenant's
obligation to indemnify Landlord and its constituent parts hereunder shall
include the duty to defend against any claims asserted by reason of any loss,
damage or injury, and to pay any judgments, settlements, costs, fees and
expenses, including attorneys' fees, incurred in connection therewith.
b. Fire and Extended Coverage. Landlord shall procure and maintain in full
force and effect with respect to the Building a policy or policies of all risk
insurance (including sprinkler, vandalism, hazardous materials and malicious
mischief coverage, and any other endorsements required by the holder of any fee
or leasehold mortgage) in an amount equal to one hundred percent (100%) of the
full insurance replacement value (replacement cost new, including debris
removal, and demolition) thereof.
c. Public Liability. Tenant, at its own cost and expense, shall keep and
maintain in full force and effect during the Term a policy or policies of
comprehensive public liability insurance, written by an insurance company
approved by Landlord, in the form customary to the locality, insuring Tenant's
activities with respect to the Premises and/or the Building against loss, damage
or liability for personal injury or death of any person or loss or damage to
property occurring in, upon or about the Premises, covering bodily injury in the
amounts of One Million Dollars ($1,000,000) per person and One Million Dollars
($1,000,000) per occurrence, and covering property damage in the amount of One
Million Dollars ($1,000,000); provided, however, that if, at any time during the
Term, Tenant shall have in full force and effect a blanket policy of public
liability insurance with the same coverage for the Premises as described above,
as well as coverage of other premises and properties of Tenant, or in which
Tenant has some interest, the blanket insurance shall satisfy the requirement
hereof.
d. Rental Abatement Insurance. Landlord may keep and maintain in full
force and effect during the Term rental abatement insurance against abatement or
loss of Rent in case of fire or other casualty, in an amount at least equal to
the amount
11.
of Rent payable by Tenant during one (1) year of the Term, as reasonably
determined by Landlord.
e. Insurance Certificates. Tenant shall furnish to Landlord, upon the
Commencement Date and thereafter within thirty (30) days prior to the expiration
of each policy, a certificate of insurance issued by the insurance carrier of
each policy of insurance carried by Tenant pursuant to this Section 14. The
certificates shall expressly provide that the policies shall not be cancellable
or subject to reduction of coverage or otherwise be subject to modification
except after thirty (30) days' prior written notice to the parties named as
insureds. Landlord, its successors and assigns, and any nominee of Landlord
holding any interest in the Premises, including, without limitation, any ground
lessor or the holder of any fee or leasehold mortgage, shall be named as an
insured under each policy of insurance maintained by Tenant pursuant to this
Lease.
f. Tenant's Failure. If Tenant fails to maintain any insurance required by
this Lease, Tenant shall be liable for any loss or cost resulting from the
failure. This Section shall not be deemed to be a waiver of any of Landlord's
rights and remedies under any other provision of this Lease.
g. Waiver of Subrogation. Any policy or policies of fire, extended
coverage or similar casualty insurance which either party obtains in connection
with the Premises, or Tenant's personal property therein, shall include a clause
or endorsement denying the insurer any rights of subrogation against the other
party to the extent rights have been waived by the insured prior to the
occurrence of injury or loss. Landlord and Tenant each waives any rights of
recovery against the other for injury or loss due to hazards covered by
insurance containing a waiver of subrogation clause or endorsement to the extent
the injury or loss is covered thereby.
h. Tenant's Property and Fixtures. Tenant shall assume the risk of damage
to any furniture, equipment, machinery, goods, supplies or fixtures which are or
remain the property of Tenant, or as to which Tenant retains the right of
removal from the Premises.
i. Earthquake and Flood Insurance. In addition to any other insurance
policies carried by Landlord in connection with the Building, Landlord may elect
to procure and maintain in full force and effect during the Term with respect to
the Building a policy of earthquake/volcanic action and flood and/or surface
water insurance, including rental value insurance against abatement or loss of
rent in the case of damage or loss covered under the earthquake/volcanic and
flood and/or surface water insurance, in an amount equal to one hundred percent
(100%) of
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the full insurance replacement value (including debris removal and demolition)
of the Building.
15. Assignment or Sublet. If Tenant desires to assign this Lease or to sublet
the Premises, or any part thereof, Tenant shall give to Landlord written notice
of its intent at least sixty (60) days in advance of the date on which Tenant
desires to assign or sublet the Premises. Landlord shall have thirty (30) days
after receipt of Tenant's written notice within which to notify Tenant in
writing that Landlord elects to (i) terminate this Lease as to that portion of
the Premises to be assigned or sublet, in which event Tenant will be relieved of
all further obligation hereunder as to the space; (ii) permit Tenant to assign
this Lease or sublet the Premises, subject, however, to written approval of the
proposed assignee or subtenant by Landlord, and further subject to the
requirement that Tenant enter into written agreements with Landlord and the
assignee or subtenant requiring that seventy-five percent (75%) of the excess
monies due to Tenant under the assignment or sublet over the Rent to be required
to be paid by Tenant hereunder shall be paid to Landlord; or (iii) refuse to
consent to Tenant's assignment or sublet and to continue this Lease in full
force and effect as to the entire Premises. If Landlord fails to notify Tenant
in writing of its election within the thirty (30) day period, Landlord shall be
deemed to have elected the option set forth in Subsection (iii) hereof. No
consent by Landlord to any assignment or sublet shall be deemed to be a consent
to a use not permitted under this Lease, to any act in violation of this Lease
or to any subsequent assignment or sublet. No assignment of sublet by Tenant
shall relieve Tenant of any obligation under this tease. Any attempted
assignment or sublet by Tenant in violation of the terms and covenants of this
Section shall be void.
16. Default.
a. Tenant's Default. At the option of Landlord, a material breach of this
Lease by Tenant shall exist if any of the following events (severally, "Event of
Default"; collectively, "Events of Default") shall occur: (i) if Tenant shall
have failed to pay Rent, including Tenant's Percentage Share of increased
Operating Expenses, or any other sum required to be paid hereunder when due,
together with interest at the Interest Rate, from the date the amount became due
through the date of payment, inclusive; (ii) if Tenant shall have failed to
perform any term, covenant or condition of this Lease except those requiring the
payment of money, and Tenant shall have failed to cure the breach within fifteen
(15) days after written notice from Landlord if the breach could reasonably be
cured within the fifteen (15) day period; provided, however, if the failure
could not reasonably be cured within the fifteen (15) day period, then Tenant
shall not
13.
be in default unless it has failed to promptly commence and thereafter continue
to make diligent and reasonable efforts to cure the failure as soon as
practicable as reasonably determined by Landlord; (iii) if Tenant shall have
assigned its assets for the benefit of its creditors; (iv) if the sequestration
of attachment of, or execution on, any material part of the property of Tenant
or on any property essential to the conduct of Tenant's business shall have
occurred, and Tenant shall have failed to obtain a return or release of the
property within thirty (30) days thereafter, or prior to sale pursuant to any
sequestration, attachment or levy, whichever is earlier; (v) if Tenant sha1l
have failed to continuously and uninterruptedly conduct its business in the
Premises, or shall have abandoned or vacated the Premises; (vi) if a court shall
have made or entered any decree or order adjudging Tenant to be insolvent, or
approving as properly filed a petition seeking reorganization of tenant, or
directing the winding up or liquidation of Tenant, and the decree or order shall
have continued for a period of thirty (30) days; (vii) if Tenant shall make or
suffer any transfer which constitutes a fraudulent or otherwise avoidable
transfer under any provision of the federal Bankruptcy Laws or any applicable
state law; or (viii) if Tenant shall have failed to comply with the provisions
of Section 24 or 26 of this Lease. An Event of Default shall constitute a
default under this Lease.
b. Remedies upon Tenant's Default. Upon an Event of Default, Landlord
shall have the following remedies, in addition to all other rights and remedies
provided by law, equity, statute or otherwise provided in this Lease, to which
Landlord may resort cumulatively or in the alternative:
(i) Landlord may continue this Lease in full force and effect, and
this Lease shall continue in full force and effect as long as Landlord does not
terminate Tenant's right to possession, and Landlord shall have the right to
collect Rent when due. During the period Tenant is in default, Landlord may
enter the Premises and relet it, or any part of it, to third parties for
Tenant's account, provided that any Rent in excess of the Rent due hereunder
shall be payable to Landlord. Tenant shall be liable immediately to Landlord for
all costs Landlord incurs in reletting the Premises, including, without
limitation, brokers' commissions, expenses of cleaning and redecorating the
Premises required by the reletting and like costs. Reletting may be for a period
shorter or longer than the remaining Term of this Lease. Tenant shall pay to
Landlord the Rent and other sums due under this Lease on the dates the Rent is
due, less the Rent and other sums Landlord receives from any reletting. No act
by Landlord allowed by this Subsection (i) shall terminate this Lease unless
Landlord notifies Tenant in writing that Landlord elects to terminate this
Lease.
14.
(ii) Landlord may terminate Tenant's right to possession of the
Premises at any time by giving written notice to that effect. No act by Landlord
other than giving written notice to Tenant shall terminate this Lease. Acts of
maintenance, efforts to relet the Premises or the appointment of a receiver on
Landlord's initiative to protect Landlord's interest under this Lease shall not
constitute a termination of Tenant's right to possession. On termination,
Landlord shall have the right to remove all personal property of Tenant and
store it at Tenant's cost and to recover from Tenant as damages: (a) the worth
at the time of award of unpaid Rent and other sums due and payable which had
been earned at the time of termination; plus (b) the worth at the time of award
of the amount by which the unpaid Rent and other sums due and payable which
would have been payable after termination until the time of award exceeds the
amount of the Rent loss that Tenant proves could have been reasonably avoided;
plus (c) the worth at the time of award of the amount by which the unpaid Rent
and other sums due and payable for the balance of the Term after the time of
award exceeds the amount of the Rent loss that Tenant proves could be reasonably
avoided; plus (d) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform Tenant's obligations
under this Lease, or which, in the ordinary course of things, would be likely to
result therefrom, including, without limitation, any costs or expenses incurred
by Landlord: (1) in retaking possession of the Premises, including reasonable
attorneys' fees and costs therefor; (2) maintaining or preserving the Premises
for reletting to a new tenant, including repairs or alterations to the Premises
for the reletting; (3) leasing commissions; (4) any other costs necessary or
appropriate to relet the Premises; and (5) 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 the laws of the State of California.
The "worth at the time of award" of the amounts referred to in Subsections (ii)
(a) and (ii) (b) is computed by allowing interest at the lesser of eighteen
percent (18%) per annum or the maximum rate permitted by law, on the unpaid Rent
and other sums due and payable from the termination date through the date of
award. The "worth at the time of award" of the amount referred to in Subsection
(ii) (c) is computed by discounting the amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award, plus one percent
(1%). Tenant waives redemption or relief from forfeiture under California Code
of Civil Procedure Sections 1174 and 1179, or under any other present or future
law, if Tenant is evicted or Landlord takes possession of the Premises by reason
of any default of Tenant hereunder.
c. Landlord's Default. Landlord shall not be deemed to be in default in
the performance of any obligation required to be
15.
performed by Landlord hereunder unless and until Landlord has failed to perform
the obligation within thirty (30) days after receipt of written notice by Tenant
to Landlord specifying wherein Landlord has failed to perform the obligation;
provided, however, that if the nature of Landlord's obligation is such that more
than thirty (30) days are required for its performance, then Landlord shall
not be deemed to be in default if Landlord shall commence the performance within
the thirty (30) day period and thereafter shall diligently prosecute the same to
completion.
17. Landlord's Right to Perform Tenant's Covenants. If Tenant shall at any time
fail to make any payment or perform any other act on its part to be made or
performed under this Lease, Landlord may, but shall not be obligated to, make
the payment or perform any other act to the extent Landlord may deem desirable
and, in connection therewith, pay expenses and employ counsel. Any payment or
performance by Landlord shall not waive or release Tenant from any obligations
of Tenant under this Lease. All sums so paid by Landlord, and all penalties,
interest and costs in connection therewith, shall be due and payable by Tenant
on the next day after any payment by Landlord, together with interest thereon at
the Interest Rate, from that date to the date of payment thereof by Tenant to
Landlord, plus collection costs and attorneys' fees. Landlord shall have the
same rights and remedies for the nonpayment thereof as in the case of default in
the payment of Rent.
18. Surrender of Premises. By taking possession of the Premises, Tenant shall be
deemed to have accepted the Premises and the Property in good, clean and
completed condition and repair, subject to all applicable laws, codes and
ordinances. On the expiration or early termination of this Lease, Tenant shall
surrender the Premises to Landlord in its condition as of the Commencement Date,
normal wear and tear excepted. Tenant shall remove from the Premises all of
Tenant's personal property, trade fixtures and any alterations required to be
removed pursuant to Section 10 of this Lease. Tenant shall repair damage or
perform any restoration work required by the removal. If Tenant fails to remove
any personal property, trade fixtures or alterations after the end of the Term,
Landlord may remove the property and store it at Tenant's expense, including
interest at the Interest Rate. If the Premises are not so surrendered at the
termination of this Lease, Tenant shall indemnify Landlord against all loss or
liability resulting from delay by Tenant in so surrendering the Premises,
including, without limitation, any claims made by any succeeding tenant, losses
to Landlord due to lost opportunities to lease to succeeding tenants, and
attorneys' fees and costs.
19. Holding Over. If Tenant remains in possession of all or any part of the
Premises after the expiration of the Term or the termination of this Lease, the
tenancy shall be month-to-month
16.
only and shall not constitute a renewal or extension for any further term. In
such event, Base Rent shall be increased in an amount equal to one hundred fifty
percent (150%) of the Base Rent during the last month of the Term (including any
extensions), and any other sums due under this Lease shall be payable in the
amount, and at the times, specified in this Lease. The month-to-month tenancy
shall be subject to every other term, condition, covenant and agreement
contained in this Lease and Tenant shall vacate the Premises immediately upon
Landlord's request.
20. Access to Premises. Tenant shall permit Landlord and its agents to enter the
Premises at all reasonable times, except in the case of an emergency (in which
event no notice shall be necessary), to inspect the Premises; to post Notices of
Nonresponsibility and similar notices and to show the Premises to interested
parties such as prospective mortgagors, purchasers and tenants; to make
necessary alterations, additions, improvements or repairs either to the
Premises, the Building, or other premises within the Building; and to discharge
Tenant's obligations hereunder when Tenant has failed to do so within a
reasonable time after written notice from Landlord. The above rights are
subject to reasonable security regulations of Tenant, and to the requirement
that Landlord shall at all times act in a manner to cause the least possible
interference with Tenant's operations.
21. Signs. The size, design, color, location and other physical aspects of any
sign in or on the Building shall be subject to Landlord's written approval prior
to installation, and to any appropriate municipal or other governmental
approvals. The costs of any permitted sign, and the costs of its installation,
maintenance and removal, shall be at Tenant's sole expense. Tenant shall have
the right to name the Building and subject to the foregoing sentence, place
signs on the roof of the Building which identify the Building as the Pacific
State Bank Building. At the time Tenant erects its sign on the roof of the
Building and removes the existing sign erected by Landlord's predecessor.
Landlord shall reimburse Tenant for that reasonable portion of the cost of such
work directly attributable to the actual removal of the existing sign, provided
that Landlord and Tenant have agreed on the amount to be paid by Landlord, prior
to the Commencement Date.
22. Furniture. Tenant shall have the right to lease, at no additional charge,
Landlord's furniture located in the Premises provided that Tenant maintains and
repairs the furniture during the Lease Term. Upon the expiration of the Term or
earlier termination of this Lease, Tenant shall surrender the furniture in the
same condition in which it was originally delivered, reasonable wear and tear
excluded.
17.
23. Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waives and releases the other
of and from any and all rights of recovery, claim, action or cause of action
against the other, its subsidiaries, directors, agents, officers and employees,
for any loss or damage that may occur in the Premises, the Building or the
Property; to improvements to the Building or personal property (building
contents) within the Building; or to any furniture, equipment, machinery, goods
and supplies not covered by this Lease which Tenant may bring or obtain upon the
Premises or any additional improvements which Tenant may construct on the
Premises by reason of fire, the elements or any other cause which is required to
be insured against under this Lease, regardless of cause or origin, including
negligence of Landlord or Tenant and their agents, subsidiaries, directors,
officers and employees, to the extent insured against under the terms of any
insurance policies carried by Landlord or Tenant and in force at the time of any
such damage, but only if the insurance in question permits such a partial
release in connection with obtaining a waiver of subrogation from the insurer.
Because this Section 23 will preclude the assignment of any claim mentioned in
it by way of subrogation or otherwise to an insurance company or any other
person, each party to this Lease agrees immediately to give to each of its
insurance companies written notice of the terms of the mutual waivers contained
in this Section 23 and to have the insurance policies properly endorsed, if
necessary, to prevent the invalidation of the insurance coverages by reason of
the mutual waivers contained in this Section 23.
24. Subordination.
a. Subordinate Nature. Except as provided in Subsection 24.b., this Lease
is subject and subordinate to all ground and underlying leases, mortgages and
deeds of trust which now or may hereafter affect the Property, the Building or
the Premises, and to all renewals, modifications, consolidations, replacements
and extensions thereof. Tenant acknowledges specifically that this Lease is
subject and subordinate to that certain Amended and Restated Lease dated
November 30, 1990, between Landlord's predecessor-in-interest, Great American
Bank, A Federal Savings Bank, as tenant, and Dexter Street Limited Partnership,
a Delaware limited partnership, as landlord. Within ten (10) days after
Landlord's written request therefor, Tenant shall execute any and all documents
required by Landlord, the lessor under any ground or underlying lease
("Lessor"), or the holder or holders of any mortgage or deed of trust ("Holder")
to make this Lease subordinate to the lien of any lease, mortgage or deed of
trust, as the case may be.
b. Possible Priority of Lease. If a Lessor or a Holder advises Landlord
that it desires or requires this Lease to be
18.
prior and superior to a lease, mortgage or deed of trust, Landlord may notify
Tenant. Within seven (7) days of Landlord's notice, Tenant shall execute, have
acknowledged and deliver to Landlord any and all documents or instruments, in
the form presented to Tenant, which Landlord, Lessor or Holder deems necessary
or desirable to make this Lease prior and superior to the lease, mortgage or
deed of trust.
c. Recognition or Attornment Agreement. If Landlord or Holder requests
Tenant to execute a document subordinating this Lease, the document shall
provide that, so long as Tenant is not in default, Lessor or Holder shall agree
to enter into either a recognition or attornment agreement with Tenant, or a new
lease with Tenant upon the same terms and conditions as to possession of the
Premises, which shall provide that Tenant may continue to occupy the Premises so
long as Tenant shall pay the Rent and observe and perform all the provisions of
this Lease to be observed and performed by Tenant.
25. Transfer of the Property. Upon transfer of the Property and assignment of
this Lease, Landlord shall be entirely freed and relieved of all liability under
any and all of its covenants and obligations contained in or derived from this
Lease occurring after the consummation of the transfer and assignment, and from
all liability for the Security Deposit. Tenant shall attorn to any entity
purchasing or otherwise acquiring the Premises at any sale or other proceeding.
26. Estoppel Certificates. Within ten (10) days following written request by
Landlord, Tenant shall execute and deliver to Landlord an estoppel certificate,
in the form prepared by Landlord. The certificate shall: (i) certify that this
Lease is unmodified and in full force and effect or, if modified, state the
nature of the modification and certify that this Lease, as so modified, is in
full force and effect, and the date to which the Rent and other charges are paid
in advance, if any; (ii) acknowledge that there are not, to Tenant's knowledge,
any uncured defaults on the part of Landlord hereunder, or if there are uncured
defaults on the part of the Landlord, state the nature of the uncured defaults;
and (iii) evidence the status of this Lease as may be required either by a
lender making a loan to Landlord to be secured by deed of trust or mortgage
covering the Premises or a purchaser of the Property from Landlord.
27. Mortgagee Protection. In the event of any default on the part of Landlord,
Tenant will give notice by registered or certified mail to any beneficiary of a
deed of trust or mortgagee of a mortgage covering the Property and shall offer
the beneficiary or mortgagee a reasonable opportunity to cure the default,
including time to obtain possession of the Property or the
19.
Premises by power of sale or a judicial foreclosure, if such should prove
necessary to effect a cure.
28. Attorneys' Fees. If either party shall bring any action or legal proceeding
for damages for an alleged breach of any provision of this Lease, to recover
rent or other sums due, to terminate the tenancy of the Premises or to enforce,
protect or establish any term, condition or covenant of this Lease or right of
either party, the prevailing party shall be entitled to recover, as a part of
the action or proceedings, or in a separate action brought for that purpose,
reasonable attorneys' fees and court costs as may be fixed by the court or jury.
The prevailing party shall be the party which secures a final judgment in its
favor.
29. Brokers. Tenant warrants and represents that it has had no dealings with any
real estate broker or agent in connection with the negotiation of this Lease,
except for any brokers(s) specified in the Basic Lease Information, and that it
knows of no other real estate broker or agent who is or might be entitled to a
commission in connection with this Lease. Tenant shall indemnify and hold
harmless Landlord from and against any and all liabilities or expenses arising
out of claims made by any other broker or individual for commissions or fees
resulting from this Lease.
30. Parking. Tenant shall have the right to use fifteen (15) assigned parking
spaces immediately adjacent to the Building, including one space designated as
handicapped parking. In addition, Tenant shall, have the right to use eight (8)
uncovered parking spaces and two (2) covered parking spaces as shown on the
diagram attached hereto as Exhibit E. There shall be no charge for any portion
of the parking facilities. Tenant agrees to cooperate with Landlord and other
tenants in the use of the parking facilities. Landlord shall not be liable to
tenant nor shall this Lease be affected, if any parking is impaired by
moratorium, initiative, referendum, law, ordinance, regulation or order passed,
issued or made by any governmental or quasi-governmental body.
31. Acceptance. Delivery of this Lease, duly executed by Tenant, constitutes an
offer to lease the Premises as set forth herein, and under no circumstances
shall such delivery be deemed to create an option or reservation to lease the
Premises for the benefit of Tenant. This Lease shall become effective and
binding only upon execution hereof by Landlord and delivery of a signed copy to
Tenant. Upon acceptance of Tenant's offer to lease under the terms hereof and
receipt by Landlord of the Rent for the first month of the Term and the Security
Deposit in connection with Tenant's submission of the offer, Landlord shall be
entitled to retain the sums and apply them to damages, costs and expenses
20.
incurred by Landlord if Tenant fails to occupy the Premises. If Landlord rejects
the offer, the sums shall be returned to Tenant.
32. Use of Athletic Facilities. Employees of Tenant shall have the right to use
the racquetball court, sauna and dressing rooms located in the basement of the
Building, provided that Tenant has executed and is not in default under that
certain Athletic Facilities Agreement attached hereto as Exhibit F.
33. Recording. Neither Landlord nor Tenant shall record this Lease, nor a short
form memorandum of this Lease, without the prior written consent of the other.
34. Quitclaim. Upon any termination or expiration of this Lease pursuant to its
terms, Tenant, at Landlord's request, shall execute, have acknowledged and
deliver to Landlord a quitclaim deed of all Tenant's interest in the Premises,
Building and Property created by this Lease.
35. Notices. Any notice or demand required or desired to be given under this
Lease shall be in writing and shall be given by hand delivery, electronic mail
(e.g., telecopy) or the United States mail. Notices which are sent by electronic
mail shall be deemed to have been given upon receipt. Notices which are mailed
shall be deemed to have been given when seventy-two (72) hours have elapsed
after the notice was deposited in the United States mail, registered or
certified, the postage prepaid, addressed to the party to be served. As of the
date of execution of this Lease, the addresses of Landlord and Tenant are as
specified in the Basic Lease Information. Either party may change its address by
giving notice of the change in accordance with this Section.
36. Landlord's Exculpation. In the event of default, breach or violation by
Landlord (which term includes Landlord's partners, co-venturers and co-tenants,
and officers, directors, employees, agents and representatives of Landlord and
Landlord's partners, co-venturers and co-tenants) of any of Landlord's
obligations under this Lease, Landlord's liability to Tenant shall be limited to
its ownership interest in the Building and Property or the proceeds of a public
sale of the ownership interest pursuant to the foreclosure of a judgment against
Landlord. Landlord shall not be personally liable, or liable in any event, for
any deficiency beyond its ownership interest in the Building and Property.
37. Additional Structures. Any diminution or interference with light, air or
view by any structure which may be erected on land adjacent to the Building
shall in no way alter this Lease or impose any liability on Landlord.
21.
38. General.
a. Captions. The captions and headings used in this Lease are for the
purpose of convenience only and shall not be construed to limit or extend the
meaning of any part of this Lease.
b. Time. Time is of the essence for the performance of each term,
condition and covenant of this Lease.
c. Severability. If any provision of this Lease is held to be invalid,
illegal or unenforceable, the invalidity, illegality, or unenforceability shall
not affect any other provision of this Lease, but this Lease shall be construed
as if the invalid, illegal or unenforceable provision had not been contained
herein.
d. Choice of Law; Construction. This Lease shall be construed and enforced
in accordance with the laws of the State of California. The language in all
parts of this Lease shall in all cases be construed as a whole according to its
fair meaning and not strictly for or against either Landlord or Tenant.
e. Gender; Singular, Plural. When the context of this Lease requires, the
neuter gender includes the masculine, the feminine, a partnership or corporation
or joint venture, and the singular includes the plural.
f. Binding Effect. The covenants and agreements contained in this Lease
shall be binding on the parties hereto and on their respective successors and
assigns (to the extent this Lease is assignable).
g. Waiver. The waiver of Landlord of any breach of any term, condition or
covenant of this Lease shall not be deemed to be a waiver of the provision or
any subsequent breach of the same or any other term, condition or covenant of
this Lease. The subsequent acceptance of Rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach at the time of acceptance of the
payment. No covenant, term or condition of this Lease shall be deemed to have
been waived by Landlord unless the waiver is in writing signed by Landlord.
h. Entire Agreement. This Lease is the entire agreement between the
parties, and there are no agreements or representations between the parties
except as expressed herein. Except as otherwise provided herein, no subsequent
change or addition to this Lease shall be binding unless in writing and signed
by the parties hereto.
22.
i. Counterparts. This Lease may be executed in counterparts, each of which
shall be an original, but all counterparts shall constitute one (1) instrument.
j. Exhibits. The Basic Lease Information and all exhibits attached hereto
are hereby incorporated herein and made an integral part hereof.
IN WITNESS WHEREOF, the parties have executed this Lease on the dates set
forth below, effective as of the date first above written.
Landlord Tenant
XXXXX FARGO BANK, N.A., a PACIFIC STATE BANK, a
national banking association California corporation
By By
Its Its
------------------------ ------------------------
Date Date
------------------------ ------------------------
By By
Its Its
------------------------ ------------------------
Date Date
------------------------ ------------------------
23.
EXHIBIT B
TENANT IMPROVEMENTS CONSTRUCTION AGREEMENT
This Tenant Improvements Construction Agreement ("Agreement") is attached
to and made a part of the Lease ("Lease"), dated September ____, 1991 between
Xxxxx Fargo Bank, N.A., a national banking association ("Landlord"), and Pacific
State Bank, a California corporation ("Tenant") relating to certain premises
("Premises") which are more particularly described in Exhibit A of the Lease.
The capitalized terms used in this Agreement shall have the meanings set forth
in the Lease, unless otherwise defined herein. Landlord and Tenant agree as
follows with respect to the Tenant Improvements to be installed in the Premises:
1. Plans and Specifications.
Prior to commencing any work in the Premises, Tenant shall deliver to
Landlord working drawings and specifications ("Working Drawings"), prepared by
an architect ("Architect") approved by Landlord. Within fifteen (15) business
days after the Working Drawings have been submitted to Landlord, Landlord shall
approve or disapprove the Working Drawings. The Working Drawings shall be deemed
approved if Landlord fails to disapprove them within the fifteen (15) business
day period set forth above.
If Landlord disapproves the Working Drawings, Landlord shall provide
sufficient information to Architect so that revised Working Drawings and
specifications may be prepared which will meet Landlord's approval. In no event
shall Landlord disapprove any revised Working Drawings if the revisions
incorporate the information provided by Landlord.
The Working Drawings which have been approved by Landlord and Tenant are
hereinafter referred to as the "Approved Working Drawings."
2. Permits and Commencement Date.
a. Permits. Tenant shall be responsible for obtaining and shall use
its best efforts to obtain all permits and governmental approvals (collectively,
"Permits") necessary for the construction of the Tenant Improvements in the
Premises. Landlord shall cooperate with Tenant and promptly execute any
documents requested by Tenant in connection with obtaining the Permits.
b. Commencement Date. The Commencement Date of the Lease shall be
November 1, 1991; provided, however, that the
EXHIBIT B
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Commencement Date, as well as the date Tenant's obligation to start paying Rent
under the Lease, shall be extended by the number of days substantial completion
of the Tenant Improvements is delayed as a result of Landlord Delays. For
purposes of this Agreement, the Tenant Improvements shall be deemed
substantially completed when: (i) Architect certifies in writing that the Tenant
Improvements have been completed substantially in accordance with the Approved
Working Drawings, subject only to the completion of minor punchlist items which
do not interfere with Tenant's ability to use and occupy the Premises; and (ii)
Tenant has received a temporary or permanent certificate of occupancy or an
equivalent permit or approval from the appropriate governmental body approving
and/or permitting the occupancy of the Premises.
c. Early Entry. Regardless of the Commencement Date of the Lease,
upon execution of the Lease and either Tenant's satisfaction or waiver of the
Condition Precedent set forth in the Basic Lease Information, Landlord shall
provide (i) full access to and possession of the Premises to Tenant for the
purpose of planning, designing and constructing the Tenant Improvements, and
(ii) Tenant with all electrical power and other utilities necessary for the
construction of the Tenant Improvements in the Premises. Landlord shall not
interfere with Tenant's and/or Contractor's (as defined in Section 4.a below)
construction of the Tenant Improvements, and shall take such steps as may be
necessary to prevent Landlord's contractors, agents and employees, as well as
other tenants of the Building, from taking any action which interferes with
Tenant's and/or Contractor's ability to construct the Tenant Improvements.
3. Tenant Improvements A1lowance and Cost; Letter of Credit.
a. Tenant Improvements Allowance. Tenant shall receive from Landlord
an allowance ("Tenant Improvements Allowance"), in the amount of $158,100.00 for
the Tenant Improvements Cost. The Tenant Improvements Allowance shall be paid by
Landlord to Tenant, as hereinafter provided.
b. Tenant Improvements Cost. As used in this Agreement, "Tenant
Improvements Cost" means all direct and indirect costs, fees and expenses
incurred by or for the benefit or account of Tenant in connection with the
design and construction of the Tenant Improvements. The Tenant Improvements Cost
include, without limitation: (i) any and all of Architect's fees in connection
with the Tenant Improvements, including, without limitation, design, engineering
and inspection costs; (ii) Tenant's costs of supervision of the design and
construction of the Tenant Improvements, including the portion of Tenant's
overhead allocable to supervision; (iii) all engineering fees for
EXHIBIT B
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the Tenant Improvements; (iv) the costs and charges for materials, supplies and
labor for the Tenant Improvements; (v) Contractor's fee, overhead and general
conditions and any other costs incurred by Contractor in connection with the
Tenant Improvements; (vi) all costs, fees and expenses relating to obtaining the
Permits; (vii) any sales and use taxes; (viii) the cost of fire and builder's
all-risk insurance and public liability insurance premiums and fees during the
period of construction of the Tenant Improvements; and (ix) all testing and
inspection costs for the Tenant Improvements.
c. Payment of Tenant Improvements Allowance/Letter of Credit
Allowance. Upon Tenant's delivery to Landlord of an irrevocable, standby letter
of credit ("Letter of Credit") in an amount equal to the sum of the Tenant
Improvements Allowance and the real estate commissions payable to Brokers (as
defined in the Lease) in connection with the Lease, Landlord shall pay to Tenant
the total Tenant Improvements Allowance. The Letter of Credit shall be issued by
a financial institution acceptable to Landlord, shall name Landlord as
beneficiary thereunder, and have either a term of three (3) years or be
automatically renewable for three (3) successive one-year periods. If the
Letter of Credit is only valid for a single year, the Letter of Credit shall
expressly state that the issuer must give Landlord at least ninety (90) days'
advance notice of nonrenewal and Landlord, upon receipt of the notice, if Tenant
has not delivered a replacement letter of credit within thirty (30) days after
Landlord requests replacement, shall have the right to draw upon the Letter of
Credit. Landlord shall have the right to require Tenant to obtain a replacement
letter of credit if the financial condition of the issuer of the Letter of
Credit fails to meet Landlord's financial standards. Tenant's failure to replace
the Letter of Credit within thirty (30) days after Landlord requests replacement
shall be deemed a default and shall entitle Landlord to draw on the Letter of
Credit. Landlord's right to draw under the Letter of Credit shall be expressly
designated as transferable.
d. Excess Tenant Improvements Cost. It the total Tenant
Improvements Cost is more than the Tenant Improvements Allowance then the excess
Tenant Improvements Cost shall be paid by Tenant.
4. Construction.
a. Contractor. Prior to commencement of construction, Landlord and
Tenant shall agree upon a general contractor ("Contractor") to construct the
Tenant Improvements. Contractor shall be licensed by the State of California.
The construction contract ("Construction Contract") shall be between Tenant and
Contractor.
EXHIBIT B
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b. Construction Process. After Tenant has obtained all the Permits
and Landlord and Tenant have agreed on the Approved Working Drawings and
Contractor, Contractor shall immediately commence and diligently complete
construction of the Tenant Improvements. The construction shall be carried out
pursuant to the Construction Contract which shall provide for retention of an
amount reasonably acceptable to Tenant and shall contain such other terms as
Tenant shall reasonably require. Tenant shall be responsible for completing the
Tenant Improvements substantially in accordance with the Approved Working
Drawings. If the Tenant Improvements have not been substantially completed on or
before the Commencement Date, and if a cause of the delay in substantial
completion of the Tenant Improvements is one or more Landlord Delays, the
Commencement Date shall be extended by one day for each day of Landlord Delays.
c. Compliance. The Construction Contract shall provide that
Contractor shall substantially comply with all applicable laws, regulations,
permits and other approvals applicable to construction of the Tenant
Improvements.
5. Change Requests. No material changes to the Approved Working Drawings shall
be made without Landlord's prior approval, which approval shall not be
unreasonably withheld or delayed. Any material changes to the Approved Working
Drawings shall be in writing and shall be signed by both Landlord and Tenant
prior to the change being made. Non-material changes to the Approved Working
Drawings may be made by Tenant without Landlord's consent. A change shall be
non-material if it does not affect the structure of the Building or it involves
a cost increase in Tenant Improvements Cost of no more than $2,500.00.
6. Landlord Delays. Delays attributable to Landlord shall include those caused
by: (i) Landlord's failure to furnish information to Tenant or the Architect for
the preparation of the Working Drawings (or revisions to the Working Drawings)
in accordance with this Agreement; (ii) changes in the Working Drawings or
Approved Working Drawings requested by Landlord; (iii) interference with
Tenant's or Contractor's (and subcontractors') work in the Premises by Landlord
or by Landlord's agents, contractors or employees; (iv) Landlord's failure to
provide Tenant with access to and/or utilities for the Premises from and after
the execution of the Lease; and (v) Landlord's failure to cooperate with Tenant
in connection with obtaining the Permits. All of the foregoing delays are
hereinabove collectively referred to as "Landlord Delays."
EXHIBIT B
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EXHIBIT C
COMMENCEMENT DATE MEMORANDUM
LANDLORD: Xxxxx Fargo Bank, N.A., a national banking
association
TENANT: Pacific State Bank, a California corporation
LEASE DATE: September, 1991
Pursuant to Section 2.d. of the above-referenced Lease, the Commencement Date
for the Lease hereby is established as _______________ 199__, and the Expiration
Date shall be September 30, 2008.
LANDLORD
Xxxxx Fargo Bank, N.A.,
a national banking association
By:
------------------------------------
Its:
-------------------------------
By:
------------------------------------
Its:
-------------------------------
TENANT
Pacific State Bank,
a California corporation
By:
------------------------------------
Its:
-------------------------------
EXHIBIT C
1
EXHIBIT D
RULES AND REGULATIONS
1. The normal business hours ("Business Hours") of the Building shall be
7:00 a.m. to 7:00 p.m., Monday through Friday, holidays excepted. Not less than
once annually, Landlord shall publish to all tenants a list of the holidays to
be observed by the Building. The cost of after hours HVAC requested by Tenant
and provided by Landlord shall be Forty Dollars ($40.00) an hour which rate is
subject to increase should the utility provider increase the rate it charges
Landlord for electricity. Landlord shall provide standard lighting and
electricity to the Building twenty four hours a day, seven days a week.
2. The sidewalks, entrances, lobby, elevators, stairways and public
corridors shall be used only as a means of ingress and egress and shall remain
unobstructed at all times. The entrance and exit doors of all suites are to be
kept closed at all times except as required for orderly passage to and from a
suite. Loitering in any part of the Building or obstruction or any means of
ingress or egress shall not be permitted. Doors and windows shall not be covered
or obstructed.
3. Plumbing fixtures shall not be used for any purposes other than those
for which they were constructed, and no rubbish, newspapers, trash or other
substances of any kind shall be thrown into them. Walls, floors and ceilings
shall not be defaced in any way and no one shall be permitted to xxxx, drive
nails, screws or drill into, paint, or in any way mar any building surface,
except that pictures, certificates, licenses and similar items normally used in
Tenant's business may be carefully attached to the walls by Tenant in a manner
to be prescribed by Landlord. Upon removal of such items by Tenant any damage to
the walls or other surfaces, except minor nail holes, shall be repaired by
Tenant.
4. No awning, shade, sign, advertisement or notice shall be inscribed,
painted, displayed or affixed on, in or to any window, door or balcony or any
other part of the outside or inside of the Building or the demised premises. No
window displays or other public displays shall be permitted without the prior
written consent of Landlord. All tenant identification on public corridor doors
beyond building standard will be installed by Landlord for Tenant but the cost
shall be paid by Tenant. No lettering or signs other than the name of Tenant
will be permitted on public corridor doors with the size and type of letters to
be prescribed by Landlord. The directory of the Building will be provided
exclusively for the display and location of Tenant only and Landlord reserves
the right to
EXHIBIT D
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exclude all other names therefrom. All requests for listing on the Building
directory shall be submitted to the office of Landlord in writing. Landlord
reserves the right to approve all listing requests. Any change requested by
Tenant of Landlord of the name or names posted on directory, after initial
posting, will be charged to Tenant.
5. The cost of any special electrical circuits for items such as copying
machines, computers, microwaves, etc., shall be borne by Tenant unless the same
are part of the building standard improvements. Prior to installation of
equipment Tenant must receive written approval from Landlord.
6. The weight, size and position of all safes and other unusually heavy
objects used or placed in the Building shall be prescribed by Landlord and
shall, in all cases, stand on metal plates of such size as shall be prescribed
by Landlord. The repair of any damage done to the Building or property therein
by putting in or taking out or maintaining such safes or other unusually heavy
objects shall be paid for by Tenant.
7. All freight, furniture, fixtures and other personal property shall be
moved into, within and out of the Building at times designated by and under the
supervision of Landlord and in accordance with such regulations as may be posted
in the office of the Building manager. In no event will Landlord be responsible
for any loss or damage to such freight, furniture, fixtures or personal property
from any cause.
8. No improper noises, vibrations or odors will be permitted in the
Building, nor shall any person be permitted to interfere in any way with tenants
or those having business with them. No person will be permitted to bring or keep
within the Building any animal, bird or bicycle or any toxic or flammable
substances without Landlord's prior permission. No person shall throw trash,
refuse, cigarettes or other substances of any kind any place within or out of
the Building except in the refuse containers provided therefor. Landlord
reserves the right to exclude or expel from the Building any person who, in the
judgment of Landlord, is intoxicated or under the influence of liquor or drugs
or who shall in any manner do any act in violation of the rules and regulations
of the Building.
9. All re-keying of office doors or changes to the card access system,
after occupancy, will be at the expense of Tenant. Tenant shall not re-key any
doors or change the card access system in any way without making prior
arrangements with Landlord.
10. Tenant will not install or use any window coverings except those
provided by Landlord, nor shall Tenant use the
EXHIBIT D
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balconies, if any, for storage, barbecues (provided Tenant shall be permitted an
annual barbecue, subject to insurance requirements and local laws and
ordinances), drying of laundry or any other activity which would detract from
the appearance of the Building or interfere in any way with the use of the
Building by other tenants.
11. If Tenant uses the Premises after regular business hours or on
non-business days shall lock any entrance doors to the Building used by Tenant
or take such other steps as are necessary to secure the Building's doors
immediately after entering or leaving the Building.
12. If Tenant requires telegraphic, telephonic, burglar or of similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
13. Tenant shall not waste electricity, water or air-conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's heating and air conditioning.
14. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
15. Tenant shall not obtain for use on the Premises ice, drinking water,
food, beverage, towel or other similar services or accept barbering or
bootblacking services upon the Premises, except at such hours and under such
regulations as may be fixed by Landlord.
16. Tenant shall not install any radio or television antenna, loudspeaker
or other device on the roof or exterior walls of the Building. Tenant shall not
interfere with radio or television broadcasting or reception from or in the
Building. Tenant shall not install, maintain or operate upon the Premises any
vending machine without the written consent of Landlord, which consent shall not
be unreasonably withheld. Canvassing, soliciting and distribution of handbills
or any other written material, and peddling in the Building, are prohibited, and
each tenant shall cooperate to prevent same.
17. Tenant shall not use in any space or in the public halls of the
Building any hand trucks except those equipped with rubber tires and side
guards, or such other material-handling equipment as Landlord may approve.
Tenant shall not bring any other vehicles of any kind into the Building.
18. Tenant shall not park its vehicles in any parking areas designated by
Landlord as areas for parking by visitors to the
EXHIBIT D
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Building. Tenant shall not leave vehicles in the Building parking areas
overnight nor park any vehicles in the Building parking areas other than
automobiles, motorcycles, motor driven or non-motor driven bicycles or
four-wheeled trucks. Landlord may, in its sole discretion, designate separate
areas for bicycles and motorcycles.
19. Tenant shall be deemed to have read these Rules and Regulations and
to have agreed to abide by them as a condition to his occupancy of the Premises.
20. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant or any
other tenant, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the tenants of the Building.
21. Landlord reserves the right to make such other and further rules and
regulations as in Landlord's judgment may be necessary for the safety, care and
cleanliness of the Premises and for the preservation of good order therein.
Tenant shall abide by all rules and regulations hereinabove stated and any
additional rules and regulations adopted by Landlord.
EXHIBIT D
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EXHIBIT F
ATHLETIC FACILITIES AGREEMENT
THIS ATHLETIC FACILITIES AGREEMENT ("Agreement") dated 1991,
between Xxxxx Fargo Bank, N.A., a national banking association ("Xxxxx Fargo")
and Pacific State Bank, a California corporation ("Tenant"), is entered on the
basis of the following facts, intentions and understandings of the parties:
X. Xxxxx Fargo owns and manages that certain seven story office building
("Building") commonly known as 0 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx.
Located in the basement of the Building are certain athletic facilities
("Athletic Facility") including, a racquetball court, dry sauna and locker room.
B. Tenant is leasing certain premises in the Building from Xxxxx Fargo,
pursuant to that Lease Agreement ("Lease") dated ________________, 1991, and in
connection with the Lease, Tenant desires to use the Athletic Facility.
X. Xxxxx Fargo will allow Tenant to use the Athletic Facility, pursuant to
the terms and conditions of this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of
the parties, the parties agree as follows:
1. Use of Athletic Facility. Provided Tenant is not in default under the
Least, during the term of the Lease, Tenant. and Tenant's employees shall have
the right to use the Athletic Facility.
2. Indemnification. Tenant shall indemnify and hold harmless Xxxxx Fargo
from and against any and all loss, cost (including attorneys' fees), damages,
expenses and liability (including statutory liability and liability under
workers' compensation laws) in connection with claims for damages as a result of
injury, death or loss of property of all employees and invitees of Tenant
resulting directly or indirectly from the use of the Athletic Facility. Further,
Tenant shall indemnify Xxxxx Fargo for attorneys' fees incurred by Xxxxx Fargo
in an action brought by Xxxxx Fargo to enforce this Agreement. This Agreement is
intended to include indemnification for any and all loss, cost (including
attorneys' fees), damages, expenses and liability resulting from Xxxxx Fargo's
own negligence, passive or active.
3. Insurance. In addition to insurance Tenant is required to maintain
under the Lease, Tenant shall maintain at all times and will be solely
responsible for premiums for all insurance coverage required by Federal, State
or local law and statute,
EXHIBIT F
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including Workers' Compensation Insurance and Employers Liabi1ity with a minimum
limit of $l,000,O00. The Workers' Compensation Insurance and Employers Liability
will include a waiver of subrogation against Xxxxx Fargo.
4. Evidence of Insurance. Tenant shall deliver to Xxxxx Fargo certificates
of insurance evidencing such required insurance coverage and naming Xxxxx Fargo
as additional insured as its interests may appear hereunder. The certificates
shall include a provision whereby the insurance carrier is required to provide
thirty (30) days advance written notice before cancellation or material change
of coverage takes effect for the policy evidenced on the certificate, regardless
of whether cancelled by Tenant, or the insurance carrier. The notice shall be
sent to the address for notices for Xxxxx Fargo set forth in the Lease.
5. Termination. This Agreement may be terminated by either party without
cause, by giving thirty (30) days written notice to the other party of such
intention. If either party notifies the other to terminate this Agreement, after
the expiration of the thirty (30) days notification, Tenant and Tenant's
employees shall no longer be allowed to use the Athletic Facility. Termination
of this Agreement shall not terminate the indemnification obligation of Tenant
set forth herein for claims originating or occurring during the term of this
Agreement, regardless of when such claims are reported.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date(s) set forth below, as of the day and year first above written.
PACIFIC STATE BANK, XXXXX FARGO BANK, N.A., a
a California corporation national banking association
By: By:
--------------------------------- -------------------------------
------------------------------------ ----------------------------------
Title Title
------------------------------------ ----------------------------------
Date Date
EXHIBIT F
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