EXHIBIT 10.6
OFFICE LEASE
PALO ALTO OFFICE CENTER
000 XXXXXXXXXX XXXXXX. XXXX XXXX. XXXXXXXXXX 00000
THIS LEASE (this "Lease"), is made as of the 15th day of October,
2001,by and between C. M. CAPITAL CORPORATION, a California corporation
("Landlord"), and BRIDGE BANK OF SILICON VALLEY N. A., a Federally Chartered
National Bank ("Tenant").
WITNESSETH:
I. Premises. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, for the term and subject to the covenants hereinafter set forth,
to all of which Landlord and Tenant hereby agree, those certain Premises (the
"Premises") known as Suites 101 and 103, consisting of approximately 2,975
square feet of space on the I" floor of that certain building (the "Building")
known as the Palo Alto Office Center and located at 000 Xxxxxxxxxx Xxxxxx in the
City of Palo Alto, County of Santa Xxxxx. State of California, which Premises
are delineated on EXHIBIT A attached hereto and incorporated herein by this
reference.
2. Use. The Premises shall be used for a retail bank branch and related
office use, together with related ancillary uses and for no other business or
purpose, without written consent of Landlord. Tenant shall not be permitted to
install any automatic teller machines ("ATM") outside of the Premises, nor shall
Tenant have the right to maintain any ATM within the Premises which Tenant
advertises the use thereof at any time beyond the normal business hours when the
Building is open to the general public. Tenant shall not use, or permit the
Premises or any part thereof to be used, for any purpose or purposes other than
the use described above; and no use shall be made or permitted to be made of the
Premises, nor acts done therein, which will increase the existing rate of
insurance upon the Building, or cause a cancellation of any insurance policy
covering the Building, or any part thereof, nor shall Tenant sell, or permit to
be kept, used or sold, in or about the Premises, any article which may be
prohibited by the standard form of fire insurance policies. If the existing rate
of any such insurance shall be increased or any insurance policy covering the
Building cancelled for any reason described above, then Landlord, in addition to
such other remedies as Landlord may have hereunder or pursuant to law or equity,
shall be entitled to reimbursement from Tenant upon written demand therefor for
the entire amount of said increase or any additional amount which must be paid
for a new insurance policy. Tenant shall not commit, or suffer to be committed,
any waste upon the Premises, or any public or private nuisance, or other act or
thing which may disturb the quiet enjoyment of any other tenant in the Building,
nor, without limiting the generality of the foregoing, shall Tenant allow the
Premises to be used for any unlawful purpose or activity. Tenant shall not use
any apparatus, machinery or device in or about the Premises which shall make any
noise or set up any vibration or which shall in any way increase the amount of
electricity, water or compressed air agreed to be furnished or supplied under
this Lease (if any), and Tenant further agrees not to connect with electric
wires, water or air pipes any apparatus, machinery or device other than ordinary
office equipment without the written consent of Landlord. Tenant shall, at its
sole cost and expense, comply with all of the requirements of all municipal,
state and federal authorities now in force, or which may hereafter be in force,
applicable to the Premises, and shall faithfully observe in the use of the
Premises all municipal, state and federal laws and regulations now in force or
which may hereafter be in force.
3. Term. The term of this Lease shall be for sixty (60) months,
commencing on December 1, 2001 ("Commencement Date") and ending on November 30,
2006 ("Expiration Date"), unless sooner terminated in accordance with the
provisions hereof, provided, however. that the obligation to pay Rent shall not
begin until the earlier of (a) Tenant's obtaining from the FDIC/OCC all
necessary approvals for the conducting of its business at the Premises, or (b)
the Outside Approval Date, HOWEVER, such Rent shall be calculated as of the
Commencement Date. If Landlord, for any reason whatsoever, cannot deliver
possession of the Premises to the Tenant on the Commencement Date, this Lease
shall not be void or voidable, nor shall Landlord be liable to Tenant for any
loss or damage, actual, consequential or otherwise, resulting therefrom, but in
that event no rent shall be payable by Tenant to Landlord hereunder for the
period between the Commencement Date and the dine when Landlord delivers
possession of the Premises. Within ten (10) days of the Commencement Date,
Landlord and Tenant shall execute a
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memorandum specifying the Commencement Date and the Expiration Date. However,
the Commencement Date shall occur as set forth above whether or not such
memorandum is executed.
4. Rent. Tenant shall pay to Landlord the following amounts as rent for
the Premises:
(a) During the term of this Lease, Tenant shall pay to Landlord, as
base monthly rent (the "Base Rent"), the following amounts, subject to increase
as provided in Paragraph 4(d) hereof: for the period from the Commencement Date
through the first anniversary of the Commencement Date the sum of Twelve
Thousand One Hundred Ninety-Seven and 50/100 Dollars ($12,197.50) per month
calculated as follows: $4.10 per rentable square foot times 2,975, the rentable
square feet of the Premises.
(b) Additional Monthly Rent as that term is defined in Paragraph 34
hereof.
(c) Throughout the term of this Lease, Tenant shall pay, as Additional
Rent, all other amounts of money and charges required to be paid by Tenant under
this Lease, whether or not such amounts of money or charges are designated
"Additional Rent." As used in this Lease, the term "Rent" shall mean and include
all Base Rent, Additional Monthly Rent and Additional Rent payable by Tenant in
accordance with this Lease.
(d) Tenant shall pay all Base Rent and Additional Monthly Rent
hereunder to Landlord, in advance, on or before the first day of each and every
calendar month during the term of this Lease. Tenant shall pay all Rent to
Landlord without notice, demand, deduction or offset, in lawful money of the
United States of America, at the address of Landlord specified in Paragraph 20
hereof, or to such other person or at such other place as Landlord may from time
to time designate in writing.
(e) The monthly Base Rent shall be subject to adjustment on the first
anniversary of the Commencement Date and on each subsequent anniversary of that
date during the term of this Lease (each, an "Adjustment Date") as set forth
below. The base for computing the adjustment shall be the Consumer Price Index
for All Urban Consumers (San Francisco/Oakland/San Xxxx Area; all items; 1982-84
equals 100) which is published by the United States Department of Labor, Bureau
of Labor Statistics (the "CPI Index") most recently prior to the previous
Adjustment Date (or, as to the first Adjustment Date, most recently prior to the
Commencement Date) (the "Beginning Index"). If the CPI Index published most
recently prior to an Adjustment Date ("Extension Index") has increased from the
Beginning Index, the Base Rent for the period commencing on such Adjustment Date
shall be an amount equal to the product of (I) the Base Rent amount then in
effect immediately prior to such Adjustment Date multiplied by (2) a fraction
the numerator of which is the Extension Index and the denominator of which is
the Beginning Index. In no event shall the Base Rent in effect during any Lease
Year be less than the Base Rent in effect during the prior Lease Year. Upon
Landlord's determination of the Base Rent to take effect on an Adjustment Date,
Landlord shall give notice to Tenant of such new Base Rent (an "Adjustment
Notice"). Such determination shall be binding on Tenant absent manifest error.
Unless Tenant notifies Landlord of Tenant's objection to the Base Rent set forth
in an Adjustment Notice within ten (10) days after delivery thereof, Tenant
shall be deemed to have accepted the correctness of Landlord's determination of
the Base Rent. If any Adjustment Notice is not given until after the respective
Adjustment Date, Tenant shall, at the time of the payment of the next
installment of Base Rent, pay any amount of Base Rent which was underpaid with
respect to the period from the Adjustment Date to the first month as to which
Tenant begins paying Base Rent in the amount reflected in such Adjustment
Notice.
5. Abandonment. Tenant shall not vacate or abandon the Premises at any
time during the term of this Lease; and if Tenant shall abandon, vacate or
surrender the Premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to Tenant and left on the Premises shall be deemed
to be abandoned, at the option of Landlord, and Landlord shall be entitled to
sell or otherwise dispose of such personal property.
6. Condition of Premises; Alterations and Repairs.
(a) Tenant shall accept the Premises "as is" on the Commencement Date.
Except as otherwise agreed in writing, Landlord shall have no obligation to
construct or install any
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improvements in the Premises. Tenant's taking possession of the Premises shall
constitute Tenant's acknowledgment that the Premises are in all respects in the
condition in which Landlord is required to deliver the Premises to Tenant under
this Lease and that Tenant has examined the Premises and is fully satisfied with
the physical and environmental condition of the Premises. Tenant acknowledges
that Landlord, its agents and employees and other persons acting on behalf of
Landlord have made no representation or warranty of any kind in connection with
any matter relating to the physical or environmental condition, value, fitness,
use or zoning of the Premises.
(b) Tenant shall not alter, modify or repair, and shall not permit the
alteration, modification or repair of, the Premises or any part thereof, except
with Landlord's prior written consent in each instance. Tenant hereby waives all
rights to make repairs at Landlord's expense under sections 1941, 1941.1, 1942
and 1942.1 of the California Civil Code or any similar statute or law. Unless
otherwise agreed in writing, all alterations, improvements and changes that are
permitted hereunder, or that maybe required either to the Premises or to the
Building as a result of any alteration, modification or repair to the Premises,
shall be done by or under the direction of Landlord, but at the sole cost and
expense of Tenant. All such alterations, improvements and changes shall be done
in compliance with all applicable laws and regulations, in accordance with plans
and specifications approved by Landlord, by a licensed contractor approved by
Landlord. Title to all such alterations, improvements and changes during the
term of this Lease shall remain the property of Tenant until expiration or
sooner termination of this Lease, whereupon title thereto shall immediately and
automatically pass to and become vested in Landlord. All such alterations,
improvements and changes shall remain upon and be surrendered with the Premises,
excepting however that at Landlord's option, Tenant shall, at its sole expense,
when surrendering the Premises, remove any or all alterations, improvements or
changes to the Premises and restore the Premises (or such portion thereof as
Landlord has required) to the condition existing as of the date Landlord
delivered possession of the Premises to Tenant, before the last day of the term
of this Lease, or within thirty (30) days after notice of election is given,
whichever is later. All damage or injury done to the Premises by Tenant, or by
any person who may be in or upon the Premises with the consent of Tenant, shall
be paid for by Tenant. Tenant shall at the termination of this Lease, surrender
the Premises to Landlord in as good condition and repair as reasonable and
proper use thereof will permit.
7. Indemnification of Landlord.
(a) Landlord shall not be liable to Tenant for any damage to or loss or
theft of any property or for any bodily or personal injury, illness or death of
any person in, on or about the Premises arising at any time and from any cause
whatsoever unless caused by the gross negligence or willful misconduct of
Landlord. Tenant waives all claims against Landlord arising from any liability
described in this Paragraph 7(a) unless caused by the gross negligence or
willful misconduct of Landlord.
(b) Tenant shall indemnify and defend Landlord, its directors,
officers, shareholders, employees, agents, affiliates, subsidiaries, successors
and assigns against and hold harmless from all claims, demands, liabilities,
damages, losses, costs and expenses, including reasonable attorneys' fees and
disbursements (collectively, "Losses"), arising from or related to any use or
occupancy of the Premises, or any condition of the Premises, or any default in
the performance of Tenant's obligations, or any damage to any property
(including property of employees, officers, affiliates, subsidiaries, agents,
contractors, licensees and invitees of Tenant (collectively, "Tenant's Agents"))
or any bodily or personal injury, illness or death of any person (including any
Tenant's Agents) occurring in, on or about the Premises or any part thereof
arising at any time and from any cause whatsoever or occurring outside the
Premises when such damage, bodily or personal injury, illness or death is caused
by any act or omission of Tenant or any of Tenant's Agent. Tenant's indemnity
obligation under this Paragraph 7(b) shall not extend to any Losses caused
solely by the gross negligence or willful misconduct of Landlord or Landlord's
employees or agents (collectively, "Landlord's Agents"), (but expressly
excluding the failure of Landlord or Landlord's Agents to supervise Tenant or
Tenant's Agents). The provisions of this Paragraph 7(b) shall survive the
termination of this Lease. Tenant agrees to pay for all damage to the Building,
as well as all damage to tenants or occupants thereof or their property caused
by misuse or neglect of the Premises, its apparatus or appurtenances, by Tenant
of Tenant's Agents.
8. Insurance. Tenant agrees at its sole expense, to maintain in full
force at all times
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during the Lease term a policy of property damage insurance covering any and all
personal property of Tenant on the Premises in the amount of its fill
replacement cost and a policy of commercial general liability insurance. Each
such policy shall be issued by an insurer acceptable to Landlord and shall
provide coverage in such amounts as acceptable to Landlord from time to time.
Provided, however, Tenant must at a minimum carry commercial general liability
and property damage insurance with a combined single limit of at least
$1,000,000.00 per occurrence and $3,000,000.00 general aggregate insuring
against personal or bodily injury or death of persons occurring in, on or about
the Premises and the Building and any and all liability of the insureds with
respect to the Building or arising our of Tenant's maintenance, use or occupancy
of the Premises and the Building and all areas appurtenant thereto. All
insurance policies obtained by Tenant with respect to the Premises or any
property therein shall contain a waiver of subrogation provision satisfactory to
Landlord. Said insurance is to be evidenced by issuance of a certificate of
insurance to Landlord and such certificate shall afford Landlord not less than
thirty (30) days' notice of cancellation.
9. MAINTENANCE.
(a) Landlord shall maintain and repair the public and common areas of
the Building, such as plazas, lobbies, stairs, corridors and restrooms, the roof
and exterior elements of the building, and the elevator, mechanical (heating,
ventilating and air conditioning) and electrical systems of the Building
(excluding the portions of the plumbing, mechanical and electrical systems
located within the Premises) and keep such areas, elements and systems in
reasonably good order and condition. Any damage in or to any such areas,
elements or systems caused by Tenant or any agent, officer, employee,
contractor, licensee or invitee of Tenant shall be repaired by Landlord at
Tenant's expense and Tenant shall pay to Landlord, upon billing by Landlord, as
Additional Rent, the cost of such repairs incurred by Landlord.
b) Tenant shall, at all times during the term of this Lease and at
Tenant's sole cost and expense, maintain and repair the Premises and every part
thereof and all equipment, fixtures and improvements therein and keep all of the
foregoing clean and in good order and operating condition, ordinary wear and
tear and damage thereto by fire or other casualty excepted.
10. Entry by LANDLORD.
(a) Tenant shall permit Landlord and its agents to enter into and upon
the Premises at all reasonable times, for the purpose of inspecting the same and
performing other services, or for the purpose of maintaining the Building or for
the purpose of making repairs, alterations or additions to the Premises or any
other portion of the Building, including the erection of scaffolding, props or
other mechanical devices, or for the purpose of posting notices of non-
liability for alterations, additions or repairs, or for the purpose of showing
the Premises to a prospective purchaser or lender at any time during the term of
this Lease or to a prospective tenant at any time within one hundred eighty
(180) days of the end of the term of this Lease, all without any abatement of
rent to Tenant or liability for any loss of occupation or quiet enjoyment of the
Premises thereby occasioned. Tenant shall permit Landlord, at any time within
one hundred eighty (180) days prior to the expiration of this Lease, to place
upon the windows and doors of the Premises any usual or ordinary "for rent" or
"to lease" signs. Landlord and its agents may, during such period, at reasonable
hours, enter upon the Premises and exhibit the SAME TO PROSPECTIVE TENANTS.
(b) Notwithstanding anything to the contrary set forth in Paragraph
10(a), Tenant may designate portions of the Premises as "secured areas" should
Tenant require such areas for the purpose of maintaining a vault or for securing
certain valuable property and confidential information, and Landlord shall not
enter such secured areas except in the case of an emergency or when accompanied
by a representative of Tenant. Landlord shall have no right to keys for the
locks or doors to any vault, cash boxes or filing drawers located within the
Premises.
11. SERVICES.
(a) Landlord shall furnish the Premises on Business Days
(Monday-Friday) during Business Hours (Monday-Friday -- 8 AM. - 6 P.M.), as the
same may be determined from time to time by Landlord, and while Tenant is not in
default under this Lease, and subject to the regulations of the Building, the
following services: heat, air conditioning, lighting and electricity for
personal computers and other portable office equipment, provided that electrical
usage in
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excess of levels generally necessary for ordinary general office purposes shall
be paid for by Tenant as provided below. Landlord shall provide janitorial
service five (5) times per week. Landlord shall provide unattended elevator
service and tower Building security service during such hours as Landlord deems
appropriate. Tenant shall pay Landlord, in addition to the payments described in
Paragraph 34, the cost of all other services and utilities supplied to the
Premises not listed in this Paragraph. Tenant shall have no right to abatement
of Rent hereunder or to termination of this Lease when such failure is caused by
conditions beyond the reasonable control of Landlord, including accidents,
repairs, strikes, labor disturbances or labor disputes of any character, whether
resulting from or caused by acts of Landlord or otherwise, nor shall any such
failure constitute an eviction; nor shall Landlord be liable under any
circumstances for loss of or injury to property, however occurring, through or
in connection with or incidental to the furnishing of or failure to furnish any
of the foregoing.
(b) If Tenant requires heating, ventilating and air conditioning to the
Premises other than during Business Hours on Business Days, Landlord shall, upon
Tenant's request given not later than 3 P.M. of the Business Day on which Tenant
requires the after-hour service, and not later than 3 P.M. on the Friday before
any Saturday or Sunday on which Tenant requires such service, and not later than
3P.M. of the Business Day before any holiday on which Tenant requires such
service, furnish such heating, ventilating and air conditioning. If Tenant
receives such services, then Tenant shall pay, upon demand, an amount equal to
Tenant's proportionate share of the actual direct cost to Landlord in providing
the heating, ventilating and air conditioning to Tenant and all other tenants of
the Building requesting such services outside of Business Hours or Business
Days. All services and utilities for the Premises not required to be furnished
by Landlord pursuant to the first sentence of Paragraph 11(a) shall be paid for
by Tenant. If Tenant requires water, heat, air conditioning, electric current,
elevator janitorial service in excess of that provided for in Xxxxxxxxx 00(x),
Xxxxxxxx shall provide the same, at Tenant's expenses, if reasonably available.
Tenant shall pay to Landlord upon demand the cost of electricity consumed on the
Premises in amounts exceeding normal general office usage or during times other
than Business Hours, as reasonably estimated by Landlord. Landlord may install
an electric current or water meter (including, without limitation, any
additional wiling, conduit or panel required therefor) to measure the excess
electric current or water consumed by Tenant or may cause the excess usage to be
measured by other reasonable methods (e.g. by temporary "check" meters or by
survey). Tenant shall pay to Landlord upon demand (i) the actual cost of any and
all water, heat, air conditioning, electric current, janitorial, elevator or
other services and utilities required to be furnished by Landlord as provided in
Paragraph 11(a); (ii) the actual cost of installation, maintenance and repair of
any meter installed in the Premises; (iii) any reasonable out-of-pocket cost
actually incurred by Landlord in keeping account of or determining such excess
utilities or services furnished to Tenant. Landlord's failure to xxxx Tenant for
any such excess utilities or services shall not waive Landlord's right to xxxx
Tenant for excess use at a later time. If a regular pattern of excess use is
established, Landlord may estimate such excess use based on periodic sampling
and may periodically xxxx Tenant for such estimated excess use not later than
twelve (12) months after the date of such use.
12. Destruction of Premises.
(a) If the Building or the Premises, or any pan thereof, is damaged by
fire or other casualty before the Commencement Date or during the term of this
Lease, and this Lease is not terminated pursuant to Paragraph 12(b) hereof,
Landlord shall repair such damage and restore the Building and the Premises to
substantially the same condition in which the Building and the Premises existed
before the occurrence of such fire or other casualty and this Lease shall,
subject to this Paragraph 12(a), remain in full force and effect. If such fire
or other casualty damages the Premises or common areas of the Building necessary
for Tenant's use and occupancy of the Premises and if such damage is not the
result of the negligence or willful misconduct of Tenant or Tenant's agents,
officers, employees, contractors, licensees or invitees, then during the period
the Premises are rendered unusable by such damage, Tenant shall be entitled to a
reduction in Base Rent in the proportion that the area of the Premises rendered
unusable by such damage bears to the total area of the Premises. Landlord shall
not be obligated to repair any damage to, or to make any replacement of, any
movable furniture, equipment, trade fixtures or personal property in the
Premises. Tenant shall, at Tenant's sole cost and expense, repair and replace
all such movable furniture, equipment, trade fixtures and personal property.
Tenant hereby waives California Civil Code sections 1932(2) and 1933(4).
(b) If the Building or the Premises, or any part thereof, is damaged by
fire or other.
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casualty before the Commencement Date or during the term of this Lease and (a)
such fire or other casualty occurs during the last twelve (12) months of the
term of this Lease and the repair and restoration work to be performed by
Landlord in accordance with Paragraph 12(a) hereof cannot, as reasonably
estimated by Landlord, be completed within two (2) months after the occurrence
of such fire or other casualty, or (b) the insurance proceeds received by
Landlord in respect of such damage are not adequate to pay the entire cost, as
reasonably estimated by Landlord, of the repair and restoration work to be
performed by Landlord in accordance with Paragraph 12(a) hereof, or (c) the
repair and restoration work to be performed by Landlord in accordance with
Paragraph 12(a) hereof cannot, as reasonably estimated by Landlord, be completed
within six (6) months after the occurrence of such fire or other casualty, then,
in any such event, Landlord shall have the right, by giving written notice to
Tenant within sixty (60) days after the occurrence of such fire or other
casualty, to terminate this Lease of the date of such notice. If Landlord does
not exercise the right to terminate this Lease in accordance with this Paragraph
l2), Landlord shall repair such damage and restore the Building and the Premises
in accordance with Paragraph 12(a) hereof and this Lease shall, subject to
Paragraph 12(a) hereof, remain in full force and effect. A total destruction of
the Building shall automatically termintate this Lease effective as of the date
of such total destruction.
13. Eminent Domain. If the whole or any substantial part of the
Building or the parking area thereof shall be taken or condemned by competent
authority for any public use or purpose, the term of this Lease shall end upon,
and not before, the date when possession of the part so taken shall be required
for such use or purpose. Rent shall be apportioned as of the date of such
termination. Tenant shall be entitled to receive any damages awarded by the
court for leasehold improvements installed at Tenant's expense. The entire
balance of the award shall be the property of Landlord.
14. Assignment and Subletting.
(a) Tenant shall not, directly or indirectly, without the prior written
consent of Landlord (which consent shall not be unreasonably withheld), assign
this Lease or any interest herein or sublease the Premises or any part thereof,
or permit the use or occupancy of the Premises by any person or entity other
than Tenant. Tenant shall not, directly or indirectly, without the prior written
consent of Landlord, pledge, mortgage or hypothecate this Lease or any interest
herein. This Lease shall not, nor shall any interest herein, be assignable as to
the interest of Tenant involuntarily or by operation of law without the prior
written consent of the Landlord. Any of the foregoing acts without such prior
written consent of Landlord shall be void and shall, at the option of Landlord,
constitute a default that entitles Landlord to terminate this Lease. Without
limiting or excluding other reasons for withholding Landlord's consent, Landlord
shall have the right to withhold consent if the proposed assignee or subtenant
or the use of the Premises to be made by the proposed assignee or subtenant is
prohibited by this Lease or if it is not demonstrated to the satisfaction of
Landlord that the financial condition of the proposed assignee or subtenant
meets Landlord's standards for other tenants of the Building and that such
proposed assignee or subtenant is financially able to perform all of the
obligations of Tenant under this Lease (as evidenced by financial statements and
business and credit references acceptable to Landlord). Tenant agrees that the
instrument by which any assignment or sublease to which Landlord consents is
accomplished shall expressly provide that the assignee or subtenant will perform
all of the covenants to be performed by Tenant under this Lease (in the case of
a sublease, only insofar as such covenants relate to the portion of the Premises
subject to such sublease) as and when performance is due after the effective
date of the assignment or sublease and that Landlord will have the right to
enforce such covenants directly against such assignee or subtenant. Any
purported assignment or sublease without an instrument containing the foregoing
provisions shall be void. Tenant shall in all cases remain liable for the
performance by any assignee or subtenant of all such covenants.
(b) If Tenant wishes to assign this Lease or sublease all or any part
of the Premises, Tenant shall give written notice to Landlord identifying the
intended assignee or subtenant by name and address and specifying all of the
terms of the intended assignment or sublease. Tenant shall give Landlord such
additional information concerning the intended assignee or subtenant (including
complete financial statements and a business history) or the intended assignment
or sublease (including true copies thereof) as Landlord requests. For a period
of thirty (30) days after such written notice and such additional information is
given by Tenant, Landlord shall have the right, by giving written notice to
Tenant, (1) to consent in writing to the intended assignment or sublease, unless
Landlord determines not to consent, or (2) to enter into an assignment of this
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Lease or a sublease of the Premises, as the case may be, with the tenant upon
terms set forth in such written notice, or (3) to terminate this Lease as it
relates to the Premises or the portion thereof proposed to be assigned or sublet
by Tenant, which termination shall be effective as of the date on which the
intended assignment or sublease would have been effective if Landlord had not
exercised such termination right. If Landlord elects to enter into an assignment
of this Lease or a sublease of the Premises or to terminate this Lease, Landlord
may enter into a new lease or sublease covering the Premises or any portion
thereof with the intended assignee or subtenant on such terms as Landlord and
such assignee or subtenant may agree, or enter into a new lease or sublease
covering the Premises or any portion thereof with any other person or entity. In
such event, Tenant shall not be entitled to any portion of the profit, if any,
which Landlord may realize on account of such new lease. If Landlord elects to
terminate this Lease as it relates to the Premises or the portion thereof
proposed to be assigned or sublet by Tenant, then from and after the date of
such termination, Landlord and Tenant each shall have no further obligation to
the other under this Lease with respect to the Premises or the portion thereof
so terminated, except for matters occurring or obligations arising or accruing
hereunder prior to the date of such termination (including but not limited to,
any obligation applicable to Tenant's surrender of the Premises) and those
provisions of this Lease that expressly survive the expiration or other
termination of this Lease.
(c) If Landlord consents in writing, Tenant may complete the intended
assignment or sublease subject to the following covenants: (I) the assignment or
sublease shall be on the same terms as set forth in the written notice given by
Tenant to Landlord, (2) no assignment or sublease shall be valid and no assignee
or subtenant shall take possession of the Premises or any part thereof until an
executed duplicate original of such assignment or sublease, in compliance with
Paragraph 14(a) hereof, has been delivered to Landlord, (3) no assignee or
subtenant shall have a right further to assign or sublease, and (4) all "Excess
Rent" (as hereinafter defined) derived from such assignment or sublease shall be
paid to Landlord (except as stated herein below, Landlord shall only receive 50%
of any Excess Rent derived from a sublease). Such Excess Rent shall be deemed to
be, and shall be paid by Tenant to Landlord as, Additional Rent. Tenant shall
pay such Excess Rent to Landlord immediately as and when such Excess Rent
becomes due and payable to Tenant. As used in this Paragraph 14(c) "Excess Rent"
shall mean the amount by which the total money and other economic consideration
to be paid by the assignee or subtenanr as a result of an assignment or
sublease, whether denominated rent or otherwise, exceeds, in the aggregate, the
total amount of Rent which Tenant is obligated to pay to Landlord under this
Lease (prorated to reflect the rent allocable to the portion of the Premises
subject to such assignment or sublease), less only reasonable leasing
commissions and reasonable legal fees paid by Tenant in connection with such
assignment or sublease, with such costs to be amortized on a straight-line basis
over the term of the proposed assignment or sublease, and without deduction for
other expenses or carrying costs due to vacancy or otherwise. Tenant shall pay
Landlord, upon demand, the amount incurred by Landlord or the estimated amount
Landlord reasonably expects to incur (including, without limitation, reasonable
attorneys' fees and costs) in connection with any request by Tenant for consent
pursuant to this Paragraph 14. PROVIDED, HOWEVER, in the event of an approved
sublease, any Excess Rent (less reasonable leasing commissions and reasonable
legal fees in connection with the sublease) shall be split between the Landlord
and the Tenant with Landlord entitled to 50% and Tenant entitled to 50% of such
Excess Rent.
(d) No assignment or sublease whatsoever shall release Tenant from
Tenant's obligations and liabilities under this Lease or alter the primary
liability of Tenant to pay all rent and to perform all obligations to be paid
and performed by Tenant. The acceptance of rent by Landlord from any other
person or entity shall not be deemed to be a waiver by Landlord of any provision
of this Lease. Consent to one assignment or sublease shall not be deemed consent
to any subsequent assignment or sublease. If any assignee, subtenant or
successor of Tenant defaults in the performance of any obligation to be
performed by Tenant under this Lease, Landlord may proceed directly against
Tenant without the necessity of exhausting remedies against such assignee,
subtenant or successor. Landlord may consent to subsequent assignments or
subleases or amendments or modification to this Lease with assignees, subtenants
or successors of Tenant, without notifying Tenant or any successor of Tenant and
without obtaining any consent thereto from Tenant or any successor of Tenant,
and such action shall not release Tenant from liability under this Lease.
15. Liens. Tenant agrees to keep the Premises and every part thereof at
all times during the term of this Lease free and clear of mechanics' liens and
other liens for labor, service.
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supplies, equipment or material furnished to the Premises. Tenant agrees that it
will fully and promptly pay and discharge and hold Landlord harmless against any
and all demands or claims which may entitle any person to such a lien.
16. Estoppel Certificate. At any time and from time to time. Tenant
shall, within ten (10) days after written request by Landlord, execute,
acknowledge and deliver to Landlord a certificate certifying: (a) that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect as modified, and
stating the date and nature of each modification); (b) the Commencement Date and
the Expiration Date and the date, if any, to which all Rent and other sums
payable hereunder have been paid; (c) that no notice has been received by Tenant
of any default by Tenant hereunder `which has not been cured, except as to
defaults specified in such certificate; (d) that Landlord is not in default
under this Lease, except as to defaults specified in such certificate; and (e)
such other matters as may be reasonably requested by Landlord or any actual or
prospective purchaser or mortgage lender. Any such certificate may be relied
upon by Landlord and any actual or prospective purchaser or mortgage lender of
the Premises or any part thereof.
17. Subordination; Merger; Sale.
(a) This Lease shall be subject and subordinate at all times to the
lien of all mortgages and deeds of trust securing any amount or amounts
whatsoever which may now exist or hereafter be placed on or against the Premises
or on or against Landlord's interest or estate therein, all without the
necessity of having further instruments executed by Tenant to effect such
subordination. Notwithstanding the foregoing, in the event of a foreclosure of
any such mortgage or deed of trust or of any other action or proceeding for the
enforcement thereof, or of any sale thereunder, this Lease shall not be
terminated or extinguished, nor shall the rights and possession of Tenant
hereunder be disturbed, if no Event of Default then exists under this Lease, and
Tenant shall attorn to the person who acquires Landlord's interest hereunder
through any such mortgage or deed of trust. Tenant agrees to execute,
acknowledge and deliver upon demand such further instruments evidencing such
subordination of this Lease to the lien of all such mortgages and deeds of trust
as may reasonably be required by Landlord, but Tenant's covenant to subordinate
this Lease to mortgages or deeds of trust hereafter executed is conditioned upon
each such senior mortgage or deed of trust, or a separate subordination
agreement, containing the commitments specified in the preceding sentence.
(b) The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof shall not work a merger and shall, at the option of
Landlord, terminate all or existing subleases or subtenancies or operate as an
assignment to Landlord of any or all such subleases or subtenancies.
(c) If the original Landlord hereunder, or any successor owner of the
Premises, sells or conveys the Premises, all liabilities and obligations on the
part of the original Landlord, or such successor owner, under this Lease
accruing after such sale or conveyance shall terminate and the original
Landlord, or such successor owner, shall automatically be released therefrom,
and thereupon all such liabilities and obligations shall be binding upon the new
owner. Tenant agrees to attorn to such new owner.
18. Events OF DEFAULT; REMEDIES
(a) The occurrence of any one or more of the following events ("Event
of Default") shall constitute a breach of this Lease by Tenant:
(1) Tenant fails to pay any Base Rent or Additional Monthly
Rent as and when such rent becomes due and payable and such failure
continues for more than three (3) days after Landlord gives written
notice thereof to Tenant; provided, however, that after the second such
failure in a calendar year, only the passage of time, but no further
notice, shall be required to establish an Event of Default in the same
calendar year; or
(2) Tenant fails to pay any Additional Rent hereunder as and
when such Additional Rent becomes due and payable and such failure
continues for more than ten (10) days after Landlord gives written
notice thereof to Tenant; provided, however, that after the second such
failure in a calendar year, only the
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passage of time, but no further notice, shall be required to establish
an Event of Default in the same calendar year; or
(3) Tenant fails to perform or breaches any other agreement or
covenant of this Lease to be performed or observed by Tenant as and
when performance or observance is due and such failure or breach
continues for more than ten (10) days after Landlord gives written
notice thereof to Tenant; provided, however, that if, by the nature of
such agreement or covenant, such failure or breach cannot reasonably be
cured within such period often (10) days, an Event of Default shall not
exist as long as Tenant commences with due diligence and dispatch the
curing of such failure or breach within such period often (10) days
and, having so commenced, thereafter prosecutes with diligence and
dispatch and completes the curing of such failure or breach within a
reasonable time; or
(4) Tenant (i) files, or consents by answer or otherwise to
the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy or for liquidation or
to take advantage of any bankruptcy, insolvency or other debtors'
relief law of any jurisdiction, (ii) makes an assignment for the
benefit of its creditors, (iii) consents to the appointment of a
custodian, receiver, trustee or other officer with similar powers of
Tenant or of any substantial part of Tenant's property, or (iv) takes
action for the purpose of any of the foregoing; or
(5) Without consent by Tenant, a court or government authority
enters an order, and such order is not vacated within thirty (30) days,
(i) appointing a custodian, receiver, trustee or other officer with
similar powers with respect to Tenant or with respect to any
substantial part of Tenant's property, or (ii) constituting an order
for relief or approving a petition for relief or reorganization or
arrangement or any other petition in bankruptcy or for liquidation or
to take advantage of any bankruptcy, insolvency or other debtors'
relief law of any jurisdiction, or (iii) ordering the dissolution,
winding up or liquidation of Tenant; or
(6) This Lease or any estate of Tenant hereunder is levied
upon under any attachment or execution and such attachment or execution
is not vacated within thirty (30) days; or
(7) Tenant vacates or abandons the Premises.
(b) If an Event of Default occurs, Landlord shall have the right at any
time to give a written termination notice to Tenant and, on the date specified
in such notice, Tenant's right to possession shall terminate and this Lease
shall terminate. Upon such termination, Landlord shall have the right to recover
from Tenant:
(1) The worth at the time of award of all unpaid rent which
had been earned at the time of termination;
(2) The worth at the time of award of the amount by which all
unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided;
(3) The worth at the time of award of the amount by which all
unpaid rent for the balance of the term of this Lease after the time of
award exceeds the amount of such rental loss that Tenant proves could
be reasonably avoided; and
(4) All other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform all of
Tenant's obligations under this Lease or which in the ordinary course
of things would be likely to result therefrom. The "worth at the time
of award" of the amounts referred to in clauses (1) and (2) above shall
be computed by allowing interest at the maximum annual interest rate
allowed by law for business loans (not primarily for personal, family
or household purposes) not exempt from the usury law at the
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time of termination or, if there is no such maximum annual interest
rate, at the rate of eighteen percent (18%) per annum. The "worth at
the time of award" of the amount referred to in the clause (3) above
shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank located nearest the Premises at the time of
award plus one percent (1%). For the purpose of determining unpaid rent
under clause (1), (2) and (3) above, the rent reserved in this Lease
shall be deemed to be the total rent payable by Tenant under Paragraphs
4 and 34 hereof
(c) Even though Tenant has breached this Lease, this Lease shall
continue in effect for so long as Landlord does not terminate Tenant's right to
possession, and Landlord shall have the right to enforce all its rights and
remedies under this Lease, including the right to recover as provided by
California Civil Code section 1951.41, all Rent as it becomes due under this
Lease. Acts of maintenance or preservation or efforts to relet the Premises or
the appointment of a receiver upon initiative of Landlord to protect Landlord's
interest under this Lease shall not constitute a termination of Tenant's right
to possession unless written notice of termination is given by Landlord to
Tenant.
(d) The remedies provided for in this Lease shall be cumulative and in
the addition to all other remedies available to Landlord at law or in equity by
statute or otherwise.
(e) All agreements and covenants to be performed or observed by Tenant
under this Lease shall be at Tenant's sole cost and expense and without any
abatement of Rent. If Tenant fails to pay any sum of money to be paid by Tenant
or to perform any other act to be performed by Tenant under this Lease, Landlord
shall have the right, but shall not be obligated, and without waiving or
releasing Tenant from any obligations of Tenant, to make any such payment or to
perform any such other act on behalf of Tenant in accordance with this Lease.
All sums so paid by Landlord and all necessary incidental costs shall be deemed
Additional Rent hereunder and shall be payable by Tenant to Landlord on demand,
together with interest on all such sums from the date expenditure by Landlord to
the date of repayment by Tenant at the maximum annual interest rate allowed by
law for business loans (not primarily for personal, family or household
purposes) not exempt from the usury law at the date of expenditure or, if there
is no such maximum annual interest rate, at the rate of eighteen percent (18%)
per annum. Landlord shall have, in addition to all other rights and remedies of
Landlord, the same rights and remedies in the event of the nonpayment of such
sums plus interest by Tenant as in the case of default by Tenant in the payment
of Rent.
19. Attorney's Fees. If there is any legal action or proceeding between
Landlord and Tenant to enforce this Lease or to protect or establish any right
or remedy under this Lease, the unsuccessful party to such action or proceeding
shall pay to the prevailing party all costs and expenses, including reasonable
attorneys' fees and disbursements, incurred by such prevailing party in such
action or proceeding and in any appeal in connection therewith. If such
prevailing party recovers a judgement in any such action, proceeding or appeal,
such costs, expenses and attorneys'' fees and disbursements shall be included in
and as apart of such judgment.
20. Notices. All requests, approvals, consents, notices and other
communications given by Landlord or Tenant under this Lease shall be properly
given only if made in writing and either deposited in the United States mail,
postage prepaid, certified with return receipt requested, or delivered by band
(which may be through a messenger or recognized delivery or courier service) and
addressed as follows: to Landlord at
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attention: Manager, Real Estate
or at such other place as Landlord may from time to time designate in a written
notice to Tenant; to Tenant, before the Commencement Date, at
0000 XX XXXXXX XXXX
XXXXX XXXXX, XX 00000-0000
ATTENTION: BRANCH MANAGER
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and after the Commencement Date, at the Premises, or at such other place as
Tenant may from time to time designate in a written notice to Landlord. Such
requests, approvals, consents, notices and other communications shall he
effective on the date of receipt (evidenced by the certified mail receipt) if
mailed or on the date of delivery if hand delivered.
21. Transfer of Security. If any security shall have been given by
Tenant to secure the performance of all or any of the covenants of this Lease on
the part of the Tenant, Landlord may transfer and/or deliver the security, as
such, to any purchaser of Landlord's interest in the Premises, and thereupon
Landlord shall be discharged from any further liability respecting such
security.
22. Waiver. The waiver by Landlord of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of any
subsequent breach of the same of any other term, covenant or condition herein
contained. The subsequent acceptance of rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, other than the failure of Tenant to pay the particular
rent so accepted, regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such rent.
23. Holding Over. If Tenant holds possession of the Premises after the
end of the term of this Lease with or without the consent of Landlord, Tenant
shall become a tenant from month to month upon the terms herein specified, but
at a Base Rent equal to 150% of the Base Rent payable immediately prior to the
end of the term, and such month to month tenancy shall continue until such
tenancy shall be terminated by Landlord.
24. Rules. The rules and regulations appended to this Lease as Exhibit
B, as well as such rules and regulations as may be hereafter adopted by Landlord
for the safety, care and cleanliness of the Premises and the Building and the
preservation of good order therein, are hereby expressly made a part of this
Lease, and Tenant agrees to abide by all such rules and regulations.
25. Successors. The covenants and conditions herein contained shall,
subject to the provisions hereof as to assignment and subletting, apply to and
bind the heirs, successors, executors, administrators and assigns of all of the
parties hereto, and all of the parties hereto shall be jointly and severally
liable hereunder.
26. TIME. Time is of the essence of this Lease.
27. Marginal Captions. The captions in the margins of this Lease are
for convenience only and are not a part of this Lease and do not in any way
limit or amplify the terms and provisions of this Lease.
28. Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State of California.
29. Entire Agreement. This Lease contains all of the terms. covenants
and conditions agreed to by Landlord and Tenant and it may not be modified
orally or in any manner other than by an agreement in writing signed by all the
parties to this Lease or their respective successors in interest.
30. Partial Validity. The unenforceability, invalidity or illegality of
any provision(s) of this Lease shall not render the other provisions
unenforceable, invalid or illegal.
31. Floor Mats. Tenant shall place a floor mat of sufficient strength
under each desk chair to protect the carpeting and shall be responsible for
damage to the carpet for failure to do SO.
32. Late Charges; Interest. All amounts of Rent, if not received within
five (5) days when due, shall bear interest from the due date until paid at an
annual rate of interest equal to the lesser of (i) the maximum annual interest
rate allowed by law on such due date for business loans (not primarily for
personal, family or household purposes) not exempt from the usury law, or (ii) a
rate equal to the sum of five (5) percentage points over the publicly announced
reference rate charged on such due date by the San Francisco Main Office of Bank
of America NT & SA (or any successor bank thereto) (or if there is no such
publicly announced reference rate, the rate
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quoted by such bank in pricing ninety (90) day commercial loans to substantial
commercial borrowers). In addition. Tenant acknowledges that the late payment by
Tenant of any monthly installment of Base Rent or Additional Monthly Rent will
cause Landlord to incur costs and expenses, the exact amount of which is
extremely difficult and impractical to fix. Such costs and expenses will include
administration and collection costs, processing and accounting expenses and the
cost of drawing upon other sources of funds to pay Landlord's obligations.
Therefor, if any installment of Rent or Additional Monthly Rent due from Tenant
is not received by Landlord within five (5) days after the due date, Tenant
shall pay to Landlord an additional sum equal to five percent (5%) of the amount
overdue as a late charge. Landlord and Tenant agree that such late charge
represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered by Landlord due to Tenant's
failure to make timely payment. In no event shall such late charges be deemed to
grant to Tenant a grace period or extension of time within which to pay any
Base Rent or Additional Monthly Rent or prevent Landlord from exercising any
right or enforcing any remedy available to Landlord upon Tenant's failure to pay
each installment of Base Rent or Additional Monthly Rent due under this Lease in
a timely fashion, including the right to terminate this Lease.
33. Security Deposit. Tenant shall pay the amount of Seventy-Three
Thousand One Hundred Sixty and 40/lOOths Dollars ($73,160.40) to Landlord upon
execution of this Lease. Said sum shall be held by Landlord as security for the
performance of all terms and conditions of tins Lease by Tenant. If during the
term of this Lease any sum owed by Tenant shall be unpaid and overdue then
Landlord, at its option, may apply this security deposit to any portion or all
of the unpaid sum. Should any portion or all of this security deposit be applied
to any unpaid sum, then Tenant upon written demand by Landlord shall restore
said security deposit to its original amount. Failure by Tenant to do so within
ten (10) days after receipt of demand shall constitute a breach of this Lease.
If Tenant shall comply with all terms and conditions of this Lease, then
Landlord shall refund the entire security deposit (or the remainder thereof)
within thirty (30) days after termination of this Lease. If Tenant is in
default, Landlord may use the security deposit, or any portion of it, to cure
the default or to compensate Landlord for all damage sustained by Landlord
resulting from Tenant's default. Landlord is not obligated to maintain the
securit9 deposit separate and apart from Landlord's general and other funds.
Landlord shall not be required to pay Tenant interest on the security deposit.
34. Operating Expenses.
(a) During the term of this Lease, Tenant shall pay to Landlord, as
Additional Monthly Rent, Tenant's percentage share of all Operating Expenses (as
hereinafter defined) paid or incurred by Landlord during the term of this Lease.
Tenant's percentage share shall be a fraction (expressed as a percentage) the
numerator of which is the total number of square feet in the Premises and the
denominator of which is the total number of square feet in the Building (both
subject to adjustment, from time to time, to reflect Landlord's calculation of
load factors). Landlord and Tenant agree that Tenant's percentage share (subject
to adjustment as provided above) shall be One and Seventy-Four hundredths
percent (1.74%). The Additional Monthly Rent payable by Tenant pursuant to this
Paragraph 34(a) shall be calculated and paid in accordance with the following
procedures:
(1) On or before the Commencement Date, or as soon thereafter
as practicable, and on or before the first day each subsequent calendar
year during the term of this Lease, or as soon thereafter as
practicable, Landlord shall give Tenant written notice of Landlord's
estimate of the amount payable under this Paragraph 34(a) for the
balance of the first calendar year after the Commencement Date or for
the ensuing calendar year, as the case may be. Tenant shall pay such
estimated amount to Landlord in equal monthly installments, in advance
on or before the Commencement Date and on or before the first day of
each month during such balance of the first calendar year after the
Commencement Date or during each ensuing calendar year, as the case may
be. If such notice is not given for any calendar year, Tenant shall
continue to pay on the basis of the prior year's estimate until the
month after such notice is given, and subsequent payments by Tenant
shall be based on Landlord's current estimate. If at any time it
appears to Landlord that the amount payable under this Paragraph 34(a)
for the current calendar year will vary from Landlord's estimate,
Landlord may, by giving written notice to Tenant, revise Landlord's
estimate for such year, and subsequent payments by Tenant for such year
shall be based on such revised estimate.
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(2) Within a reasonable time after the end of each calendar
year, Landlord shall give Tenant a written statement of the amount
payable by Tenant under this Paragraph 34(a) for such calendar year
certified by Landlord. If such statement shows an amount owing by
Tenant that is less than the estimated payments for such calendar year
previously made by Tenant, Landlord shall credit the excess to the next
succeeding monthly installments of the amount payable by Tenant under
this Paragraph 34(a). If such statement shows an amount owing by Tenant
that is more than the estimated payments for such calendar year
previously made by Tenant, Tenant shall pay the deficiency to Landlord
`within ten (10) days after delivery of such statement. Tenant or
Tenant's authorized agent or representative shall have the right to
inspect at any time within ninety (90) days after delivery of such
statement the books of Landlord relating to Operating Expenses for the
relevant calendar year, after giving reasonable prior written notice to
Landlord and during the business hours of Landlord at Landlord's office
in the Building or at such other location as Landlord may designate,
for the purpose of verifying the information in such statement. Failure
by Landlord to give any notice or statement to Tenant under this
Paragraph 34 shall not waive Landlord's right to receive, or Tenant's
obligation to pay, the amount payable by Tenant under this Paragraph
34(a).
(b) "Operating Expenses" shall mean all costs and expenses of any kind
incurred by Landlord in connection with operating, cleaning, protecting,
lighting, repairing, heating, air- conditioning, maintaining, managing and
owning the Building, the adjacent areas, parking lots and landscape areas
(collectively, for purposes of this Paragraph 34, the "Building Areas"). Such
costs shall include, but not be limited to: (i) real and personal property taxes
and assessments levied with respect to the Building Areas; (ii) repairs to and
physical maintenance of (including the cost of service contracts) the Building
Areas, including building systems; (iii) expenses and costs resulting from
compliance with governmental laws, rules, regulations or orders applicable to
the Building Areas or any part thereof; (iv) governmental licenses, permits and
inspection fees and charges regarding the Building Areas; (v) costs and expenses
for utilities (including electricity, water, air-conditioning, gas, fuel, steam,
heat, lights, sewer and communications), window cleaning, extermination, water
treatment, rubbish removal, plumbing, janitorial services, debris removal,
supplies and security services for the Building Areas; (vi) landscape
maintenance and replacement; (vii) property management office rent or rental
value and management fees and expenses (including all compensation, benefits and
benefit and payroll taxes, whether imposed by law or otherwise) relating to
employees of Landlord or its property manager engaged in the management,
operation, repair or maintenance of the Building Areas; (viii) premiums and
other charges incurred by Landlord with respect to casualty, boiler and
machinery, theft, rent interruption, liability and any other insurance Landlord
deems necessary or advisable in its reasonable judgment or required by the
holder of any mortgage on the Building Areas and costs of repairing an insured
casualty to the extent of the deductible amount under the applicable insurance
policy; (ix) accounting, legal and other professional, consulting or service
fees and expenses; (x) the cost of any capital improvements made by Landlord to
the Building Areas or capital assets acquired by Landlord to the extent required
under any governmental law, regulation or insurance requirement; (xi) the cost
of any capital improvements made by Landlord to the Building or capital assets
acquired by Landlord to the extent that the cost of any such improvement or
asset is less than ten thousand dollars (5 10,000); (xii) the cost of any
capital improvements made by Landlord to the Building Areas or capital assets
acquired by Landlord that have a useful life of five (5) years or less; and
(xiii) the cost of any capital improvements made by Landlord to the Building
Areas or capital assets acquired by Landlord for the protection of the health
and safety of the occupants of the Building Areas or that are designed to reduce
other Operating Expenses.
Operating Expenses shall not include the following: (i) depreciation on
the Building; (ii) debt service; (iii) rental under any ground or underlying
lease; (iv) interest, points and fees on debt or amortization payments on any
mortgages or deeds of trust and all other debt or financing costs except to the
extent attributable to items used for the operation of the Building Areas; (v)
attorneys'' fees and expenses incurred in connection with lease negotiations or
disputes under leases with prospective tenants or existing tenants of the
Building, (vi) the cost of any improvements or equipment which would be properly
classified as capital expenditures (except for any capital expenditures
expressly included in Operating Expenses pursuant to this Paragraph ); (vii) the
cost of decorating, improving for tenant occupancy, painting or
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redecorating portions of the Building to be demised to tenants; (viii)
advertising expenses relating to vacant space; (ix) real estate brokers' or
other leasing commissions, and (x) costs and expenses for which Landlord has
been reimbursed whether by insurance, a tenant of the Building or any other
party obligated for said cost or expense.
35. Brokers. Tenant warrants that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this Lease, other
than Colliers INTERNATIONAL representing the Landlord and BT Commercial
representing the Tenant and that no other real estate broker or agent is or
might be entitled to a commission or other compensation in connection with this
Lease. Upon demand, Tenant shall pay all costs, attorneys' fees and damage
incurred by Landlord as a result of any breach of this warranty.
36. Parking. Tenant shall be granted, at no additional rent, the
exclusive use of Three (3) parking spaces on the Bl level of the parking garage
below the Building, subject to the reasonable rules and regulations promulgated
by Landlord and or by the garage operator from time to time. Furthermore,
Landlord shall have signage at each of these three (3) parking spaces that
clearly designate that the spaces are for Bridge Bank's exclusive use. In
addition, Tenant shall have the right to tent Five (5) additional spaces at the
monthly rents charged by the garage operator.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the
day and year first above written.
LANDLORD: TENANT:
C.M. CAPITAL CORPORATION, A BRIDGE BANK OF SILICON VALLEY
California corporation N.A., a Fedrally Chartered National Bank
By: /s/ B G By: /s/
------------------------ -------------------------------------
Title: S.V.P. Title: President and CEO
By: /s/ XXXXXX X. XXXXX By: /s/
------------------------ -------------------------------------
Title: CFO Title:
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ADDENDUM
THIS ADDENDUM to that certain Office Lease dated October 15, 2001,
regarding Suite 101 and 103, 000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx by and between C. M. CAPITAL CORPORATION, a California
corporation, as Landlord, and BRIDGE BANK OF SILICON VALLEY N. A., a
Federally Chartered National Bank, as Tenant.
New Paragraph 37: To be added to this Lease:
(a) If, despite Tenant's commercially reasonable, good faith
efforts and diligence, Tenant is unable to obtain from the
FDIC/OCC all necessary approvals for the conducting of its
business at the Premises on or before the date which is
seventy-five (75) days after the date of this Lease (the
"Outside Approval Date") or if Landlord does not approve an
Amendment Request pursuant to Paragraph 40, then, provided
that Tenant is not then in default under this Lease beyond any
applicable notice and cure period, Tenant shall have the
one-time right to tenuinate this Lease effective as of the
Outside Approval Date, provided that (i) Landlord receives
written notice (the "Termination Notice") from Tenant on or
before the date which is five (5) business days prior to the
Outside Approval Date, stating that Tenant intends to
terminate this Lease pursuant to the terms and conditions of
this Paragraph 37, and (ii) concurrently with Landlord's
receipt of the Termination Notice, Landlord receives from
Tenant a termination fee (the "Termination Fee") in the amount
of Thirty-Six Thousand Five Hundred Eighty and 20/100 Dollars
($36,592.50), as consideration for and as a condition
precedent to such early termination.
(b) If Tenant timely delivers the Termination Notice and the
Termination Fee, then this Lease shall automatically terminate
and be of no fin-ther force or effect, and Landlord and Tenant
shall be relieved of their respective rights and obligations
under this Lease as of the Outside Approval Date, except for
(i) Tenant's obligation to surrender the Premises pursuant to
Paragraph 6 of this Lease and (ii) those obligations set forth
in this Lease which specifically survive the expiration or
earlier termination of this Lease. Tenant hereby acknowledges
that in the event Tenant exercises its termination right
pursuant to the terms of this Paragraph 37, (A) Landlord shall
have no obligation to reimburse Tenant for any Tenant
Improvements constructed by Tenant or to pay Tenant any
portion of the TI Allowance, (B) Tenant shall remnve any
Tenant Improvements which Landlord requests of Tenant to so
remove and repair any damage caused by such removal, and (C)
Tenant shall surrender the Premises to Landlord in accordance
with the provisions of Paragraph 6(b) of this Lease. The
termination right granted to Tenant pursuant to this Paragraph
37 is personal to the Tenant originally named in this Lease
and may not be assigned or transferred to any other person or
entity.
New Paragraph 38: To be added to this Lease:
TENANT IMPROVEMENTS:
a) Tenant shall be entitled to a Tenant Improvement Allowance
("TI Allowance") of a maximum of Thirty-One Thousand Six
Hundred Thirty-Two and 00/100 Dollars ($31,632.00), equal to a
maximum of Twelve and 00/lOOths Dollars ($12.00) per useable
square foot to be used for the purpose of construction and
construction related costs. Tenant shall have no right to any
of the TI Allowance which may remain unutilized, if any.
b) Tenant shall be responsible for all costs that exceed the
TI Allowance.
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c) All Tenant Improvements are to be installed by Tenant's
contractor, which shall be subject to prior written approval
by Landlord in its reasonable discretion.
d) Tenant shall promptly prepare and submit to Landlord all
documents relating to construction of the Tenant Improvements.
e) Tenant will supply Landlord with the following infonnation
necessary for construction of Tenant Improvements for
Landlord's approval prior to the commencement of construction:
1. Space Plan.
2. Working Drawings, including all electrical.
f) Upon completion of construction, Tenant shall submit to
Landlord all documents relating to construction of Premises,
including but not limited to all permits, drawings, lien
releases, pemiits, invoices and receipted evidence showing
payment thereof, and a certificate from Tenant stating that
Tenant is satisfied with the Tenant Improvements. Subject to
the provisions of Xxxxxxxxx 00, Xxxxxxxx shall reimburse
Tenant with the TI Allowance (or the portion thereof used by
Tenant) upon the later of Q) thirty (30) days after Tenant
submits all of the foregoing documentation to Landlord's
satisfaction and (ii) the expiration of Tenara's early
termination right pursuant to Paragraph 37. Tenant must submit
all relevant documents for the TI Allowance by January31,
2002.
New Paragraph 39: To be added to this Lease.
RIGHT OF FIRST OFFER: Tenant shall have the right of first
offer, at any time during the initial term of this lease, on
Suite 102 (Insignia) subject to the availability of Suite 102.
Tenant shall only have the right of first offer to lease such
space during the periods the space is not otherwise leased and
not otherwise unavailable. If such space is then subject to
any options to extend granted to tenants or subtenants thereof
or the leasing of such space is otherwise extended or renewed
or otherwise leased by any existing tenant or subtenant
thereof or such space is to be used by Landlord for its own
purposes, it shall be deemed unavailable. The right of first
offer granted under this Paragraph 39 shall be exercisable by
Tenant as to such space upon delivery by Landlord to Tenant of
a proposal ("Landlord's Lease Proposal") for such space
setting forth the principal economic tems (e.g. length of
term, rent, tenant improvement allowance, if any) upon which
Landlord is then willing to lease such space to Tenant. Tenant
shall have five (5) business days after Landlord's delivery of
Landlord's Lease Proposal to noti Landlord of Tenant's
agreement to lease all of such space ("Tenant Acceptance
Notice") on all of the tems set forth in Landlord's Lease
Proposal. If Tenant does not give Landlord Tenant's Acceptance
Notice within the applicable period, or if Tenant gives to
Landlord Tenant's Acceptance Notice within the applicable
period but Tenant does not, within five (5) days thereafter,
execute a lease for all such space (which lease shall be upon
Landlord's then standard fonn), upon the terms specified in
this Xxxxxxxxx 00, Xxxxxxxx shall have the right to lease such
space or any other space contiguous to the Premises to
person(s) other than Tenant on any terms Landlord desires and
without offering or further offering, as applicable, any such
space to Tenant and Tenant shall have no further right of
first offer to lease any space pursuant to this Paragraph 39.
Notwithstanding the foregoing, Tenant shall not have the right
of first offer under this Paragraph 39 if Tenant is in default
under this Lease at the time such space becomes available (and
Landlord shall have no obligation to submit to any Landlord's
Lease Proposal) nor shall Landlord be obligated to lease such
space if Tenant is in default
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under this Lease at the time Tenant is to commence occupancy
of such space.
New Paragraph 40: To be added to this Lease:
(a) APPOINTMENT OF A RECEIVER OR LIQUIDATOR. Notwithstanding
anything to the contrary set forth in this Lease, in the event
Tenant shall become insolvent or bankrupt or Tenant is closed
or taken over by any depository institution supervisory
authority (the "Authority"), any receiver or liquidator
appointed by the Authority shall be entitled to exercise all
of its rights and remedies under any applicable law, as the
same may be amended from time to time, with respect to this
Lease.
(b) LEASE AMENDMENT. In the event that, as a condition to
FDIC/OCC approval of this Lease, requires an amendment to this
Lease in order for Tenant to conduct its business at the
Premises, Tenant shall not later than ten (10) business days
prior to the Outside Approval Date, submit a written request
for such amendment to Landlord stating the reason for such
request, together with supporting documentation reasonably
satisfactory to Landlord (an "Amendment Request"). Landlord
shall not unreasonably withhold its consent to any reasonable
amendment of this Lease which Tenant demonstrates, to
Landlord's reasonable satisfaction, is a condition required by
FDIC/OCC to be satisfied in order for Tenant to maintain a
retail bank branch at the Premises. Landlord shall, within
five (5) business days of its receipt of the Amendment
Request, notify Tenant in writing ("Landlord's Notice"),
whether Landlord approves or disapproves the Amendment
Request. In the event Landlord approves an Amendment Request,
the parties shall execute an amendment of this Lease
reasonably satisfactory to Landlord and Tenant, to effect such
Amendment Request. If Landlord disapproves or fails to respond
to the Amendment Request, Tenant shall have the right to
terminate this Lease as of the Outside Approval Date in
accordance with the procedures for such early termination set
forth in Paragraph 37 (including without limitation, payment
of the Termination Fee).
New Paragraph 41: To be added to this Lease:
OPTION TO RENEW:
CONDITIONS TO EXERCISE OF OPTION. Provided that Tenant is not
in default under this Lease at the time of exercise of the
option to extend and at the commencement of the extension term
and that Tenant's financial condition at the time of exercise
of the option is demonstrated by Tenant to Landlord to be no
less than that at the time of execution of this Lease, Tenant
shall have a right to extend the Term of this Lease
("Extension Right") for an additional period of five (5) years
("Extension Term") commencing upon the Expiration Date of the
initial term of this Lease.
NOTICE OF EXERCISE. If Tenant elects to extend this Lease for
the Extension Term, Tenant shall give written notice
("Exercise Notice") of its exercise to Landlord not earlier
than three hundred sixty-five (365) days prior to the
Expiration Date of the initial term and not less than two
hundred and seventy (270) days prior to the Expiration Date of
the initial term. Tenant's failure to provide the Exercise
Notice shall be deemed a `waiver of Tenant's rights to extend
the Term of this Lease.
TERMS OF THE EXTENSION TERM. The giving of an Exercise Notice
shall constitute an irrevocable election by Tenant to extend
the Lease upon the terms, covenants and conditions set forth
herein. The terms, covenants and conditions applicable to the
Extension Term shall be the same terms, covenants and
conditions of this Lease except that: (i) Tenant shall not be
entitled to any further option to extend after the Extension
Term; (ii) the
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Base Rent for the Extension Term shall be adjusted as provided
in this Paragraph; and (iii) no provisions relating to the
initial delivery of the Premises to Tenant (including, but not
limited to, any Landlord construction obligations or TI
Allowance provisions) shall be applicable to the Extension
Term.
EXTENSION OPTION PERSONAL TO ORIGINAL TENANT. The option to
extend granted to Tenant pursuant to this Paragraph shall not
be assignable to any successor or assign of Tenant, and shall
terminate at the option of Landlord, if, at any time during
the initial term of this Lease, Tenant has subleased all or
any portion of the Premises to any other party.
DETERMINATION OF BASE RENT DURING EXTENSION TERM EXTENSION
TERM INITIAL BASE RENT. The Base Rent during the first year of
the Extension Term shall be equal to the greater of (i) the
"Fair Market Rental Value" of the Premises for the first year
of the Extension Term determined as provided herein or (ii)
the Base Rent for the last month of the initial term of the
Lease, adjusted as provided in Paragraph 4(d) of this Lease
with respect to the first month of the Extension Term (as so
determined pursuant to clause (i) or (ii) above, the
"Extension Term Initial Base Rent"). The Extension Term
Initial Base Rent as so determined shall be subject to annual
adjustments as provided in Paragraph 4(d) of the Lease during
the Extension Term.
FAIR MARKET RENTAL VALUE. Fair Market Rental Value as used
herein shall mean: (i) 100% of the base rent and other amounts
new or renewal tenants (who do not have any below market
renewal rights) are then being asked by Landlord to pay to
enter into leases for comparable space in the Palo Alto Office
Center with a commencement date comparable to the first day of
the Extension Term, and (ii) if there is no then available
comparable space being so offered for lease by Landlord in the
Palo Alto Office Center with a commencement date comparable to
the first day of the Extension Term, then instead what
Landlord, based on its past practices, would reasonably be
expected to ask a new tenant to pay to enter into a lease for
the Premises with such a commencement date. Comparisons of the
Premises to other comparable space in the Palo Alto Office
Center shall be made on a per rentable square foot basis. In
determining the Fair Market Rental Value of the Premises for
the first year of the Extension Term, consideration shall be
given to the unique nature and prestige of the Palo Alto
Office Center which Landlord and Tenant acknowledge has
consistently commanded a rental premium over other buildings
in the Palo Alto area.
LANDLORD AND TENANT TO SEEK TO AGREE. Landlord and Tenant
shall have thirty (30) days after Landlord receives the
Exercise Notice in which to seek to agree on the Extension
Term Initial Base Rent, If Landlord and Tenant agree on the
Extension Term Initial Base Rent during the thirty (30) day
period, they immediately shall execute an amendment to this
Lease confirming the Extension Term Initial Base Rent as so
agreed as the Base Rent for the first year of the Extension
Term. Once Landlord and Tenant have agreed on the Extension
Tenn Initial Base Rent, Tenant shall have fifteen business
days after receipt from Landlord of the lease amendment to
sign the amendment and return it to the Landlord. If, within
15 business days following receipt of the amendment from
Landlord, Tenant does not sign the amendment and return the
signed amendment to the Landlord, then Tenant's Extension
Right shall terminate, the Lease shall terminate on the
original Expiration Date as if the Tenant never had an
Extension Right and the Landlord can market the Building to
other prospective tenants.
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SELECTION OF BROKERS TO DETERMINE THE EXTENSION TERM INITIAL
BASE RENT. If Landlord and Tenant are unable to agree to the
Extension Term Initial Base Rent within the thirty (30) day
period, then within ten (10) days after the expiration of the
thirty (30) day period. Landlord and Tenant each, at its cost
and by giving notice to the other party, shall appoint a
licensed commercial real estate broker with at least five (5)
years' full-time commercial brokerage experience in the
geographical area of the Building (a "Broker") to evaluate and
set the Extension Term Initial Base Rent. If either Landlord
or Tenant does not appoint a Broker within ten (10) days after
the other party has given notice of the name of its Broker,
the single Broker appointed shall be the sole Broker and shall
set the Extension Term Initial Base Rent. If two (2) Brokers
are appointed by Landlord and Tenant as stated in this
Paragraph, they shall meet promptly and attempt to set the
Extension Term Initial Base Rent. If the two (2) Brokers are
unable to agree within thirty (30) days after the second
Broker has been appointed, they shall attempt to select a
third Broker meeting the qualifications stated in this
Paragraph within ten (10) days after the last day the two (2)
Brokers are given to set the Extension Term Initial Base Rent.
If they are unable to agree on the third Broker, either
Landlord or Tenant, by giving ten (10) days' notice to the
other party, can apply to the then Presiding Judge of the
Superior Court of Santa Xxxxx County for the selection of a
third Broker who meets the qualifications stated in this
Paragraph. Landlord and Tenant each shall bear one-half (1/2)
of the cost of appointing the third Broker and of paying the
third Broker's fee. The third Broker shall be a person who has
not previously acted in any capacity for either Landlord or
Tenant.
VALUE DETERMINED BY THREE (3) BROKERS. Within thirty (30) days
after the selection of the third Broker, a majority of the
Brokers shall set the Extension Tenn Initial Base Rent. If a
majority of the Brokers is unable to set the Extension Term
Initial Base Rent within the stipulated period of time, the
three (3) evaluations shall be added together and their total
divided by three (3); the resulting quotient shall be the
Extension Term Initial Base Rent for the Premises. If the low
evaluation is more than ten percent (10%) lower than the
middle evaluation, the low evaluation shall be disregarded; if
the high evaluation is more than ten percent (10%) higher than
the middle evaluation, the high evaluation shall be
disregarded. If only one (I) evaluation is disregarded, the
remaining two (2) evaluations shall be added together and
their total divided by two (2); the resulting quotient shall
be the Extension Term Initial Base Rent for the Premises. If
both the low evaluation and the high evaluation are
disregarded as stated in this Paragraph, the middle evaluation
shall be the Extension Term Initial Base Rent for the
Premises.
NOTICE TO LANDLORD AND TENANT. After the Extension Term
Initial Base Rent for the first year of the Extension Term has
been set, the Brokers shall noti1' Landlord and Tenant
immediately and Landlord and Tenant shall immediately execute
an amendment to this Lease confirming the Extension Term
Initial Base Rent as so determined as the Base Rent for the
first year of the Extension Term. Tenant shall have fifteen
business days after receipt from Landlord of the lease
amendment to sign the amendment and return it to the Landlord.
If, within 15 business days following receipt of the amendment
from Landlord, Tenant does not sign the amendment and return
the signed amendment to the Landlord, then Tenant's Extension
Right shall terminate, the Lease shall terminate on the
original Expiration Date as if the Tenant never had an
Extension Right and the Landlord can market the Building to
other prospective tenants.
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