COMMERCIAL LEASE
This lease, dated for reference purposes only this 30 day of June,
1995, is made between NINE-C CORPORATION (the "Landlord") and Bay Area Bank (the
"Tenant").
1. PREMISES.
1.01 Landlord hereby leases to Tenant and Tenant hires from Landlord on
the terms, covenants and conditions set forth herein, those premises by
crosshatching on Exhibit "A" attached hereto, (the "Leased Premises"), and
incorporated by reference herein. The Leased Premises, approximately 8312 square
feet, is located at 000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx (the
"Building"). The Building is a part of a commercial project which includes the
Building, an adjacent parking lot and parking structure and the underlying real
property (the "Project").
2. BASE RENT.
2.01 Tenant agrees to pay Landlord as base rent (Base Rent), without
notice, demand, deduction, or offset, the monthly sum of $19,302.81 until
January 1, 1996, and then adjusted as provided in Paragraph 2.03 for all months
thereafter, in advance on or before the first day of each and every successive
calendar month during the term hereof. The rent shall commence on the First day
of July, 1995 (the "Commencement Date"). All payments to Landlord under this
Lease shall be paid to Landlord at the address for notice set forth in paragraph
31.15, or at such other address provided to Tenant by Landlord in writing from
time to time.
2.02 Rent for any period which is for less than one month shall be a
prorated portion of the monthly rental based upon a thirty (30) day month.
Tenant acknowledges that late payment by Tenant to Landlord of rent or other
sums due hereunder will cause Landlord to incur certain costs not contemplated
by this Lease, the exact amount of which would be extremely difficult and
impractical to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed on Landlord by the
terms of any trust deed covering the Leased Premises. Therefore, in the event
Tenant shall fail to pay any installments of rent or any sum due hereunder
within five (5) days after receiving notice of such delinquency, Tenant shall
pay to Landlord as additional rent a late charge equal to FIVE percent (5%) of
each such installment or other sum. A $15.00 charge will be paid by the Tenant
to the Landlord for each returned check, in addition to the late charge.
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2.03 The base Rent(effective January 1, 1996) set forth in Paragraph
2.01 shall be increased in all years if the Consumer Price Index - San Francisco
- All Items (Index) as published by the United States Department of Labor's
Bureau of Labor Statistics, increases over the base period Index. The base
period Index for any year shall be the Index for the calendar month which is the
fourth month preceding the month in which any lease year commences. The base
period Index shall be compared with the Index for the same calendar month for
each subsequent year (comparison month). If the Index for any comparison month
is higher than the base period Index, then the rental for the next year shall be
increased by the identical percentage commencing with the next rental
commencement month; provided, however, that no such rental increase shall be
less than 3% or more than 8%, of the rental for the previous year. In no event
shall the rental be less than that set forth in Paragraph 2.01. (By way of
illustration only, if Tenant commenced paying rent in July 1991, then the base
period Index for the second year is that for April 1992 (assume 130) and that
Index shall be compared with the Index for April 1991 (assume 136), and because
the Index for April 1992 is 4.61% higher, the rental commencing July 1992 shall
be 4.61% higher; likewise the Index for April 1993 shall be compared with the
Index for April 1992.)
Should the Bureau revise or discontinue the publication of the above
Index, Landlord and Tenant shall convert to the revised index or adopt the
successor index in accordance with the guidelines therefor issued by the federal
government.
3. PROJECT OPERATING COSTS.
3.01(a) In order that the Rent payable during the Term reflect any
increase in Project Operating Costs (described below), Tenant agrees to pay to
Landlord as Rent, Tenant's Proportionate Share (defined in Paragraph 3.02) of
all increases in costs, expenses and obligations attributable to the Project and
its operation, all as provided below.
(b) If, during any Calendar year during the Term, Project Operating
Costs exceed the Project Operating Costs for the first year of the Term, Tenant
shall pay to Landlord, in addition to the Base Rent and all of the payments due
under this Lease, an amount equal to Tenant's Proportionate Share of such excess
Project Operating Costs in accordance with the provisions of this Paragraph
3.01(b).
(c) The term "Project Operating Costs" shall include all those
items described in the following subparagraphs (1) and (2).
(1) All taxes, assessments, water and sewer charges
and other similar governmental charges levied on or attributable to the Building
or Project as a whole or their operation, including without limitation, (i) real
property taxes or assessments levied
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or assessed against the Building or Project as a whole, and (ii) assessments or
charges levied or assessed against the Building or Project as a whole by any
redevelopment agency; but excluding any tax measured by gross rentals received
from the leasing of the Premises, Building or Project.
(2) Operating costs incurred by Landlord in
maintaining and operating the Building and Project, including without limitation
the following: costs of (i) utilities; (ii) supplies; (iii) insurance (including
public liability, property damage, earthquake, and fire and extended coverage
insurance for the full replacement costs of the Building and Project as required
by Landlord or its lenders for the Project; (iv) services of independent
contractors; (v) compensation (including employment taxes and fringe benefits)
of all persons who perform duties connected with the operation, maintenance,
repair or overhaul of the Building or Project, and the HVAC system, equipment,
improve ments and facilities located within the Project, including without
limitation engineers, janitors, painters, floor waxers, window washers, security
and parking personnel, landscapers and gardeners (but excluding persons
performing services not uniformly available to or performed for substantially
all Building or Project tenants); (vi) operation and maintenance of a room for
delivery and distribu tion of mail to tenants of the Building or Project as
required by the U.S. Postal Service (including, without limitation, an amount
equal to the fair market rental value of the mail room premises); (vii)
management of the Building or Project, whether managed by Landlord or an
independent contractor (including, without limita tion, an amount equal to the
fair market value of any on-site manager's office, but excluding any commission
or fee for leasing or collecting rents); (viii) rental expenses for (or a
reasonable depreciation allowance on) personal property used in the main
tenance, operation or repair of the Building or Project: (ix) costs,
expenditures or charges (whether capitalized or not) required by any
governmental or quasi-governmental authority; (x) amortization of capital
expenses (including financing costs) (1) required for the Building as a whole by
a governmental entity for energy conservation or life safety purposes, or (2)
made by Landlord to reduce Project Operating Costs; and (xi) any other costs or
expenses incurred by Landlord under this Lease and not otherwise reimbursed by
tenants of the Project.
(3) Project Operating Costs shall not include costs
or expenses only for the benefit of other tenants.
(d) Tenant's Proportionate Share of Project Operating
Costs shall be payable by Tenant to Landlord as follows:
(1) Beginning with the year of the term (January 1,
1996) and for each year thereafter ("Comparison Year"), Tenant shall pay
Landlord an amount equal to Tenant's Proportionate Share of the Project
Operating Costs incurred by Landlord in the
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Comparison Year which exceeds the total amount of Project Operating Costs
payable by Landlord for the first year of the term. This excess is referred to
as the "Excess Expenses."
(2) To provide for current payments of Excess
Expenses, Tenant shall, at landlord's request, pay as additional rent during
each Comparison Year, an amount equal to Tenant's Proportionate Share of the
Excess Expenses payable during such Comparison Year, as estimated by Landlord
from time to time. Such payments shall be made in monthly installments,
commencing on the first day of the month following the month in which Landlord
notifies Tenant of the amount it is to pay hereunder and continuing until the
first day of the month following the month in which Landlord gives Tenant a new
notice of estimated Excess Expenses. It is the intention hereunder to estimate
from time to time the amount of the Excess Expenses for each Comparison Year and
Tenant's Proportionate Share thereof, and then to make an adjustment in the
following year based on the actual Excess Expenses incurred for that Comparison
Year.
(e) On or before the 90th day of each Comparison Year after
the first Comparison Year (or as soon thereafter as is practical), Landlord
shall deliver to Tenant a statement setting forth Tenant's Proportionate Share
of the Excess Expenses for the preceding Comparison Year. If Tenant's
Proportionate Share of the actual Excess Expenses for the previous Comparison
Year exceeds the total of the estimated monthly payments made by Tenant for such
year, Tenant shall pay Landlord the amount of the deficiency within ten (10)
days of the receipt of the statement. If such total exceeds Tenant's
Proportionate Share of the actual Excess Expenses for such Comparison Year, then
Landlord shall credit against Tenant's next ensuing monthly installment(s) of
additional rent an amount equal to the difference until the credit is exhausted.
If a credit is due from Landlord on the Expiration Date, Landlord shall pay
Tenant the amount of the credit. The obligations of Tenant and Landlord to make
payments required under this Paragraph 3.01 shall survive the Expiration Date.
(f) Tenant's Proportionate Share of Excess Expenses in any
Comparison Year having less than 365 days shall be appropriate ly prorated.
(g) If any dispute arises as to the amount of any additional
rent due hereunder, Tenant shall have the right after reasonable notice and at
reasonable times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes the amount
of additional rent owed, Landlord and Tenant shall refer the dispute to an
independent certified public accountant selected by them for certification of
the proper amount. Such accountant's certification of the amount and direction
as to the allocation between Landlord and Tenant of the cost of certification
shall be final and conclusive.
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3.02 Tenant's Proportionate share shall be 16.4%, the area of the
Leased Premises divided by the gross floor area of the Building, times 100,
computed as follows:
Gross Area: 8312 = .164 x 100 = 16.4%
--------------------
Gross Building Area: 50,724 sq. ft.
3.03 All costs and expenses which Tenant assumes or agrees to pay to
Landlord under this Lease shall be deemed additional rent (which, together with
the Base Rent, is sometimes referred to as the "Rent"). The Rent shall be paid
to the Building manager (or other person) and at such place, as Landlord may
from time to time designate in writing, without any prior demand therefor and
without deduction or offset, in lawful money of the United States of America.
3.04 In addition to the Rent and any other charges to be paid by Tenant
hereunder, Tenant shall reimburse Landlord upon demand for any and all taxes
payable by Landlord (other than net income taxes) which are not otherwise
reimbursable under this Lease, whether or not now customary or within the
contemplation of the parties, where such taxes are upon, measured by or
reasonably attributable to (a) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the Premises, or the
cost or value of any leasehold improvements made in or to the Premises by or for
Tenant, other than standard tenant improvements made by Landlord, regardless of
whether title to such improvements is held by Tenant or Landlord; (b) the gross
or net Rent payable under this Lease, including, without limitation, any rental
or gross receipts tax levied by any taxing authority with respect to the receipt
of the Rent hereunder; (c) the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises or
any portion thereof; or (d) this transaction or any document to which Tenant is
a party creating or transferring an interest or an estate in the Premises. If it
becomes unlawful for Tenant to reimburse Landlord for any costs as required
under this Lease, the Base Rent shall be revised to net Landlord the same net
Rent after imposition of any tax or other charge upon Landlord as would have
been payable to Landlord but for the reimbursement being unlawful.
3.05 Landlord agrees to operate the Project in a prudent manner with a
view to controlling costs in a manner consistent with the sound operation of the
Project.
4. CONDITION OF THE PREMISES. Tenant's taking possession of the
Premises shall be deemed conclusive evidence that as of the date of taking
possession the Premises are in good order and satisfactory condition, except for
such matters as to which Tenant gave Landlord written notice on or before the
Commencement Date. No promise of Landlord to alter, remodel, repair or improve
the Premises or the Building and no representation, express or implied,
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respecting any matter or thing relating to the Premises or Building or this
Lease (including, without limitation, the condition of the Premises or the
Building) have been made to Tenant by Landlord or its Broker or Sales Agent,
other than as may be contained herein or in a separate exhibit or addendum
signed by Landlord and Tenant.
5. TERM.
5.01 The lease term shall commence on the Commencement Date and shall
be for a period of 7 years & 6 months (90 months).
5.02 Providing that Tenant is not in default of this Lease, or of any of its
terms, covenants, or conditions, Tenant shall have an option to extend this
Lease for an additional term of seven(7) years. To exercise the Tenant's option
to extend, Tenant shall notify Landlord of Tenant's election to exercise its
option to extend at least six (6) months prior (June 30,2002) to expira tion of
the first seven (7) year term. Such notice shall be in writing and in the manner
prescribed for notices by Paragraph 31.15 hereof. Upon Tenant's exercise of its
option to extend this Lease, all terms, covenants and conditions hereof shall
continue in force and effect, except that no option shall be included in the
Lease after the exercise of the option to extend.
6. USE OF PREMISES. The Leased Premises may be used and occupied only
for a Commercial Bank or Bank Holding Company offices and for no other purpose
without Landlord's prior written consent. Landlord does not represent nor
warrant that the premises can be used for such purpose, as it is incumbent upon
Tenant to ascertain from the proper governmental authorities whether or not the
premises can be used for Tenant's intended use. Tenant shall promptly comply
with all laws, ordinances, orders and regulations affecting the Leased Premises
and their cleanliness, safety, occupation and use. Tenant shall not commit, or
suffer to be committed, any waste on the Premises, nor shall Tenant maintain,
commit, or permit the maintenance or commission of any nuisance, as defined in
California Civil Code Section 3479, on the Premises. This provision shall
specifically preclude the storage in or on the Premises, or release in or about
the Premises, of hazardous materials as that term is defined in Federal and
California laws, statutes, rules and regulations.
7. UTILITIES INTERRUPTION. Landlord shall not be liable in
damages or otherwise for any failure or interruption of any utility
service, and no such failure or interruption shall entitle Tenant
to terminate this Lease or xxxxx the rent and other charges.
8. ALTERATIONS, MECHANICS LIENS.
8.01 Alterations may not be made to the Leased Premises without the
prior written consent of Landlord and any alterations of the Leased Premises
except movable furniture and trade fixtures
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shall at Landlord's option become part of the realty and belong to
the Landlord.
8.02 Notwithstanding anything contained in Paragraph 8.01 above, Tenant
may, upon the written consent of Landlord, install trade fixtures, machinery or
other trade equipment in conformance with the ordinances of the applicable city
and county, and the same may be removed prior to the termination of this Lease
provided Tenant shall not be in default under any of the terms and condi tions
of this Lease. Tenant further agrees to repair, at Tenant's sole cost, any
damage caused by removal of such equipment and fixtures. Tenant shall keep the
Leased Premises, and the property in which the Leased premises are a part, free
from any liens arising out of any work performed, materials furnished to, or
obligations incurred by Tenant. All such work provided for above shall be done
at such times and in the manner as Landlord may from time-to-time designate.
Tenant shall give Landlord written notice five (5) days prior to employing any
laborer or contractor to perform work resulting in an alteration of the Leased
Premises so that the Landlord may post a notice of non-responsibility. Not
withstanding the above, the Tenant shall remove its vault from the premises.
Landlord hereby consents to the removal by Tenant of the trade fixtures
described in Exhibit "B" attached hereto, subject to the requirements of this
Paragraph 8.02.
9. FIRE INSURANCE HAZARDS.
9.01 No use shall be made or permitted to be made of the Leased
Premises, nor acts done, which will increase the existing rate of insurance upon
the Building or cause the 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 Leased Premises, any article which may be prohibited by
the standard form of fire insurance policies. Tenant shall, at its sole cost and
expense, comply with any and all requirements pertaining to the Leased Premises
of any insurance organization or company, necessary for the maintenance of
reasonable fire and public liability insurance, covering the Leased Premises, or
the Building of which it is a part. Tenant agrees to pay to Landlord as
additional rent, any increase in premiums on policies which may be carried by
Landlord on the Leased Premises covering damages to the Building and loss of
rent caused by fire and the perils normally included in extended coverage above
the rates for the least hazardous type of occupancy for industrial, warehousing,
office and distribution operations.
9.02 Tenant shall maintain in full force and effect on all of its
fixtures and equipment in the Leased Premises a policy or policies of fire and
extended coverage insurance with malicious mischief and theft endorsements to
the extent of at least eighty percent (80%) of their insurable value. During the
term of this Lease the proceeds from any such policy or policies of insurance
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shall be used for the repair or replacement of the fixtures and equipment so
insured. Landlord shall have no interest in the insurance upon Tenant's
equipment ad fixtures and will sign all documents necessary or proper in
connection with the settlement of any claim or loss by Tenant. Landlord will not
carry insurance on Tenant's possessions, nor on any leasehold improvements made
by Tenant. Tenant shall furnish Landlord with a certificate of such policy
within thirty (30) days of the commencement of this Lease and whenever required
shall satisfy Landlord that such policy is in full force and effect.
10. LIABILITY INSURANCE. Tenant, commencing upon Tenant's initial entry
into the premises, at its own expense, shall provide and keep in force with
companies acceptable to Landlord public liability insurance for the benefit of
Landlord and Tenant jointly against liability for bodily injury and property
damage in the amount of not less than One Million Dollars ($1,000,000) in
respect to injuries to or death of one person and in an amount of not less than
Two Million Dollars ($2,000,000) in respect to injuries to or death of more than
one person in any one occurrence, and in the amount of not less than Four
Hundred Ninety-Five Thousand Dollars ($495,000) per occurrence in respect to
damage to property, such limits to be in any greater amounts as may be
reasonably indicated by circumstances from time to time existing. Tenant shall
upon occupancy furnish Landlord with a certificate of such policy and whenever
required shall satisfy Landlord that such policy is in full force and effect.
Such policy shall name Landlord as an additional insured and shall be primary
and non-contributing with any insurance carried by Landlord. The policy shall
further provide that it shall not be canceled or altered without twenty (20)
days' prior written notice to Landlord. Insurance required hereunder shall be in
companies rated A+, AAA or better in "Best's Insurance Guide."
11. INDEMNIFICATION BY TENANT.
11.01 This Lease is made on the express condition that Landlord shall
not be liable for or suffer loss by reason of injury to person or property from
any cause (excluding Landlord's negligent act or omission and excluding any
environmental matters not caused by Tenant) in any way connected with the
condition or use of the Leased Premises or the installation or construction of
improvements or personal property therein, including without limitation any
liability for injury to the person or property of Tenant, its agents, officers,
employees or invitees. Tenant agrees to indemnify Landlord and hold it harmless
from any and all liability, loss, cost, or obligation on account of, or arising
out of, any such injury or loss.
11.02 In case any action, suit or proceeding is brought against
Landlord by reason of any such occurrence, under the paragraph above, Tenant,
upon Landlord's request, will at Tenant's
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expense, resist and defend such action, suit or proceeding, or cause the same to
be resisted and defended by counsel designated by the insurer whose policy
covers the occurrence or by counsel designated by Tenant and approved by
Landlord. The obligations of Tenant under this section arising by reason of any
occurrence taking place during the Lease Term shall survive any termination of
this Lease.
12. REPAIRS.
12.01 Tenant shall, at Tenant's sole cost and expense, keep the
Premises and every part thereof in good condition and repair (except as
hereinafter provided with respect to Landlord's obligations) including without
limitation, the maintenance, replacement and repair of any storefront, doors,
window casements and glazing. Tenant shall, upon the expiration or sooner
termina tion of this Lease hereof, surrender the Leased Premises to the Landlord
in good condition, broom clean, ordinary wear and tear and damage from causes
beyond the reasonable control of Tenant excepted. Any damage to adjacent
premises caused by Tenant's use of the Premises shall be repaired at the sole
cost and expense of Tenant.
12.02 Notwithstanding the Provisions of Paragraph 12.01 hereinabove,
Landlord shall repair and maintain the structural portions of the Leased
Premises, including the exterior walls and roof, plumbing, pipes, electrical
wiring and conduits, unless such maintenance and repairs are caused in part or
in whole by the act, neglect, fault or omission of any duty by the Tenant, its
agents, servants, employees, invitees, or any damage caused by breaking and
entering, in which case Tenant shall pay to Landlord the reasonable cost of such
maintenance and repairs. All costs and expenses of Landlord under this Paragraph
12.02 shall be Project Operating Costs under Paragraph 3.01. Landlord shall not
be liable for any failure to make any such repairs or to perform any maintenance
unless such failure shall persist for an unreasonable time after written notice
of the need of such repairs or maintenance is given to Landlord by Tenant.
Except as provided in Article 16 hereof, there shall be no abatement of rent and
no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Leased Premises or building of which
the Leased Premises are a part, or in or to fixtures, appurtenances and
equipment therein. Tenant waives the right to make repairs at Landlord's expense
under any law, statute or ordinance now or hereafter in effect.
13. PARKING AND COMMON AREAS. Tenant, for the use and
benefit of Tenant, its agents, employees, customers, licensees and
subtenants, shall have the non-exclusive right in common with
Landlord, and other present and future owners, tenants and their
agents, employees, customers, licensees and subtenants, to use the
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Common areas and parking garage adjacent to the building during the entire term
of this Lease, for ingress and egress, and automobile parking. In addition,
Tenant shall have the exclusive right to use all parking spaces located in the
parking lot located to the west of the Building, as outlined on Exhibit "C"
attached hereto.
14. SIGNS. The Tenant may retain the existing signs of Tenant located
on the top of the building and shall be fully responsible for its utilities,
maintenance & repairs. If Tenant does not maintain or repair said sign within 3
days of written notice from Landlord that maintenance or repair is required,
Landlord shall have the right to conduct any such required maintenance or repair
and charge the cost thereof to Tenant. Such sign shall be treated as a fixture
as described in Paragraph 8 of this lease.
15. ENTRY BY LANDLORD. Tenant shall permit Landlord and Landlord's
agents to enter the Leased Premises after business hours on weekdays, and on
weekends, for the purpose of inspecting the same or for the purpose of
maintaining the Leased Premises or adjacent premises or for the purpose of
making repairs, altera tions, or additions to any portion of same including the
erection and maintenance of such scaffolding, canopies, fences, and props as may
be required, or for the purpose of posting notices of non-responsibility for
alterations, additions, or repairs without any rebate of rent and without any
liability to Tenant for any loss of occupation or quiet enjoyment of the Leased
Premises thereby occasioned. For each of the aforesaid purposes, Landlord shall
at all times have and retain a key with which to unlock all of the doors in,
upon and about the Leased Premises, excluding Tenant's vaults and safes. The
tenant shall not alter any lock or install a new or additional lock or any bolt
on any door of the Leased Premises without prior written consent of the
Landlord. If Landlord shall give its consent, the Tenant shall in each case
furnish the Landlord with a key for any such lock.
16. DESTRUCTION OR DAMAGE.
16.01 If the Premises or the portion of the Building necessary for
Tenant's occupancy is damaged by fire, earthquake, act of God, the elements or
other casualty, Landlord shall, subject to the provisions of this Article,
promptly repair the damage, if such repairs can, in Landlord's opinion, be
completed within (90) ninety days. If Landlord determines that repairs can be
completed within ninety (90) days, this Lease shall remain in full force and
effect, except that if such damage is not the result of the negligence or
willful misconduct of Tenant or Tenant's agents, employees, contractors,
licensees or invitees, the Base Rent shall be abated to the extent Tenant's use
of the Premises is impaired, commencing with the date of damage and continuing
until completion of the repairs required of Landlord under Paragraph 16.04.
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16.02. If in Landlord's opinion, such repairs to the Premises or
portion of the Building necessary for Tenant's occupancy cannot be completed
within ninety (90) days, Landlord shall notify Tenant of that opinion in writing
within thirty (30) days after the date of such fire or other casualty. In such
event, Landlord and Tenant may each terminate this Lease unilaterally by giving
the other party written notice of such termination within 15 days of the
effective date of the notice described above, and this Lease shall terminate as
of the date of such fire or casualty. If neither party notifies the other of
such termination, this Lease shall continue in full force and effect, but the
Base Rent shall be partially abated as provided in Paragraph 16.01.
16.03(a) If any other portion of the Building or Project is totally
destroyed or damaged to the extent that in Landlord's opinion repair thereof
cannot be completed within ninety (90) days, Landlord may elect upon notice to
Tenant given within thirty (30) days after the date of such fire or other
casualty, to repair such damage, in which event this Lease shall continue in
full force and effect, but the Base Rent shall be partially abated as provided
in Paragraph 16.01. If Landlord does not elect to make such repairs, this Lease
shall terminate as of the date of such fire or other casualty.
16.03(b) If any other such portion of the Building or Project is
totally destroyed or damaged to the extent that in Landlord's opinion repair
thereof cannot be completed within ninety (90) days, and Tenant's business
operations are substantially and adversely impacted by such damage, and Landlord
elects to repair such damage, then, nevertheless, Tenant shall have the right to
terminate this Lease if the substantial adverse impact is not cured by Landlord
within one hundred fifty (150) days of the date of such fire or casualty. Tenant
shall exercise this right by giving written notice to Landlord no later than one
hundred fifty-five (155) days after the date of such fire or casualty.
16.04 If the Premises are to be repaired under this Article, Landlord
shall repair at its cost any injury or damage to the Building and standard
tenant improvements in the Premises. Tenant shall be responsible at its sole
cost and expense for the repair, restoration and replacement of any other
Leasehold improvements and Tenant's Property. Landlord shall not be liable for
any loss of business, inconvenience or annoyance arising from any repair or
restoration of any portion of the Premises or Building as a result of any damage
from fire or other casualty.
16.05 This Lease shall be considered an express agreement governing any
case of damage to or destruction of the Premises or Building by fire or other
casualty, and any present or future law which purports to govern the rights of
Landlord and Tenant in such circumstances in the absence of express agreement,
shall have no
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application. The opinions and determinations of Landlord under
this Section 16 shall be reasonable.
17. ASSIGNMENT AND SUBLETTING. Tenant shall not either voluntarily, or
by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber
this Lease or any interest therein, and shall not sublet the Leased Premises or
any part thereof, or any right or privilege appurtenant thereto, or allow any
other person (the employees, agents, servants and invitees or Tenant excepted)
to occupy or use the Leased Premises, or any portion thereof, without the
written consent of Landlord first had and obtained, which consent shall not be
unreasonably withheld. A consent to one assignment, subletting, occupation or
use by any other person shall not be deemed to be a consent to any subsequent
assignment, subletting, occupation or use by another persona. Consent to any
such assignment or subletting shall not relieve Tenant of any liability under
this Lease. Any such assignment or subletting without such consent shall be
void, and shall, at the option of the Landlord, constitute a default under the
terms of this Lease.
In the event that Landlord shall consent to a sublease or
assignment hereunder, Tenant shall pay Landlord reasonable fees, not to exceed
One Thousand Dollars ($1,000.00), incurred in connection with the processing of
documents necessary to giving of such consent and assumption by the assignee.
18. TENANT'S DEFAULT. The occurrence of any one or more of
the following events shall constitute a default and breach of this
Lease by Tenant:
A. The vacating or abandonment of the Premises by
Tenant.
B. The failure by Tenant to make any payment or rent or
any other payment required to be made by Tenant hereunder, as and
when due.
C. The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
the Tenant, other than described in B, above, where such failure shall continue
for a period of fifteen (15) days after written notice thereof by Landlord to
Tenant; provided, however, that if the nature of Tenant's default is such that
more than fifteen (15) days are reasonably required for its cure, then Tenant
shall not be deemed to be in default if Tenant commences such cure within said
fifteen (15) days period and thereafter diligently prosecutes such cure to
completion.
D. The making by Tenant of any general assignment or
general arrangement for the benefit of creditors; or the filing by
or against Tenant of a petition to have Tenant adjudged a bankrupt,
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or a petition or reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Tenant, the same is
dismissed within sixty (60) days); or the appointment of a trustee or a receiver
to take possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where possession is not restored
to Tenant within thirty (30) days; or the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at the Leased
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged in thirty (30) days.
19. REMEDIES ON DEFAULT. In the event of any such default or
breach by Tenant, Landlord may at any time thereafter, with or
without notice or demand and without limiting Landlord in the
exercise of a right or remedy which Landlord may have by reason of
such default or breach:
A. Terminate Tenant's right to possession of the Premises by
any lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default including, but not limited to: the cost
of recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises; reasonable attorney's fees;
the worth at the time of award by the court having jurisdiction thereof of the
amount by which the unpaid rent and other charges and adjustments called for
herein for the balance of the term after the time of such award exceeds the
amount of such loss for the same period that Tenant proves could be reasonably
avoided; and that portion of any leasing commission paid by Landlord and
applicable to the unexpired term of this Lease. Unpaid installments of rent or
other sums shall bear interest from the date due at the rate of ten percent
(10%) per annum. "Worth" as used in this provision, is computed by discounting
the total at the discount rate of the Federal Reserve Bank of San Francisco at
the time of the judgment, or award, plus one percent (1%).
B. Maintain Tenant's right to possession, in which case this
Lease shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event, Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the rent
and any other charges and adjustments as may become due hereunder; or
C. Pursue any other remedy now or hereafter available
to Landlord under the laws or judicial decisions of the State in
which the Premises are located.
20. LANDLORD'S RIGHT TO CURE DEFAULTS. Landlord may, but
shall not be obligated to, cure, any anytime, without notice, any
default by Tenant under this Lease; and whenever Landlord so
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elects, all costs and expenses incurred by Landlord including without limitation
reasonable attorney's fees and expenses, together with interest on the amount of
costs and expenses so incurred at the maximum legal rate then in effect in the
State of California shall be paid by Tenant to Landlord on demand.
21. DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord or the beneficiary under any deed of trust fails to perform obligations
required of Landlord within a reasonable time, but in no event later than thirty
(30) days after written notice by Tenant to Landlord and to the beneficiary of
any deed of trust covering the Premises whose name and address shall have
theretofore been furnished to Tenant in writing, specifying wherein Landlord has
failed to perform such obligation; provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are required for
performance, then Landlord shall not be in default if Landlord or said
beneficiary commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion. In no event shall
Tenant have the right to terminate this Lease as a result of Landlord's default
and Tenant's remedies shall be limited to damages and/or an injunction.
22. ATTORNEY'S FEES/COLLECTION CHARGES. In the event of any legal
action or proceeding between the parties hereto, reasonable attorney's fees and
expenses of the prevailing party in any such action or proceeding may be added
to the judgment therein, including attorney's fees on appeal. In addition to the
charges provided for above, Tenant shall pay a charge of $25.00 to Landlord for
preparation of each demand for delinquent rent.
23. SURRENDER OF LEASE NOT MERGER. 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 any existing subleases,
and/or subtenan cies, or may, at the option of Landlord, operate as an
assignment to it of any or all of such subleases or subtenancies.
24. CONDEMNATION. If any part of the Leased Premises or the building of
which it is a part, or the Center or parking or common areas therein, shall be
taken or condemned for a public or quasi-public use, and a part thereof remains
which is reasonably suitable for Tenant's purposes hereunder, this Lease shall,
as to the part so taken, terminate as of the date title shall vest in the
condemnor, and the rent payable hereunder shall be equitably adjusted. If all
the Leased Premises, or such part thereof be taken or condemned so that there
does not remain a portion reasonably suitable for Tenant's purposes hereunder,
this Lease shall thereupon terminate.
25. WAIVER. The waiver by Landlord of any breach of any
term, covenant, or condition herein contained shall not be deemed
14
to be a waiver of such term, covenant, or condition or any subsequent breach of
the same or 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 rental so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
26. EFFECT OF HOLDING OVER. If Tenant should remain in possession of
the Leased Premises after the expiration of the Lease Term and without executing
a new Lease, then such holding over shall be construed as a tenancy from
month-to-month, subject to all the conditions, provisions, and obligations of
this Lease insofar as the same are applicable to a month-to-month tenancy;
provided, however, that Base Rent during any such holding over shall be 150% of
the Base Rent in effect immediately prior to the expiration of the Lease term.
27. TENANT'S STATEMENT. Tenant shall at any time and from
time to time upon not less than five (5) days prior written notice
from Landlord execute, acknowledge and deliver to Landlord a statement in
writing (a) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease as so modified is in full force and effect), and the date to
which the rental and +other charges are paid in advance, if any, and (b)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of the Landlord hereunder, or specifying such defaults if any are
claimed, and (c) setting forth the date of commencement of rents and expiration
of the term hereof. Any such statement may be relied upon by any prospective
purchaser or encumbrancer of all or any portion of the real property of which
the Premises are a part.
28. TENANT'S FINANCIAL INFORMATION. Tenant shall promptly
furnish to Landlord, from time to time, financial statements and
annual reports, reflecting Tenant's current financial condition, whenever
requested by Landlord.
29. RELATIONSHIP OF THE PARTIES. Nothing contained herein
shall be deemed or construed by the parties hereto nor by any third
party, as creating the relationship of principal and agent or of partnership or
of joint venture between the parties hereto, it being understood and agreed that
neither the method of computation of rent nor any other provision contained
herein, nor any acts of the parties hereto, shall be deemed to create any
relationship other than Landlord and Tenant.
30. RULES AND REGULATIONS. Tenant shall faithfully observe
and comply with all reasonable rules and regulations that Landlord
shall from time to time promulgate and/or modify. The rules and
15
regulations shall be binding upon the Tenant upon delivery of a copy of them to
the Tenant. Landlord shall not be responsible to Tenant for the nonperformance
of any said rules and regulations by any other tenants or occupants. Said rules
may include (1) the restricting of employee parking, and (2) regulation of waste
removal.
31. GENERAL PROVISIONS.
31.01 Plats and Riders. Clauses, plats, riders and
addendums, if any, affixed to this Lease are a part hereof.
31.02 Venue. Landlord will execute this Lease and will receive the rent
and other payments at Landlord's office. Therefore the county in which
Landlord's office is located is hereby deemed to be a proper place of venue for
transitory actions.
31.03 Marginal Headings. The marginal headings and
article titles to the articles of this Lease are not a part of this
Lease and shall have no effect upon the construction or interpreta
tion of any part hereof.
31.04 Time. Time is of the essence of this Lease and each
and all of its provisions in which performance is a factor.
31.05. Successors and Assigns. The covenants and condi
tions herein contained, subject to the provisions as to assignment,
apply to and bind the heirs, successors, executors, administrators
and assigns of the parties hereto.
31.06. Recordation. Neither Landlord nor Tenant shall
record this Lease, but a short form memorandum hereof may be
recorded at the request of the Landlord.
31.07. Quiet Possession. Upon Tenant paying the rent reserved hereunder
and observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
posses sion of the Premises for the entire term hereof, subject to all the
provisions of this Lease.
31.08. Prior Agreements. This Lease contains all of the agreements of
the parties hereto with respect to any matter covered or mentioned in this
Lease, and no prior agreements or understand ing pertaining to any such matter
shall be effective for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This Lease shall not be effective or binding
on any party until fully executed by both parties hereto.
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31.09. Inability to Perform. This lease and the obliga tions of the
Tenant hereunder shall not be affected or impaired because the Landlord is
unable to fulfill any of its obligations hereunder or is delayed in doing so, if
such inability or delay is caused by reason of strike, labor troubles, acts of
God, or any other cause beyond the reasonable control of the Landlord.
31.10. Partial Invalidity. Any provision of this Lease
which shall prove to be invalid, void, or illegal shall in no way
affect, impair or invalidate any other provisions hereof and such
other provision shall remain in full force and effect.
31.11. Cumulative Remedies. No remedy or election
hereunder shall be deemed exclusive but shall, wherever possible,
be cumulative with all other remedies at law or in equity.
31.12. Choice of Law. This Lease shall be governed by the
laws of the State of California.
31.13. Sale of Premises by Landlord. In the event of any sale of the
Premises by Landlord, Landlord shall be and is hereby entirely freed and
relieved of all liability under any and all of its covenants and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission occurring after the consummation of such sale; but only if the
purchaser at such sale or any subsequent sale of the Premises shall have assumed
and agreed to carry out any and all of the covenants and obliga tions of the
Landlord under this Lease.
31.14. Subordination, Attornment. Upon request of the Landlord, Tenant
will in writing subordinate its rights hereunder to the lien of any mortgage, or
deed of trust, to any bank, insurance company or other lender (including the
Building owner and its successors and assigns) now or hereafter in force against
the premises, and to all advances made or hereafter to be made upon the security
thereof, provided that such company or institution agrees to honor this Lease
for the full term hereof so long as Tenant is not in default hereunder.
In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deed of trust
made by the Landlord covering the Premises, the Tenant shall attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as the
Landlord under this Lease.
31.15. Notices. All notices and demands which may be or
are required or permitted to be given by either party on the other
hereunder shall be in writing. All notices and demands by the
Landlord to the Tenant shall be sent by United States Mail, postage
prepaid, addressed to the Tenant at the Premises, and to the
address hereinbelow, or to such other place as Tenant may from time
17
to time designate in a notice to the Landlord. All notices and demands by the
Tenant to the Landlord shall be sent by United States Mail, postage prepaid,
addressed to the Landlord at the address set forth herein, and to such other
person or place as the Landlord may from time to time designate in a notice to
the Tenant.
To Landlord at: NINE C CORPORATION
X.X. Xxx 0000
Xxxxxxx Xxxx, XX 00000
To Tenant at: BAY AREA BANK
000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxx, XX 00000
32. SERVICES TO PREMISES. Notwithstanding anything herein to the
contrary, the Landlord shall provide water, power, heating, air conditioning,
janitorial and other services, including but not limited to floor waxing, trash
removal, window washing and all facilities regarding maintenance of the exterior
of the building, including gardening, subject to payment or reimbursement by
Tenant as provided herein.
Attachment 32 (schedule of services)hereto more com pletely
sets forth the types and frequency of service and the minimum acceptable service
standard levels.
33. SUBSTITUTION FOR EXISTING LEASE. The execution of the
Lease by the parties shall be in full and complete satisfaction of
any and all claims under the existing lease and in complete
substitution for such lease.
34. TOXIC/HAZARDOUS MATERIALS CONSIDERATION. Upon request
Lessor will make available a Toxic Report that shows Benzene under
the garage area. This is being monitored by the County Health
Department at this time. Lessor believes it does not present a
hazard.
35. DRIVE-UP FACILITY. This lease includes Tenant's right to utilize and
operate during the term hereof the drive-up facility utilizing the space
adjacent to and outside the Leased Premises in the manner heretofore operated.
36. Both parties of this Lease agree there is no paragraph
36.
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THE PARTIES HAVE EXECUTED THIS LEASE THE DATE AND YEAR SET BELOW THEIR
SIGNATURE:
LANDLORD TENANT
NINE-C CORPORATION BAY AREA BANK
By:____________________________ By:____________________________
Xxxxx X. Xxxxxx Xxxx X. Xxxxxx
Title: President TITLE: President
Date:__________________________ Date:__________________________
By:_________________________
Title:
9c15.95
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EXHIBIT "A"
LEASED PREMISES
[Exhibit A consists of a scaled drawing of the first floor of the building
in which the premises are located, showing by shading the premises leased by the
Bank.]
EXHIBIT B
Trade fixtures which have resale value or are useful to bank if
relocated:
1. Vault door
2. Electronic surveillance/alarm system (cameras, etc.)
3. ATM machine/night deposit vault
4. Lighted Bay Area Bank sign on building exterior
5. Metal teller counter structure including locking drawers
and cabinets
6. Undercounter metal card file cabinets on west wall
ATTACHMENT 32
SCHEDULE OF SERVICES
(A) Daily Service (Five-day week service, excluding New
Year's Day, Presidents Day, Memorial Day, Independence
Day, Labor Day, Columbus Day, Thanksgiving Day, and
Christmas Day):
1. Dust all furniture and fixtures.
2. Empty and wipe all wastepaper baskets.
3. Clean all ash trays.
4. Vacuum all carpeted areas.
5. Dust mop all tile floors.
6. Spot clean doors, walls and woodwork.
(B) Weekly Service:
1. Damp mop and buff all tile floors throughout
the premises.
2. Dust all window xxxxx, door casings and mop
boards.
(C) Monthly Service:
1. Vacuum upholstered furniture.
2. Vacuum draperies.
3. Refinish and buff all tile floors.
(D) Quarterly Service:
1. Clean all steel desk tops.
2. Polish all wooden desks and furniture.
3. Dust all light fixtures and air conditioning
vents.
(E) Semi-Annual Service: Wash windows, inside and outside.
(F) Annual SErvice: Dry clean carpeted areas.
(G) As Required: All tile floors shall be stripped and
refinished as often as necessary to keep floors in top
condition.
