UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington D.C 20549
FORM 10-K
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1997
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from................. to.........................
Commission File No. 33-8743
ORANGE NATIONAL BANCORP
(Exact Name of Registrant as Specified in Charter)
1201 East Katella Avenue
Orange, California 92867
California (714) 771-4000 33-0190684
(State of Incorporation) (Address and Telephone Number (I.R.S. Employer
of Principal Executive Offices) Identification No.)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock
(Title of Class)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter periods that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
The aggregate market value of the voting shares held by nonaffiliates of the
Registrant was approximately $36,906,441 as of February 28,1998. The aggregate
market value of the voting shares held by nonaffiliates includes all
stockholders except officers and directors and was computed based on a market
price, which resulted from a recent trade.
1,979,171 Shares of Common Stock were outstanding at February 28, 1998.
DOCUMENTS INCORPORATED BY REFERENCE
Part III of this Form 10-K incorporates by reference portions of the Proxy
Statement to be filed with the Securities and Exchange Commission in connection
with the Annual Meeting of Shareholders to be held on May 18, 1998.
ORANGE NATIONAL BANCORP
1997 ANNUAL REPORT ON FORM 10-K
TABLE OF CONTENTS
PART I
Item 1. Business 3
Item 2. Properties 18
Item 3. Legal Proceedings 19
Item 4. Submissions of Matters to a Vote of Security Holders 19
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters 19
Item 6. Selected Financial Data 21
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations 22
Item 8. Financial Statements and Supplementary Data 27
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosures 27
PART III
Item 10. Directors and Executive Officers of the Registrant 28
Item 11. Executive Compensation 28
Item 12. Security Ownership of Certain Beneficial Owners and Management 28
Item 13. Certain Relationships and Related Transactions 28
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K 29
Signatures 30
Index to Exhibits 32
PART I
ITEM 1. BUSINESS
General
Orange National Bancorp ("Bancorp" or "Company") was organized and
incorporated under the laws of the State of California on July 28, 1986 to
become a bank holding company. The Company acquired all the outstanding capital
stock of Orange National Bank ("Bank") at the direction of the Board of
Directors of the Bank. The Company commenced operations as a bank holding
company within the meaning of the Bank Holding Company Act of 1956, as amended,
and is subject to the supervision and regulation of the Board of Governors of
the Federal Reserve System. The Bank became a wholly-owned subsidiary of the
Bancorp on January 16, 1987, with the approval of the Office of the Comptroller
of the Currency ("OCC") and the Federal Reserve Bank of San Francisco ("FRB").
The Bank was organized and chartered as a national banking association on
October 31, 1979 and opened for business on the same date.
Substantially all consolidated operating earnings and net earnings are
presently derived from banking related activities. Such banking related
activities would continue to represent the Bancorp's primary source of operating
earnings and net earnings for the foreseeable future. The Bank currently has
six branch offices located throughout Orange County, California.
Narrative Description of Business
The Bancorp is engaged in the ownership of one commercial bank. The Bancorp
does not consider its business to be seasonal nor to be dependent upon a single
customer or a few customers. Thus, the loss of any one customer would not have
a material adverse effect upon the Bancorp or its subsidiary. Neither the
Bancorp nor its subsidiary operate outside the United States nor derive revenues
from customers located outside of the United States. The Bancorp was involved
in mortgage banking operations from 1992 through 1994. There were no gains or
losses on the disposal of this operation.
The Bank offers a full range of commercial banking services, including the
acceptance of demand, money-market, savings and time deposits; and the
origination of commercial, real estate, Small Business Administration, personal,
equity, home improvement, automobile, installment and term loans; and letters
and lines of credit. The Bank also offers travelers' checks, safe deposit
boxes, notary public, international banking and other customary bank services to
its customers, except trust services. The lobby of each branch is open from
9:00 a.m. to 5:00 p.m., Monday through Thursday and 9:00 a.m. through 6:00 p.m.
on Friday. Selected branches are open on Saturday. Each branch has an
automated teller machine. In addition, drive-up services are available at three
branch offices. The Federal Deposit Insurance Corporation ("FDIC") insures the
deposits of the Bank up to a maximum of $100,000, subject to certain
limitations. The Bank is a member of the Federal Reserve System.
The Bank currently does not issue MasterCard or VISA credit cards, but
honors merchant drafts under both types of cards.
The principal sources of the Bank's income are interest income and fees from
the Bank's loan portfolio, interest income on the Bank's investments and gain on
sales of loans. These sources comprised 66.6%, 15.4% and 6.7%, respectively, of
the Bank's total income for 1997. Other sources of income include fees on
deposit accounts and other customer services.
Distribution of Assets, Liabilities, and Stockholders' Equity
The following schedule presents the average balances of the Bancorp's asset,
liability, and stockholders' equity accounts and the distribution percentage of
each item based on total average assets. Average balances were computed using
the average daily balances for the years ended December 31:
1997 1996 1995
Dollars Percent Dollars Percent Dollars Percent
(dollars in thousands)
Assets
Cash and due from banks $ 23,212 10.5% $ 20,415 9.4% $ 19,679 9.5%
Securities 26,134 11.8 44,937 20.7 43,073 20.8
Federal funds sold 29,362 13.3 29,725 13.7 20,372 9.9
Loans 131,077 59.4 109,802 50.7 114,820 55.4
Less allowance for
credit losses (1,488) (0.7) (1,487) (0.7) (1,601) (0.7)
Net loans 129,589 58.7 108,315 50.0 113,219 54.7
Premises and equipment, net 5,187 2.4 5,382 2.5 5,483 2.7
Other assets 7,193 3.3 7,998 3.7 5,101 2.4
Total $220,677 100.0% $216,772 100.0% $206,927 100.0%
Liabilities and
stockholders' equity
Liabilities
Deposits:
Noninterest-bearing
demand $ 76,444 34.6% $ 67,662 31.2% $ 64,372 31.1%
Money market demand
and NOW 91,931 41.7 101,562 46.9 99,182 47.9
Savings 11,485 5.2 12,420 5.7 13,474 6.5
Time 19,423 8.8 15,969 7.4 12,511 6.1
Total deposits 199,283 90.3 197,613 91.2 189,539 91.6
Other liabilities 1,793 0.8 1,381 0.6 1,286 0.6
Total liabilities 201,076 91.1 198,994 91.8 190,825 92.2
Stockholders' equity:
Common stock 7,770 3.5 7,594 3.5 7,109 3.4
Retained earnings 11,831 5.4 10,184 4.7 8,993 4.4
Total stockholders' equity 19,601 8.9 17,778 8.2 16,102 7.8
Total $220,677 100.0% $216,772 100.0% $206,927 100.0%
Interest Income Rates
Average interest-earning assets, their yields and amounts earned by category
are set forth in the following chart for the years ended December 31. Amounts
outstanding are the average daily balances for the respective years, including
nonaccrual loans. Yields and amounts earned include loan origination fees. The
Company does not have tax-exempt income bonds or notes in its securities
portfolio.
1997 1996 1995
(dollars in thousands)
Securities:
Average outstanding $26,134 $44,937 $43,073
Average yield 6.02% 5.85% 5.74%
Amount of interest earned $1,573 $2,627 $2,471
Federal funds sold:
Average outstanding $29,362 $29,725 $20,372
Average yield 5.44% 5.23% 5,63%
Amount of interest earned $1,598 $1,555 $1,146
Net loans:
Average outstanding $129,589 $108,315 $113,219
Average yield 10.56% 10,81% 11.44%
Amount of interest and fees earned $13,686 $11,712 $12,954
Total earning assets:
Average outstanding $185,085 $182,977 $176,664
Average yield 9.11% 8.69% 9.38%
Amount of interest earned $16,857 $15,894 $16,571
Interest Expense Rates
The following table sets forth the Bancorp's average interest-bearing
deposits, the average rate paid on such deposits and the amounts paid or accrued
for the years indicated. Amounts outstanding are the average daily balances
outstanding for the years ended December 31:
1997 1996 1995
(dollars in thousands)
NOW and money market (1):
Average outstanding $91,931 $101,562 $99,182
Average rate paid 2.34% 2.47% 2.34%
Amount of interest paid or accrued $2,154 $2,510 $2,325
Savings:
Average outstanding $11,485 $12,420 $13,474
Average rate paid 2.02% 2.00% 1.98%
Amount of interest paid or accrued $232 $249 $267
Time:
Average outstanding $19,423 $15,969 $12,511
Average rate paid 4.98% 4.76% 4.39%
Amount of interest paid or accrued $967 $760 $549
Total interest-bearing liabilities:
Average outstanding $122,839 $129,951 $125,167
Average rate paid 2.73% 2.71% 2.51%
Amount of interest paid or accrued $3,353 $3,519 $3,141
Net yield on interest-earning assets 7.30% 6.76% 7.60%
(1) NOW and money markets include only interest-bearing transaction accounts.
Rate/Volume Analysis of Net Interest Income
The following table sets forth the cause and amounts of change in interest
earned and paid for the years ended December 31:
1997 over 1996 (1) 1996 over 1995 (1)
Volume Rate Total Volume Rate Total
(dollars in thousands)
Increase (decrease) in:
Interest income:
Investment securities $(1,099) $ 45 $(1,054) $107 $ 49 $ 156
Federal funds sold (19) 62 43 527 (118) 409
Net loans 2,300 (326) 1,974 (561) (681) (1,242)
Total $ 1,182 $(219) $ 963 $ 73 $(750) $ (677)
Interest expense:
Money market deposits $(238) $(118) $(356) $ 56 $129 $185
Savings deposits (19) 2 (17) (21) 3 (18)
Time deposits 164 43 207 152 59 211
Total $ (93) $ (73) $(166) $187 $191 $378
Net interest income $1,275 $(146) $1,129 $(114) $(941) $(1,055)
(1) The variance not solely due to rate or volume is allocated to the rate
variances. Nonaccrual loans have been included in this analysis. Loan fees
of $1.1 million, $1.0 million and $1.1 million for 1997, 1996, and 1995,
respectively, have been included in this analysis. The Company does not
have tax-exempt income bonds or notes in its securities portfolio.
Securities
The Bank's Board of Directors reviews all securities transactions on a
monthly basis. There are no securities from a single issuer other than
securities of the U.S. Government, Agencies and corporations whose aggregate
market value is greater than 10% of stockholders' equity. The Bank does not
invest in derivative financial instruments or variable rate bonds or notes. The
Bank purchases mortgage-backed securities of investment grade only. The
following schedule summarizes the amounts and the distribution of the Bank's
held-to-maturity securities as of December 31:
1997 1996 1995
Amortized Market Amortized Market Amortized Market
Cost(1) Value Cost(1) Value Cost(1) Value
(dollars in thousands)
Mortgage-backed securities $9,037 $8,972 $10,937 $10,844 $12,479 $12,421
(1) Held-to-maturity securities are stated at amortized cost (i.e., cost
adjusted for amortization of premium and accretion of discount.)
The available-for-sale securities as of December 31 are as follows:
1997 1996 1995
Amortized Market Amortized Market Amortized Market
Cost (2) Value Cost (2) Value Cost (2) Value
(dollars in thousands)
U.S. Treasury securities and
obligations of other U.S.
Government agencies and
Corporations $8,992 $8,976 $28,992 $28,899 $24,984 $24,914
Mortgage-backed securities - - - - 2,018 1,994
Other 170 170 174 174 174 174
Total $9,162 $9,146 $29,166 $29,073 $27,176 $27,082
(2) Available-for-sale securities are stated at fair value with unrealized gains
and losses being reported as an adjustment to stockholders' equity net of
the related tax effect.
On December 29, 1995 the Company reassessed the appropriateness of the
classification of all securities in accordance with the issuance of Financial
Accounting Standards Board Guide to Implementation of Statement No. 115 on
Accounting for Certain Investments in Debt and Equity Securities. As a result,
the Company transferred debt securities at their fair value of $4,995,483 on
December 29, 1995 previously classified as held-to-maturity into available-for-
sale securities and recorded an unrealized holding loss of $3,827.
Maturity of Securities
The following table summarizes the maturities of the Company's securities
and their weighted average yield as of December 31, 1997:
Carrying Market Average
Amount Value(1) Yield(2)
(dollars in thousands)
Mortgage-backed securities (3) $9,037 $8,972 5.47%
U.S. Treasury Securities and
obligations of U.S. Government
Agencies and corporations:
Due within one year 1,000 993 4.73%
Due after one year but within five years 3,996 3,991 6.47%
Due after five years but within ten years 1,000 1,001 6.27%
Due after ten years 2,996 2,991 6.76%
Other 170 170 6.00%
Total $18,199 $18,118 5.91%
(1) Held-to-maturity securities are stated at amortized cost (i.e., cost
adjusted for amortization of premiums and accretion of discounts).
Available-for-sale securities are recorded at fair value.
(2) Weighted average yield is the computed using the investment yield and the
amortized cost of securities.
(3) Mortgage-backed securities are not scheduled for maturities due to the
periodic principal payments received and unknown amount of expected
prepayments.
Loan Portfolio
A major part of the Bank's objective is serving the credit needs of
customers in Orange County and surrounding areas. Credit decisions are based
upon the judgement of the Bank's lending personnel and Loan Committee. The
legal lending limit to each customer is restricted to a percentage of the Bank's
total capital, the exact percentage depends on the nature of the particular loan
and the collateral involved. Credit risk is inherent to any loan portfolio and
it is the management of this risk, which defines the quality of the portfolio.
The Bank has a policy to obtain collateral for loans under most circumstances.
The Bank has a highly diversified portfolio, a solid underwriting process, a
loan review program and an active loan service function which management
believes serves to minimize the possibility of material loss in the loan
portfolio.
The three general areas in which the Bank has directed virtually all of its
lending activities are (a) real estate loans, (b) commercial loans, and (c)
loans to individuals. These three categories accounted for 58.8%, 33.1%, and
7.9%, respectively, of the Bank's loan portfolio as of December 31, 1997. The
Bank's commercial loans are primarily funded to small- and medium-sized
businesses for terms ranging from 30 days to 5 years. Consumer installment
loans are for a maximum term of 48 months on unsecured loans and for a term of
the depreciable life of tangible property used as collateral on secured loans.
Commercial real estate loans are originated for terms of up to 25 years.
Variable interest rate loans comprise 72% of the loan portfolio as of
December 31, 1997.
The Bank had standby letters of credit of $0.3 million and commitments to
extend credit of $25.1 million as of December 31, 1997. The Bank presently has
sufficient liquidity to fund all loan commitments.
The Bank originates loan commitments that are unsecured. The Bank had
funded unsecured loans to companies or individuals of $3.9 million with unfunded
unsecured commitments of $6.0 million as of December 31, 1997. The Bank has a
lending policy to obtain collateral whenever available or desirable, subject to
the degree of risk the Bank is willing to undertake.
The allowance for credit losses is established through a provision for
credit losses charged to expense. Loans are charged against the allowance for
credit losses when management believes that collectibility of the principal is
unlikely. The allowance is an amount that management believes will be adequate
to absorb estimated losses on existing loans that may become uncollectible,
based on evaluation of the collectibility of loans and prior loan loss
experience. This evaluation also takes into consideration such factors as
changes in the nature and volume of the loan portfolio, overall portfolio
quality, review of specific problem loans, and current economic conditions that
may affect the borrower's ability to pay. While management uses the best
information available to make its evaluation, future
adjustments to the allowance may be necessary if there are significant changes
in economic or other conditions. In addition, the OCC periodically reviews the
Company's allowance for credit losses as an integral part of their normal
recurring examination process, and may require the Company to make additions to
the allowance based on their judgment about information available to them at the
time of their examinations.
A loan is impaired when it is probable the creditor will be unable to
collect all contractual principal and interest payments due in accordance with
terms of the loan agreement. Impaired loans are measured based on the present
value of expected future cash flows discounted at the loan's effective interest
rate or, as a practical expedient, at the loan's observable market price or the
fair value of the collateral if the loan is collateral dependent. The amount of
impairment, if any, and any subsequent changes are included in the allowance for
credit losses
Loan Portfolio Composition
The composition of the Bank's loan portfolio (all domestic) as of December
31 is presented in the following table:
1997 1996 1995 1994 1993
(dollars in thousands)
Dollars
Real estate
Commercial $ 78,534 $ 64,611 $ 61,891 $ 61,881 $65,052
Construction 118 1,412 242 2,286 3,473
Held for sale - - - - 2,050
Commercial and industrial 44,301 44,766 41,361 40,976 34,376
Loans to individuals 10,586 10,256 10,343 9,384 10,127
Other 122 152 1,207 177 858
Total 133,661 121,197 115,044 114,704 115,936
Unearned net loan fees and premiums (891) (837) (807) (536) (742)
Allowance for credit losses (1,581) (1,369) (1,513) (1,465) (1,524)
Total, net $131,189 $118,991 $112,724 $112,703 $113,670
Unsecured loans, included
in table above $3,910 $2,836 $4,753 $3,743 $4,236
Percentages
Real estate
Commercial 58.8% 53.3% 53.8% 53.9% 56.1%
Construction 0.1 1.2 0.2 2.0 3.0
Held for sale 0.0 0.0 0.0 0.0 1.8
Commercial and industrial 33.1 36.9 36.0 35.7 29.6
Loans to individuals 7.9 8.5 9.1 8.2 8.8
Other 0.1 0.1 1.0 0.2 0.7
Total 100.0% 100.0% 100.0% 100.0% 100.0%
Loan Maturities and Sensitivity to Changes in Interest Rates
The following table sets forth the maturities of the Bank's loan portfolio
by category as of December 31, 1997. In addition, the table presents the
distribution between those loans with predetermined (fixed) interest rates and
those with variable (floating) interest rates maturing after one year.
Floating rates generally fluctuate with changes in the prime interest rate. The
table excludes unearned net loan fees and premiums of $891,000.
After
one but
Within one within five After
year (1) years five years Total
(dollars in thousands)
Real estate
Commercial $ 72,992 $3,913 $ 1,629 $ 78,534
Construction 118 - - 118
Commercial and industrial 22,373 2,682 19,246 44,301
Loans to individuals 5,716 1,157 3,713 10,586
Other 122 - - 122
$101,321 $7,752 $24,588 $133,661
Distribution between fixed and floating interest rates after one year:
Fixed interest rates $7,404 $24,588 $31,992
Floating interest rates 348 - 348
$7,752 $24,588 $32,340
(1) Demand loans and overdrafts are shown as "within one year" with scheduled
repayments reported in the periods in which the final payments are due.
Credit Risk Management
The Bank manages its loan portfolio through a process designed to assure
acceptable quality of loans entering the portfolio and to bring any potential
losses or potential defaults in existing loans to the attention of the
appropriate management personnel. Each lending officer has primary
responsibility to conduct credit and documentation reviews of the loans for
which he is assigned. The Bank's Senior Vice President and Senior Credit
Officer are responsible for general supervision of the loan portfolio and
adherence by the loan officers to the loan policies of the Bank. The Bank
currently engages an outside consulting firm to periodically review the loan
portfolio to provide suggested risk rating of selected loans. Bank management
reviews the suggested ratings along with all other available information to
properly monitor the loan portfolio, including all loan evaluations made during
periodic examinations by the OCC.
In accordance with the Bank's loan policies, management presents a written
report to the Bank's Board of Directors at its monthly meeting. The Directors
review the delinquency report listing of all loans 30 days or more past due and
the watch list report including loans having increased credit risk, both
delinquency and other factors, over the rest of the portfolio. Additionally,
the Directors review a monthly report including all loans originated the prior
month.
As previously noted, the Bank maintains an allowance for credit losses to
provide for potential losses in the loan portfolio. Additions to the allowance
for credit losses are charged to operations in the form of a provision for
possible credit losses. All loans that are judged to be uncollectible are
charged against the allowance while any recoveries are credited to the
allowance. The allowance for credit losses is maintained at a level determined
by management to be adequate, based on the performance of loans in the Bank's
portfolio, evaluation of collateral for such loans, the prospects or worth of
the prospective borrowers or guarantors, and such other factors which, in the
Bank's judgement, deserve consideration in the estimation of possible losses.
The allowance for credit losses is established and maintained after analyzing
loans identified by management with certain unfavorable features affixing a risk
of loss attributable to each loan. An inherent risk of loss in accordance with
industry standards and economic conditions is then allocated to specific loan
pools and to the remainder of the portfolio on an aggregate basis.
The following table sets forth information with respect to loans that were
accounted for on a nonaccrual basis or contractually past due 90 days or more as
to interest or principal payments, or restructured as of December 31:
1997 1996 1995 1994 1993
(dollars in thousands)
Loans on non-accrual basis $2,447 $2,464 $3,055 $3,163 $2,744
Loans past due 90 days or more and
still accruing interest 660 7 33 158 46
Troubled debt restructuring,
not included above - - - - -
Total $3,107 $2,471 $3,088 $3,321 $2,790
If all such loans had been current in accordance with their original terms
during the year ended December 31, 1997, the gross interest income would have
been approximately $325,000. The amount of interest income included in earnings
on these nonaccrual loans was $125,000 in 1997.
Loans are generally placed on nonaccrual status when principal or interest
payments are past due 90 days or more. Certain loans are placed on nonaccrual
status earlier if there is reasonable doubt as to the collectibility of interest
or principal. Loans that are in the renewal process, have sufficient
collateral, or are in the process of collection continue to accrue interest.
Management has no knowledge of any additional loans not disclosed in this
section on nonaccrual, past due, or troubled debt restructuring that may be
potential problem loans. The Bank has no loans to foreign borrowers. The
Company has quantified its impaired loans in Note 4 of the Notes to the
Consolidated Financial Statements. Loans on nonaccrual status are greater than
the total impaired loans because the collateral value of certain nonaccrual
loans are large enough that management believes all principal and interest will
be collected on those loans and therefore do not meet the definition of
impaired. A loan is impaired when it is probable the creditor will be unable to
collect all contractual principal and interest payments due in accordance with
the terms of the loan agreement. Impaired loans are valued primarily at the
fair value of the underlying collateral.
There were no loan concentrations exceeding 10% of the total loan portfolio
and no other interest-bearing assets that would be required to be in the
paragraphs above, if such assets were classified as loans as of December 31,
1997, 1996, 1995, 1994 and 1993.
The following table presents loans outstanding, charge-offs, recoveries on
loans previously charged-off, the allowance for credit losses, and pertinent
ratios during the years ended and as of December 31:
1997 1996 1995 1994 1993
(dollars in thousands)
Average gross loans $131,077 $109,802 $114,820 $114,718 $118,774
Total gross loans at end of period $133,661 $120,360 $114,237 $114,168 $115,194
Allowance for loan losses:
Balance, beginning of period $1,369 $1,513 $1,465 $1,524 $1,425
Charge-offs:
Commercial and industrial 14 252 302 459 232
Real estate construction - - - - 30
Commercial real estate 44 125 70 25 76
Installment 8 10 16 4 27
66 387 388 488 365
Recoveries:
Commercial and industrial 122 30 63 129 67
Leases - - 45 - -
Commercial real estate 9 8 8 - -
Installment 7 - - 2 3
138 38 116 131 70
Net charge-offs (recoveries) (72) 349 272 357 295
Additions charged to operations 140 205 320 298 394
Balance, end of period $1,581 $1,369 $1,513 $1,465 $1,524
Net charge-offs (recoveries) during
the period to average gross loans
outstanding during year (0.05%) 0.32% 0.24% 0.31% 0.25%
The Bank has allocated the allowance for credit losses to provide for the
possibility of losses being incurred within loan categories as of December 31
are set forth in the table below:
1997 1996 1995 1994 1993
(dollars in thousands)
Commercial and industrial $ 298 $ 343 $ 831 $ 744 $ 550
Real estate - construction - 9 3 124 75
Real estate - mortgage 1,265 959 594 468 837
Installment 18 58 62 108 40
Other - - 23 21 22
$1,581 $1,369 $1,513 $1,465 $1,524
Included in the Bank's allocation of its allowance for credit losses are
specific reserves on certain identified loans and general reserves for unknown
potential losses. Management classifies loans through its internal loan review
system that uses an independent third party reviewer and review of loans from
its regulators. None of these classifications indicate trends or
uncertainties, which will materially impact future operating results, liquidity,
or capital resources. The allowance provides for the potential adverse effects
of current economic conditions. However, the full effects of the economy on the
loan portfolio cannot be predicted with any certainty. See discussion in Item
7 - Management's Discussion and Analysis of Financial Condition and Results of
Operations. Any loans which management doubts the ability of borrowers to
comply with loan repayment terms are provided for in the allowance.
Summary of Deposits
Deposits are currently the Bank's sole source of funds. The Bank can
obtain additional funds when needed to meet occasional declines in deposits or
other short-term liquidity needs, through the overnight purchase of federal
funds. However, the Bank does not currently use these sources of funds.
Generally, the Bank has funds in excess of the needs for its deposit withdrawals
or short-term liquidity needs and it, therefore, sells federal funds to other
financial institutions or invests in short-term securities.
The Bank's deposits are attracted primarily from individuals and commercial
enterprises. The Bank also attracts some deposits from municipalities and other
government agencies. The Bank does not have foreign deposits, brokered deposits
or variable rate fixed-term deposits. The Bank does not expect to obtain future
deposits through the use of brokered deposits. The Bank had noninterest-bearing
demand deposits of $93.2 million, interest-bearing NOW and money market accounts
of $91.3 million, time deposits for individuals and corporations of $22.7
million, and savings of $11.6 million as of December 31, 1997.
The Company had interest-bearing deposits of 57.4% and 60.8% of total
deposits as of December 31, 1997 and 1996, respectively. While the Bank does
not experience material repeated seasonal fluctuations in deposit levels, the
Bank's relative growth in deposits and loans may be affected by seasonal and
economic changes, which, in turn, may impact liquidity. The Bank does not have
any brokered deposits. The Bank has a deposit concentration from five customers
of $28,095,000 as of December 31, 1997. Management believes it has sufficient
liquidity to meet loan commitments and deposit demands.
The following table sets forth information regarding the Bank's average
balances of deposits, as a percentage of average total deposits and average
interest paid by category for the years ended December 31:
MMDA Total
Demand and NOW Savings Time Deposits
(dollars in thousands)
1997
Average balance $76,444 $91,931 $11,485 $19,423 $199,283
Percent of total 38.4% 46.1% 5.8% 9.7% 100.0%
Average interest rate paid 0.0% 2.3% 2.0% 5.0% 1.7%
1996
Average balance $67,662 $101,562 $12,420 $15,969 $197,613
Percent of total 34.2% 51.4% 6.3% 8.1% 100.0%
Average interest rate paid 0.0% 2.5% 2.0% 4.8% 1.8%
1995
Average balance $64,372 $99,182 $13,474 $12,511 $189,539
Percent of total 34.0% 52.3% 7.1% 6.6% 100.0%
Average interest rate paid 0.0% 2.3% 2.0% 4.4% 1.7%
The following table indicates the amount and maturity of the Bank's time
certificates of deposit over $100,000 as of December 31, 1997:
Balance Percent of Total
(dollars in thousands)
Less than three months $ 9,500 78.6%
Three months through six months 1,226 10.1
Six months through twelve months 866 7.2
Over twelve months 495 4.1
$12,087 100.0%
Return on Equity and Assets
The following table indicates the key financial ratios of the Bank for the
years ended December 31:
1997 1996 1995
Profitability ratios:
Rate of return on average total assets 1.45% 1.02% 1.22%
Rate of return on average stockholders' equity 16.32% 12.38% 15.68%
Capital ratios:
Cash dividend payment ratio to net earnings 25.73% 32.60% 19.23%
Average stockholders' equity to average total assets 8.88% 8.20% 7.78%
Competition
The banking business in southern California and the market areas served by
the Bank are highly competitive with respect to both loans and deposits and are
dominated by a relatively small number of major banks with many offices
operating over a wide geographic area. The Bank is one of several locally owned
independent banks located in the Bank's primary service area. The Bank also
competes for loans and deposits with other commercial banks, including many
which are much larger than the Bank, as well as with savings and loan
associations, finance companies, credit unions, brokerage houses and other
financial institutions. Larger commercial banks offer certain services (such
as trust and investment services) which the Bank does not offer directly (but
some of which it offers indirectly through correspondent institutions). Such
banks also have substantially higher lending limits than the Bank has or will
have due to their larger capital base. In addition, recently enacted
legislation will increase the competition the Bank faces from savings and loan
associations, and credit unions for the deposit and loan business of
individuals. The growth of money market funds and quasi-financial institutions,
such as certain activities of retailers and other which are not subject to the
same regulatory controls, also presents a source of competition for the Bank.
With the decline in interest rates, depositors have been seeking alternative
investments to earn higher yields than the Bank is currently paying.
In order to compete with the other financial institutions in its primary
service area, the Bank relies principally upon local promotional activities,
personal contact by its officers, directors, employees, and stockholders,
extended hours, and specialized services. For customers whose loan demands
exceed the Bank's lending limit, the Bank has attempted and will continue in the
future to attempt to arrange for such loans on a participation basis with other
banks. The Bank also assists customers requiring other services not offered by
the Bank in obtaining such services from its correspondent banks.
Supervision and Regulation
The Company is subject to the regulation of the Federal Reserve Bank Holding
Company Act of 1956, as amended, and the Board of Governors of the Federal
Reserve System. The Bank is subject to the regulation of the FDIC and the OCC.
Among other regulations, the OCC establishes minimum capital requirements, which
the Bank exceeds as of December 31, 1997.
During 1991, Congress passed the Federal Deposit Insurance Corporation
Improvement Act of 1991("FDICIA"), which focused primarily on tightening the
supervision of banks and thrifts and recapitalizing the Bank Insurance Fund
("BIF"). Among other things, FDICIA requires federal bank regulatory
authorities to take "prompt corrective action" with respect to inadequately
capitalized banks. FDICIA established five tiers of capital management ranging
from "well capitalized" to "critically undercapitalized." If a bank does not
meet any of the minimum capital requirements set by its regulators, FDICIA
requires certain responses, such as that the bank submit a plan, guaranteed by
its holding company, to restore its capital to adequate levels. The Company has
a policy to maintain capital ratios above the "well capitalized" levels.
As deposits of the Bank are insured by the BIF as administered by the FDIC,
the Bank is subject to FDIC insurance assessments. For purposes of determining
insurance premium assessments, the FDIC places each insured bank in one of nine
risk categories base on its level of capital and other relevant information
(such as supervisory evaluations). Assessment rates for deposit premiums
currently range from zero to 0.27 percent, depending on the assessment category
into which the insured institution is placed.
From time to time, legislation is enacted which has the effect of increasing
the cost of doing business, limiting or expanding permissible activities or
affecting the competitive balance between banks and other financial
institutions. Proposals to change the laws and regulations governing the
operations and taxation of banks and other financial institutions are frequently
made in Congress, in the California legislature and before various bank
regulatory agencies. The likelihood of any major changes and the impact such
changes might have on the Bancorp and the Bank is impossible to predict.
Certain of the potentially significant changes, which have been enacted recently
by Congress and others, which are currently under consideration by Congress or
various regulatory or professional agencies are discussed below.
In August 1997, Governor Wilson of California signed Assembly Bill 1432
("AB1432") which provides for certain changes in the banking laws of California.
Effective January 1, 1998 AB1432 eliminates the provisions regarding impairment
of contributed capital and the assessment of shares when there is an impairment
of capital. AB1432 now allows the Commissioner of the California Department of
Financial Institutions (the "Commissioner") to close a bank, if the Commissioner
finds that the bank's tangible shareholders' equity is less than the greater of
3% of the bank's total assets or $1 million. AB1432 also moved administration
of the Local Agency Program from the California Department of Financial
Institutions to the California State Treasurer's office.
The Economic Growth and Regulatory Paperwork Reduction Act (the "1996 Act")
as part of the Omnibus Appropriations Bill was enacted on September 30, 1996 and
includes many banking related provisions. The most important banking provision
is the recapitalization of the Savings Association Insurance Fund ("SAIF"). The
1996 Act provided for a one time assessment, paid on November 30, 1996, of
approximately 65 basis points per $100 of deposits of SAIF insured deposits
including SAIF insured deposits that were assumed by banks in acquisitions of
savings associations. For the years 1997 through 1999 the banking industry will
assist in the payment of interest on Financing Corporation ("FICO") bonds that
were issued to help pay for the clean up of the savings and loan industry.
Banks will pay approximately 1.3 cents per $100 of deposits for this special
assessment, and after the year 2000, banks will pay approximately 2.4 cents per
$100 of deposits until the FICO bonds mature in 2017. There is a three year
moratorium on conversions of SAIF deposits to BIF deposits. The 1996 Act also
has certain regulatory relief provisions for the banking industry. Lender
liability under the Superfund is eliminated for lenders who foreclose on
property that is contaminated provided that the lenders were not involved with
the management of the entity that contributed to the contamination. There is a
five year sunset provision for the elimination of civil liability under the
Truth in Savings Act. The FRB and Department of Housing and Urban Development
are to develop a single format for Real Estate Settlement Procedures Act and
Truth in Lending Act ("TILA") disclosures. TILA disclosures for adjustable
mortgage loans are to be simplified. Significant revisions are made to the Fair
Credit Reporting Act ("FCRA") including requiring that entities which provide
information to credit bureaus conduct an investigation if a consumer claims the
information to be in error. Regulatory agencies may not examine for FCRA
compliance unless there is a consumer complaint investigation that reveals a
violation or where the agency otherwise finds a violation. In the area of the
Equal Credit Opportunity Act, banks that self-test for compliance with fair
lending laws will be protected from the results of the test provided that
appropriate corrective action is taken when violations are found.
On September 28, 1995, Assembly Bill 1482 (known as the Caldera, Weggeland,
and Killea California Interstate Banking and Branching Act of 1995 and referred
to herein as "CIBBA") was enacted which allows for early interstate branching in
California. Under the federally enacted Riegle-Neal Interstate Banking and
Branching Efficiency Act of 1994 ("IBBEA"), discussed in more detail below,
individual states could "opt-out" of the federal law that would allow banks on
an interstate basis to engage in interstate branching by merging out-of-state
banks with host state banks after June 1, 1997. In addition under IBBEA,
individual states could also "opt-in" and allow out-of-state banks to merge with
host state banks prior to June 1, 1997. The host state is allowed under IBBEA
to impose certain nondiscriminatory conditions on the resulting depository
institution until June 1, 1997. California, in enacting CIBBA, authorizes out-
of-state banks to enter California by the acquisition of or merger with a
California bank that has been in existence for at least five years.
Section 3824 of the California Financial Code ("Section 3824") as added by
CIBBA provides for the election of California to "opt-in" under IBBEA allowing
interstate bank merger transactions prior to July 1, 1997 of an out-of-state
bank with a California bank that has been in existence for at least five years.
The early "opt in" has the reciprocal effect of allowing California banks to
merge with out-of-state banks where the states of such out-of-state banks have
also "opted in" under IBBEA. The five year age limitation is not required when
the California bank is in danger of failing or in certain other emergency
situations.
Under IBBEA, California may also allow interstate branching through the
acquisition of a branch in California without the acquisition of an entire
California bank. Section 3824 provides an express prohibition against
interstate branching through the acquisition of a branch in California without
the acquisition of the entire California bank. IBBEA also has a provision
allowing states to "opt-in" with respect to permitting interstate branching
through the establishment of de novo or new branches by out-of-state banks.
Section 3824 provides that California expressly prohibits interstate branching
through the establishment of de novo branches of out-of-state banks in
California, or in other words, California did not "opt-in" this aspect of IBBEA.
CIBBA also amends the California Financial Code to include agency provisions to
allow California banks to establish affiliated insured depository institution
agencies out-of-state as allowed under IBBEA.
Other provisions of CIBBA amend the intrastate branching laws, govern the
use of shared ATM's, and amend intrastate branch acquisition and bank merger
laws. Another banking bill enacted in California in 1995 was Senate Bill 855
(known as the State Bank Parity Act and is referred to herein as the "SBPA").
SBPA went into effect on January 1, 1996, and its purpose is to allow a
California state bank to be on a level playing field with a national bank by the
elimination of certain disparities and allowing the Commissioner authority to
implement certain changes in California banking law which are parallel to
changes in national banking law such as closer conformance of California's
version of Regulation O to the FRB's version of Regulation O and certain other
changes including allowing the repurchase of stock with the prior written
consent of the Commissioner.
On September 29, 1994, IBBEA was enacted which has eliminated many of the
current restrictions to interstate banking and branching. IBBEA permits full
nationwide interstate banking to adequately capitalized and adequately managed
bank holding companies beginning September 29, 1995 without regard to whether
such transaction is expressly prohibited under the laws of any state. IBBEA's
branching provisions permit full nationwide interstate bank merger transactions
to adequately capitalized and adequately managed banks beginning June 1, 1997.
However, states retain the right to completely opt out of interstate bank
mergers and to continue to require that out-of-state banks comply with the
states' rules governing entry.
The states that opt out must enact a law after September 29, 1994 and before
June 1, 1997 that (i) applies equally to all out-of-state banks, and (ii)
expressly prohibits merger transactions with out-of-state banks. States, which
opt out of allowing interstate bank merger transactions, will preclude the
mergers of banks in the opting out state with banks located in other states. In
addition, banks located in states that opt out are not permitted to have
interstate branches. States can also "opt in" which means states can permit
interstate branching earlier than June 1, 1997.
The laws governing interstate banking and interstate bank mergers provide
that transactions, which result in the bank holding company or bank controlling
or holding in excess of ten percent of the total deposits nationwide or thirty
percent of the total deposits statewide, will not be permitted except under
certain specified conditions. However, any state may waive the thirty percent
provision for such state. In addition, a state may impose a cap of less than
thirty percent of the total amount of deposits held by a bank holding company or
bank provided such cap is not discriminatory to out-of-state bank holding
companies or banks.
On September 23, 1994, the Riegle Community Development and Regulatory
Improvement Act of 1994 (the "1994 Act") was enacted which covers a wide range
of topics including small business and commercial real estate loan
securitization, money laundering, flood insurance, consumer home equity loan
disclosure and protection as well as the funding of community development
projects and regulatory relief.
The major items of regulatory relief contained in the 1994 Act include an
examination schedule that has been eased for the top rated banks and will be
every 18 months for CAMEL 1 banks with less than $250 million in total assets
and CAMEL 2 banks with less than $100 million in total assets (the $100 million
amount was amended to $250 million by the 1996 Act discussed above). The 1994
Act amends Federal Deposit Insurance Corporation Improvement Act of 1991 with
respect to the Section 124, the mandate to the federal banking agencies to issue
safety and soundness regulations, including regulations concerning executive
compensation allowing the federal banking regulatory agencies to issue
guidelines instead of regulations.
Further regulatory relief is provided in the 1994 Act, as each of the
federal regulatory banking agencies, including the National Credit Union
Administration Board, is required to establish an internal regulatory appeals
process for insured depository institutions within 6 months. In addition, the
Department of Justice 30 day waiting period for mergers and acquisitions is
reduced by the 1994 Act to 15 days for certain acquisitions and mergers.
In the area of currency transaction reports, the 1994 Act requires the
Secretary of the Treasury to allow financial institutions to file such reports
electronically. The 1994 Act also requires the Secretary of the Treasury to
publish written rulings concerning the Bank Secrecy Act, and staff commentary on
Bank Secrecy Act regulations must also be published on an annual basis.
The procedures for forming a bank holding company have also been simplified.
The formal application process for many holding company formations is now a
simplified 30 day notice procedure. In addition, the Securities Act of 1933 has
been amended by the 1994 Act to further simplify the securities issuance in
connection with a bank holding company formation.
On December 17, 1993, the Resolution Trust Corporation Completion Act (the
"RTCCA") was enacted. The RTCCA provides additional funding for failed savings
associations under the jurisdiction of the Resolution Trust Corporation. In
addition to providing such funding, the RTCCA, among other things, makes it more
difficult for the federal banking agencies to obtain prejudgment injunctive
relief against depository institutions and parties affiliated with such
institutions, extends the moratorium on depository institutions converting from
SAIF insurance to BIF insurance or vice versa, and prohibits the Federal Deposit
Insurance Corporation (the "FDIC") from using any deposit insurance funds to
benefit the shareholders of a failed or failing depository institution.
The Omnibus Budget Reconciliation Act of 1993 (the "Budget Act"), which was
signed into law on August 10, 1993, contains numerous tax and other provisions
which may affect financial institutions and their businesses. The Budget Act
contains a provision that establishes a priority for depositors, or the FDIC as
subrogee thereof, in the event of a liquidation or other resolution of an
insured depository institution for which a receiver is appointed after August
10, 1993. In addition, under the existing cross-guarantee provisions of federal
banking law, the FDIC has the power to estimate the cost of the failure of an
insured depository institution and assess a charge against any financial
institution affiliated with the failed institution.
It is impossible to predict what effect the enactment of the above-mentioned
legislation will have on the Bancorp, the Bank and on the financial institutions
industry in general. Moreover, it is likely that other bills affecting the
business of banks may be introduced in the future by the United States Congress
or California legislature.
Taxation
The Company reports its income and expenses using the accrual method of
accounting and uses the calendar year as its tax year for both federal income
and state franchise tax purposes. The Company is subject to the federal income
tax, under existing provisions of the Internal Revenue Code of 1986, as amended,
in generally the same manner as other corporations.
The Company's 1995 federal income tax return is currently under examination
by the Internal Revenue Service. Although the examination has not yet
concluded, it is not expected to result in a material adjustment to the tax
return nor a material adverse affect on the financial statements.
Employees
The Bank had 112 full-time and 9 part-time employees, including 43 principal
officers as of February 28, 1998. The Bank's employees are not represented by a
union or covered by a collective bargaining agreement. The management of the
Bank believes that, in general, its employee relations are good.
ITEM 2. PROPERTIES
The Bank and the Bancorp's head office, including a branch office, is
located in a two-story building located at 1201 East Katella Avenue, Orange,
California. The Bank owns both the land and the building. This building is
approximately 16,000 square feet of interior and exterior floor space and is
located on a lot of approximately 55,000 square feet. The facility is in good
condition and adequate for the Bank's present operations with adequate parking,
an automated teller machine and drive-up teller stations.
The Bank leases the premises at its five full-service branch offices. Each
branch has an automated teller machine. Drive-up teller banking is available at
two leased branches. The Bank also leases premises for administrative
functions. The principal terms relating to premises currently leased by the
Bank and the net book value of leasehold improvements as of December 31, 1997
are detailed below. None of the leases contain any unusual terms and all are
"net" or "triple net" leases.
Expiration Square Monthly Renewal Book
Office Location Date Feet Rental Options Value
Branches
77 Plaza Square, Orange 04/30/03 9,443 $4,110 4 @ 5 yrs. $ 704,258
1800 West Katella Avenue, Orange(1) 12/31/07 5,266 8,057 2 @ 5 yrs. -
7510 East Chapman Avenue, Orange 11/30/04 3,300 10,278 2 @ 5 yrs. 135,043
800 Glenneyre, Laguna Beach 08/31/07 5,894 9,933 1 @ 5 yrs. 168,805
25255 Cabot Road, Laguna Hills 01/01/04 6,737 7,544 3 @ 5 yrs. 235,581
Administration
2117 West Orangewood Avenue, Orange 08/31/98 5,260 5,733 -
115 North Glassell Street, Orange 12/31/00 3,200 1,742 1 @ 5 yrs. 32,920
1249 East Katella Avenue, Orange(2) 01/06/03 13,845 11,429 2 @ 5 yrs. -
$1,276,607
(1) Estimated cost of $250,000 for branch leasehold improvements all incurred in
1998.
(2) Estimated cost of $140,000 for office leasehold improvements all incurred in
1998.
ITEM 3. LEGAL PROCEEDINGS
To the best of management's knowledge, there are no pending or threatened
legal proceedings to which the Bank or the Bancorp is or may become a party,
which may have a materially adverse effect upon the Bank, the Bancorp or their
property. However, in the normal course of business, the Bank, or the Bancorp
may initiate actions to protect their interests and may occasionally be made a
party to actions relating thereto seeking to recover damages from the Bank, or
the Bancorp.
ITEM 4. SUBMISSION OF MATTER TO A VOTE OF SECURITY HOLDERS
None
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
Stock Market Information
On February 13, 1996, Orange National Bancorp shares of common stock
commenced trading on the National Association of Securities Dealers Automated
Quotation (NASDAQ), under the symbol OGNB. Active traders for the stock are
Everen Securities, 620 Newport Center Drive, Suite 1300, Newport Beach,
California 92660 and Smith Barney, 650 Town Center Drive, Suite 100, Costa Mesa,
California 92626.
The following table summarizes the approximate high and low bid prices for
the Company's common stock since the first quarter of 1995.
1997 1996 1995
Calendar Quarter High Low High Low High Low
1st quarter $15.125 $13.125 $12.50 $10.50 $5.95 $4.75
2nd quarter 18.000 13.750 15.00 11.75 7.15 5.45
3rd quarter 21.125 17.500 14.50 13.25 9.50 6.35
4th quarter 24.250 19.750 13.75 12.75 10.50 9.25
Market quotations prior to February 13, 1996 reflect inter-dealer prices,
without retail markup, markdown, or commission and may not necessarily represent
actual transactions.
History of Cash and Stock Dividends and Stock Splits
The Company has a history of paying cash dividends to its stockholders. The
following table summarizes the cash dividend history of the Company:
Dividends Paid
Year Per Share Total
1984 $0.09 $143,568
1985 0.10 166,320
1986 0.12 200,584
1987 0.16 250,730
1988 0.13 202,734
1989 0.17 267,329
1990 0.18 290,008
1991 - -
1992 0.30 485,130
1993 - -
1994 0.05 91,956
1995 0.25 473,947
1996 0.37 718,417
1997 0.42 823,974
For comparative purposes, dividends per share for all years are computed
after the effects of stock splits and stock dividends. The Company declared a
three-for-two stock split on October 15, 1985, a 5% stock dividend on November
16, 1988, a three-for-two stock split on November 20, 1989, and a 5% stock
dividend on July 31, 1995.
The Company's ability to pay dividends is dependent upon the dividend
payment it receives from its subsidiary Bank. Future dividend payments will
depend on future profitability, meeting regulatory requirements and the outlook
of economic conditions.
On January 21, 1998, the Company declared a $0.35 per share dividend on its
common stock consisting of a quarterly dividend of $0.10 per share and a special
dividend of $0.25 per share.
The Company had approximately 457 stockholders of record as of February 28,
1998.
Transfer Agent and Registrar
CHASEMELLON Shareholder Services
400 South Hope Street, Fourth Floor
Los Angeles, California 90071
ITEM 6. SELECTED FINANCIAL DATA
The selected financial data presented below as of and for the years ended
December 31 is derived from and should be read in conjunction with the
consolidated financial statements and the notes thereto of the Company which
have been audited by McGladrey & Pullen, LLP, independent certified public
accountants. The consolidated financial statements as of December 31, 1997 and
1996 and for the three years in the period ended December 31, 1997 and the
report thereon of McGladrey & Pullen, LLP are included with Item 14 of this Form
10-K.
1997 1996 1995 1994 1993
(dollars in thousands, except for per share amounts)
Financial condition
Total assets $242,279 $218,845 $207,928 $206,510 $193,290
Loans (net) 131,189 118,991 112,724 112,703 113,670
Deposits 218,792 198,364 188,991 190,406 177,571
Stockholders' equity 21,586 18,956 17,262 14,782 14,543
Results of operations
Interest income $16,857 $15,894 $16,571 $13,908 $12,416
Net interest income 13,504 12,375 13,430 11,400 9,792
Provisions for possible
credit losses 140 205 320 298 394
Other income 3,707 2,713 2,781 2,612 2,279
Other expense 11,776 11,547 12,187 11,962 11,744
Income from
continuing operations 5,295 3,336 3,703 1,060 457
Loss from
discontinued operations - - - (225) (258)
Net earnings 3,198 2,201 2,524 835 199
Basic earnings per share $1.63 $1.13 $1.30 $0.43 $0.10
Cash dividends per share 0.42 0.37 0.25 0.05 -
Weighted average number
of common shares
outstanding (in thousands) 1,961 1,944 1,932 1,931 1,931
Earnings per share from continuing operations in 1994 and 1993 were $.58 and
$.25, respectively. Earnings per share prior to 1995 are restated to reflect 5%
stock dividends in 1995
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
This filing contains forward-looking statements, which involve risks and
uncertainties. The Company's actual future results may differ significantly
from the results discussed in the forward-looking statements. Factors that
might cause a difference include, but are not limited to, loan demand, deposit
withdrawals, interest rates, particularly the spread between loan rates and
deposit rates, the effect of the Southern California economy and real estate
values, and other general business risks.
Financial Condition
The Company experienced continued asset growth in 1997. Total assets were
$242.3 million as of December 31, 1997, an increase of $23.5 million or 10.7%
from the $218.8 million as of December 31, 1996. Total assets increased $10.9
million or 5.3% in 1996.
Total interest-earning assets were $200.0 million as of December 31, 1997,
an increase of $15.3 million or 8.3% from the $184.7 million as of December 31,
1996. Total interest-earning assets increased $15.5 million or 9.1% in 1996.
The Company continues to focus its efforts on originating quality loans. Much
of the increase in the loan portfolio was funded from the sales and maturities
of investment securities and to a lesser extent by the increase in deposits.
The investment securities portfolio was $18.2 million as of December 31,
1997, a decrease of $21.8 million or 54.6% from the $40.0 million as of December
31, 1996. The investment securities portfolio increased $0.4 million or 1.1% in
1996. The decrease in 1997 resulted from the sale and maturity of investment
securities. The Company did not purchase investment securities in 1997 due to
the flat yield curve. Thus funds that in the past might have been used to
purchase investment securities were kept in federal funds sold. The Company
believes securities are the best available investment after its liquidity needs
are met through cash, cash due from banks and federal funds sold. Generally,
mortgage backed securities are classified as held-to-maturity and U.S. Treasury
and Agency securities are classified as available-for-sale. The market values
increased slightly in 1997 resulting from a slight decrease in short-term and
long-term interest rates.
The loan portfolio was $131.2 million as of December 31, 1997, an increase
of $12.2 million or 10.3% from the $119.0 million as of December 31, 1996. The
loan portfolio increased $6.3 million or 5.6% in 1996. The increase in 1997
resulted from increased loan demand, primarily SBA lending on commercial real
estate. The quality of the loan portfolio continues to improve resulting from a
healthier Orange County economy.
Total deposits were $218.8 million as of December 31, 1997, an increase of
$20.4 million or 10.3% from the $198.4 million as of December 31, 1996. Total
deposits increased $9.4 million or 5.0% in 1996. Deposit increases between
years reflect general increases in balances maintained by large depositors.
Liquidity
The Company maintains substantial liquid and other short-term assets to meet
the funding of loan demand, deposit withdrawals and maturities, and operating
costs. The Company currently meets its funding needs from its deposit base, and
cash flow from operations, loan sales, and loan principal reductions.
The loan-to-deposit ratio was 60.0% at both December 31, 1997 and 1996. The
ratio of liquid assets (cash, cash due from banks, interest-bearing deposits at
financial institutions, federal funds sold, and investments with maturities of
one year or less) to demand deposits was 44.5% and 30.8% as of December 31, 1997
and 1996, respectively. The increase of the liquid asset ratio resulted from
the increase in federal funds sold and cash due from banks. Cash was invested
in federal funds sold in lieu of purchases of longer term investment securities
due to the flat yield curve.
The Company has a relatively stable and significant base of core deposits.
Thus, the Company has not used brokered deposits and avoids using other
wholesale, highly rate-sensitive, short-term funds. The Company had five
customers with an aggregate deposit of $28.1 million as of December 31, 1997.
Other funding sources available to the Company include reduction of its
federal funds sold, sale of its available for sale securities, increasing
deposits, and borrowing on its established credit resources. The Company may
borrow funds under securities sold with agreements to repurchase such securities
that have not been pledged. The Company had unpledged securities of $12.4
million as of December 31, 1997. Liquidity needs can also be met through
federal funds purchased from correspondent banks and/or direct borrowings from
the Federal Reserve Bank. The Company has established Federal Funds borrowing
lines with various banks up to $3.0 million. The Company has yet to use these
facilities. The Company is currently negotiating with an additional borrowing
source.
Management believes the Bank has sufficient liquidity to meet its loan
commitments, deposit withdrawals and operating costs.
Capital Management
Capital management requires that sufficient capital be maintained for
anticipated growth and to provide depositors assurance that their funds are on
deposit with a solvent institution. The Bank is subject to various regulatory
capital requirements. The Bank must meet specific capital guidelines that
involve qualitative measures of the Bank's assets and certain off-balance sheet
items as calculated under regulatory accounting practices. The Bank's capital
amounts and classification are also subject to qualitative judgments by the
regulators about components, risk weightings and other factors. Tier I capital
for the Bank under the regulations is defined as stockholders' equity before any
unrealized gains or losses on its available-for-sale securities portfolio.
Total capital is defined as Tier I capital plus the allowance for credit losses,
subject to certain limitations. The table below sets forth the Bank's actual
capital ratios, the minimum capital required for adequacy purposes and to be
categorized as "well capitalized" for the capital ratios of total risk-based,
Tier I risk-based and Tier I leverage. The Bank's capital ratios exceeded the
"well capitalized" threshold prescribed in the rules of its principal federal
regulator as of December 31, 1997.
To Be Well
Capitalized
For Under Prompt
Capital Corrective
Adequacy Action
Actual Purposes Provisions
Amount Ratio Amount Ratio Amount Ratio
(dollars in thousands)
December 31, 1997
Total capital (to risk-weighted assets) $22,563 13.9% $12,962 8.0% $16,202 10.0%
Tier I capital (to risk-weighted assets) 20,982 13.0% 6,481 4.0% 9,721 6.0%
Tier I capital (to average assets) 20,982 9.0% 9,368 4.0% 11,710 5.0%
December 31, 1996
Total capital (to risk-weighted assets) $19,937 13.3% $11,993 8.0% $14,991 10.0%
Tier I capital (to risk-weighted assets) 18,568 12.4% 5,996 4.0% 8,995 6.0%
Tier I capital (to average assets) 18,568 8.3% 8,907 4.0% 11,134 5.0%
Management believes that the Bank is properly and adequately capitalized, as
evidenced by these ratios as of December 31, 1997. The most recent notification
from the Office of the Comptroller of the Currency categorized the Bank as "well
capitalized" as of June 30, 1997 under the regulatory framework for prompt
corrective action.
Results of Operations
Total interest income was $16.9 million in 1997, an increase of $1.0 million
or 6.1% from the $15.9 million in 1996. Total interest income in 1996
decreased $0.7 million or 4.1% from the $16.6 million in 1995. The average
interest-earning assets were $185.1 million in 1997, an increase of $2.1
million, or 1.2% from the $183.0 million in 1996. The average interest-earning
assets in 1996 increased $6.3 million or 3.6% from the $176.7 million in 1995.
The average yield increased in 1997 by 0.4% over 1996 and decreased in 1996 by
0.7% from 1995. The increase in interest income in 1997 resulted from a larger
average interest-earning assets and a generally higher short-term interest rate
environment. A lower general interest rate environment existed in 1996.
Interest income on loans was $13.7 million in 1997, an increase of $2.0
million or 16.9% from the $11.7 million in 1996. Total interest income on loans
in 1996 decreased $1.2 million or 9.6% from the $13.0 million in 1995. The
increase in 1997 resulted from the increase in the average loan portfolio during
1997 in spite of lower long-term interest rates as compared to 1996. The
average loan portfolio was $129.6 million in 1997, an increase of $21.3 million
or 19.6% from the $108.3 million in 1996. The yield on the loan portfolio was
10.6% in 1997, a decrease of 0.2% from the 10.8% in 1996. The average loan
portfolio in 1996 decreased $4.9 million or 4.3% from the $113.2 million in
1995. The increase in the average loan portfolio resulted from increased loan
demand during 1997 over 1996. The yield on loans changes with the movements in
the prime rate as approximately 72% of the loan portfolio are based on variable
rates.
Interest income on securities was $1.6 million in 1997, a decrease of $1.0
million or 40.1% from the $2.6 million in 1996. Interest income on securities
in 1996 increased $0.1 million or 6.3% from the $2.5 million in 1995. The
decrease in interest income on securities in 1997 resulted from the decrease in
the average investment securities portfolio. The average balance of securities
was $26.1 million in 1997, a decrease of $18.8 million or 41.8% from the $44.9
million in 1996. The yield on securities was 6.0% in 1997, an increase of 0.2%
from the 5.8% in 1996. The increase in interest income from securities in 1996
resulted from the slight increase in the average balance of securities and
slightly higher yields. The average balance of securities in 1996 increased
$1.9 million or 4.3% from the $43.1 million in 1995. The yield on securities
increased 0.1% in 1996 from 1995.
Interest income on federal funds sold remained constant at $1.6 million in
1997 and 1996. Interest income on federal funds sold in 1996 increased $0.4
million or 35.7% from the $1.1 million in 1995. The interest income on federal
funds sold remaining constant resulted from a decrease in the average balance of
federal funds sold and offset by a slight yield increase in 1997. The average
balance in federal funds sold was $29.4 million in 1997, a decrease of $0.4
million or 1.2% from the $29.7 million in 1996. The yield on federal funds sold
was 5.4% in 1997, an increase of 0.2% from the 5.2% in 1996. The increase in
1996 was due to increased average balances from 1995. The average balance in
federal funds sold in 1996 increased by $9.4 million or 45.9% from the $20.4
million in 1995.
Interest expense was $3.4 million in 1997, a decrease of $0.1 million or
4.7% from the $3.5 million in 1996. The decrease resulted from a decrease in
interest-bearing deposits in spite of a very slight increase in deposit rates.
The average interest-bearing deposits were $122.8 million in 1997, a decrease of
$7.2 million or 5.5% from the $130.0 million in 1996. The average rate paid on
such deposits was 2.7% in 1997, an increase of 0.02% in 1997. Interest was $3.5
million in 1996, an increase of $0.4 million or 12.0% from the $3.1 million in
1995. The 1996 increase resulted from an increase in the average rate paid and
the average interest-bearing deposits. The rate increase in 1996 was 0.20% over
the 2.5% in 1995. The average interest-bearing deposits in 1996 increased $4.8
million or 3.8% from the $125.2 million in 1995.
The provision for credit losses was $140,000, $205,000 and $320,000 in 1997,
1996 and 1995, respectively. The decreased provision in 1997 from 1996 and 1995
reflect a higher quality loan portfolio resulting from an improved local economy
in Orange County. The Company also experienced increased recoveries in 1997 on
amounts previously charged-off. These recoveries offset the need for additional
provision. Management believes that the current allowance for credit losses is
adequate to provide for potential losses in the portfolio. The current local
economic outlook for 1998 is promising. However, assurance cannot be made as to
its realization and, accordingly, future provisions for credit losses cannot be
estimated at this time. See Note 1 in the Notes to Consolidated Financial
Statements.
Other income was $3.7 million in 1997, an increase of $1.0 million or 36.6%
from the $2.7 million in 1996. The 1997 increase resulted from increased gains
on the sale of SBA loans and increased service charges on deposits. Other
income in 1996 decreased $0.1 million or 2.4% from the $2.8 million in 1995.
The 1996 decrease resulted from a decline in gains on loan sales in 1996 as
compared to 1995.
Other expenses were $11.8 million in 1997, an increase of $0.3 million or
2.0% from the $11.5 million in 1996. Other expenses in 1996 decreased $0.7
million or 5.3% from the $12.2 million in 1995. The 1996 decrease resulted from
lower FDIC insurance costs and lower other real estate owned expenses.
Provision for income taxes was $2.1 million in 1997, an increase of $1.0
million or 84.6% from the $1.1 million in 1996. The 1997 increase results from
the Company income tax provision computed at the full tax rate on higher pretax
earnings, without a reduction of the valuation allowance on the deferred tax
asset. The pretax earnings were $5.3 million in 1997, an increase of $2.0
million or 58.7% from the $3.3 million in 1996. A reduction of the valuation
allowance on the deferred tax asset lowered the fully taxable amount $0.2
million in 1996. The provision for income taxes in 1996 decreased $0.1 million
or 3.7% from the $1.2 million in 1995. The decrease in 1996 resulted from lower
pretax earnings and a smaller reduction of the Company's valuation allowance on
the deferred tax asset. The deferred tax asset valuation reduction in 1996
decreased $0.3 million from the $0.5 million in 1995. In 1996 and 1995,
management determined that portions of the valuation allowance were no longer
necessary as the deferred tax assets are considered to be more likely than not
to be realized. Accordingly, the provision for income taxes is less than the
amount computed at the federal statutory rate in 1996 and 1995. See Note 8 in
the Notes to Consolidated Financial Statements. The provisions in FASB
Statement No. 109 and the effect of alternative minimum tax have the potential
for producing, under certain conditions, significant distortions in future
income tax provisions and the effective tax rate.
Net earnings were $3.2 million in 1997, an increase $1.0 million or 45.3%
from the $2.2 million in 1996. The increase in 1997 resulted from increased
interest income of $1.0 million and gains on sales of loans of $0.8 million, and
offset by increases in taxes of $1.0 million. The decrease in 1996 resulted
from decreased interest income of $1.0 million, increase interest expense of
$0.4 million and offset by reductions in other expenses of $0.7 million. While
management is optimistic about the future, the effects of current economic
conditions on the collectibility of loans cannot be predicted with absolute
certainty and its effects on future profitability cannot be determined.
Off-Balance Sheet Analysis
The contractual amounts associated with certain financial transactions are
not recorded as assets or liabilities on the balance sheet. Off-balance sheet
treatment is generally considered appropriate either where exchange of the
underlying asset or liability has not occurred or is not assured, or where
contractual amounts are used solely to determine cash flows to be exchanged.
The Company's off-balance sheet financial instruments consist of commitments
to extend credit and standby letters of credit. A majority of these commitments
are with variable interest rates. Additional information about off-balance
sheet financial instruments is provided in Note 9 of Notes to Consolidated
Financial Statements.
Interest Rate Sensitivity
The Company uses asset liability management on its balance sheet to minimize
the exposure of interest rate movements on its net interest income. The
principal function of asset liability management is to manage the interest rate
risk in the balance sheet by maintaining a proper balance, match and mix between
rate-sensitive interest-earning assets and rate-sensitive interest-bearing
liabilities. The term "rate-sensitive" refers to those assets and liabilities
that are "sensitive" to fluctuations in interest rates. When interest rates
fluctuate, earnings may be affected in many ways as the interest rates of assets
and liabilities change at different times or by different amounts.
The Company minimizes its interest rate risk in the balance sheet by
emphasizing the origination of variable interest rate loans that have the
ability to reprice overnight and maintaining a high volume of federal funds sold
to offset the deposits that may potentially reprice overnight.
A repricing gap is the difference between total interest-earning assets and
total interest-bearing liabilities available for repricing during a given time
interval. A positive repricing gap exists when total interest-earning assets
exceed total interest-bearing liabilities within a repricing period and a
negative repricing gap exists when total interest-bearing liabilities are in
excess of interest-earning assets within a repricing period.
Generally, a positive repricing gap increases net interest income in a
rising rate environment and decreases net interest income in a falling rate
environment. A positive repricing gap may increase net interest income in a
falling rate environment depending on the amount of the excess repricing gap and
extent of the drop in interest rates. A negative repricing gap tends to
increase net interest income in a falling rate environment and decrease net
interest income in a rising rate environment. The net interest income of the
Company will benefit from a rising rate environment based on the positive
repricing gap.
The following table displays the repricing period for interest-earning
assets and interest-bearing liabilities and the related repricing gap as of
December 31, 1997:
After one
Due within Due within but within After
0-3 months 4-12 months five years five years
(dollars in thousands)
Interest-earning assets (1) $147,999 $ 3,152 $25,034 $23,821
Interest-bearing liabilities 118,397 6,035 1,191 -
Repricing gap 29,602 (2,883) 23,843 23,821
Cumulative repricing gap $ 29,602 $26,719 $50,562 $74,383
Cumulative gap as a percent of
earning assets 14.8% 13.4% 25.3% 37.2%
(1) Includes collateralized mortgage obligations in the one-year to five-year
maturities based on the average expected lives.
The Company had available-for-sale securities of $9.1 million recorded at
market value as of December 31, 1997. The available-for-sale securities consist
of medium-term government agency notes. The Company also had held-to-maturity
securities of $9.0 million recorded at amortized cost as of December 31, 1997.
The held-to-maturity securities are collateralized mortgage obligations that may
be repaid without penalties. The value of these securities is subject to
fluctuation based upon current long-term interest rates.
The Company had $148.0 million of interest-earning assets and $102.9 million
of interest-bearing demand and savings deposits as of December 31, 1997 that are
able to reprice overnight.
The estimated effect on net interest income for a 10% decrease from
prevailing interest rates over a one-year period would be a decline of
approximately $1.0 million.
Impact of Inflation and Changing Prices
The financial statements and related data presented herein have been
prepared in accordance with generally accepted accounting principles, which
require the measurement of financial position and operating results in terms of
historical dollars without considering changes in the relative purchasing power
of money over time due to inflation.
Unlike most industrial companies, virtually all of the assets and
liabilities of a financial institution are monetary in nature. As a result,
interest rates have a more significant impact on a financial institution's
performance than the effects of general levels of inflation. Interest rates do
not necessarily move in the same direction or in the same magnitude as the price
of goods and services. In the current interest rate environment, the liquidity
and the maturity structure of the Company's assets and liabilities are critical
to the maintenance of acceptable performance levels.
Year 2000 Issue
The Company is currently conducting a comprehensive review of its computer,
including third-party vendors, and environmental systems to identify the systems
that could be affected by the "Year 2000" issue and is developing an
implementation and monitoring plan to resolve the issue. The Year 2000 is the
result of computer programs being written using two digits (rather than four) to
define the applicable year. Any of the vendor programs that have time-sensitive
software may recognize a date using "00" as the year 1900 rather than the year
2000. This could result in a major system failure or miscalculations. The
Company presently believes that, with modifications to existing vendor software
and upgrading to new software packages, the Year 2000 problem will not pose
significant operational problems for the Company's computer systems as so
modified and converted. The Company also believes the costs of these
modifications and upgrading will not have a material adverse impact on its
results of operations. However, if such modifications and upgrades are not
completed timely, the Year 2000 may have a material impact on the operations of
the Company.
Effect of FASB Statements
During 1997, the Company adopted Statement of Financial Accounting Standards
No. 128, "Earnings Per Share" ("SFAS 128"), which supersedes APB Opinion No. 15.
SFAS 128 requires the presentation of earnings per share by all entities that
have common stock or potential common stock, such as options, warrants and
convertible securities outstanding that trade in a public market. The Company
is required to present basic and diluted earnings per share amounts. Diluted
per share amounts assume the conversion, exercise or issuance of all potential
common instruments unless the effect is to reduce a loss or increase the
earnings per common share from continuing operations. The Company initially
adopted SFAS 128 for its annual and interim periods ended December 31, 1997.
The reported earnings per share for 1996 and 1995 have been restated to conform
to SFAS 128. The weighted-average shares outstanding used to compute dilutive
earnings per share included incremental shares from options of 38,365; 7,658;
and 9,674 for the years ended December 31, 1997, 1996 and 1995, respectively.
In June 1997, FASB issued Statement of Financial Accounting Standards No.
130, "Reporting Comprehensive Income" ("SFAS 130"). SFAS 130 requires an entity
to include a statement of comprehensive income in its full set of general-
purpose financial statements. Comprehensive income consists of the net earnings
or loss of the entity plus or minus the change in equity of the entity during
the period from transactions, other events, and circumstances resulting from
non-owner sources. SFAS 130 is effective for years beginning after December 15,
1997 and will require statements of comprehensive income for earlier years to be
presented for comparative purposes.
In June 1997, FASB issued Statement of Financial Accounting Standards No.
131, "Disclosures About Segments of an Enterprise and Related Information"
("SFAS 131"). SFAS 131 requires a publicly-held entity to disclose financial
and descriptive information about all of its operating segments. SFAS 131 will
require disclosure of net earnings or loss, certain specific revenue and expense
items, and assets for each segment presented and disclosure of a reconciliation
of this information with the corresponding amounts recognized in the financial
statements of the entity. SFAS 131 will also require disclosure of other
pertinent segment information, including the products and services provided by
its operating segments and the method by which the operating segments were
determined. SFAS 131 is effective for years beginning after December 15, 1997
and will require comparative information of earlier years presented to be
restated. The Company has not determined if the adoption of SFAS 131 will
require it to report segment information.
Management does not believe the application of the Statements to
transactions of the Bank that have been typical in the past will materially
affect the Bank's financial position and results of operations.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The consolidated financial statements of the Company follow on pages
F-1 to F-24. The Independent Auditor's Report is set forth on Page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURES
None
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
For information concerning the directors and executive officers of
the Bancorp, see "Election of Directors" included in the Bancorp's
definitive proxy statement ("Proxy Statement"), which information is
incorporated by reference. The Proxy Statement will be filed with the
SEC within the time period specified by General Instruction G to Form
10-K.
ITEM 11. EXECUTIVE COMPENSATION
For information concerning management remuneration, see "Executive
Compensation" included in the Proxy Statement, which information is
incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
For information concerning security ownership of beneficial owners
and management, see "Stock Ownership of Certain Beneficial Owners and
Management" included in the Proxy Statement, which information is
incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
For information concerning related party transactions, see "Certain
Transactions" included in the Proxy Statement, which information is
incorporated herein by reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
The following financial statements of the Company and subsidiary are
included in this Form 10-K. Page number references follow:
Independent auditor's report F-1
Consolidated balance sheets as of December 31, 1997 and 1996 F-2
Consolidated statements of earnings for the three years ended
December 31, 1997 F-3
Consolidated statements of stockholders' equity for the three years
ended December 31, 1997 F-4
Consolidated statements of cash flows for the three years ended
December 31, 1997 F-5
Notes to consolidated financial statements F-6 to F-24
Schedules
All schedules are omitted as the information is not required, is not
material, or is otherwise furnished.
Exhibits
See Index to exhibits at Page 39 of this Form 10-K
Reports on Form 8-K
The Company did not file reports on Form 8-K during the quarter
ended December 31, 1997.
Signatures
Pursuant to the requirements of Section 13 or 25(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
ORANGE NATIONAL BANCORP
By: /s/ KENNETH J. COSGROVE Date: MARCH 18, 1998
Kenneth J. Cosgrove, President
and Chief Executive Officer
By: /s/ ROBERT W. CREIGHTON Date: MARCH 18, 1998
Robert W. Creighton, Secretary
and Chief Financial Officer
By: /s/ JERRO M. OTSUKI Date: MARCH 18, 1998
Jerro M. Otsuki, Vice President
and Controller
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant in the capacities and on the dates indicated.
ORANGE NATIONAL BANCORP
/s/ MICHAEL W. ABDALLA MARCH 18, 1998
Michael W. Abdalla Date
Director
/s/ MICHAEL J. CHRISTIANSON MARCH 18, 1998
Michael J. Christianson Date
Director
/s/ KENNETH J. COSGROVE MARCH 18, 1998
Kenneth J. Cosgrove Date
Director
/s/ ROBERT W. CREIGHTON MARCH 18, 1998
Robert W. Creighton Date
Director
/s/ CHARLES R. FOUGLER MARCH 18, 1998
Charles R. Foulger Date
Director
/s/ GERALD R. HOLTE MARCH 18, 1998
Gerald R. Holte Date
Director
/s/ JAMES E. MAHONEY MARCH 18, 1998
James E. Mahoney Date
Director
/s/ WAYNE F. MILLER MARCH 18, 1998
Wayne F. Miller Date
Director
/s/ SAN E. VACCARO MARCH 18, 1998
San E. Vaccaro Date
Director
INDEX TO EXHIBITS
Exhibit No.
3.1 Registrant's Articles of Incorporation - filed as exhibit 3 to the
Registrant's Registration Statement on Form S-4, File No. 33-8743, and
are hereby incorporated by reference.
3.2 Registrant's Bylaws - filed as exhibit 3.1 to the Registrant's
Registration Statement on Form S-1, File No. 33-13162, are hereby
incorporated by reference.
10.1 Material contracts of the Bank were each filed as exhibits 10, 10.1,
10.3, 10.4, and 10.5 to the Registrant's Registration Statement on Form
S-4, File No. 33-8743, and are hereby incorporated by reference.
10.6 Lease of Bank premises located at 1800 West Katella Avenue, Orange,
California.
10.7 Lease of Bank premises located at 7510 East Chapman Avenue, Orange,
California.
10.8 Lease of Bank premises located at 800 Glenneyre, Laguna Beach,
California.
10.9 Lease of Bank premises located at 25255 Cabot Road, Laguna Hills,
California.
10.10 Lease of Bank premises located at 1249 East Katella Avenue, Orange,
California.
10.11 Deferred fee agreement of the Bank with Kenneth J. Cosgrove.
10.12 Deferred fee agreement of the Bank with Robert W. Creighton.
10.13 Deferred fee agreement of the Bank with Charles R. Fougler.
10.14 Deferred fee agreement of the Bank with San E. Vaccaro.
10.15 Deferred fee agreement of the Bank with James E. Mahoney.
10.16 Deferred fee agreement of the Bank with Gerald R. Holte.
10.17 Salary continuation agreement of the Bank with Kenneth J. Cosgrove.
10.18 Salary continuation agreement of the Bank with Robert W. Creighton.
10.19 Deferred compensation agreement of the Bank with Kenneth J. Cosgrove.
10.20 Employment contract of the Bank with Kenneth J. Cosgrove.
10.21 Employment contract of the Bank with Robert W. Creighton.
10.22 Employment contract of the Bank with Frank A. DelGiorgio.
21 Subsidiary of the Registrant - Orange National Bank, a National Banking
Association.
23 Consent of Independent Accountants, page 40.
27 Financial Data Schedule.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
To The Board of Directors
Orange National Bancorp
Orange, California
We hereby consent to the incorporation by reference in the Registration
Statement on Forms S-8, dated August 20, 1993, and January 22, 1998, of Orange
National Bancorp of our report dated January 16, 1998, appearing in Item 8 in
this Annual Report on Form 10-K.
McGLADREY & PULLEN, LLP
Anaheim, California
March 18, 1998
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors
Orange National Bancorp
Orange, California
We have audited the accompanying consolidated balance sheets of Orange National
Bancorp and subsidiary as of December 31, 1997 and 1996, and the related
consolidated statements of earnings, stockholders' equity and cash flows for
each of the three years in the period ended December 31, 1997. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Orange National
Bancorp and subsidiary as of December 31, 1997 and 1996, and the results of
their operations and their cash flows for each of the three years in the period
ended December 31, 1997, in conformity with generally accepted accounting
principles.
As described more fully in Note 1 to the consolidated financial statements, the
Company changed its definition of cash and cash equivalents during the year
ended December 31, 1997.
McGLADREY & PULLEN, LLP
Anaheim, California
January 16, 1998
ORANGE NATIONAL BANCORP
CONSOLIDATED BALANCE SHEETS
December 31, 1997 and 1996
1997 1996
(dollars in thousands)
Assets
Cash and cash equivalents (Note 2): $ 81,147 $ 46,436
Securities (Note 3):
Held-to-maturity securities (fair value
of $8,972 in 1997
and $10,844 in 1996) 9,037 10,937
Available-for-sale securities 9,146 29,073
Loans, net of allowance for credit losses
of $1,581 in 1997
and $1,369 in 1996 (Notes 4, 5 and 12) 131,189 118,991
Premises and equipment, net (Note 6) 5,057 5,213
Other real estate owned, net (Note 5) 126 2,446
Accrued interest receivable 985 1,352
Cash value of life insurance 4,808 3,717
Other assets (Note 8) 784 680
$242,279 $218,845
Liabilities
Deposits (Note 7) $218,792 $198,364
Accrued interest payable and other liabilities 1,901 1,525
Total liabilities 220,693 199,889
Commitments and Contingencies (Notes 10 and 11) - -
Stockholders' Equity (Notes 10, 11 and 13)
Common stock, no par value or stated value;
authorized 20,000,000 shares; issued and
outstanding 1,970,046 in 1997
and 1,952,671 in 1996 7,864 7,676
Retained earnings 13,778 11,403
Unrealized (loss) on available-for-sale
securities, net (Note 3) (56) (123)
Total stockholders' equity 21,586 18,956
$242,279 $218,845
See Notes to Consolidated Financial Statements.
ORANGE NATIONAL BANCORP
CONSOLIDATED STATEMENTS OF EARNINGS
Years Ended December 31, 1997, 1996 and 1995
1997 1996 1995
(in thousands, except per share data)
Interest Income
Loans $13,686 $11,712 $12,954
Securities 1,573 2,627 2,471
Federal funds sold 1,598 1,555 1,146
Total interest income 16,857 15,894 16,571
Interest Expense, deposits 3,353 3,519 3,141
Net interest income 13,504 12,375 13,430
Provision for Credit Losses (Note 5) 140 205 320
Net interest income after
provision for credit losses 13,364 12,170 13,110
Other Income (Note 9) 3,707 2,713 2,781
Other Expenses (Notes 9 and 10) 11,776 11,547 12,188
Earnings before income taxes 5,295 3,336 3,703
Provision for Income Taxes (Note 8) 2,097 1,135 1,179
Net earnings (Note 11) $ 3,198 $ 2,201 $ 2,524
Basic earnings per share $ 1.63 $ 1.13 $ 1.31
Weighted average number of common shares
outstanding (in thousands) 1,961 1,944 1,932
Diluted earnings per share $ 1.60 $ 1.13 $ 1.30
Weighted average number of common shares
and diluted potential
common shares (in thousands) 2,000 1,951 1,941
See Notes to Consolidated Financial Statements.
ORANGE NATIONAL BANCORP
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Years Ended December 31, 1997, 1996 and 1995
Unrealized
Gain (Loss)
Available-
Common Stock Retained For-Sale
Shares Amount Earnings Securities Total
(in thousands, except share data)
Balance, December 31, 1994 1,839 $6,848 $8,514 $(580) $14,782
Net earnings - - 2,524 - 2,524
Cash dividend paid ($.25 per share) - - (474) - (474)
Stock dividend paid (5% per share) 92 644 (644) - -
Exercise of stock options 3 18 - - 18
Net change in unrealized (loss)
on available-for-sale
securities (Note 3) - - - 411 411
Balance, December 31, 1995 1,934 7,510 9,920 (169) 17,261
Net earnings - - 2,201 - 2,201
Cash dividend paid ($.37 per share) - - (718) - (718)
Exercise of stock options 19 166 - - 166
Net change in unrealized gain
(loss) on available-for-sale
securities (Note 3) - - - 46 46
Balance, December 31, 1996 1,953 7,676 11,403 (123) 18,956
Net earnings - - 3,198 - 3,198
Cash dividend paid ($.42 per share) - - (823) - (823)
Exercise of stock options 17 188 - - 188
Net change in unrealized gain
(loss) on available-for-sale
securities (Note 3) - - - 67 67
Balance, December 31, 1997 1,970 $7,864 $13,778 $(56) $21,586
See Notes to Consolidated Financial Statements.
ORANGE NATIONAL BANCORP
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years Ended December 31, 1997, 1996 and 1995
1997 1996 1995
(dollars in thousands)
Cash Flows from Operating Activities
Net earnings $ 3,198 $ 2,201 $ 2,524
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Depreciation and amortization 504 537 535
Provision for credit losses 140 205 320
Deferred income taxes (benefits) (111) (78) (309)
(Gain) on sale of loans (1,374) (560) (755)
Provision for losses on other real estate owned 11 160 304
Proceeds from loan sales 19,264 5,984 5,429
Origination of loans held for sale (17,890) (5,424) (4,674)
(Increase) decrease in other assets 374 (615) 287
Gain on cash value of life insurance (219) (183) (23)
Increase in other liabilities 376 435 399
Net cash provided by operating activities 4,273 2,662 4,037
Cash Flows from Investing Activities
Proceeds from maturities of
held-to-maturity securities 1,909 1,542 4,400
Purchase of available-for-sale securities - (38,482) (16,884)
Proceeds from sales and maturities of
available-for-sale securities 19,986 36,565 14,748
Net increase in loans made to customers (11,460) (7,274) (3,262)
Purchase of life insurance policies (872) - (3,515)
Proceeds from sale of other real estate owned 1,431 1,396 841
Purchases of bank premises and equipment (349) (223) (675)
Net cash provided by (used in)
investing activities 10,645 (6,476) (4,347)
Cash Flows from Financing Activities
Net increase (decrease) in deposits 20,428 9,372 (1,414)
Proceeds from exercise of stock options 188 166 18
Dividends paid (823) (718) (474)
Net cash provided by (used in)
financing activities 19,793 8,820 (1,870)
Increase (decrease) in cash and cash equivalents 34,711 5,006 (2,180)
Cash and cash equivalents at beginning of year 46,436 41,430 43,610
Cash and cash equivalents at end of year $81,147 $46,436 $41,430
See Notes to Consolidated Financial Statements.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Summary of Significant Accounting Policies
Principles of consolidation and basis of presentation
The consolidated financial statements include the accounts of Orange
National Bancorp and its wholly-owned subsidiary Orange National Bank ("Bank").
These entities are collectively referred to herein as the Company. The Bank
provides a full range of banking services to its commercial and consumer
customers through six branches located in Orange County, California. All
significant intercompany balances and transactions have been eliminated in
consolidation. Certain amounts in prior years' financial statements have been
reclassified to conform to the current presentation.
Use of estimates in the preparation of financial statements
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosures of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Cash and cash equivalents
In prior years, the Company had included cash on hand, cash due from banks
and time deposits in its definition of cash and cash equivalents for purposes of
balance sheet presentation and reporting the statement of cash flows. During
the year ended December 31, 1997, the Company changed its definition of cash and
cash equivalents to also include federal funds sold. This change in definition
was made to report the statement of cash flows on a basis consistent with the
Company's cash management policy. As required by generally accepted accounting
principles, the prior year's balance sheet and statements of cash flows have
been restated to conform to the new definition of cash and cash equivalents. In
those prior statements, federal funds sold were reported separately in the
balance sheet and in the investing activities in the statements of cash flows.
Held-to-maturity securities
Securities classified as held-to-maturity are those debt securities the
Company has both the intent and ability to hold to maturity regardless of
changes in market conditions, liquidity needs or changes in general economic
conditions. These securities are carried at cost adjusted for amortization of
premiums and accretion of discounts, computed using the interest method over
their contractual lives. The sale of a security within three months of its
maturity date or after at least 85% of the principal outstanding has been
collected is considered a maturity for purposes of classification and
disclosure.
Available-for-sale securities
Securities classified as available-for-sale are those debt securities that
the Company intends to hold for an indefinite period of time, but not
necessarily to maturity. Any decision to sell a security classified as
available-for-sale would be based on various factors, including significant
movements in interest rates, changes in the maturity mix of the Company's assets
and liabilities, liquidity needs, regulatory capital considerations, and other
similar factors. Securities available-for-sale are carried at fair value.
Unrealized gains or losses, net of the related deferred tax effect, are reported
as increases or decreases in stockholders' equity. Realized gains or losses,
computed using the cost of the specific securities sold, are included in
earnings.
Securities transfers
Transfers of debt securities into the held-to-maturity classification from
the available-for-sale classification are made at fair value on the date of
transfer. The unrealized holding gains or losses on the date of transfer are
retained as a separate component of stockholders' equity and in the carrying
value of the held-to-maturity securities. Such amounts are amortized over the
remaining contractual lives of the securities using the interest method.
Loans
Loans are stated at the amount of unpaid principal reduced by undisbursed
loan funds, unearned loan fees and allowance for credit losses. Interest on
loans is accrued as earned using the simple-interest method on principal amounts
outstanding, only if deemed collectible. Loan origination and commitment fees
together with certain direct loan origination costs are deferred, and the net
deferral amount is amortized as an adjustment to the yield on loans over their
contractual lives. Collateral is obtained on substantially all loans. Such
collateral is primarily first trust deeds on property.
The accrual of interest on loans is discontinued when, in management's
opinion, the borrower may be unable to meet payments as they become due,
generally at 90 days past due. When an interest accrual is discontinued, all
unpaid accrued interest is reversed. Generally, interest income is not
subsequently recognized until all principal and interest amounts are received,
and future principal and interest payments are expected to be collected.
A loan is impaired when it is probable the creditor will be unable to
collect all contractual principal and interest payments due in accordance with
the terms of the loan agreement. Impaired loans are measured based on the
present value of expected future cash flows discounted at the loan's effective
interest rate or, as a practical expedient, at the loan's observable market
price or the fair value of the collateral if the loan is collateral dependent.
The amount of impairment, if any, and any subsequent changes are included in the
allowance for credit losses.
Allowance for credit losses
The allowance for credit losses is established through a provision for
credit losses charged to expense. Loans are charged against the allowance for
credit losses when management believes that collectibility of the principal is
unlikely. The allowance is an amount that management believes will be adequate
to absorb estimated losses on existing loans that may become uncollectible,
based on evaluation of the collectibility of loans and prior loan loss
experience. This evaluation also takes into consideration such factors as
changes in the nature and volume of the loan portfolio, overall portfolio
quality, review of specific problem loans, and current economic conditions that
may affect the borrower's ability to pay. While management uses the best
information available to make its evaluation, future adjustments to the
allowance may be necessary if there are significant changes in economic or other
conditions. In addition, the Office of the Comptroller of the Currency, as an
integral part of their examination process, periodically reviews the Company's
allowance for credit losses, and may require the Company to make additions to
the allowance based on their judgment about information available to them at the
time of their examinations.
Sale of loans
The Company sells the guaranteed portion of small business administration
loans in the secondary market to provide funds for additional lending and to
generate servicing income. Under such agreements, the Company continues to
service the loans and the buyer receives the principal collected together with
interest. Loans held for sale are valued at the lower of cost or market value.
Gains and losses on sales of loans are calculated on a predetermined formula
in compliance with Statement of Financial Standards No. 125, "Accounting for
Transfers and Servicing of Financial Assets and Extinguishment of Liabilities"
("SFAS 125") based on the difference between the selling price and the book
value of the loans sold. Any inherent risk of loss on loans is transferred to
the buyer at the date of sale on the portion of the loan sold. However, the
Company maintains the risk on the portion retained.
The Company has issued various representations and warranties associated
with the sale of loans. These representations and warranties may require the
Company to repurchase loans for a period of 90 days after the date of sale as
defined per the applicable sales agreement. The Company did not experience
losses during the years ended December 31, 1997 and 1996 regarding these
representations and warranties.
Premises and equipment
Premises and equipment are stated at cost less accumulated depreciation and
amortization. Depreciation is computed using the straight-line method over the
following estimated useful lives: Buildings and leasehold improvements - 4 to
28 years; furniture and equipment - 3 to 10 years. Improvements to leased
property are amortized over the lesser of the term of the lease or life of the
improvements.
Other real estate owned
Other real estate owned ("OREO") represents properties acquired through
foreclosure or other proceedings. OREO is held for sale and is recorded at the
lower of the carrying amounts of the related loans or the estimated fair value
of the properties less estimated costs of disposal. Any write-down to estimated
fair value less cost to sell at the time of transfer to OREO is charged to the
allowance for credit losses. Properties are evaluated regularly by management
with any further reductions of the carrying amount to the estimated fair value
less estimated costs to dispose charged to the reserve for OREO losses as
necessary. Depreciation is recorded on each OREO after such properties have
been owned for one year. Depreciation and additions to or reductions from
valuation allowances are recorded in income.
Income taxes
Deferred taxes are provided on an asset and liability method whereby
deferred tax assets are recognized for deductible temporary differences and
operating loss and tax credit carryforwards, and deferred tax liabilities are
recognized for taxable temporary differences. Temporary differences are the
differences between the reported amounts of assets and liabilities and their tax
bases. Deferred tax assets are reduced by a valuation allowance when management
determines that it is more likely than not that some portion or all of the
deferred tax assets will not be realized. Deferred tax assets and liabilities
are adjusted for the effects of changes in tax laws and rates on the date of
enactment.
Stock-based compensation
The Company has adopted Statement of Financial Accounting Standards No. 123
"Accounting for Stock-Based Compensation" ("SFAS 123"), as of January 1, 1996.
SFAS 123 establishes financial accounting and reporting standards for stock-
based compensation plans. The Company has elected to continue accounting for
stock-based employee compensation plans in accordance with Accounting Principles
Board Opinion No. 25, "Accounting for Stock Issued to Employees" and related
Interpretations, as SFAS 123 permits, and to follow the pro forma net earnings,
pro forma earnings per share, and stock-based compensation plan disclosure
requirements set forth in SFAS 123.
Earnings per share
During 1997, the Company adopted Statement of Financial Accounting Standards
No. 128, "Earnings Per Share" ("SFAS 128"), which supersedes APB Opinion No. 15.
SFAS 128 requires the presentation of earnings per share by all entities that
have common stock or potential common stock, such as options, warrants and
convertible securities outstanding that trade in a public market. The Company
is required to present basic and diluted earnings per share amounts. Diluted
per share amounts assume the conversion, exercise or issuance of all potential
common instruments unless the effect is to reduce a loss or increase the
earnings per common share from continuing operations. The Company initially
adopted SFAS 128 for its annual and interim periods ended December 31, 1997.
The reported earnings per share for 1996 and 1995 have been restated to conform
to SFAS 128. The weighted-average shares outstanding used to compute dilutive
earnings per share included incremental shares from options of 38,365; 7,658;
and 9,674 for the years ended December 31, 1997, 1996 and 1995, respectively.
Current accounting developments
In June 1997, FASB issued Statement of Financial Accounting Standards No.
130, "Reporting Comprehensive Income" ("SFAS 130"). SFAS 130 requires an entity
to include a statement of comprehensive income in its full set of general-
purpose financial statements. Comprehensive income consists of the net earnings
or loss of the entity plus or minus the change in equity of the entity during
the period from transactions, other events, and circumstances resulting from
non-owner sources. SFAS 130 is effective for years beginning after December 15,
1997 and will require statements of comprehensive income for earlier years to be
presented for comparative purposes.
In June 1997, FASB issued Statement of Financial Accounting Standards No.
131, "Disclosures About Segments of an Enterprise and Related Information"
("SFAS 131"). SFAS 131 requires a publicly-held entity to disclose financial
and descriptive information about all of its operating segments. SFAS 131 will
require disclosure of net earnings or loss, certain specific revenue and expense
items, and assets for each segment presented and disclosure of a reconciliation
of this information with the corresponding amounts recognized in the financial
statements of the entity. SFAS 131 will also require disclosure of other
pertinent segment information, including the products and services provided by
its operating segments and the method by which the operating segments were
determined. SFAS 131 is effective for years beginning after December 15, 1997
and will require comparative information of earlier years presented to be
restated. The Company has not determined if the adoption of SFAS 131 will
require it to report segment information.
Note 2. Cash and cash equivalents
Cash and cash equivalents consisted of the following as of December 31:
1997 1996
(dollars in thousands)
Cash on hand $ 1,827 $ 1,330
Cash due from banks 27,820 18,206
Time deposits - 100
Federal funds sold 51,500 26,800
$81,147 $46,436
The Company maintains amounts due from banks that exceed federally insured
limits. In addition, federal funds sold were placed with two financial
institutions. The Company has not experienced any losses in such accounts.
The Company is required to maintain a reserve balance in cash or on deposit
with the Federal Reserve Bank. The required and actual reserve balances
maintained were $4,973,000 and $6,962,000 as of December 31, 1997, respectively.
Note 3. Securities
Carrying amounts and fair values of held-to-maturity securities are
summarized as follows as of December 31:
Amortized Unrealized Unrealized Fair
Cost Gains Losses Values
(dollars in thousands)
1997
Mortgage-backed securities $9,037 $ - $(65) $8,972
1996
Mortgage-backed securities $10,937 $ - $(93) $10,844
Held-to-maturity securities pledged as collateral on public deposits and
treasury, tax and loan payments had a carrying amount of $5,748,000 and
$4,004,000 at December 31, 1997 and 1996, respectively.
Carrying amounts and fair values of available-for-sale securities are
summarized as follows as of December 31:
Amortized Unrealized Unrealized Fair
Cost Gains Losses Values
(dollars in thousands)
1997
U.S. Treasury securities
and obligations
of other U.S. Government
corporations and agencies $8,992 $11 $(27) $8,976
Other 170 - - 170
$9,162 $11 $(27) $9,146
1996
U.S. Treasury securities
and obligations
of other U.S. Government
corporations and agencies $28,992 $44 $(137) $28,899
Other 174 - - 174
$29,166 $44 $(137) $29,073
The amortized cost and fair value of investment securities by contractual
maturities as of December 31, 1997 are shown below. Maturities may differ from
contractual maturities in mortgage-backed securities because the mortgages
underlying the securities may be called or prepaid without any penalties.
Therefore, these securities are not included in the following maturity summary:
Held-to-Maturity Available-for-Sale
Amortized Fair Amortized Fair
Cost Value Cost Value
(dollars in thousands)
Due in one year or less $ - $ - $1,000 $ 993
Due after one year through five years - - 3,996 3,991
Due in six years through ten years - - 1,000 1,001
Due after ten years - - 2,996 2,991
Mortgage-backed securities 9,037 8,972 - -
Other - - 170 170
$9,037 $8,972 $9,162 $9,146
Available-for-sale securities of $14,002,000, $20,999,000 and $14,847,000
were sold resulting in gross realized (losses) of $(9,000), $(24,000), and
($20,000) in 1997, 1996 and 1995, respectively.
Note 4. Loans
The Company's loan portfolio consisted of the following as of December 31:
1997 1996
(dollars in thousands)
Real estate loans
Construction $ 118 $ 1,412
Commercial 78,534 64,611
78,652 66,023
Commercial and industrial loans 44,301 44,766
Loans to individuals 10,586 10,256
Other 122 152
133,661 121,197
Deduct
Unearned net loan fees and premiums (891) (837)
Allowance for credit losses (1,581) (1,369)
$131,189 $118,991
Impaired loans
Information about impaired loans is as follows as of and for the years ended
December 31:
1997 1996
(dollars in thousands)
Impaired loans requiring
a related allowance for credit losses $1,067 $ 905
Impaired loans not requiring
a related allowance for credit losses 249 180
Total impaired loans $1,316 $1,085
Related allowance for loan losses $ 278 $ 268
Average balance (based on month-end balances) $1,201 $1,472
Interest income recognized $ 125 $ 140
The Company is not committed to lend additional funds to debtors whose loans
have been modified due to impairment.
The Company had nonaccrual loans of $2,447,000 and $2,464,000 as of December
31, 1997 and 1996, respectively. Interest income that would have been earned on
such nonaccrual loans had such loans performed according to their loan terms
would have been $325,000, $492,000 and $205,000 (earnings per share effect of
$0.17, $0.25 and $0.11) in 1997, 1996 and 1995, respectively. Management
estimates that certain nonaccrual loans, which are not classified as impaired,
will ultimately be collected in full in accordance with the original terms.
Loans serviced
The Company services loans for others totaling $64,764,000 and $53,374,000
as of December 31, 1997 and 1996, respectively, which are not included in the
accompanying consolidated balance sheets.
Loan concentration
The Company grants commercial, residential and consumer loans to customers,
substantially all of whom are middle-market businesses or residents. The
Company's business is concentrated primarily in Orange County, California, and
its loan portfolio includes a significant credit exposure to the real estate
industry and local economy of this area. Real estate loans accounted for
approximately 59% of total loans as of December 31, 1997. Substantially all of
these loans are secured by first liens with an initial loan to value ratio of
generally less than 75%.
Note 5. Allowance for Credit Losses and Reserve for Other Real Estate Owned
Activity of the allowance for credit losses is as follows:
1997 1996 1995
(dollars in thousands)
Balance, beginning $1,369 $1,513 $1,465
Provision for credit losses 140 205 320
Recoveries of amounts charged off 138 38 115
Amounts charged off (66) (387) (387)
Balance, ending $1,581 $1,369 $1,513
Activity of the reserve for other real estate owned is as follows:
1997 1996 1995
(dollars in thousands)
Balance, beginning $252 $301 $ 32
Provision for losses on other real estate owned 11 160 303
Disposal of other real estate owned (246) (209) (34)
Balance, ending $ 17 $252 $301
Note 6. Premises and Equipment, net
Premises and equipment are summarized as follows as of December 31:
1997 1996
(dollars in thousands)
Land $1,100 $1,100
Buildings and leasehold improvements 4,531 4,472
Furniture and equipment 3,449 3,242
9,080 8,814
Less accumulated depreciation and amortization 4,023 3,601
$5,057 $5,213
Note 7. Deposits
Deposits are summarized as follows as of December 31:
1997 1996
(dollars in thousands)
Noninterest-bearing demand $ 93,169 $ 77,829
Interest-bearing:
Demand 91,282 92,176
Savings 11,622 10,935
Time certificates of deposit of $100,000 or more 12,087 8,809
Other time 10,632 8,615
Total deposits $218,792 $198,364
Substantially all certificates of deposit mature within one year as of
December 31, 1997. The Company had five customers with an aggregate deposit of
$28,095,000 as of December 31, 1997.
Note 8. Income Taxes
The cumulative tax effects of the primary temporary differences are shown in
the following table:
1997 1996
(dollars in thousands)
Deferred tax assets
Credit loss allowances $ 407 $ 316
Deferred compensation accruals 278 215
Interest accruals 95 90
Acquired net operating loss carryforward 85 85
Unrealized loss on available-for-sale securities 38 88
Other real estate allowance 7 105
State income taxes 204 136
Total deferred tax assets 1,114 1,035
Deferred tax liability, premises and equipment 696 678
Net deferred tax assets $ 418 $ 357
The Company did not record a valuation allowance on deferred tax assets in
excess of deferred tax liabilities at December 31, 1997 and 1996, as management
believes that the net deferred tax assets, as of December 31, 1997 and 1996, are
more likely than not to be realized.
The provision for income taxes consisted of the following:
1997 1996 1995
(dollars in thousands)
Current tax expense $2,208 $1,213 $1,488
Deferred tax (benefit) (111) (78) (309)
$2,097 $1,135 $1,179
The income tax provision differs from the amount of income tax determined by
applying the U.S. federal income tax rate to pretax income as follows:
1997 1996 1995
(dollars in thousands)
Computed "expected" tax expense $1,853 $1,168 $1,296
Increase (decrease) in income taxes resulting from:
State income taxes, net of federal tax benefit 397 249 278
Change in valuation allowance - (165) (483)
Cash value of life insurance (97) (85) -
Other (56) (32) 88
$2,097 $1,135 $1,179
Note 9. Other income and expense
Other income consisted of the following:
1997 1996 1995
(dollars in thousands)
Service charges on deposit accounts $1,262 $1,169 $1,113
Fees for other customer services 593 616 667
Gain on sale of loans 1,374 560 755
Increase in cash value of life insurance 219 183 -
Other (Note 3) 259 185 246
$3,707 $2,713 $2,781
Other expense consisted of the following:
Salaries, wages and employee benefits $6,259 $6,098 $6,251
Occupancy expense (Note 10) 1,134 1,153 1,104
Data processing expense (Note 10) 888 928 1,070
Furniture and equipment expense 704 633 707
Promotion expense 459 429 468
Legal and professional services 518 627 507
Insurance 241 182 428
Stationery and supplies 216 249 279
Telephone and postage 405 383 374
Other real estate owned (Note 5) 94 217 425
Other 858 648 575
$11,776 $11,547 $12,188
Note 10. Commitments, Contingencies and Subsequent Event
Litigation
In the normal course of business, the Company is involved in various legal
proceedings. In the opinion of management, any liability resulting from such
proceedings would not have a material adverse effect on the consolidated
financial statements.
Financial instruments with off-balance sheet risk
The Company is party to financial instruments with off-balance sheet risk in
the normal course of business to meet the financing needs of its customers.
These financial instruments include commitments to extend credit and standby
letters of credit. They involve, to varying degrees, elements of credit risk in
addition to the amounts recognized on the consolidated balance sheets. Such
financial instruments are recorded on the consolidated balance sheet upon
funding.
The Company's exposure to credit loss in the event of nonperformance by the
other parties to the financial instrument for these commitments is represented
by the contractual amounts of those instruments. The Company uses the same
credit policies in making commitments and conditional obligations as it does for
on-balance sheet instruments.
The Company's exposure to off-balance sheet risk as of December 31 is
summarized as follows:
1997 1996
(dollars in thousands)
Commitments to extend credit $25,087 $26,451
Standby letters of credit 347 1,907
$25,434 $28,358
Commitments to extend credit
Commitments to extend credit are agreements to lend to a customer as long as
there is no violation of any condition established in the contract. Commitments
generally have fixed expiration dates or other termination clauses and may
require payment of a fee. Since many of the commitments are expected to expire
without being drawn upon, the total commitment amounts do not necessarily
represent future cash requirements. The Company evaluates each customer's
creditworthiness on a case-by-case basis. If deemed necessary upon extension of
credit, the amount of collateral obtained is based on management's credit
evaluation of the counterparty. Collateral held varies, but may include accounts
receivable, inventory, property and equipment, and income-producing commercial
properties.
Standby letters of credit
Standby letters of credit are conditional commitments issued by the Company
to guarantee the performance of a customer to a third party. Those guarantees
are primarily issued to support public and private borrowing arrangements. The
credit risk involved in issuing letters of credit is essentially the same as
that involved in extending loan facilities to customers. Collateral held varies
as specified above and is required in instances that the Company deems
necessary. Substantially all of the standby letters of credit were
collateralized at December 31, 1997.
Lease commitments
The Company leases certain branch facilities and equipment from
nonaffiliates under operating leases expiring at various dates through December
2007. The following is a schedule of future minimum rental payments under these
leases:
Amount
(dollars in thousands)
1998 $ 680
1999 634
2000 636
2001 617
2002 643
Thereafter 1,583
$4,793
Rent expense under these leases and other month-to-month leases for the
years ended December 31, 1997, 1996 and 1995, was $824,000, $790,000 and
$771,000, respectively.
Data processing commitment
In March 1995, the Company contracted with a data processing center to
provide computer services through March 2001. The Company is subject to a
penalty in the amount of 25% of the amounts that would have been paid to the
center for the remainder of the contract term, should the Company terminate the
contract prior to the expiration date. The expense under this contract for the
years ended December 31, 1997, 1996 and 1995 was $888,000, $927,000 and
$500,000, respectively.
Subsequent event
In January 1998, the Company declared a $0.35 per share dividend to
stockholders of record as of the close of business on February 11, 1998, payable
on March 2, 1998.
Note 11. Employee Benefit Plans
Stock Option Plans
The Company maintains two compensatory incentive stock option plans in which
options to purchase shares of the Company's common stock are granted at the
Board of Directors' discretion to directors, certain management and other key
personnel. The 1993 and 1997 Plans are authorized to grant a maximum of 193,106
shares and 414,250 shares of the Company's common stock, respectively. Purchase
prices associated with the options are based on the fair market value of the
Company's stock at the time the option is granted. The options, if not
exercised, will expire 5 to 10 years from the date they were granted. Other
pertinent information relating to the Plans follow:
1997 1996 1995
Under option, beginning of year 48,500 62,600 47,500
Granted 176,500 5,000 21,000
Canceled - - (5,500)
Effect of 5% stock dividend - - 2,100
Exercised (17,375) (19,100) (2,500)
Under option, end of year 207,625 48,500 62,600
Options exercisable, end of year 174,775 48,500 62,600
Available to grant, end of year 360,756 123,006 128,006
Weighted average price under
option, end of year $16.25 $6.32 $5.89
Weighted average price of options
exercisable, end of year $16.12 $6.32 $5.89
Weighted average price of options
granted, during the year $17.96 $9.92 $6.17
Weighted average price of options
exercised, during the year $5.87 $8.67 $7.23
Weighted average price of options
cancelled, during the year $ - $ - $6.07
Additional option information by Plan at December 31, 1997 is as follows:
Weighted
Average
Exercise
Price Range Outstanding Exercisable Price
1993 Plan $ 5.78 - $ 6.29 26,125 21,442 $5.94
1993 Plan $ 9.92 - $13.75 10,500 3,333 $11.93
1997 Plan $ 17.72 - $23.50 171,000 160,000 $18.10
The Company applies APB Opinion No. 25, Accounting for Stock Issued to
Employees, and related Interpretations in accounting for its plans.
Accordingly, no compensation cost has been recognized. The Company has not
issued any options to nonemployees. Had compensation cost for the Company's
stock option plan been determined based on the fair value at the grant dates for
awards under this plan consistent with the method of SFAS 123, the Company's net
earnings and earnings per share would have been reduced to the pro forma amounts
indicated below:
1997 1996 1995
(dollars in thousands, except per share data)
Net earnings As reported $3,198 $2,201 $2,524
Pro forma 2,691 2,195 2,516
Basic earnings per share As reported $1.63 $1.13 $1.31
Pro forma 1.37 1.12 1.31
Diluted earnings per share As reported $1.60 $1.13 $1.30
Pro forma 1.35 1.12 1.30
The pro forma compensation cost was estimated for the fair value of the
stock options granted using the Black-Scholes model. The assumptions used in
the model by year are in the following table:
1997 1996 1995
Expected volatility 15% to 20% 12% to 15% 20%
Dividends as a percentage of stock price 1.8% 2.8% 2.8%
Expected lives in years 4 4 4
Risk-free interest rates 5.5% 5.4% 5.4% to 7.9%
Weighted average fair value
per share of stock options granted $4.69 $2.13 $1.51
Salary deferral 401(k) plan
The Company has a salary deferral 401(k) plan for all employees who have
completed one year of service. The Bank contributed discretionary matching
funds to the Plan of $102,000, $102,000 and $97,000 for 1997, 1996 and 1995,
respectively.
Contingency contract
The Company has contingency contracts with its Chief Executive Officer and
Chief Financial Officer. The contract provides for a monthly payment of $13,000
over 179 months in the event that the Company experiences a merger, acquisition,
or other act wherein they are not retained in similar positions with the
surviving Company.
Note 12. Loans and Other Transactions with Related Parties
Stockholders of the Company, and officers and directors, including their
families and companies of whom they are principal owners, are considered to be
related parties. These related parties were loan customers of, and had other
transactions with, the Company in the ordinary course of business. In
management's opinion, these loans and transactions were on the same terms as
those for comparable loans and transactions with nonrelated parties. The
activity in such loans is as follows:
1997 1996
(dollars in thousands)
Balance, beginning $2,906 $2,832
New loans 774 2,977
Repayments (1,201) (2,903)
Balance, ending $2,479 $2,906
None of these loans are classified, past due, nonaccrual, or restructured to
provide a reduction or deferral of interest or principal because of
deterioration in the financial position of the borrower.
Note 13. Regulatory Capital Requirements
The subsidiary Bank is subject to various regulatory capital requirements
administered by the federal banking agencies. Failure to meet minimum capital
requirements can initiate certain mandatory, and possibly additional
discretionary, actions by regulators that, if undertaken, could have a direct
material effect on the Bank's financial statements. Under capital adequacy
guidelines and the regulatory framework for prompt corrective action, the Bank
must meet specific capital guidelines that involve qualitative measures of the
Bank's assets, liabilities, and certain off-balance sheet items as calculated
under regulatory accounting practices. The Bank's capital amounts and
classification are also subject to qualitative judgments by the regulators about
components, risk weightings, and other factors.
Quantitative measures established by regulation to ensure capital adequacy
require the Bank to maintain minimum amounts and ratios (set forth in the table
below) of total and Tier I capital (as defined in the regulations) to risk-
weighted assets (as defined), and of Tier I capital to average assets (as
defined). Management believes that the Bank meets all capital adequacy
requirements to which it is subject as of December 31, 1997.
As of June 30, 1997, the most recent notification from the Office of the
Comptroller of the Currency categorized the Bank as well capitalized under the
regulatory framework for prompt corrective action. To be categorized as well
capitalized the Bank must maintain minimum total risk-based, Tier I risk-based,
Tier I leverage ratios as set forth in the table. There are no conditions or
events occurring since that management believes have changed the institution's
category. The Bank's actual capital amounts and ratios are presented in the
following table:
To Be Well
Capitalized
For Capital Under Prompt
Adequacy Corrective
Actual Purposes Provisions
Amount Ratio Amount Ratio Amount Ratio
(dollars in thousands)
As of December 31, 1997:
Total Capital (to Risk Weighted Assets) $22,563 13.9% $12,962 8.0% $16,202 10.0%
Tier I Capital (to Risk Weighted Assets) 20,982 13.0% 6,481 4.0% 9,721 6.0%
Tier I Capital (to Average Assets) 20,982 9.0% 9,368 4.0% 11,710 5.0%
As of December 31, 1996:
Total Capital (to Risk Weighted Assets) $19,937 13.3% $11,993 8.0% $14,991 10.0%
Tier I Capital (to Risk Weighted Assets) 18,568 12.4% 5,996 4.0% 8,995 6.0%
Tier I Capital (to Average Assets) 18,568 8.3% 8,907 4.0% 11,134 5.0%
The Company's capital amounts and ratios are substantially the same as the
amounts presented above.
Note 14. Consolidated Statements of Cash Flows
1997 1996 1995
(dollars in thousands)
Supplemental Cash Flow Information
Cash payments for
Interest $3,318 $3,573 $3,035
Income taxes $2,113 $1,100 $2,005
Non-cash investing activities
Loans originated by the Company to finance
the sale of other real estate owned $1,023 $100 $273
Loans foreclosed on by the Company $145 $902 $3,194
Note 15. Fair Values of Financial Instruments
The fair values of the Company's financial instruments are as follows:
1997 1996
Carrying Fair Carrying Fair
Amount Value Amount Value
(dollars in thousands)
Financial Assets
Cash and cash equivalents $ 81,147 $ 81,147 $ 46,436 $ 46,436
Securities 18,183 18,118 40,011 39,918
Loans, net 131,189 130,711 118,991 119,051
Accrued interest receivable 985 985 1,352 1,352
Financial Liabilities, deposits 218,792 218,700 198,364 198,382
Management uses its best judgment in estimating the fair value of the
Company's financial instruments; however, there are inherent weaknesses in any
estimation technique. Therefore, for substantially all financial instruments,
the fair value estimates presented herein are not necessarily indicative of the
amounts the Company could have realized in a sales transaction at either
December 31, 1997 or 1996. The estimated fair value amounts for 1997 and 1996
have been measured as of their respective year ends, and have not been
reevaluated or updated for purposes of these consolidated financial statements
subsequent to those respective dates. As such, the estimated fair values of
these financial instruments subsequent to the respective reporting dates may be
different than the amounts reported at each year-end.
The information in this Note should not be interpreted as an estimate of the
fair value of the entire Company since a fair value calculation is only required
for a limited portion of the Company's assets and liabilities. This disclosure
of fair value amounts does not include the fair values of any intangibles,
including core deposit intangibles or mortgage servicing rights. Due to the
wide range of valuation techniques, assumptions used and the degree of
subjectivity used in making the estimate, comparisons between the Company's
disclosures and those of other banks may not be meaningful.
The Company used the following methods and assumptions in estimating the
fair value of its financial instruments:
Cash and cash equivalents
The carrying amounts for cash held, due from banks, interest bearing
deposits and federal funds sold approximate their fair values.
Securities
Fair values for securities are based on quoted market prices when available.
For certain mortgage backed securities, the Company utilizes a broker to
determine fair value. This broker obtains estimates of fair value from up to
three pricing services that estimate fair value through a mapping process to
other mortgage pools adjusted for interest rate, maturity, etc. There is no
guarantee that the prices obtained for these methods can be realized upon
ultimate sale of the security.
Loans
The carrying values of variable-rate loans that reprice frequently and that
have not experienced significant changes in credit risk approximate their fair
values. At December 31, 1997 and 1996, variable rate loans comprised
approximately 72% and 80%, respectively, of the loan portfolio. Fair values for
all other loans are estimated based on discounted cash flows, using interest
rates currently being offered for loans with similar terms to borrowers with
similar credit quality. Prepayments prior to the repricing date are not
expected to be significant. Loans are expected to be held-to-maturity and any
unrealized gains or losses are not expected to be realized.
Off-balance sheet instruments
Fair values for off-balance sheet instruments (guarantees, letters of credit
and lending commitments) are based on quoted fees currently charged to enter
into similar agreements, taking into account the remaining terms of the
agreements and the counterparties' credit standing.
Deposit liabilities
Fair values for savings and demand deposits equal their carrying amounts.
The carrying amounts for variable-rate money market accounts approximate their
fair values. Fair values for fixed-rate certificates of deposit are estimated
using a discounted cash flow calculation that applies interest rates currently
being offered on certificates to a schedule of aggregate expected monthly
maturities on time deposits. Early withdrawals of fixed-rate certificates of
deposit are not expected to be significant.
Accrued interest receivable and payable
The fair values of both accrued interest receivable and payable approximate
their carrying amounts.
Commitments
The estimated fair value of fee income on letters of credit at December 31,
1997 and 1996 is insignificant.
Interest rate risk
The Company assumes interest rate risk (the risk that general interest rate
levels will change) as a result of its normal operations. As a result, fair
value of the Company's financial instruments will change when interest rate
levels change and that change may be either favorable or unfavorable to the
Company. Management attempts to match maturities of assets and liabilities to
the extent believed necessary to minimize interest rate risk. However,
borrowers with fixed rate obligations are less likely to prepay in a rising rate
environment and more likely to prepay in a falling rate environment.
Conversely, depositors who are receiving fixed rates are more likely to withdraw
funds before maturity in a rising rate environment and less likely to do so in a
falling rate environment. Management monitors rates and maturities of assets
and liabilities and attempts to minimize interest rate risk by adjusting terms
of new loans and deposits and by investing in securities with terms that
mitigate the Company's overall interest rate risk.
Note 16. Parent Company Only Condensed Statements
Condensed Balance Sheets
1997 1996
(dollars in thousands)
Assets
Cash $ 482 $ 333
Investment in subsidiary 20,926 18,445
Other assets 178 178
$21,586 $18,956
Stockholders' Equity $21,586 $18,956
1997 1996 1995
(dollars in thousands)
Condensed Statements of Earnings
Operating income, dividends from subsidiary $ 823 $ 718 $ 474
Expenses, professional fees (39) (40) (16)
Earnings before equity in undistributed earnings
of subsidiary 784 678 458
Equity in undistributed earnings of subsidiary 2,414 1,523 2,066
Net earnings $3,198 $2,201 $2,524
Condensed Statements of Cash Flows
Cash Flows from Operating Activities
Net earnings $3,198 $2,201 $2,524
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Equity in undistributed earnings of subsidiary (2,414) (1,523) (2,066)
Net cash provided by operating activities 784 678 458
Cash Flows from Financing Activities
Proceeds from exercise of stock options 188 166 18
Dividends paid (823) (718) (474)
Net cash (used in) financing activities (635) (552) (456)
Increase in cash and cash equivalents 149 126 2
Cash and cash equivalents
Beginning 333 207 205
Ending $ 482 $ 333 $ 207
F-45
64
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<ARTICLE> 9
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<CASH> 29647
<INT-BEARING-DEPOSITS> 0
<FED-FUNDS-SOLD> 51500
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 9146
<INVESTMENTS-CARRYING> 9037
<INVESTMENTS-MARKET> 8972
<LOANS> 132770
<ALLOWANCE> 1581
<TOTAL-ASSETS> 242279
<DEPOSITS> 218792
<SHORT-TERM> 0
<LIABILITIES-OTHER> 1901
<LONG-TERM> 0
0
0
<COMMON> 7864
<OTHER-SE> 0
<TOTAL-LIABILITIES-AND-EQUITY> 242279
<INTEREST-LOAN> 13686
<INTEREST-INVEST> 3171
<INTEREST-OTHER> 0
<INTEREST-TOTAL> 16857
<INTEREST-DEPOSIT> 3353
<INTEREST-EXPENSE> 3353
<INTEREST-INCOME-NET> 13504
<LOAN-LOSSES> 140
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 11776
<INCOME-PRETAX> 5295
<INCOME-PRE-EXTRAORDINARY> 5295
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3198
<EPS-PRIMARY> 1.63
<EPS-DILUTED> 1.60
<YIELD-ACTUAL> 9.11
<LOANS-NON> 2447
<LOANS-PAST> 616
<LOANS-TROUBLED> 724
<LOANS-PROBLEM> 1244
<ALLOWANCE-OPEN> 1369
<CHARGE-OFFS> 66
<RECOVERIES> 138
<ALLOWANCE-CLOSE> 1581
<ALLOWANCE-DOMESTIC> 1581
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 0
</TABLE>
EXHIBIT 10.6
STANDARD OFFICE LEASE GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Basic Lease Provisions ("Basic Lease Provisions")
1.1 Parties: This Lease dated for reference purposes only July 17,
1997 is made by and between Fujita Investors of California (herein
called "Lessor") and Orange National Bank doing business under the name
of (herein called "Lessee").
1.2 Premises: Suite Number(s) 100, 1st floors, consisting of
approximately 5,266 rentable feet more or less, as defined in paragraph
2 and as shown on Exhibit "A" hereto (the "Premises".).
1.3 Building: Commonly described as being located at 1800 West Katella
in the City of Orange County of Orange State of California as more
particularly described In Exhibit "A" hereto, and as defined in
paragraph 2.
1.4 Use: Bank-Branch/ Office Use/ATM/Night Depository subject to
paragraph 6.
1.5 Term: Ten (10) years commencing January 1, 1998 ("Commencement
Date") and ending December 31, 2007 as defined In paragraph 3.
1.6 Base Rent: $8,056.98 per month, payable on the lst day of each
month, per paragraph 4.1
1.7 Base Rent increase: On Jan 1. 2000; Jan 1, 2002; Jan 1, 2004; Jan
1,2006 the monthly Base Rent payable under paragraph 1.6 above should be
adjusted as provided in paragraph 4.3 below.
1.8 Rent Paid Upon Execution:
1.9 Security Deposit: $8,862.68
1.10 Lessee's Share of Operating Expense Increase: 11.2 % as defined
in paragraph 4.2.
2. Premises, Parking and Common Areas.
2.1 Premises: The Premises are a portion of a building, herein
sometimes referred to as the "Building" Identified In paragraph 1.3 of
the Basic Lease Provisions. "Building" shall include adjacent parking
structures used in connection therewith. The Premises, the Building, the
Common Areas, the land upon which the same are located, along with all
other buildings and improvements thereon or thereunder, are herein
collectively referred to as the "Office Building Project" Lessor hereby
leases to Lessee and Lessee leases from Lessor for the term, at the
rental and upon all of the conditions set forth herein, the real property
referred to in the Basic Lease Provisions, paragraph 1.2, as the
"Premises" including rights to the Common Areas as hereinafter specified.
2.2 Vehicle Parking: So long as Lessee is not in default and subject to
the rules and regulations attached hereto, and as established by Lessor
from time to time, Lessee shall be entitled to rent and use 19 parking
spaces in the Office Building Project.
2.2.1 If Lessee commits, permits or allows any of the prohibited
activities described in the Lease or the rules then in effect then Lessor
shall have the right, without notice, in addition to such other rights
and remedies that it may have, to remove or tow away the vehicle involved
and charge the cost to Leases, which Cost shall be Immediately payable
upon demand by Lessor.
2.2.2 The monthly parking rate per parking space will be $ -O- per month
at the commencement of the term of this Lease. Monthly parking fees
shall be payable one month in advance prior to the first day of the
calendar month.
2.3 Common Areas-Definition. The term "Common Areas" Is defined as all
areas and facilities outside the Premises and within the exterior
boundary line of the Office Building Project that are provided and
designated by the Lessor from time to time for the general non-exclusive
use of Lessor. Lessee and of other lessees of the Office Building
Project and their respective employees, suppliers, shippers. Customers
and invitees, including but not limited to common entrances, lobbies,
corridors, stairways and stairwells, public restrooms, elevators,
escalators, parking areas to the extent not otherwise prohibited by this
Lease, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, ramps, driveways, landscaped areas and decorative
walls.
2.4 Common Areas-Rules and Regulations. Lessee agrees to abide by and
conform to the rules and regulations attached hereto as Exhibit B with
respect to the Office Building Project and Common Areas, and to cause its
employees, suppliers, shippers, customers, and invitees to so abide and
conform. Lessor of such other person(s) as Lessor may appoint shall have
the exclusive control and management of the Common Areas and shall have
the right, from time to time, to modify, amend and enforce said rules and
regulations. Lessor shall not be responsible to Lessee for the
noncompliance with said rules and regulations by other lessors, their
agents, employees and invitees of the Office Building Project.
2.5 Common Areas-Changes. Lessor shall have the right, in Lessor's
sole discretion, from time to time:
(a) To make changes to the Building interior and exterior and
Common Areas, Including, without limitation, changes in the location,
size, shape, number, and appearance thereof, including but not limited to
the lobbies, windows, stairways, air shafts, elevators, escalators,
restrooms, driveways, entrances, parking spaces, parking areas, loading
and unloading areas, Ingress, egress, direction of traffic, decorative
Wells, landscaped areas and walkways; provided however Lessor shall at
all times provide the parking facilities required by applicable law:
(b) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Promises remains available;
(c) To designate other land and Improvements Outside the
boundaries of the Office Building Project to be a part of the Common
Areas, provided that such other land and Improvements have a reasonable
and functional relationship to the Office Building Project;
(d) To add additional buildings and Improvements to the Common
Areas;
(e) To use the Common Areas while engaged in making additional
Improvements, repairs or alterations to the Office Building Project or
any portion thereof:
(f) To do and perform such other acts and make such other changes
in, to or with respect to the Common Areas and Office Building Project as
Lessor may, In the exercise of sound business judgment deem to be
appropriate.
3. Term.
3.1 Term. The term and Commencement Date of this lease shall be as
specified in paragraph 1.5 of the Basic Lease Provisions.
3.2 Delay in Possession. Notwithstanding said Commencement date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee on
said date and subject to paragraph 3.2.2, Lessor shall not be subject to
any liability therefore, nor shall such failure affect the validity of
this Lease or the obligations of Losses hereunder or extend the term
hereof; but, in such case, Lessee shall not be obligated to pay rent or
perform any other obligation of Lessee under the terms of this Lease,
except as may be otherwise provided in this Lease, until possession of
the Premises is tendered to Lessee, as hereinafter defined: provided,
however, that It Lessor shall not have delivered Possession of the
Premises within sixty (60) days following said Commencement Date, as the
same may be extended under the terms of a Work Letter executed by Lessor
and Lessee, Lessee may, at Lessee's option, by notice In writing to
Lessor within ten (10) days thereafter, cancel this Lease, in which event
the parties shall be discharged from all obligations hereunder; provided,
however, that, as to Lessee's obligations, Lessee first reimburses Lessor
for all Costs incurred for Non-Standard Improvements and. as to Lessor's
obligations, Lessor's all return any money previously deposited by
Lessee (less any offsets due Lessor for Non Standard Improvements and
provided further, that if such written notice by Lessee Is not received
by Lessor within said ten (10) day period, Lessee's right to cancel this
Lease hereunder shall terminate and be of no further force or effect.
3.2.1 Possession Tendered-Defined. Possession of the Premises shall be
deemed tendered to Lessee ("Tender of Possession") when (1) the
improvements to be provided by Lessor under this Lease are substantially
completed (2) the Building utilities are ready for use In the Premises,
(3) Lessee has reasonable access to the Premises, and (4) ten (10) days
shall have expired following advance written notice to Lessee of the
occurrence of the matters described In (1), (2) and (3), above of this
paragraph 3.2. 1.
3.2.2 Delays Caused by Lessee. There shall be no abatement of rent and
the sixty (60) day period following the Commencement Date before which
Lessees right to cancel this Lease accrues under paragraph 3.2, shall be
deemed extended to the extent of any delays caused by acts or omissions
of Lessee, Lessee's agents, employees and contractors.
3.3 Early Possession. If Lessee occupies the Premises prior to said
Commencement Date, such occupancy shall be subject to all Provisions of
this Lease, such occupancy shall not change the termination date, and
Lessee shall pay rent for such occupancy.
3.4 Uncertain Commencement. In the event commencement of the Lease term
Is defined as the completion of the improvements, Lessee and Lessor shall
execute an amendment to this Lease establishing the date of Tender of
Possession (as defined In paragraph 3.2.1) or the actual taking of
possession by Lessee whichever first occurs, as the Commencement Date.
4. Rent
4.1 Base Rent. Subject to adjustment as hereinafter provided in
paragraph 4.3 and except as may be otherwise expressly provided In this
Lease, Lessee to pay to Lessor the Base Rent for the Premises set forth
In paragraph 1.6 of the Basic Lease Provisions, without offset or
deduction. Lessee shall pay Lessor upon execution hereof the advance
Base Rent described In paragraph 1.8 of the Basic Lease Provision Rent
for any period during the term hereof which is for less than one month
shall be prorated based upon the actual number of days of the calendar
month involved. Rent shall be payable In Lawful money of the United
States to Lessor at the address stated herein or to such other persons or
at such other places as Lessor may designate in writing.
4.2 Operating Expense Increase. Lessee shall pay to Lessor during the
term hereof, In addition to the Base Rent, Lessee's Share, as hereinafter
defined, of the amount by which all Operating Expenses, as hereinafter
defined, for each Comparison Year exceeds the amount of all Operating
Expenses for the Base Year, such excess being hereinafter referred to as
the "Operating Expense Increase" in accordance with the following
provisions:
(a) "Lessee's Share" is defined, for purposes of this Lease, as
the percentage set forth In paragraph 1.10 of the Basic Lease Provisions,
which percentage has been determined by dividing the approximate square
footage of the Premises by the total approximate square footage of the
rentable space contained In the Office Building Project. It Is
understood and agreed that the square footage figures set forth In the
Basic Lease Provisions are approximations which Lessor and Lessee agree
are reasonable and shall not be subject to revision except In connection
with an actual change In the size of the Premises or a change In the
space available for lease In the Office Building Project.
(b) "Base Year" Is defined as the calendar year in which the Lease
term commences.
(c) "Comparison Year" is defined as each calendar year during the
term of this Lease subsequent to the Base Year; provided, however, Lessee
shall have no obligation to pay a share of the Operating Expense Increase
applicable to the first twelve (12) months of the Lease Term (other than
such as are mandated by a governmental authority, as to which government
mandated expenses Lessee shall pay Lessee's Share, notwithstanding they
occur during the first twelve (12) months). Lessee's Share of the
Operating Expense Increase for the first and last Comparison Years of the
Lease Term shall be prorated according to that portion of such Comparison
Year as to which Lessee Is responsible for a share of such Increase,
(d) "Operating Expenses" is defined, for purposes of this Lease,
to include all costs, It any, Incurred by Lessor In the exercise of Its
reasonable discretion for the operation, repair, maintenance, and
replacement, in neat, clean, safe, good order and condition, of the
Office Building Project, Including but not limited to, the following:
(aa) The Common Areas, Including their surfaces, coverings,
decorative Items, carpets, drapes and window coverings, and Including
parking areas, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, stairways, parkways, driveways, landscaped areas,
striping, bumpers, irrigation systems. Common Area lighting facilities,
building exteriors and roofs, fences and gates:
(bb) All heating, air conditioning, plumbing, electrical
systems, life safety equipment, telecommunication and other equipment
used in common by or for the benefit of lessor occupants of the Office
Building Project, including elevators and escalators, tenant directories,
fire detection systems Including sprinkler system maintenance and repair.
(ii) Trash disposal, janitorial and security
services:
(iii) Any other service to be provided by Lessor that
is elsewhere in this Lease stated to be an "Operating Expense":
(iv) The cost of the premiums for the liability and
properly insurance policies to be maintained by Lessor under paragraph 8
hereof:
(v) The amount of the real properly taxes to be paid
by Lessor under paragraph 10.1 hereof;
The cost of water, sewer, gas, electricity, and other
publicly mandated services to the Office Building Project;
(vi) Labor, salaries and applicable fringe benefits
and costs, materials, supplies and tools, used in maintaining and/or
cleaning the Office Building Project and accounting and a management fee
attributable to the operation of the Office Building Project:
(vii) Replacing and/or adding Improvements mandated by
any governmental agency and any repairs or removals necessitated thereby
amortized over Its useful life according to Federal income tax
regulations or guidelines for depreciation thereof (including interest on
the unamortized balance as is then reasonable In the judgment of Lessee's
accountants):
(ix) Replacements of equipment or improvements that
have a useful life for depreciation purposes according to Federal income
tax guidelines of five (5) years or less, as amortized over such life.
(e) Operating Expenses shall not Include the costs of
replacements of equipment or improvements that have a useful life for
Federal income tax purposes In excess of five (5) years unless it is of
the type described in paragraph 4.2(d)(viii). In which case their cost
shall be included as above provided.
(f) Operating Expenses shall not include any expenses paid by any
lessee directly to third parties or as to which Lessor is otherwise
reimbursed by any third party, other tenant, or by Insurance proceeds.
(g) Lessee's Share of Operating Expense Increase shall be payable
by Lessee after a reasonably detailed statement of actual expenses is
presented to Lessee by Lessor. An amount will be estimated by Lessor
from time to time in advance of Lessee's Share of the Operating Expense
Increase for any Comparison Year, and the same shall be payable monthly
as Lessor shall designate, during each Comparison Year of the Lease term,
on the same day as the Base Rent Is due hereunder. In the event that
Lessee pays Lessor's estimate of Lessee's Share of Operating Expense
Increase as aforesaid, Lessor shall deliver to Lessee within sixty (60)
days after the expiration of each Comparison Year a reasonably detailed
statement showing Lessee's Share of the actual Operating Expense Increase
Incurred during such year. If Lessee's payments under this paragraph
4.2(g) during said Comparison Year exceed Lessee's Share as indicated on
said statement, Lessee shall be entitled to credit the amount of such
overpayment against Lessee's Share of Operating Expense Increase next
falling due. If Les3ee's payments under this paragraph during said
Comparison Year were less than Lessee's Share as Indicated on said
statement, Lessee shall pay to Lessor the amount of the deficiency within
ten (10) days after delivery by Lessor to Lessee of said statement,
Lessor and Lessee shall forthwith adjust between them by cash payment any
balance determined to exist with respect to that portion of the last
Comparison Year for which Lessee is responsible as to Operating Expense
Increases. Notwithstanding that the Lease term may have terminated before
the end of such Comparison Year.
4.3 Rent Increases
4.3.1 At times set forth in paragraph 1.7 of the Basic Lease Provisions,
the monthly Base Rent payable under paragraph 4.1 of this Lease in the
Consumer Price Index of the Bureau of Labor Statistics Of the Department
of Labor for All Urban Consumers (1967=100) All Items for the city
nearest the location of the Building, herein referred to as "C.P.I."
since the date of this Lease.
4.3.2 The monthly Base Rent payable pursuant to paragraph 4.3.1 shall be
calculated as follows: the Base Rent payable for the first month of the
term of this Lease, as set forth in paragraph 4.1 of this Lease, shall be
multiplied by a fraction the numerator of which shall be the CPI of the
calendar month during which the adjustment Is to take effect, and the
denominator of which shall be the CPI for the calendar month in which the
original Lease term commences. The sum so calculated shall constitute
the new monthly Base Rent hereunder, but, in no event, shall such new
monthly Base Rent be less than the Base Rent payable for the month
Immediately preceding the date for the rent adjustment.
4.3.3 In the event the compilation and/or publication of the CPI shall
be transferred to any other governmental department or bureau or agency
or shall be discontinued, then the index most nearly the same as the CPI
shall be used to make such calculations. In the event that Lessor
and Lessee cannot agree on such alternative index, then the matter shall
be submitted for decision to the American Arbitration Association in the
County in which the Premises are located, In accordance with the then
rules of said association and the decision of the arbitrators shall be
binding upon the parties. Notwithstanding one party failing to appear
after due notice of the proceeding. The cost of said Arbitrators shall
be paid equally by Lessor and Lessee.
4 3.4 Lessee shall continue to pay the rent at the rate previously in
effect until the increase, if any. is determined. Within five (5) days
following the date on which the increase is determined, Lessee shall make
such payment to Lessor as will bring the increased rental current
commencing with the effective date of such increase through the date of
any rental installments then due. Thereafter the rental shall be paid at
the increased rate.
5. Security Deposit. Lessee shall deposit with Lessor upon execution
hereof the security deposit set forth in paragraph 1.9 of the Basic Lease
Provisions as security for Lessee's faithful performance of Lessee's
obligations hereunder, If Lessee fails to pay rent or other charges due
hereunder. or otherwise defaults with respect to any provision of this
Lease, Lessor may use, apply or retain all or any portion of said deposit
for the payment of any rent or other charge in default for the payment of
any other sum to which Lessor may become obligated by reason of Lessee's
default, or to compensate Lessor for any loss or damage which Lessor may
suffer thereby. If Lessor so uses or applies all or any portion of said
deposit, Lessee shall within ten (10) days after written demand therefor
deposit cash with Lessor in an amount sufficient to restore said deposit
to the full amount then required of Lessee. If the monthly Base Rent
shall, from time to time, increase during the term of this Lease, Lessee
shall, at the time of such increase, deposit with Lessor additional money
as a security deposit so that the total amount of the security deposit
held by Lessor shall at all times bear the same proportion to the then
current Base Rent as the initial security deposit bears to the initial
Base Rent set forth In paragraph 1.6 of the Basic Lease Provisions.
Lessor shall not be required to keep said security deposit separate from
its general accounts. It Lessee performs all of Lessee's obligations
hereunder. said deposit, or so much thereof as has not heretofore been
applied by Lessor, shall be returned, without payment of interest or
other increment for its use, to Lessee (or, at Lessor's option, to the
last assignee, if any, of Lessee's interest hereunder) at the expiration
of the term hereof, and after Lessee has vacated the Premises. No trust
relationship is created herein between Lessor and Lessee with respect to
said Security Deposit
6. Use.
6.1 Use. The Premises shall be used and occupied only for the purpose
set forth in paragraph 1.4 of the Basic Lease Provisions or any other use
which is reasonably comparable to that use and for no other purpose.
6.2 Compliance with Law
(a) Lessor warrants to Lessee that the Premises, in the state
existing on the date that the Lease term commences, but without regard to
alterations or improvements made by Lessee or the use for which Lessee
will occupy the Premises, does not violate any covenants or restrictions
of record. or any applicable building code, regulation or ordinance in
effect on such Lease term Commencement Date. In the event it is
determined that this warranty has been violated, then it shall be the
obligation of the Lessor, after written notice from Lessee, to promptly,
at Lessor's sole cost and expense, rectify any such violation.
(b) Except as provided In paragraph 6.2(a) Lessee shall, at
Lessee's expense, promptly comply with all applicable statutes,
ordinances, rules, regulations, orders, covenants and restrictions of
record, and requirements of any fire insurance underwriters or rating
bureaus, now in effect or which may hereafter come Into effect, whether
or not they reflect a change in policy from that now existing, during the
term or any part of the term hereof, relating In any manner to the
Premises and the occupation and use by Lessee of the Premises. Lessee
shall conduct its business in a lawful manner and shall not use or
permit the use of the Premises or the Common Areas in any manner that
will tend to create waste or a nuisance of shall tend to disturb other
occupants of the Office Building Project.
6.3 Condition of Premises.
(a) Lessor shall deliver the Premises to Lessee in a clean Condition on
the Lease Commencement Date (unless Lessee is already in possession) and
Lessor warrants to Lessee that the plumbing. lighting, air conditioning,
and heating system in the Premises shall be in good operating condition
In the event that it is determined that this warranty has been violated,
then it shall be the obligation of Lessor, after receipt of written
notice from Lessee setting forth with specificity the nature of the
violation, to promptly, at Lessor's sole cost, rectify such violation.
(b) Except as otherwise provided in this Lease, Lessee hereby
accepts the Premises and the Office Building Project in their condition
existing as of the Lease Commencement Date or the date that Lessee takes
possession of the Premises, whichever is earlier, subject to all
applicable zoning, municipal. county and state laws, ordinances and
regulations governing and regulating the use of the Premises. and any
easements, covenants or restrictions of record, and accepts this Lease
subject thereto and to all matters disclosed thereby and by any exhibits
attached hereto. Lessee acknowledges that It has satisfied itself by Its
own independent investigation that the Premises are suitable for its
intended use, and that neither Lessor nor Lessor's agent or agents has
made any representation or warranty as of the present or future
suitability of the Premises, Common Areas, or Office Building Project for
the conduct of Lessee's business.
7. Maintenance, Repairs, Alterations and Common Area Services.
7.1 Lessor's Obligations. Lessor shall keep the Office Building
Project, including the Premises interior and exterior walls, roof and
common areas, and the equipment whether used exclusively for the Premises
or in common with other premises, in good condition and repair, provided,
however, Lessor shall not be obligated to paint, repair or replace wall
coverings, or to repair or replace any improvements that are not
ordinarily a part of the Building or are above then Building standards.
Except as provided in paragraph 9.5, there shall be no abatement of rent
or liability of Lessee on account of any Injury or Interference with
Lessee's business with respect to any improvements, alterations or
repairs made by Lessor to the Office Building Project or any part
thereof. Lessee expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of
Lessor's failure to keep the Premises in good order, condition and
repair.
7.2 Lessee's Obligations. Notwithstanding Lessor's obligation to keep
the Premises in good condition and repair, Lessee shall be responsible
for payment of the cost thereof to Lessor as additional rent for that
portion of the cost of any maintenance and repair of the Premises, or any
equipment (wherever located) that serves only Lessee or the Premises, to
the extent such cost is attributable to causes beyond normal wear and
tear. Lessee shall be responsible for the cost of painting, repairing or
replacing wall coverings and to repair or replace any Premises
improvements that are not ordinarily a part of the Building or that are
above then Building standards. Lessor may, at its option upon reasonable
notice elect to have Lessee perform any particular such maintenance or
repairs the cost of which is otherwise Lessee's responsibility hereunder.
(b) On the last day of the term hereof, or on any sooner
termination. Lessee shall surrender the Premises to Lessor in the same
condition as received, ordinary wear and tear excepted, clean and free of
debris. Any damage or deterioration of the Premises shall not be deemed
ordinary wear and tear if the same could have been prevented by good
maintenance practices by Lessee. Lessee shall repair any damage to the
Premises occasioned by the installation or removal of Lessee's trade
fixtures, alterations, furnishings and equipment. Except as otherwise
stated in this Lease, Lessee shall leave the air lines, power panels,
electrical distribution systems, lighting fixtures, air conditioning,
window coverings, wall coverings, carpets, wall, paneling, ceilings and
plumbing on the Premises and in good operating condition.
7.3 Alterations and Additions. Lessee shall not without Lessor's
prior written consent make any alterations, improvements, additions,
Utility Installations or repairs in, on or about the Premises, or the
Office Building Project. As used in this paragraph 7.3 the term "Utility
Installation" shall mean carpeting, window and wall coverings, power
panels, electrical distribution systems, lighting fixtures, air
conditioning, plumbing, and telephone and telecommunication wiring and
equipment. At the expiration of the term, Lessor may require the removal
of any or all of said alterations, improvements, additions or Utility
Installations, and the restoration of the Premises and the Office
Building Project to their prior condition, at Lessee's expense. Should
Lessor permit Lessee to make its own alterations, improvements, additions
or Utility Installations. Lessee shall use only such contractor as has
been expressly approved by Lessor, and Lessor may require Lessee to
provide Lessor, at Lessee's sole cost and expense, a lien and completion
bond in an amount equal to one and one-half times the estimated cost of
such improvements, to insure Lessor against any liability for mechanic's
and materialmen's liens and to Insure completion of the work. Should
Lessee make any alterations, improvements, additions or Utility
Installations without the prior approval of Lessor, or use a contractor
not expressly approval by Lessor, Lessor may, at any time during the term
of this Lease require that Lessee remove any part or all of the same.
(b) Any alterations, improvements, additions or Utility
Installations in or about the Premises or the Office Building Project
that Lessee shall desire to make shall be presented to Lessor in written
form, with proposed detailed plans. If Lessor shall give its consent to
Lessee's making such alteration, improvement, addition or Utility
Installation, the consent shall be deemed conditioned upon Lessee
acquiring a permit to do so from the applicable governmental agencies,
furnishing a copy thereof to Lessor prior to the commencement of the
work, and compliance by Lessee with all conditions of said permit in a
prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for
use in the Premises, which claims are or may be secured by any mechanic's
or materialmen's lien against the Premises, the Building or the Office
Building Project, or any interest therein.
(d) Lessee sha11 give Lessor not less than ten (10) days' notice
prior to the commencement of any work in the Premises by Lessee, and
Lessor shall have the right to post notices of non-responsibility in or
on the Premises or the Building as provided by law If Lessee shall, in
good faith, contest the validity of any such lien, claim or demand, then
Lessee shall, at its sole expense defend itself and Lessor against the
same and shall pay and satisfy any such adverse Judgment that may be
rendered thereon before the enforcement thereof against the Lessor or the
Premises, the Building or the Office Building Project, upon the condition
that If Lessor shall require, Lessee shall furnish to Lessor a surety
bond satisfactory to Lessor in an amount equal to such contested lien
claim or demand indemnifying Lessor against liability for the same and
holding the Premises, the Building and the Office Building Project free
from the effect of such lien or claim. In addition, Lessor may require
Lessee to pay Lessor's reasonable attorneys' fees and costs in
participating in such action if Lessor shall decide it is to Lessor's
best interest so to do.
(e) All alterations, improvements, additions and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made to the Premises by Lessee,
including but not limited to, floor coverings, panelings, doors, drapes,
built-ins, moldings, sound attenuation, and lighting and telephone or
communication systems, conduit, wiring and outlets, shall be made and
done In a good and workmanlike manner and of good and sufficient quality
and materials shall be the properly of Lessor and remain upon and be
surrendered with the Premises at the expiration of the Lease term, unless
Lessor require their removal pursuant to paragraph 7.3(a). Provided
Lessee is not In default, notwithstanding the provisions of this
paragraph 7.3(e), Lessee's personal properly and equipment, other than
that which is affixed to the Premises so that it cannot be removed
without material damage to the Premises or the Building, and other than
Utility Installations, shall remain the property of Lessee and may be
removed by Lessee subject to the provisions of paragraph 7.2.
(f) Lessee shall provide Lessor with as-built plans and
specifications for any alterations, improvements, additions or Utility
Installations.
7.4 Utility Additions. Lessor reserves the right to Install new or
additional utility facilities throughout the Office Building Project for
the benefit of Lessor or Lessee, or any other lessee of the Office
Building Project, including, but not by way of limitation, such utilities
as plumbing, electrical systems, communication systems, and fire
protection and detection systems, so long as such Installations do not
unreasonably Interfere with Lessee's use of the Premises.
8. Insurance; Indemnity.
8.1 Liability Insurance-Lessee. Lessee shall, at Lessee's expense,
obtain and keep In force during the term of this Lease a policy of
Comprehensive General Liability insurance utilizing an Insurance Services
Office standard form in an amount of not less than $1,000,000 per
occurrence of bodily Injury and property damage combined and shall insure
Lessee with Lessor as an additional Insured against liability arising out
of the use, occupancy or maintenance of the Premises. Compliance with
the above requirement shall not, however, limit the liability of Lessee
hereunder.
8.2 Liability Insurance-Lessor. Lessor shall obtain and keep In force
during the term of this Lease a policy of Combined Single Limit Bodily
Injury and Broad Form Property Damage insurance, plus coverage against
such other risks Lessor deems advisable from time to time, insuring
Lessor, but not Lessee, against liability arising out of the ownership,
use, occupancy or maintenance of the Office Building Project In an amount
not less than $5,000.000.00 per occurrence.
8.3 Property insurance-Lessee. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease for the benefit of
Lessee, replacement cost fire and extended coverage Insurance, with
vandalism and malicious mischief, sprinkler leakage and earthquake
sprinkler leakage endorsements, in an amount sufficient to cover not less
than 100% of the full replacement cost, as the same may exist from time
to time of all of Lessee's personal property, fixtures, equipment and
tenant Improvements.
8.4 Property Insurance-Lessor. Lessor shall obtain and keep In force
during the term of this Lease a policy or policies of Insurance covering
loss or damage to the Office Building Project Improvements, but not
Lessee's personal property, fixtures, equipment or tenant Improvements,
In the amount of the full replacement cost thereof, as the same may exist
from time to time, utilizing Insurance Services Office standard form, or
equivalent, providing protection against all perils Included within the
classification of fire, extended coverage, vandalism, malicious mischief,
plate glass, and such other perils as Lessor deems advisable or may be
required by a lender having a lien on the Office Building Project. In
addition. Lessor shall obtain and keep In force, during the term of this
Lease, a policy of rental value Insurance covering a period of one year,
with loss payable to Lessor, which Insurance shall also cover all
Operating Expenses for said period. Lessee will not be named in any such
policies carried by Lessor and shall have no right to any proceeds
therefrom. The policies required by these paragraphs 8.2 and 8.4 shall
contain such deductibles as Lessor or the aforesaid lender may determine.
In the event that the Premises shall suffer an Insured loss as defined
in paragraph 9.10 hereof, the deductible amounts under the applicable
Insurance policies shall be deemed an Operating Expense. Lessee shall
not do or permit to be done anything which shall invalidate the Insurance
policies carried by Lessor. Lessee shall pay the entirety of any
increase in the property Insurance premium nor the Office Building
Project over what it was Immediately prior to the commencement of the
term of this Lease If the Increase is specified by Lessor's Insurance
carrier as being caused by the nature of Lessee's occupancy or any act or
omission of Lessee.
8.5 Insurance Policies. Lessee shall deliver to Lessor copies of
liability insurance policies required under paragraph 8.l or certificates
evidencing the existence and amounts of such Insurance within seven (7)
days after the Commencement Date of this Lease. No such policy shall be
cancelable or subject to reduction of coverage or other modification
except after thirty (30) days prior written notice to Lessor. Lessee
shall, at least thirty (30) days prior to the expiration of such
policies, furnish Lessor with renewals thereof.
8.6 Waiver of Subrogation. Lessee and Lessor each hereby release and
relieve the other, and waive their entire right of recovery against the
other, for direct or consequential loss or damage arising out of or
Incident to the perils covered by property insurance carried by such
party, whether due to the negligence of Lessor or Lessee or their agents,
employees, contractors and/or invitees. If necessary all property
Insurance policies required under this Lease shall be endorsed to so
provide.
8.7 Indemnity Lessee shall Indemnity and hold harmless Lessor and its
agents, Lessor's master or ground lessor, partners and lenders, from and
against any and all claims for damage to the person or property of anyone
or any entity arising from Lessee's use of the Office Building Project,
or from the conduct of Lessee's business or from any activity, work or
things done, permitted or suffered by Lessee In or about the Premises or
elsewhere and shall further Indemnity and hold harmless Lessor from and
against any and all Claims, Costs and expenses arising from any breach or
default In the performance of any obligation on Lessee's part to be
performed under the terms of this Lease, or arising from any act or
omission of Lessee, or any of Lessee's agents, contractors, employees, or
invitees, and from and against all costs, attorney's fees, expenses and
liabilities Incurred by Lessor as the result of any such use, conduct,
activity, work, things done, permitted or suffered, breach, default or
negligence, and In dealing reasonably therewith, Including but not
limited to the defense or pursuit of any claim or any action or
proceeding involved, therein; and In case any action or proceeding be
brought against Lessor by reason of any such matter, Lessee upon notice
from Lessor shall defend the same at Lessee's expense by counsel
reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee
In such defense. Lessor need not have first paid any such claim In order
to be so indemnified. Lessee, as a material part of the consideration to
Lessor, hereby assumes all risk of damage to property of Lessee or Injury
to persons, In, upon or about the Office Building Project arising from
any cause and Lessee hereby waives all claims In respect thereof against
Lessor.
8.8 Exemption of Lessor from Liability. Lessee hereby agrees that
Lessor shall not be liable for Injury to Lessee's business or any loss of
Income therefrom or for loss of or damage to the goods, wares,
merchandise or other property of Lessee, Lessee's employees, invitees,
Customers, or any other person In or about the Premises or the Office
Building Project, nor shall Lessor be liable for injury to the person of
Lessee, Lessee's employees. agents or contractors, whether such damage or
injury Is caused by or results from theft, fire, steam, electricity, gas,
water or rain, or from the breakage, leakage, obstruction or other
defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, or from any other cause, whether said
damage or Injury results from conditions arising upon the Premises or
upon other portions of the Office Building Project, or from other sources
Of places, or from new construction or the repair, alteration or
improvement of any part of the Office Building Project, or of the
equipment, fixtures or appurtenances applicable thereto, and regardless
of whether the cause of such damage or Injury or the means of repairing
the same is inaccessible, Lessor shall not be liable for any damages
arising from any act or neglect of any other lessee, occupant or user of
the Office Building Project, nor from the failure of Lessor to enforce
the provisions of any other lease of any other lessee of the Office
Building Project.
8.9 No Representation of Adequate Coverage. Lessor makes no
representation that the limits or forms of coverage of insurance
specified in this paragraph 8 are adequate to cover Lessee's property or
obligations under this Lease.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Damage" shall mean if the Premises are damaged or
destroyed to any extent.
(b) "Premises Building Partial Damage" shall mean if the
Building of which the Premises are a part 13 damaged or destroyed to the
extent that the cost to repair Is less than fifty percent (60%) of the
then Replacement Cost of the building.
(c) "Premises Building Total Destruction" shall mean if the
Building of which the Premises are a part Is damaged or destroyed to the
extent that the Cost to repair 13 fifty percent (50%) or more of the then
Replacement Cost of the Building.
(d) "Office Building Project Buildings" shall mean all of the
buildings on the Office Building Project site.
(e) "Office Building Project Buildings Total Destruction" shall
mean If the Office Building Project Buildings are damaged or destroyed
to the extent that the cost of repair Is fifty percent (50%) or more of
the then Replacement Cost of the Office Building Project Buildings.
(f) "Insured Loss" shall mean damage or destruction which was
caused by an event required to be covered by the Insurance described in
paragraph 5. The fact that an Insured Loss has a deductible amount shall
not make the loss an uninsured loss.
(g) "Replacement Cost" shall mean the amount of money necessary
to be spent In order to repair or rebuild the damaged area to the
condition that existed Immediately prior to the damage occurring,
excluding all Improvements made by lessees, other then those Installed by
Lessor at Lessee's expense.
9.2 Premises Damage; Premises Building Partial Damage.
(a) Insured Loss: Subject to the provisions of paragraphs 9,4 and
9.5, if at any time during the term of this Lease there is damage which
is an Insured Loss and which falls into the classification of either
Premises Damage or Premises Building Partial Damage, then Lessor shall,
as soon as reasonably possible and to the extent the required materials
and labor are readily available through usual commercial channels, at
Lessor's expense, repair such damage (but not Lessee's fixtures,
equipment or tenant improvements originally paid for by Lessee) to its
condition existing at the time of the damage, and this Lease shall
continue in full force and effect
(b) Uninsured Loss: Subject to the provisions of paragraphs 9.4
and 9.5, if at any time during the term of this Lease there is damage
which is not an Insured Loss and which falls within the classification of
Premises Damage or Premises Building Partial Damage, unless caused by a
negligent or willful act of Lessee (in which event Lessee shall make the
repairs at Lessee's expense), which damage prevents Lessee from making
any substantial use of the Premises. Lessor may at Lessor's option
either (i) repair such damage as soon as reasonably possible at Lessor's
expense, in which event this Lease shall continue in full force and
effect, or (ii) give written notice to Lessee within thirty (30) days
after the date of the occurrence of Such damage of Lessor's intention to
cancel and terminate this Lease as of the date of the occurrence of such
damage, in which event this Lease shall terminate as of the date of the
occurrence of such damage
9.3 Promises Building Total Destruction; Office Building Project Total
Destruction. Subject to the provisions of paragraphs 9.4 and 9.5, if at
any time during the term of this Lease there is damage, whether or not it
is an Insured Loss, which falls Into the classifications of either (I)
Premises Building Total Destruction, or (11) Office Building Project
Total Destruction, then Lessor may at Lessor's option either (I) repair
such damage or destruction as soon as reasonably possible at Lessor's
expense (to the extent the required materials are readily available
through usual commercial channels) to Its condition existing at the time
of the damage, but not Lessee's fixtures, equipment or tenant
Improvements, and this Lease shall continue in full force and effect, or
(II) give written notice to Lessee within thirty (30) days after the date
of occurrence of such damage of Lessor's intention to cancel and
terminate this Lease, in which case this Lease shall terminate as of the
date of the occurrence of such damage.
9.4 Damage Near End of Term.
(a) Subject to paragraph 9.4(b), if at any time during the last
twelve (12) months of the term of this Lease there Is substantial damage
to the Premises, Lessor may at Lessor's option cancel and terminate this
Lease as of the date of occurrence of such damage by giving written
notice to Lessee of Lessor's election to do so within 30 days after the
date of occurrence of such damage.
(b) Notwithstanding paragraph 9.4(a), in the even that Lessee has
an option to extend or renew this Lease, and the time within which said
option may be exercised has not yet expired, Lessee shall exercise such
option, if it Is to be exercised at all no later than twenty (20) days
after the occurrence of an Insured Loss falling within the classification
of Premises Damage during the last twelve (12) months of the term of this
Lease. If Lessee duly exercises such option during said twenty (20) day
period, Lessor shall, at Lessor's expense, repair such damage, but not
Lessee's fixtures, equipment or tenant Improvements, as soon as
reasonably possible and this Lease shall continue In full force and
effect. If Lessee fails to exercise such option during said twenty (20)
day period then Lessor may at Lessor's option terminate and cancel this
Lease as of the expiration of said twenty (20) day period by giving
written notice to Lessee of Lessor's election to do so within ten (10)
days after the expiration of said twenty (20) day period notwithstanding
any term or provision in the grant of option to the contrary.
9.5 Abatement of Rent; Lessor's Remedies.
(a) In the event Lessor repairs or restores the Building or
Premises pursuant to the provisions of this paragraph 9, and any part of
the Premises are not usable (including loss of use due to loss of access
or essential services), the rent payable hereunder (including Lessee's
Share of Operating Expense Increase) for the period during which such
damage, repair or restoration Continues shall be abated, provided (1) the
damage was not the result of the negligence of Lessee, and (2) such
abatement shall only be to the extent the operation and profitability of
Lessee's business as operated from the Premises is adversely affected.
Except for said abatement of rent, if any, Lessee shall have no claim
against Lessor for any damage suffered by reason of any such damage,
destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the
Premises or the Building under the provisions of this Paragraph 9 and
shall not commence such repair or restoration within ninety (90) days
after such occurrence, or if Lessor shall not complete the restoration
and repair within six (6) months after such occurrence. Lessee may at
Lessee's option cancel and terminate this Lease by giving Lessor written
notice of Lessee's election to do so at any time prior to the
commencement or completion, respectively, of such repair or restoration.
In such event this Lease shall terminate as of the date of such notice.
(c) Lessee agrees to cooperate with Lessor in connection with any
such restoration and repair, Including but not limited to the approval
and/or execution of plans and specifications required.
9.6 Termination-Advance Payments. Upon termination of this Lease
pursuant to this paragraph 9, an equitable adjustment shall be made
concerning advance rent and any advance payments made by Lessee to
Lessor. Lessor shall, In addition return to Lessee so much of Lessee's
security deposit as has not theretofore been applied by Lessor.
9.7 Waiver. Lessor and Lessee waive the provisions of any statute
which relate to termination of leases when leased property is destroyed
and agree that such event shall be governed by the terms of this Lease.
10. Real Property Taxes.
10.1 Payment of Taxes. Lessor shall pay the real properly tax, as
defined in paragraph 10.3, applicable to the Office Building Project
subject to reimbursement by Lessee of Lessee's Share of such taxes in
accordance with the provisions of paragraph 4.2, except as otherwise
provided in paragraph 10.2.
10.2 Additional Improvements. Lessee shall not be responsible for
paying any increase in real property tax specified In the tax assessor's
records and work sheets as being caused by additional improvements placed
upon the Office Building Project by other lessees or by Lessor for the
exclusive enjoyment of any other lessee. Lessee shall, however, pay to
Lessor at the time that Operating Expenses are payable under paragraph
4,2(c) the entirety of any increase in real property tax if assessed
solely by reason of additional improvements placed upon the Premises by
Lessee of at Lessee's request.
10.3 Definition of "Real Property Tax" As used herein, the term "real
property tax" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary and any license fee,
commercial rental tax, improvement bond or bonds, levy or tax (other than
Inheritance, personal income or estate taxes) Imposed on the Office
Building Project or any portion thereof by any authority having the
direct or Indirect power to tax, including any city, county, state or
federal government, or any school, agricultural, sanitary, fire, street,
drainage or other improvement district thereof. as against any legal or
equitable interest of Lessor in the Office Building Project or in any
portion thereof, as against Lessor's right to rent or other income
therefrom, and as against Lessor's business of leasing the Office
Building Project. The term "real property tax" shall also include any
tax, fee levy, assessment or charge (I) in substitution of, partially or
totally, any tax, fee, levy, assessment or charge hereinabove Included
within the definition of "real properly tax" or (II) the nature of which
was hereinbefore included within the definition of "real property tax:'
or (III) which is imposed for a service on but not charged prior to June
1, 1978, or, if previously charged, has been increased since June 1,
1978, or (iv) which is imposed as a result of a change in ownership, as
defined by applicable local statutes for property tax purposes, of the
Office Building Project or which is added to a tax or charge hereinbefore
included within the definition of real property lax by reason of such
change of ownership, or (v) which is Imposed by reason of this
transaction, any modifications or changes hereto, or any transfers hereof
10.4 Joint Assessment If the improvements or properly the taxes for
which are to be paid separately by Lessee under paragraph 10 2 or 10 5
are not separately assessed, Lessee's portion of that tax shall be
equitably determined by Lessor from the respective valuations assigned in
the assessor's work sheets or such other Information (which may include
the cost of construction) as may be reasonably available. Lessor's
reasonable determination thereof, in good faith, shall be conclusive.
10.5 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all
other personal properly of Lessee contained In the Premises or elsewhere.
(b) If any of Lessee's said personal property shall be assessed
with Lessor's real properly, Lessee shall pay to Lessor the taxes
attributable to Lessee within ten (10) days after receipt of a written
statement setting forth the taxes applicable to Lessee's property.
11. Utilities.
11.1 Services provided by Lessor. Lessor shall provide heating,
ventilation, air conditioning, and janitorial service as reasonably
required able amounts of electricity for normal lighting and office ATM
machines, water for reasonable and normal drinking and lavatory use, and
replacement light bulbs and/or fluorescent tubes and ballasts for
standard overhead fixtures.
11.2 Services Exclusive to Lessee. Lessee shall pay for all water. gas,
heat, light, power, telephone and other utilities and services specially
or exclusively supplied and/or metered exclusively to the Premises or to
Lessee, together with any taxes thereon. If any such services are not
separately metered to the Premises, Lessee shall pay at Lessor's option,
either Lessee's Share or p reasonable proportion to be determined by
Lessor of all charges jointly metered with other premises In the
Building.
11.3 Hours of Service. Said services and utilities shall be provided
during generally accepted business days and hours or such other days or
hours as may hereafter be set forth. Utilities and services required at
other times shall be subject to advance request and reimbursement by
Lessee to Lessor of the cost thereof.
11.4 Excess Usage by Lessee, Lessee shall not make connection to the
utilities except by or through existing outlets and shall not install of
use machinery or equipment in or about the Premises that uses excess
water, lighting or power, or suffer or permit any act that causes extra
burden upon the utilities or services, including but not limited to
security services, over standard office usage for the Office Building
Project. Lessor shall require Lessee to reimburse Lessor for any excess
expenses or costs that may arise out of a breach of this subparagraph by
Lessee. Lessor may, in its sole discretion, install at Lessee's expense
supplemental equipment and/or separate metering applicable to Lessee's
excess usage or loading,
11.5 Interruptions. There shall be no abatement of rent and Lessor
shall not be liable in any respect whatsoever for the inadequacy,
stoppage, interruption or discontinuance of any utility or service due to
riot, strike, labor dispute, breakdowns accident, repair or other cause
beyond Lessor's reasonable control or In cooperation with governmental
request or directions.
12. Assignment and Subletting. See Paragraph 56
12.1 Lessor's Consent Required. Lessee shall not voluntarily or by
operation of law assign, transfer. mortgage, sublet. or otherwise
transfer or encumber all or any part of Lessee's interest In the Lease or
In the Premises, without Lessor's prior written consent, which Lessor
shall not unreasonably withhold. Lessor shall respond to Lessee's
request for consent hereunder In a timely manner and any attempted
assignment, transfer, mortgage, encumbrance or subletting without such
consent shall be void, and shall constitute a material default and breach
of this Lease without the need for notice to Lessee under paragraph
13.1."Transfer" within the meaning of this paragraph 112 shall include
the transfer or transfers aggregating: (a) if Lessee Is a corporation,
more than twenty-five percent (25%) of the voting stock of such
corporation or (b) if Lessee is a partnership, more than twenty-five
percent (25%) of the profit and loss participation In such partnership.
12.2 Lessee Affiliate. Notwithstanding the provisions of paragraph 12.1
hereof, Lessee may assign or sublet the Premises, or any portion thereof,
without Lessor's consent, to any corporation which controls, is
controlled by or Is under common control with Lessee, or to any
corporation resulting from the merger or consolidation with Lessee, or to
any person or entity which acquires all the assets of Lessee as a going
concern of the business that is being conducted on the Premises, all of
which are referred to as "Lessee Affiliate"; provided that before such
assignment shall be effective, (a) said assignee shall assume, in full,
the obligations of Lessee under this Lease and (b) Lessor shall be given
written notice of such assignment and assumption. Any such assignment
shall not, In any way, affect or limit the liability of Lessee under the
terms of this Lease even if alter such assignment or subletting the terms
of this Lease are materially changed or altered without the consent of
Lessee, the consent of whom shall not be necessary.
12.3 Terms and Conditions Applicable to Assignment and Subletting.
Regardless of Lessor's consent, no assignment or subletting shall release
Lessee of Lessee'3 obligations hereunder or alter the primary liability
of Lessee to pay the rent and other Sums due Lessor hereunder including
Lessee's Share of Operating Expense Increase, and to perform all other
obligations to be performed by Lessee hereunder.
(b) Lessor may accept rent from any person other than Lessee
pending approval or disapproval of such assignment.
(c) Neither a delay In the approval or disapproval of such
assignment or subletting, nor the acceptance of rent, shall constitute a
waiver or Lessor's right to exercise Its remedies for the breach of any
of the terms or conditions of this paragraph 12 or this Lease.
(d) If Lessee's obligations under this Lease have been guaranteed
by third parties, then an assignment or sublease and Lessor's consent
thereto shall not be effective unless said guarantors give their written
consent to such sublease and the terms thereof.
(e) The consent by Lessor to any assignment or subletting shall
not constitute a consent to any subsequent assignment or subletting by
Lessee or to any subsequent or successive assignment or subletting by the
sublessee, However, Lessor may consent to subsequent sublettings and
assignments of the sublease or any amendments or modifications thereto
without notifying Lessee or anyone else liable on the Lease or sublease
and without obtaining their consent and such action shall not relieve
such persons from liability under this Lease or said sublease: however,
such persons shall not be responsible to the extent any such amendment or
modification enlarges or increases the obligations of the Lessee or
sublessee under this Lease or such sublease.
(f) In the event of any default under this Lease, Lessor may
proceed directly against Lessee, any guarantors or any one else
responsible for the performance of this Lease, Including the sublettee,
without first exhausting Lessor's remedies against any other person or
entity responsible therefore to Lessor, or any security held by Lessor or
Lessee.
(g) Lessor's written consent to any assignment or subletting of
the Premises by Lessee shall not constitute an acknowledgement that no
default then exists under this Lease of the obligations to be performed
by Lessee nor shall such consent be deemed a waiver of any then existing
default, except as may be otherwise stated by Lessor at the time.
(h) The discovery of the fact that any financial statement relied
upon by Lessor in giving its consent to an assignment or subletting was
materially false shall at Lessor's election, render Lessor's said consent
null and void.
12.4 Additional Terms and Conditions Applicable to Subletting.
Regardless of Lessor's consent, the following terms and conditions shall
apply to any subletting by Lessee of all or any part of the Premises and
shall be deemed included in all subleases under this Lease whether or not
expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease heretofore
of hereafter made by Lessee, and Lessor may collect such rent and income
and apply same toward Lessee's obligations under this Lease provided,
however, that until a default shall occur In the performance of Lessee's
obligations under this Lease, Lessee may receive, collect and enjoy the
rents accruing under such sublease. Lessor shall not, by reason of this
or any other assignment Of such sublease to Lessor nor by reason of the
collection of the rents from a sublessee, be deemed liable to the
sublessee for any failure of Lessee to perform and comply with any of
Lessee's obligations to such sublessee under such sublease. Lessee
hereby Irrevocably authorizes and directs any such subleases, upon
receipt of a written notice from Lessor stating that a default exists in
the performance of Lessee's obligations under this Lease, to pay to
Lessor the rents due and to become due under the sublease. Lessee agrees
that such sublease shall have the right to rely upon any such statement
and request from Lessor and that such sublessee shall pay such rents to
Lessor without any obligation or right to Inquire as to whether such
default exists and notwithstanding any notice from or claim from Lessee
to the contrary. Lessee shall have no right or claim against said
subleases or Lessor for any such rents so paid by said sublessee to
Lessor,
(b) No sublease entered Into by Lessee shall be effective unless
and until it has been approved In writing by Lessor. In entering into
any sublease, Lessee shall use only such form of sublessee as is
satisfactory to Lessor, and once approved by Lessor, such sublease shall
not be changed or modified without Lessor's prior written consent. Any
sublease shall, by reason of entering Into a sublease under this Lease,
be deemed, for the benefit of Lessor, to have assumed and agreed to
conform and comply with each and every obligation herein to be performed
by Lessee other than such obligations as are contrary to or Inconsistent
with provisions contained In a sublease to which Lessor has expressly
consented In writing.
(c) In the event Lessee shall default In the performance of Its
obligations under this Lease, Lessor at Its option and, without any
obligation to do so, may require any sublessee to attorn to Lessor, In
which event Lessor shall undertake the obligations of Lessee under such
sublease from the time of the exercise of said option to the termination
of such sublease; provided, however, Lessor shall not be liable for any
prepaid rents or security deposit paid by such subleases to Lessee or for
any other prior defaults of Lessee under such sublease.
(d) No sublessee shall further assign or sublet all or any part
of the Premises without Lessor's prior written consent.
(e) With respect to any subletting to which Lessor has consented,
Lessor agrees to deliver a copy of any notice of default by Lessee to the
sublessee. Such sublessee shall have the right to cure a default of
Lessee within three (3) days after service of said notice of default upon
such sublessee, and the subleases shall have a right of reimbursement and
offset from and against Lessee for any such defaults cured by the
sublessee.
12.5 Lessee's Expenses. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting
or If Lessee shall request the consent of Lessor for any act Lessee
proposes to do then Lessee shall pay Lessor's reasonable costs and
expenses incurred In connection therewith, Including attorneys:
architects: engineers' or other consultants' fees.
12.6 Conditions to Consent. Lessor reserves the right to condition any
approval to assign or sublet upon Lessor's determination that (a) the
proposed assignee or sublessee shall conduct a business on the Premises
of a quality substantially equal to that of and consistent with the
general character of the other occupants of the Office Building Project
and not In violation of any exclusives or rights then hold by other
tenants, and (b) the proposed assignee or sublets to at least as
financially responsible as Lessee was expected to be at the time of the
execution of this Lease or of such assignment or subletting, whichever Is
greater.
13. Default; Remedies
13.1 Default. The occurrence of any one or more of the following events
shall constitute a material default of this Lease by Lessee:
(a) The vacation or abandonment of the Premises without payment
of rent by Lessee.
(b) The breach by Lessee of any of the covenants, conditions or
provisions of paragraphs 7.3(a), (b) or (d) (alterations), 12.1
(assignment or subletting), 13.1(a) (vacation or abandonment), 13.1(e)
(insolvency), 13.1(f) (false statement), 16(a) (estoppel certificate),
30(b) (subordination), 33 (auctions), or 41.1 (easements), all of which
are hereby deemed to be material, non-curable defaults without the
necessity of any notice by Lessor to Lessee thereof.
(c) The failure by Lessee to make any payment of rent or any
other payment required to be made by Lessee hereunder, as and when due,
where such failure shall continue for a period of three (3) days after
written notice thereof from Lessor to Lessee. In the event that Lessor
serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable
Unlawful Detainer statutes such Notice to Pay Rent or Quit shall also
constitute the notice required by this subparagraph. The failure by
Lessee to observe or perform any of the covenants. conditions or
provisions of this Lease to be observed or performed by Lessee other than
those referenced in subparagraphs (b) and (c), above. where such failure
shall continue for a period of thirty (30) days after written notice
thereof from Lessor to Lessee: provided. however, that if the nature of
Lessee's noncompliance is such that more than thirty (30) days are
reasonably required for its cure, then Lessee shall not be deemed to be
in default if Lessee commenced such cure within said thirty (30) day
period and thereafter diligently pursues such cure to completion. To the
extent permitted by law such thirty (30) day notice shall constitute the
sole and exclusive notice required to be given to Lessee under applicable
Unlawful Detainer statutes.
(d) (I) The making by Lessee of any general arrangement or
general assignment for the benefit of creditors: (ii) Lessee becoming a
"debtor" as defined in 11 U.S.C. 101 or any successor statute thereto
(unless, in the case of, a petition filed against Lessee. the same is
dismissed within sixty (60) days (III) the appointment of a trustee or
receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where
possession is not restored to Lessee within thirty (30) days; or (iv) the
attachment, execution or other judicial seizure of substantially all of
Lessee's assets located at the Premises or of Lessee's Interest in this
Lease, where such seizure is not discharged within thirty (30) days. In
the event that any provision of this paragraph 13.1(e) is contrary to any
applicable law, such provision shall be of no force-or effect.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, or its successor in interest or by any guarantor of
Lessee's obligation hereunder, was materially false.
13.2 Remedies. In the event of any material default or breach of this
lease by Lessee. Lessor may at any time thereafter, with or without
notice or demand and without limiting Lessor in the exercise of any right
or remedy which Lessor may have by reason of such default:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall
terminate and Lessee shall immediately surrender Possession of the
Premises to Lessor, In such event Lessor shall be entitled to recover
from Lessee all damages incurred by Lessor by reason of Lessee's default
including, but not limited to, the cost of recovering Possession of the
Premises; expenses of retailing, including necessary renovation and
alteration of the Premises, reasonable attorneys' fees, and any real
estate commission actually paid; the worth at the time of award by the
court having jurisdiction thereof of the amount by which the unpaid rent
for the balance of the term after the time of such award exceeds the
amount of such rental loss for the same period that Lessee proves could
be reasonably avoided; that portion of the leasing commission paid by
Lessor pursuant to paragraph 15 applicable to the unexpired term of this
Lease.
(b) Maintain Lessee's right to possession in which Case this
Lease shall continue in effect whether or not Lessee shall have vacated
or abandoned the Premises. In such event Lessor shall be entitled to
enforce all of Lessor's rights and remedies under this Lease, Including
the right to recover the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises
are located. Unpaid installments of rent and other unpaid monetary
obligations of Lessee under the terms of this Lease shall bear interest
from the date due at the maximum rate then allowable by law.
13.3 Default by Lessor. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time,
but in no event later than thirty (30) days after written notice by
Lessee to Lessor and to the holder of any first mortgage or deed of trust
covering the Premises whose name and address shall have theretofore been
furnished to Lessee in writing, specifying wherein Lessor has failed to
perform such obligation ' provided, however, that if the nature of
Lessor's obligation is such that more than thirty (30) days are required
for performance then Lessor shall not be in default If Lessor commences
performance within such 30-day period and thereafter diligently pursues
the same to completion.
13.4 Late Charges. Lessee hereby acknowledges that late payment by
Lessee to Lessor of Base Rent, Lessee's Share of Operating Expense
Increase or other Sums due hereunder will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to 83certain. Such Costs include, but are not limited to
processing and accounting charges, and late charges which may be imposed
on Lessor by the terms of any mortgage or trust deed covering the Office
Building Project. Accordingly, if any installment of Base Rent,
Operating Expense Increase. or any other sum due from Lessee shall not be
received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, then, without any requirement for notice to Lessee,
Lessee shall pay to Lessor a late charge equal to 6% of such overdue
amount. The parties hereby agree that such late charge represents a fair
and reasonable estimate of the costs Lessor will incur by reason of late
payment by Lessee. Acceptance of such late charge by Lessor shall in no
event constitute a waiver of Lessee's default with respect to such
overdue amount. nor prevent Lessor from exercising any of the other
rights and remedies granted hereunder.
14. Condemnation. If the Premises or any portion thereof or the Office
Building Project are taken under the power of eminent domain, or sold
under the threat of the exercise of said power (all of which are herein
called "condemnation"), this Lease shall terminate as to the part so
taken as of the date the condemning authority takes title or possession,
whichever first occurs; provided that if so much of the Premises or the
Office Building Project are taken by such condemnation as would
substantially and adversely affect the operation and profitability of
Lessee's business conducted from the Premises, Lessee shall have the
option, to be exercised only in writing within thirty (30) days after
Lessor shall have given Lessee written notice of such taking (or In the
absence of such notice, within thirty (30) days after the condemning
authority shall have taken Possession, to terminate this Lease as of the
date the condemning authority takes such possession, If Lessee does not
terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises
remaining, except that the rent and Lessee's Share of Operating Expense
Increase shall be reduced in the proportion that the floor area of the
Premises taken bears to the total floor area of the Premises. Common
Areas taken shall be excluded from the Common Areas Usable by Lessee and
no reduction of rent shall occur with respect thereto or by reason
thereof, Lessor shall have the option In its sole discretion to terminate
this Lease as of the taking of possession by the condemning authority, by
giving written notice to Lessee of such election within thirty (30) days
after receipt of notice of a taking by condemnation of any part of the
Premises or the Office Building Project. Any award for the taking of all
or any Dart of the Premises or the Office Building Project under the
power of eminent domain or any payment made under threat of the exercise
of such power shall be the property of Lessor, whether such award shall
be made as compensation for diminution In value of the leasehold or for
the taking of the fee, or as severance damages, provided, however that
Lessee shall be entitled to any separate award for loss of or damage to
Lessee's trade fixtures, removable personal properly and unamortized
tenant improvements that have been paid for by Lessee. For that purpose
the cost of such improvements shall be amortized over the original term
of this Lease excluding any options. In the event that this Lease Is not
terminated by reason of such condemnation, Lessor shall to the extent of
severance damages received by Lessor In connection with such
condemnation, repair any damage to the Premises caused by such
condemnation except to the extent that Lessee has been reimbursed
therefor by the condemning authority Lessee shall pay any amount in
excess of such severance damages required to complete such repair.
15. Broker's Fees
(a) The brokers involved in this transaction are Dan Mitchell,
Voit as "listing broker" and Brian Doner Daum as "Cooperating
broker," licensed real estate broker(s). A "cooperating broker" is
defined as any broker other than the listing broker entitled to a share
of any commission arising under this Lease. Upon execution of this Lease
by both parties, Lessor shall pay to said brokers jointly, or In such
separate shares as they may mutually designate In writing, a fee as set
forth in a separate agreement between Lessor and said broker(s), for
brokerage services rendered by said broker(s) to Lessor In this
transaction.
16. Estoppel Certificate.
(a) Each party (as "responding party") shall at any time upon not
less than ten (10) days' prior written notice from the other party
("requesting party") execute, acknowledge and deliver to the requesting
party a statement in writing (I), certifying that this Lease is
unmodified and in full force and effect (or, it 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 rent and
other charges are paid in advance, it any, and (ii) acknowledges that
there are not, to the responding party's knowledge, any uncured defaults
on the part of the requesting party, or specifying Such defaults if any
are claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Office Building Project or
of the business of Lessee.
(b) At the requesting party's option, the failure to deliver such
statement within such time shall be a material default of this Lease by
the party who is to respond, without any further notice to such party, or
it shall be conclusive upon such party that (I) this Lease is in full
force and effect, without modification except as may be represented by
the requesting party, (ii) there are no uncured defaults In the
requesting party's performance, and (iii) if Lessor is the requesting
party, not more than one month's rent has been paid in advance.
(c) If Lessor desires 10 finance, refinance, or sell the Office
Building Project, or any part thereof, Lessee hereby agrees to deliver to
any lender or purchaser designated by Lessor such financial statements of
Lessee as may be reasonably required by such lender or purchaser. Such
statements shall include the past three (3) years' financial statements
of Lessee. All such financial statements shall be received by Lessor and
such lender or purchaser in confidence and shall be used only for the
purposes herein set forth,
17. Lessor's Liability. The term "Lessor" as Used herein shall mean
only the owner or owners, at the time in question, of the fee title or a
lessee's interest in a ground lease of the Office Building Project, and
except as expressly provided in paragraph 15, In the event of any
transfer of such title or interest, Lessor herein named (and in case of
any subsequent transfers (hen the grantor) shall be relieved from and
after the date of such transfer of all liability as respects Lessor's
obligations thereafter to be performed, provided that any funds in the
hands of Lessor or the then grantor at the time of such transfer, in
which Lessee has an Interest, shall be delivered to the grantee. The
obligations contained in this Lease to be performed by Lessor shall,
subject as aforesaid, be binding on Lessor's successors and assigns, only
during their respective periods of ownership
18. Severability. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction shall in no way affect
the validity of any other provision hereof.
19. Interest on Past-due Obligations. Except as expressly herein
provided, any amount due to Lessor not paid when due shall bear interest
at the maximum rate then allowable by law or judgments from the date due.
Payment of such interest shall not excuse or cure any default by Lessee
under this Lease: provided, however, that Interest shall not be payable
on late charges Incurred by Lessee nor on any amounts upon which late
charges are paid by Lessee.
20. Time of Essence. Time is of the essence with respect to the
obligations to be performed under this Lease.
2I. Additional Rent All monetary obligations of Lessee to Lessor under
the terms of this Lease, Including but not limited to Lessee's Share of
Operating Expense Increase and any other expenses payable by Lessee
hereunder shall be deemed to be rent.
22. Incorporation of Prior Agreements; Amendments. This Lease contains
all agreements of the parties with respect to any matter mentioned
herein. No prior or contemporaneous agreement or understanding
pertaining to any such matter shall be effective. This Lease may be
modified in writing only, signed by the parties in interest at the time
of the modification. Except as otherwise stated In this Lease, Lessee
hereby acknowledges that neither the real estate broker listed In
paragraph 15 hereof nor any cooperating broker on this transaction nor
the Lessor or any employee or agents of any of said persons has made any
oral or written warranties or representations to Lessee relative to the
condition or use by Lessee of the Premises or the Office Building Project
and Lessee acknowledges that Lessee assumes all responsibility regarding
the Occupational Safety Health Act, the legal use and adaptability of the
Premises and the compliance thereof with all applicable laws and
regulations In effect during the term of this Lease.
23. Notices. Any notice required or permitted to be given hereunder
shall be in writing and may be given by personal delivery or by certified
or registered mail, and shall be deemed sufficiently gives if delivered
or addressed to Lessee or to Lessor at the address noted below or
adjacent to the signature of the respective parties, as the case may be.
Mailed notices shall be deemed given upon actual receipt at the address
required or forty-eight hours following deposit In the mall, postage
prepaid, whichever first occurs. Either party may by notice to the other
specify a different address for notice purposes except that upon Lessee's
taking possession of the Premises, the Premises shall constitute Lessee's
address for notice purposes. A copy of all notices required or permitted
to be given to Lessor hereunder shall be concurrently transmitted to such
party or parties at such addresses as Lessor may from time to time
hereafter designate by notice to Lessee.
24. Waivers. No waiver by Lessor of an provision hereof shall be deemed
a waiver of any other provision hereof or of any subsequent breach by
Lessee of the same or any other provisions Lessor's consent to, or
approval of, any act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to or approval of any subsequent act by
Lessee. The acceptance of rent hereunder by Lessor shall not be a waiver
of any preceding breach by Lessee of any provision hereof, other than the
failure of Lessee to pay the particular rent so accepted, regardless of
Lessor's knowledge of such preceding breach at the time of acceptance of
such rent.
26. Holding Over. If Lessee, with Lessor's consent, remains in
possession of the Premises or any part thereof after the expiration of
the term hereof such occupancy shall be a tenancy from month to month
upon all the provisions of this Lease pertaining to the obligations of
Lessee, except that the rent payable shall be one-hundred twenty-five
percent (125%) of the rent payable immediately preceding the termination
date of this Lease, and all Options, it any, granted under the terms of
this Lease shall be deemed terminated and be of no further effect during
said month to month tenancy
27. 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.
28. Covenants and Conditions. Each provision of this Lease performable
by Lessee shall be deemed both a covenant and a condition.
29. Binding Effect; Choice of Law. Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the
provisions of paragraph 17, this Lease shall bind the parties, their
personal representatives, Successors and assigns. This Lease shall be
governed by the laws of the State where the Office Building Project 13
located and any litigation concerning this Lease between the parties
hereto shall be Initiated In the county In which the Office Building
Project Is located.
30. Subordination.
(a) This Lease, and any Option or right of first refusal granted
hereby, at Lessor's option, shall be subordinate to any ground lease,
Mortgage deed of trust, or any other hypothecation or security now or
hereafter placed upon the Office Building Project and to any and all
advances made on the security thereof and to all renewals. modifications,
consolidations, replacements and extensions thereof. Notwithstanding
such subordination, Lessee's right to quiet possession of the Premises
shall not be disturbed if Lessee 13 not in default and so long as Lessee
shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to Its terms.
If any mortgagee, trustee or ground lessor shall elect to have this Lease
and any Options granted hereby prior to the lien of its mortgage, deed of
trust or ground lease. and shall give written notice thereof to Lessee,
this Lease and such Options shall be deemed prior to such mortgage, deed
of trust or ground lease, whether this Lease or such Options are dated
prior or subsequent to the date of said mortgage, deed of trust or ground
lease or the date of recording thereof.
(b) Lessee agrees to execute any documents required to effectuate
an attornment, a subordination, or to make this Lease or any Option
granted herein prior to the lien of any mortgage, deed of trust or ground
lease, as the case may be. Lessee's failure to execute such documents
within ten (10) days after written demand shall constitute a material
default by Lessee hereunder without further notice to Lessee or, at
Lessor's option, Lessor shall execute such documents on behalf of Lessee
as Lessee's attorney-in-fact. Lessee does hereby make, constitute and
irrevocably appoint Lessor as Lessee's attorney-in-fact and In Lessee's
name, place and stead, to execute such documents In accordance with this
paragraph 30(b).
31. Attorneys' Fees
31.1 If either party or the broker(s) named herein bring an action to
enforce the terms hereof or declare rights hereunder, the prevailing
party in any such action, trial or appeal thereon, shall be entitled to
his reasonable attorneys' fees to be paid by the losing party as fixed by
the court in the same or a separate suit, and whether or not such action
is pursued to decision or judgment. The provisions of this paragraph
shall inure to the benefit of the broker named herein who seeks to
enforce a right hereunder.
31.2 The attorneys' fee award shall not be computed In accordance with
any court fee schedule, but shall be such as to fully reimburse all
attorneys' fees reasonably Incurred In good faith.
31.3 Lessor shall be entitled to reasonable attorneys' fees and all
other costs and expenses Incurred In the preparation and service of
notice of default and consultations In connection therewith, whether or
not a legal transaction Is subsequently commenced In connection with such
default
32. Lessor's Access
32.1 Lessor and Lessor's agents shall have the right to enter the
Premise any services required of Lessor showing the same to prospective
purchasers, lenders, or lessees, taking such safety measures, erecting
such scaffolding or other necessary structures, making such alterations,
repairs, improvements or additions to the Premises or to the Office
Building Project as Lessor may reasonably deem necessary or desirable and
the erecting, using, and maintaining of utilities, services, pipes and
conduits through the Premises and/or other premises as long as there is
no material adverse effect to Lessee's use of the Premises. Lessor may
at any time place on or about the Building any ordinary A For Sale signs
and Lessor may at any time during the last 120 days of the term hereof
place on any ordinary "For Lease".
32.2 All activities of Lessor pursuant to this paragraph shall be
without abatement of rent, nor shall Lessor have any liability to Lessee
for the same.
32 3 Lessor shall have the right to retain keys to the Premises and to
unlock all doors in or upon the Premises other than to files, vaults and
safes, -and in the case of emergency to enter the Premises by any
reasonably appropriate means, and any such entry shall not be deemed a
forcible or unlawful entry or detainer of the Premises or an eviction,
Lessee waives any charges for damages or injuries or interference with
Lessee's Property or business in connection therewith.
33. Auctions. Lessee shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Premises or the
Common Areas without first having obtained Lessor's prior written
consent. Notwithstanding anything to the contrary in this Lease, Lessor
shall not be obligated to exercise any standard of reasonableness in
determining whether to grant such consent. The holding of any auction on
the Premises or Common Areas in violation of this paragraph shall
constitute a material default of this Lease.
34. Signs. Lessee shall not place any sign upon the Premises or the
Office Building Project without Lessor's prior written consent. Under no
circumstances shall Lessee place a sign on any roof of the Office
Building Project.
35. Merger. The voluntary or other surrender of this Lease by Lessee,
or a mutual cancellation thereof. or a termination by Lessor, shall not
work a merger, and shall, at the option of Lessor, terminate all or any
existing subtenancies or may, at the option of Lessor, operate as an
assignment to Lessor of any or all Of such subtenancies.
36. Consents. Except for paragraphs 33 (auctions) and 34 (signs)
hereof, wherever in this Lease the consent of one party is required to an
act of the other party such consent shall not be unreasonably withhold or
delayed.
37. Guarantor. In the event that there is a guarantor of this Lease,
said guarantor shall have the same obligations as Lessee under this
Lease.
38. Quiet Possession. Upon Lessee paying the rent for the Premises and
observing and performing all of the covenants, conditions and provisions
on Lessee's part to be observed and performed hereunder, Lessee shall
have quiet possession of the Premises for the entire term hereof subject
to all of the provisions of this Lease. The individuals executing this
Lease on behalf of Lessor represent and warrant to Lessee that they are
fully authorized and legally capable of executing this Lease on behalf of
Lessor and that such execution is binding upon all parties holding an
ownership interest in the office Building Project.
39. Options.
39.1 Definition. As Used in this paragraph the word "Option" has the
following meaning: (1) the right or option to extend the term of this
Lease or to renew this Lease or to extend or renew any lease that Lessee
has on other property of Lessor; (2) the option of right of first
refusal to lease the Premises or the right of first offer to lease the
Premises or the right of first refusal to lease other space within the
Office Building Project or other property of Lessor or the right of
first other to lease other space within the Office Building Project or
other property of Lessor; (3) the right or option to Purchase the
Premises or the Office Building Project, or the right of first refusal to
purchase the Premises or the Office Building Project or the right of
first offer to purchase the Premises or the Office Building Project, or
the right or option to purchase other property of Lessor. or the right of
first refusal to purchase other property of Lessor or the right of first
offer to purchase other property of Lessor.
39.2 Options Personal. Each Option granted to Lessee -in this Lease is
personal to the original Lessee and may be exercised only by the original
Lessee while occupying the Premises who does 50 without the Intent of
thereafter assigning this Lease or subletting the Promises or any portion
thereof, and may not be exercised or be assigned, voluntarily or
Involuntarily, by or to any person or entity other than Lessee; provided,
however, that an Option may be exercised by or assigned to any Lessee
Affiliate as defined In paragraph 12.2 of this Lease. The Options, If
any, herein granted to Lessee are not assignable separate and apart from
this Lease, nor may any Option be separated from this Lease in any manner
either by reservation or otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple
options to extend or renew this Lease a later option cannot be exercised
unless the prior option to extend or renew this Lease has been so
exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary, (1)
during the time commencing from the date Lessor gives to Lessee a notice
of default pursuant to paragraph 13.1(c) or 13.1(d) and continuing until
the noncompliance alleged in said notice of default 13 cured, or (if)
during the period of time commencing on the day after a monetary
obligation to Lessor Is due from Lessee and unpaid (without any necessity
for notice thereof to Lessee) and continuing until the obligation 13
paid, or (111) in the event that Lessor has given to Lessee three or more
notices of default under paragraph 13.1(c), or paragraph 13.1(d), whether
or not the defaults are cured, during the 12 month period of time
Immediately prior to the time that Lessee attempts to exercise the
subject Option, (iv) It Lessee has committed any non-curable breach,
Including without limitation those described in Paragraph 13.1(b), or is
otherwise In default of any of the terms, covenants or conditions of this
Lease.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's Inability to
exercise an Option because of the provisions of paragraph 39.4(a). I
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's
due and timely exercise of the Option, if, after such exercise and during
the term of this Lease, (I) Lessee falls to pay to Lessor a monetary
obligation of Lessee for a period of thirty (30) days after such
obligation becomes due (without any necessity of Lessor to give notice
thereof to Lessee), or (ii) Lessee falls to commence to cure a default
specified in paragraph 13.1(d) within thirty (30) days after the date
that Lessor gives notice to Lessee of such default and/or Lessee falls
thereafter to diligently prosecute said cure to completion, or (iii)
Lessor gives to Lessee three or more notices of default under paragraph
13.1(c), or paragraph 13,1(d), whether or not the defaults are cured, or
(iv) if Lessee has committed any non-curable breach, including without
limitation those described in paragraph 13.1(b), or is otherwise in
default of any of the terms. covenants and conditions of this Lease.
40.Security Measures-Lessor's Reservations.
40.1 Lessee hereby acknowledges that Lessor shall have no obligation
whatsoever to provide guard service or other security measures for the
benefit of the Premises or the Office Building Project. Lessee assumes
all responsibility for the protection of Lessee, its agents, and invitees
and the property of Lessee and of Lessee's agents and invitees from acts
of third parties, Nothing herein contained shall prevent Lessor, at
Lessor's sole option, from providing security protection for the Office
Building Project or any part thereof. in which event the cost thereof
shall be included within the definition of Operating Expenses, as set
forth in paragraph 4.2(b),
40.2 Lessor shall have the following rights:
(a) To change the name, address or title of the Office Building
Project or building in which the Promises are located upon not less than
90 days prior written notice; Provided Landlord reimburses Tenant for all
stationary or related costs, Unless such change was due to government
notice or zoning requirements.
(b) To, at Lessee's expense, provide and initial Building
standard graphics on the door of the Premises and such portions of the
Common Areas as Lessor shall reasonably deem appropriate;
(c) To permit any lessee the exclusive right to conduct any
business as long as such exclusive does not conflict with any rights
expressly given herein:
(d) To place such signs, notices or displays as Lessor reasonably
deems necessary or advisable upon the roof, exterior of the buildings or
the Office Building Project or on pole signs In the Common Areas:
However, Lessor should be prohibited from interfering with the Lessee's
rights of ingress and egress or that of its business licensees or
visibility of the premises.
40.3 Lessee shall not
(b) Suffer or permit anyone, except In emergency, to go upon the
roof of the Building.
41. Easements
41.1 Lessor reserves to itself the right, from time to time, to grant
such easements, rights and dedications that Lessor deems necessary or
desirable, and to cause the recordation of Parcel Maps and restrictions,
so long as such easements, rights, dedications, Maps and restrictions do
not unreasonably interfere with the use of the Premises by Lessee.
Lessee shall sign any of the aforementioned documents upon request of
Lessor and failure to do so shall constitute a material default of this
Lease by Lessee without the need for further notice to Lessee.
41.2 The obstruction of Lessee's view, air, or light by any structure
erected in the vicinity of the Building, whether by Lessor or third
parties shall in no way affect this Lease or Impose any liability upon
Lessor.
42. Performance Under Protest. If at any time a dispute shall arise as
to any amount or sum of money to be paid by one party to the other under
the provisions hereof, the party against whom the obligation to pay the
money is asserted shall have the right to make payment "under protest"
and such payment shall not be regarded as a voluntary payment, and there
shall survive the right on the part of said party to institute Suit for
recovery of such sum. If It shall be adjudged that there was no legal
obligation on the part of said party to pay such sum or any part thereof,
said party shall be entitled to recover such sum or so much thereof as It
was not legally required to pay under the provisions of this Lease.
43. Authority. If Lessee is a corporation, trust, general or limited
partnership, Lessee, and each individual executing this Lease on behalf
of said entity. If Lessee Is a corporation, entity represent and
warrant that such individual is duly authorized to execute and (30) days
after execution of this Lease, deliver to Lessor evidence of such
authority satisfactory trust or partnership, Lessee shall, within this
Lease deliver this Lease to Lessor.
44. Conflict. Any conflict between the printed provisions, Exhibits
or Addenda of this Lease and the typewritten or handwritten provisions,
if any, shall be controlled by the typewritten or handwritten
provisions.
45. No Offer. Preparation of this Lease by Lessor or Lessor's agent
and submission of same to Lessee shall not be deemed an offer to Lessee
to lease. This Lease shall become binding upon Lessor and Lessee only
when fully executed by both parties.
46. Lender Modification. Lessee agrees to make such reasonable
modifications to this Lease as may be reasonably required by an
institutional lender in connection with the obtaining of normal
financing or refinancing of the Office Building Project.
47. Multiple Parties. If more than one person or entity Is named as
either Lessor or Lessee herein, except as otherwise expressly provided
herein, the obligations of the Lessor or Lessee herein shall be the
joint and several responsibility of all persons or entitles named herein
as such Lessor or Lessee, respectively.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND
EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE,
SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY
AGREE THAT, AT THE TIME
THIS LEASE IS EXECUTED. THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE
WITH RESPECT TO THE PREMISES.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR
SUBMISSION TO YOUR ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
OR BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY. LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE
TRANSACTION RELATING THERETO; THE PARTIES SHALL RELY SOLELY UPON THE
ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF
THIS LEASE.
LESSOR LESSEE
Fujita Investors of California Orange National
Bank
EXHIBIT A
ADDENDUM TO THE LEASE AGREEMENT BY AND BETWEEN
FUJITA INVESTORS OF CALIFORNIA (LESSOR) AND ORANGE NATIONAL BANK
(LESSEE)
DATED: July 17,1997
50. OCCUPANCY:
Lessee shall have the right to occupancy of the premises free of
rent on October 1, 1 997 or upon substantial completion of the tenant
improvements, subject to all other terms and conditions of this Lease.
Commencement for the monthly base rent shall be January 1, 1998.
51. TENANT IMPROVEMENTS:
Lessor shall provide a total allowance of up to $118,600 based
upon 4,744 useable square feet, (hereinafter 'Improvement Allowance'),
for any and all Lessee improvement costs, including, but not limited to,
space planning, design and architectural fees, construction drawings,
mechanical and electrical engineering, permits and other fees, plan
check and construction of Lessee's improvements in the Premises, and/or
building signage, vault, ATM and night depository. If tenant
improvement allowance is used for construction/installation of any
vault, ATM, and/or night depository, then such items shall be deemed
Lessor's property upon expiration of Lessee's occupancy. The
Improvement Allowance shall not be utilized for real property
improvement items (i.e. furniture, removable fixtures, computers, phone
systems and related equipment and cabling). All costs in excess of said
Improvement Allowance and all costs incurred by Lessor as a result of
Lessee's additions or modifications to said mutually approved
construction drawings shall be paid by Lessee. The contractors,
consultants and construction contract for such construction work shall
be subject to the parties' prior written approval, which approval shall
not be unreasonably withheld or delayed, and Lessor, shall be the
contracting party thereunder. In the event that Lessee, at any time,
becomes the contracting party, or a contractor is selected that has not
been previously used by Lessor, then Lessor reserves the right to charge
a construction supervision fee which shall be calculated by multiplying
.03 by the total amount of the construction contract.
Lessee and Lessor hereby agree that Lessee is leasing the Premises
in an 'as is, where is' condition. Except for this Paragraph 51 and the
Improvement Allowance provided herein, and the provisions provided for
in Paragraph 6.2 and 6.3 of the Lease, Lessor shall have no obligation
whatsoever to modify, construct, or otherwise alter the Premises or the
Office Building Project for Lessee's occupancy, other than removing the
existing computer floor/equipment and drywall covering the perimeter
windows.
Lessee shall utilize the Lessor's Building standard or equivalent
pursuant to Lessor's approval; ceiling grid, lights, hardware, locksets,
doors and window coverings for the Premises. Attached as Exhibit 'A' is
a preliminary space plan prepared by Lessee's architect for the
improvements to Lessee's Premises, which shall be mutually approved by
Lessee and Lessor prior to the commencement of construction drawings.
Lessee's space plans and working drawings shall not conflict with
the building codes for the City of Orange, or with any other applicable
governmental law or regulation, or with applicable insurance
regulations. All space plans and working drawings shall be in a form
satisfactory to appropriate governmental authorities responsible for
issuing permits and licenses required for construction.
Lessee shall competitively bid the project to at least three (3)
general contractors. Lessor may name a fourth (4th) general contractor,
subject to Lessor's prior approval of said general contractor.
Prior to any contractor entering the Building, said contractors
shall provide Lessor with a waiver of any and all mechanic and lien
rights, and the contractors shall name Lessor as additional insured in
its liability policy (which shall be for not less than $1,000,000 per
occurrence) and in Lessee's workmen's compensation insurance policy.
All contractors shall schedule all work and deliveries through
Lessor, and shall comply with all construction regulations reasonably
established by Lessor for the Building. All contractor and
subcontractors shall park and load in designated areas only, and shall
protect the Building, its Common Areas, and Lessor's property (i.e.
carpeting, walls, tile, finishes, etc.). In no event shall any
construction personnel enter other tenant offices without prior approval
from Lessor. The general contractor shall provide construction
dumpsters per Lessor's direction.
The term 'Completion', as used in the Lease, is hereby
defined to mean the date the building department of the municipality
having jurisdiction of the Premises shall have made a final inspection
of Lessee's Improvements, or recordation of a Notice Completion, or
Lessee's occupancy of the Premises, whichever shall occur first.
52. ATM:
Upon Lessor's review and approval of location, such approval shall
not be unreasonably withheld, Lessee shall be granted the right to
install up to one (1) automated transaction machines (ATM) at the
building.
53. DIRECTORY BOARD:
Lessor, at Lessor's sole cost and expense, shall furnish Lessee
with space on the building directory board(s) in the north and south
lobby areas of the building.
54. SIGNAGE:
Lessee, at Lessee's sole cost and expense, shall have the right to
install 'eyebrow' sign(s) on the building. The location of the
'eyebrow' signage shall be over the fourth floor windows (in the glass
line of parapet), no lower than the top of the window line of the fourth
floor in the upper left corner facing the orange (57) Freeway and on the
front of the building facing Katella over the branch, between the first
and second floors. Lessor shall allow Lessee to install individual
eyebrow letters of not less than 24" in height. The fourth floor sign
shall be illuminated, the final design and size of said sign(s) shall be
mutually agreed upon by Lessee and Lessor, and shall meet all applicable
city and building codes. Lessee shall be responsible for all
installation, maintenance and ultimate removal costs of such sign(s).
55. UTILITIES / HVAC:
Building operation hours are 7:00 a.m. to 6:00 p.m. Monday through
Friday, and 7:00 a.m. to 1:00 p.m. on Saturday. After hours heating,
ventilating and air conditioning is available upon Lessee's 24 hour
written request. Any after hours use is to be billed at cost or
approximately $35.00 per hour
56. SUBLEASE/ASSIGNMENT:
In the event and on the condition that Lessee has timely performed
each and every, all and singular of the terms, covenants, and conditions
of this Lease on Lessee's part to be performed, and subject to all
provisions in paragraphs 2 of the Lease, Lessee shall have the right to
sublease or assign all or any portion of the space to any subsidiary or
affiliate company without Lessor's approval. A sublease or assignment
to any unrelated party shall require the Lessor's approval, which
approval shall not be unreasonable withheld. Lessee shall have the
right to retain fifty percent (50%) of any profits which may be realized
for the sublease or assignment.
57. PARKING:
Lessee shall have the right to twelve (1 2) stalls marked 'Orange
National Bank', from the 19 allotted parking stalls, as outlined in
Vehicle Parking paragraph 2.2 of the lease, at no charge for the initial
term of this Lease at a location to be mutually agreed upon. Further
reserved spaces are subject to availability and at a charge specified in
paragraph 2.2.2 of the Lease. A location map of these reserved bank
stalls shall be attached to the lease documents as Exhibit 'E'.
58. MONUMENT SIGN:
In the event the design of a new monument sign is approved and
adequate for multiple listing, then Lessor shall provide Lessee at
Lessee's sole cost and expense, non-exclusive signage on the monument in
the front of the project. Subject to building occupancy and
availability, Lessee shall have the right to have their name listed
first on the monument sign.
59. OPTION TO EXTEND:
In the event and on the condition that Lessee has timely performed
each and every, all and singular of the terms, covenants, and conditions
of this Lease on Lessee's part to be performed, then Lessor hereby
grants to Lessee the option to extend the term of this Lease for two (2)
consecutive five (5) year periods commencing when the prior term expires
upon each and all of the following terms and conditions: Lessee give to
Lessor, and Lessor actually receives, on a date which is prior to the
date that option period would commence (if exercised) by at least four
(4) months and not more that seven (7) months, a written notice of the
exercise of the option to extend this Lease for said additional term,
time being of the essence. If said notification of the exercise of said
option is not so given and received, this option shall automatically
expire. All of the terms and conditions of this Lease except where
specifically modified by this option shall apply. The initial base rent
for the option period shall be ninety-five percent (95%) of the
prevailing market rate at the time of commencement of the option period,
for comparable office space within the general market area.
The term 'fair market rental rate' as used in this Addendum shall
mean the annual amount per rentable square foot, projected during the
relevant period, that a willing, comparable, non-equity tenant
(excluding sublease and assignment transactions) would pay, and willing,
comparable landlord of a comparable quality office building located in
the Anaheim Stadium area ('Comparison Area') would accept, at arm's
length (what Lessor is accepting in current transactions for the
building may be considered), for space comparable in size, quality and
floor height as the lease area at issue taking into account the age,
quality and layout of the existing improvements in the leased area at
issue and taking in account items that professional real estate brokers
customarily consider, including but not limited to, rental rates, office
space availability, tenant size, tenant improvement allowances,
operating expenses and allowance, parking charges and any other lease
economics than being considered by Lessor or the lessors of such similar
office buildings.
Lessor's determination of fair market rental rate shall be
delivered to Lessee in writing not later than thirty (30) days following
Lessor's receipt of Lessee's Extension Notice. Lessee will have thirty
(30) days ('Lessee's Review Period') after receipt of Lessor's notice of
the fair market rental rate within which to accept such fair market
rental rate or to object thereto in writing. Lessee's failure to object
to the fair market rental rate submitted by Lessor in writing within
Lessee's Review Period will conclusively be deemed Lessee's approval and
acceptance thereof. if Lessee objects to the fair market rental rate
submitted by Lessor within Lessee's Review Period, then Lessor and
lessee will attempt in good faith to agree upon such fair market rental
rate using their best good faith efforts. if Lessor and Lessee fail to
reach agreement on such fair market rental rate with fifteen (15) days
following the expiration of Lessee's Review Period (the 'Outside
Agreement Date'), then each party's determination will be submitted to
appraisal in accordance with the provisions below.
(i) Lessor and Lessee shall each appoint one independent,
unaffiliated appraiser who shall by profession be a real estate broker
who has been active over the five (5) year period ending on the date of
such appointment in the leasing of mid-rise office space in the
Comparison Area. Each such appraiser will be appointed within thirty
(30) days after the Outside Agreement Date.
(ii) The two (2) appraisers so appointed will within fifteen (15)
days of the date of the appointment of the last appointed appraiser
agree upon and appoint a third appraiser who shall be qualified under
the same criteria set forth herein above for qualification of the
initial two (2) appraisers.
(iii) The determination of the appraisers shall be limited solely
to the issue of whether Lessor's or Lessee's last proposed (as of the
Outside Agreement Date) new Base Rent for the Premises is the closest to
the actual new Base Rent for the Premises as determined by the
appraisers, taking into account the requirements of Paragraph and this
Paragraph (e) regarding same.
(iv) The three (3) appraisers shall within thirty (30) days of
the appointment of the third appraiser reach a decision as to whether
the parties shall use Lessor's or Lessee's submitted new Base Rent, and
shall notify Lessor and Lessee thereof.
(v) The decision of the majority of the three (3) appraisers
shall be binding upon Lessor and Lessee. The cost of each party's
appraiser shall be the responsibility of the party selecting such
appraiser, and the cost of the third appraiser (or arbitration, if
necessary) shall be shared equally by Lessor and Lessee.
(vi) If either Lessor or Lessee fails to appoint an appraiser
within the time period in paragraph (e) (1) herein above, the appraiser
appointed by one of them shall reach a decision, notify Lessor and
Lessee thereof and such appraiser's decision shall be binding upon
Lessor and Lessee.
(vii) In the event that new Base Rent is not established prior to
end of the initial Term of the Lease, the Base Rent immediately payable
at the commencement of the Option Term shall be the Base Rent payable in
the immediately preceding month. Notwithstanding the above, once the
fair market rental is determined in accordance with this section, the
parties shall settle any overpayment or underpayment on the next Base
Rent payment date falling not less than thirty (30) days after such
determination.
60. HAZARDOUS MATERIALS:
To the best of Lessor knowledge and without investigation, the
building is absent of the presence of hazardous materials. Lessor and
Lessor's successors will not hold Lessee or Lessee's assignees
responsible for any environmental damage which is not attributable to
Lessee or lessee's invitees use, occupancy or presence at the leased
premises.
61. CLEANING SERVICES:
Lessor, at Lessor's expense, shall provide during the entire term
of the Lease and any option periods janitorial service to the Premises
five (5) days per week befitting similar office building. Such service
shall be after normal business hours and in accordance with Exhibit 'D'
- - Cleaning Schedule. Should Lessee desire to hire a service of their
own for the branch, Lessor shall provide Lessee with an allowance to
employ a service.
62. STRUCTURAL/LATENT DEFECT:
Lessor, at Lessor's sole cost and expense, shall be responsible
for repair of any and al I structural and/or latent defects in the
Building over the terms of the lease and the Extension Period, and if
such repair is required by the appropriate government agency or is
necessary for the continuance of Lessee's operation.
63. AMERICAN'S WITH DISABILITIES ACT OF 1990:
If compelled to do so by appropriate government agency, Lessor
shall be responsible for any and all changes to the building or demised
premises required by the Americans with Disabilities Act, unless such
charges are required because of improvements or alterations made to the
demised premises by Lessee after Lessor's initial construction or is
required as a consequence of an act or use by Lessee not permitted under
this Lease.
64. EXCLUSIVITY:
Lessor shall not lease space within the 1800 West Katella Avenue,
Orange property to any banking institution that would operate a bank
branch or ATM machine.
65. TOTAL SQUARE FEET:
For the purposes of calculating operating expense, 1800 West
Katella Avenue, Orange building totals 46,976 square feet.
Page 3 of 3
RULES AND REGULATIONS FOR
STANDARD OFFICE LEASE
Dated: July 17, 1997
By and Between Fujita Investors of California (Lessor) and orange
National Bank (Lessee)
GENERAL RULES
1. Lessee shall not suffer or permit the obstruction of any Common
Areas, Including driveways, walkways and Stairways.
2. Lessor reserves the right to refuse access to any persons Lessor
In good faith judges to be a threat to the safety, reputation, or
property of the Office Building Project and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or
interfere with other lessees or persons having business within the
Office Building Project.
4. Lessee shall not keep animals or birds within the Office Building
Project, and shall not bring bicycles, motorcycles or other vehicles
into areas not designated as authorized forsame.
5. Lessee shall not make, suffer or permit litter except in
appropriate receptacles for that purpose.
6. Lessee shall not alter any lock or Install new or additional locks
or bolts. Except as require f or bank use.
7. Lessee shall be responsible for the Inappropriate Use of any
toilet rooms, plumbing or other utilities. No foreign substances of any
kind are to be inserted therein.
8. Lessee shall not deface the walls, partitions or other surfaces of
the premises or Office Building Project.
9. Lessee shall not suffer or permit any thing in or around the
Premises or Building that causes excessive vibration or floor loading in
any part of the Office Building Project.
10. Furniture, significant freight and equipment shall be moved into
or out of the building only with the Lessor's knowledge and consent, and
subject to such reasonable limitations, techniques and timing, as may be
designated by Lessor. Lessee shall be responsible for any damage to the
Office Building Project arising from any such activity
11. Lessee shall not employ any service or contractor for services or
work to be performed In the Building, except as approved by Lessor.
12. Lessor reserves the right to close and lock the Building on
Saturdays, Sundays and legal holidays, and on other days between the
hours of 6 P.M. and 7 A.M. of the following day. If Lessee uses the
Premises during such periods, Lessee shall be responsible for securely
locking any doors it may have opened for entry.
13. Lessee shall return all keys at the termination of its tenancy and
shall be responsible for the Cost of replacing any keys that are lost.
14. No window coverings. shades or awnings shall be Installed or used
by Lessee. Except as provided in Exhibit "A".
15. No Lessee, employees or invitee shall go upon the roof of the
Building, without Lessor's prior consent.
16. Lessee shall not suffer or permit smoking or carrying lot lighted
cigars or cigarettes in areas reasonably designated by Lessor or by
applicable governmental agencies as nonsmoking areas.
17. Lessee shall not use any method of heating or air conditioning
other than as provided by Lessor.
18. Lessee shall not Install, maintain or operate any vending machines
upon the Premises without Lessor's written consent.
19. The Promises shall not be used for lodging or manufacturing,
cooking or food preparation. Except microwave oven cooking.
20. Lessee shall comply with all safety, fire protection and
evacuation regulations established by Lessor or any applicable
governmental agency
21. Lessor reserves the right to waive any one of these rules or
regulations, and/or as to any particular Lessee, and any such waiver
shall not constitute a waiver of any other rule or regulation or any
subsequent application thereof to such Lessee.
22. Lessee assumes all risks from theft or vandalism and agrees to
keep its Premises locked as may be required.
23. Lessor reserves the right to make such other reasonable rules and
regulations as It may from time to time deem necessary for the
appropriate operation and safety of the Office Building Project and its
occupants. Lessee agrees to abide by these and such rules and
regulations.
PARKING RULES
1. Parking areas shall be used only for parking by vehicles no longer
than full size, passenger automobile herein called "Permitted Size
Vehicles" Vehicles other than Permitted Size Vehicles are herein
referred to as "oversized Vehicles"
2. Lessee shall not permit or allow any vehicles that belong to or
are controlled by Lessee or Lessee's employees, suppliers, shippers,
customers, or invitees to be loaded, unloaded, or parked In areas other
than those designated by Lessor for such activities.
3. Parking stickers or Identification devices shall be the property
of Lessor and be returned to Lessor by the holder thereof upon
termination of the holder's parking privileges. Lessee will pay such
replacement charge as is reasonably established by Lessor for the loss
of such devices.
4. Lessor reserves the right to refuse the sale of monthly
Identification devices to any person or entity that willfully refuses to
comply with the applicable rules, regulations, laws and/or agreements.
5. Lessor reserves the right to relocate all or a part of parking
spaces from floor to floor, within one floor, and/or to reasonably
adjacent Offsite locations, and to reasonably allocate them between
compact and standard size spaces, as long as the same complies with
applicable laws, ordinances and regulations. Lessee's reserved stalls
shall remain unaffected.
6. Users of the parking area will obey all posted signs and park only
in the areas designated for vehicle parking.
7. Unless otherwise Instructed, every person using the parking area
is required to park and lock his own vehicle. Lessor will not be
responsible for any damage to vehicles, Injury to persons or loss of
property, all of which risks are assumed by the party using the parking
area.
8. Validation, If established. will be permissible only by such
method or methods as Lessor and/or its licensee may establish at rates
generally applicable to visitor parking.
9. The maintenance. washing, waxing or cleaning of vehicles in the
parking structure or Common Areas is prohibited.
10. Lessee shall be responsible for seeing that all of its employees,
agents and invitees comply with the applicable parking rules,
regulations, laws and agreements.
11. Lessor reserves the right to modify these rules and/or adopt such
other reasonable and non discriminatory rules and regulations as it may
deem necessary for the proper operation of the parking area.
12. Such parking use as Is herein provided is intended merely as a
license only and no bailment is Intended or shall be created hereby.
EXHIBIT B
PAGE 1 OF I PAGES
EXHIBIT 10.7
SHOPPING CENTER LEASE
Name of Center ORANGE CREST PLAZA
1. PARTIES. This Lease, dated as of this 29th day of September 1989,
is made by and between Orange Newport Associates (herein called
"Landlord") and Orange National Bank (herein called "Tenant").
2. PREMISES. Landlord does hereby lease to Tenant and Tenant hereby
leases from Landlord that certain space (herein called "Premises"),
containing approximately 3,300 square feet of floor area. The location
of said Premises are delineated on Exhibit "A" attached hereto and
incorporated by reference herein. Said Premises are located in the City
of Orange, County of Orange, State of California. This Lease is subject
to the terms, covenants and conditions herein set forth and the Tenant
covenants as a material part of the consideration for this Lease to keep
and perform each and ll. of said terms, covenants and conditions by it to
be kept and performed.
3. USE. Tenant shall use the Premises for a financial institution
and shall not use or permit the Premises to be used for any other purpose
without the prior written consent of Landlord.
MINIMUM RENT.
4.A. Tenant agrees to pay to Landlord as Minimum Rent, without notice
or demand, the monthly sum of Six Thousand Three Hundred Sixty-Nine
Dollars and 00/100 ($6,369.00) Dollars, in advance, on or before the
first day of each and every successive calendar month during the term
hereof, except the first month's rent shall be paid upon the execution
hereof.
Rent for any period which is for less than one (1) month shall be a
prorated portion of the monthly installment herein based upon a thirty
(30) day month. Said rental shall be paid to Landlord, without deduction
or offset, in lawful money of the United States of America and at such
place as Landlord may from time to time designate in writing.
4.B. THE MINIMUM RENTAL as set forth in 4(A) above shall be increased if
the Consumer Price Index - Los Angeles - Anaheim - Riverside - All Urban
Consumers (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 shall be the Index for the calendar month which is four
months prior to the month in which rentals commence. 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 minimum rental for
the next year shall be increased by the identical percentage commencing
with the next rental commencement month. In no event shall the Minimum
Rental be less than that set forth in 4(A) above. (By way of illustration
only, if Tenant commenced paying rent in June of 1977, then the base
period Index is that for February, 1977 (assume 176-3) and that Index
shall be compared to the Index for February, 1978 (assume 185.8), and
because the Index for February 1978 is 5.39% higher, the minimum rental
commencing June, 1978, shall be 5.39% higher; likewise the Index for
February, 1979 shall be compared with the Index for February 1978).
Should the Bureau discontinue the publication of the above Index,
or publish same less frequently, or alter same in some other manner, then
Landlord shall adopt a substitute index or substitute procedure which
reasonably reflects and monitors consumer prices. However, in no event
shall said increase be greater than eight (8%) percent, nor less than
four (4%) percent per year.
5. TERM. The lease term shall be Fifteen (15) Years from the date
rent commences. The parties hereto acknowledge that certain obligations
under various articles hereof may commence prior to the lease term, i.e.,
construction, hold harmless, liability insurance, etc.; and the parties
agree to be bound by these articles prior to commencement of the lease
term.
6. SECURITY DEPOSIT. Concurrently with Tenant's execution of this
Lease, Tenant has deposited with Landlord a sum equivalent to the first
two months rent. Said sum shall be held by Landlord as security for the
faithful performance by Tenant of all the terms, covenants and conditions
of this Lease to be kept and performed by Tenant during the term hereof.
If Tenant defaults with respect to any provision of this Lease,
including but not limited to the provisions relating to the payment of
rent, Landlord may (but shall not be required to) use, apply or retain
all or any part of this security deposit for the payment of any rent or
any other sum in default, or for the payment of any amount which Landlord
may spend or become obligated to spend by reason of Tenant's default, or
to compensate Landlord for any other loss or damage which Landlord may
suffer by reason of Tenant's default. If any portion of said deposit is
so used or applied Tenant shall, within five (5) days after written
demand therefor, deposit cash with Landlord in an amount sufficient to
restore the security deposit to its original amount and Tenant's failure
to do so shall be a default under this Lease. Landlord shall not be
required to keep this security deposit separate from its general funds,
and Tenant shall not be entitled to interest on such deposit. If Tenant
shall fully and faithfully perform every provision of this Lease to be
performed by it, the security deposit or any balance thereof shall be
returned to Tenant (or, at Landlord's option, to the last assignee of
Tenant's interest hereunder) within ten (10) days following expiration of
the Lease term. In the event of termination of Landlord's interest in
this Lease, Landlord shall transfer said deposit to Landlord's successor
in interest.
7. ADDITIONAL CHARGES.
7.B. Adjustments
In addition to the Minimum Rent provided in Article 4 hereinabove,
and commencing at the same time as any rental commences under this Lease
Tenant shall pay to Landlord the following items, herein called
Adjustments:
(a) All real estate taxes and insurance premiums on the Premises,
including land, building and improvements thereon. Said real estate
taxes shall include all real estate taxes and assessments that are levied
upon and/or assessed against the Premises, including any taxes which may
be levied on rents. Said insurance shall include all insurance premiums
for fire, extended coverage, liability, and any other insurance that
Landlord deems necessary on the Premises. Said taxes and insurance
premiums for purpose of this provision shall be reasonably apportioned in
accordance with the total floor area of the Premises as it relates to the
total floor area of the Shopping Center which is from time to time
completed as of the first day of each calendar quarter.
(b) That percentage of the total cost of the following items as
Tenant's total floor area bears to the total floor area of the Shopping
Center which is from time to time completed as of the first day of each
calendar quarter.
(i) All real estate taxes, including assessments, all
insurance costs, and all costs to maintain, repair and replace common
areas, roofs, parking lots, exterior walls, sidewalks, driveways,
lighting and other areas used in common by the tenants of the Shopping
Center.
(ii) All costs to supervise and administer said common
areas, parking lots, sidewalks, driveways and other areas used in common
by the tenants or occupants of the Shopping Center. Said costs shall
include such fees as may be paid to a third party in connection with same
and shall in any event include a fee to Landlord to supervise and
administer same in an amount equal to ten (10%) percent of the total
adjustments.
(iii) Any parking charges, utilities surcharges, or any other
costs levied, assessed or imposed by, or at the direction of, or
resulting from statutes or regulations, or interpretations thereof,
promulgated by any governmental authority in connection with the use or
occupancy of the premises or the parking facilities serving the premises.
Upon commencement of rental Landlord shall submit to Tenant a statement
of the anticipated monthly Adjustments for the period between such
commencement and the following January and Tenant shall pay these
Adjustments on a monthly basis concurrently with the payment of the Rent.
Tenant shall continue to make said monthly payments until notified by
Landlord of a change thereof. By April 1 of each year Landlord shall
endeavor to give Tenant a statement showing the total Adjustments for the
Shopping Center for the prior calendar year and Tenant's allocable share
thereof, prorated from the commencement of rental. In the event the
total of the monthly payments which Tenant has made for the prior
calendar year be less than the Tenant's actual share of such Adjustments
then Tenant shall pay the difference in a lump sum within ten days after
receipt of such statement from Landlord and shall concurrently pay the
difference in monthly payments made in the then calendar year and the
amount of monthly payments which are then calculated as monthly
Adjustments based on the prior year's experience. Any over-payment by
Tenant shall be credited towards the monthly Adjustments next coming due.
The actual Adjustments for the prior year shall be used for purposes of
calculating the anticipated monthly Adjustments for the then current year
with actual determination of such Adjustments after each calendar year as
above provided. Landlord shall estimate the annual cost for repairs and
replacements that will occur to common areas in the future (resurface
parking lot, paint exterior of buildings, roof, sidewalk and parking lot
replacement, etc.). Reserves will be established each year to cover the
large repairs and maintenance to be done in the future and paid for in
the current year adjustments. Tenant shall immediately pay any increase
due over the estimated Adjustments previously paid and, conversely, any
overpayment shall be rebated by Landlord to Tenant. Failure of Landlord
to submit statements as called for herein shall not be deemed to be a
waiver of Tenant's requirement to pay sums as herein provided.
USES PROHIBITED. Tenant shall not do or permit anything to be done in or
about the Premises nor bring or keep anything therein which is not within
the permitted use of the premises which will in any way increase the
existing rate of or affect any fire or other insurance upon the Building
or any of its contents, or cause a cancellation of any insurance policy
covering said Building or any part thereof or any of its contents.
Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building or injure or annoy them or use
or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose; nor shall Tenant cause, maintain or permit any
nuisance in ' on or about the Premises. Tenant shall not commit or allow
to be committed any waste in or upon the Premises.
1. COMPLIANCE WITH THE LAW. Tenant shall not use the Premises, or
permit anything to be done in or about the Premises, which will in any
way conflict with any law, statute, ordinance or governmental rule or
regulation now in force or which may hereafter be enacted or promulgated.
Tenant shall, at its sole cost and expense, promptly comply with all
laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force and with the
requirements of any board of fire underwriters or other similar bodies
now or hereafter constituted relating to or affecting the condition, use
or occupancy of the Premises, excluding structural charges not related to
or affected by Tenant's improvements or acts. The judgement of any court
of competent jurisdiction or the admission of Tenant in any action
against Tenant, whether Landlord be a party thereto or not, that Tenant
has violated any law, statute, ordinance or governmental rule, regulation
or requirement, shall be conclusive of that fact as between the Landlord
and Tenant.
2. ALTERATIONS AND ADDITIONS. Tenant shall not make or allow to be
made any alterations, additions or improvements to or of the premises or
any part thereof without first obtaining the written consent of Landlord
and any alterations, additions or improvements to or of said Premises,
including, but not limited to, wall covering, paneling and built-in
cabinet work, but excepting movable furniture and trade fixtures, shall
at once become a part of the realty and belong to the Landlord and shall
be surrendered with the Premises. In the event Landlord consents to the
making of any alterations, additions or improvements to the Premises by
Tenant, the same shall be made by Tenant at Tenant's sole cost and
expense. Upon the expiration or sooner termination of the term hereof,
Tenant shall, upon written demand by Landlord, given at least thirty (30)
days prior to the end of the term, at Tenant's sole cost and expense,
forthwith and with all due diligence, remove any alterations, additions
or improvements made by Tenant, designated by Landlord to be removed, and
Tenant shall, forthwith and with all due diligence, at its sole cost and
expense, repair any damage to the premises caused by such removal.
3. REPAIRS.
ll.A. By entry hereunder, Tenant shall be deemed to have accepted
the Premises as being in good, sanitary order, condition and repair.
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, glazing, plumbing, pipes, electrical wiring and
conduits, heating and air-conditioning system (when there is an air-
conditioning system). Tenant shall obtain a service contract for repairs
and maintenance of said system, said maintenance contract to conform to
the requirements under the warranty, if any, on said system. Tenant
shall, upon the expiration or sooner termination of this Lease hereof,
surrender the 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.
11. B. Landlord shall not be liable for any failure to make
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 25 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 Building or the Premises 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.
4. LIENS. Tenant shall keep the Premises and the property in which
the Premises are situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by or on behalf of
Tenant. Landlord may require, at Landlord's sole option, that Tenant
shall provide to Landlord, at Tenant's sole cost and expense, a lien and
completion bond in an amount equal to one and one-half (1 & 1/2) times
the estimated cost of any improvements, additions or alterations in the
Premises which the Tenant desires to make, to insure Landlord against any
liability for mechanics' and materialmen' liens and to insure completion
of the work.
5. 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
said Premises or any part thereof, or any right or privilege appurtenant
thereto, or allow any other person (the employees, agents, servants, and
invitees of Tenant excepted) to occupy or use the said Premises, or any
portion thereof, without first obtaining the written consent of Landlord,
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 person. Consent to any such assignment or
subletting shall in no way relieve Tenant of any liability under this
Lease. Any such assignment or subletting shall in no way 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 Hundred and no/100ths ($100.00) Dollars, incurred in
connection with the processing of documents necessary to giving of such
consent plus any legal fees incurred by Landlord.
6. HOLD HARMLESS. Tenant shall indemnify and hold harmless Landlord
against and from any and all claims arising from Tenant's use of the
Premises or from the conduct of its business or from any activity, work,
or other things done, permitted or suffered by the Tenant in or about the
Premises, and shall further indemnify and hold harmless Landlord against
and from any and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the
terms of this Lease, or arising from any act or negligence of the Tenant,
or any officer, agent, employee, guest or invitee of Tenant, and from all
costs, attorney's fees, and liabilities incurred in or about the defense
of any such claim or any action or proceeding brought thereon and in case
any action or proceeding be brought against Landlord by reason of such
claim, Tenant upon notice from Landlord shall defend the same at Tenant's
expense by counsel reasonably satisfactory to Landlord. Tenant, as a
material part of the consideration to Landlord, hereby assumes all risk
of damage to property or injury to persons in, upon or about the
Premises, from any cause other than Landlord's negligence; and Tenant
hereby waives all claims in respect thereof against Landlord. Tenant
shall give prompt notice to Landlord in case of casualty or accidents in
the Premises.
Landlord or its agents shall not be liable for any loss or damage
to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water or rain which may leak from any part of
the Building or from the pipes, appliances or plumbing works therein or
from the roof, street or subsurface or from any other place resulting
from dampness or any other cause whatsoever, unless caused by or due to
the negligence of Landlord, its agents, servants or employees. Landlord
or its agents shall not be liable for interference with the light, air or
for any latent defect in the Premises.
7. SUBROGATION. As long as their respective insurers so permit,
Landlord and Tenant hereby mutually waive their respective rights of
recovery against each other for any loss insured by fire, extended
coverage and other property insurance policies existing for the benefit
of the respective parties. Each party shall apply to their insurers to
obtain said waivers. Each party shall obtain any special endorsements,
if required by their insurer to evidence compliance with the
aforementioned waiver.
8. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of comprehensive
public liability insurance insuring Landlord and Tenant against any
liability arising out of the ownership, use, occupancy or maintenance of
the Premises and all areas appurtenant thereto. Such insurance shall be
in the amount of not less than $300,000.00 for injury or death of one
person in any one accident or occurrence and in the amount of not less
than $500,000.00 for injury or death of more than one person in any one
accident or occurrence. Such insurance shall further insure Landlord and
Tenant against liability for property damage of at lease $50,000.00. The
limit of any such insurance shall not, however, limit the liability of
the Tenant hereunder. Tenant may provide this insurance under a blanket
policy, provided that said insurance shall have a Landlord's protective
liability endorsement attached thereto. If Tenant shall fail to procure
and maintain said insurance, Landlord may, but shall not be required to,
procure and maintain same, but at the expense of Tenant. Insurance
required hereunder shall be in companies rated A B+ or better in "Best's
Key Rating Guide." Tenant shall deliver to Landlord, prior to right of
entry, copies of policies of liability insurance required herein or
certificates evidencing the existence and amounts of such insurance with
loss payable clauses satisfactory to Landlord. No policy shall be
cancelable or subject to reduction of coverage. All such policies shall
be written as primary policies not contributing with and not in excess of
coverage which Landlord may carry.
9. UTILITIES. Tenant shall pay for all water, gas, heat, light,
power, sewer charges, telephone service and all other services and
utilities supplied to the Premises, together with any taxes thereon. If
any such services are not separately metered to Tenant, Tenant shall pay
a reasonable proportion to be determined by Landlord of all charges
jointly metered with other premises.
10. PERSONAL PROPERTY TAXES. Tenant shall pay, or cause to be paid,
before delinquency any and all taxes levied or assessed and which become
payable during the term hereof upon all Tenant's leasehold improvements,
equipment, furniture, fixtures, and any other personal property located
in the Premises. In the event any or all of the Tenant's leasehold
improvements, equipment, furniture, fixtures and other personal property
shall be assessed and taxed with the real property, Tenant shall pay to
Landlord its share of such taxes within ten (10) days after delivery to
Tenant by Landlord of a statement in writing setting forth the amount of
such taxes applicable to Tenant's property.
11. RULES AND REGULATIONS. Tenant shall faithfully observe and comply
with the rules and regulations that Landlord shall from time to time
promulgate and/or modify. The rules and regulations shall be binding
upon the Tenant upon delivery of a copy of them to Tenant. Landlord
shall not be responsible to Tenant for the nonperformance of any said
rules and regulations by any other tenants or occupants.
12. HOLDING OVER. If Tenant remains in possession of the Premises or
any part thereof after the expiration of the term hereof with the express
written consent of Landlord, such occupancy shall be a tenancy from month
to month at a rental in the amount of the last Monthly Minimum Rent, plus
all other charges payable hereunder, and upon all the terms hereof
applicable to a month to month tenancy.
13. ENTRY BY LANDLORD. Landlord reserves, and shall at any and all
times have, the right to enter the Premises to inspect the same, to
submit said Premises to prospective purchasers or tenants, to post
notices of non-responsibility, to repair the Premises and any portion of
the Building of which the Premises are a part that Landlord may deem
necessary or desirable, without abatement of rent, and may for that
purpose erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, always providing
that the entrance to the Premises shall not be unreasonably blocked
thereby, and further providing that the business of the Tenant shall not
be interfered with unreasonably. Tenant hereby waives any claim for
damages or for any injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned thereby. 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 Premises,
excluding Tenant's vaults, safes and files, and Landlord shall have the
right to use any and all means which Landlord may deem proper to open
said doors in an emergency, in order to obtain entry to the Premises
without liability to Tenant except for any failure to exercise due care
for Tenant's property and any entry to the Premises obtained by Landlord
by any of said means, or otherwise, shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into, or a
detainer of, the Premises, or an eviction of Tenant from the Premises or
any portion thereof.
14. 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.
22.A. The vacating or abandonment of the Premises by Tenant.
22.B. The failure by Tenant to make any payment of rent or any
other payment required to be made by Tenant hereunder, as and when due,
where such failure shall continue for a period of three (3) days after
written notice thereof by Landlord to Tenant.
22.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 Article 22.B. above,
where such failure shall continue for a period of thirty (30) days after
written notice thereof by Landlord to Tenant; provided, however, that if
the nature of Tenant's default is such that more than thirty (30) days
are reasonably required for its cure, then Tenant shall not be deemed to
be in default if Tenant commences such cure within said thirty (30) day
period and thereafter diligently prosecutes such cure to completion.
22.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, or a petition 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
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged within thirty (30) days.
15. REMEDIES IN DEFAULT. In the event of any such default or breach by
Tenant, Landlord may at any time thereafter, in his sole discretion, 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:
23.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 maximum legal rate; or
23.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
23.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.
24. DEFAULT BY IANDLORD. Landlord shall not be in default unless
Landlord 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 holder of any first
mortgage or 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 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.
25. RECONSTRUCTION. In the event the Premises are damaged by fire or
other perils covered by extended coverage insurance, Landlord agrees to
forthwith repair same, and this Lease shall remain in full force and
effect, except that Tenant shall be entitled to a proportionate reduction
of the Minimum Rent from the date of damage and while such repairs are
being made, such proportionate reduction to be based upon the extent to
which the damage and making of such repairs shall reasonably interfere
with the business carried on by the Tenant in the Premises. If the
damage is due to the fault or neglect of Tenant or its employees, there
shall be no abatement of rent.
In the event the Premises are damaged as a result. of any cause
other than the perils covered by fire and extended coverage insurance,
then Landlord shall forthwith repair the same, provided the extent of the
destruction be less than ten (10%) percent of the then full replacement
cost then Landlord shall have the option; (1) to repair or restore such
damage, this Lease continuing in full force and effect, but the Minimum
Rent to be proportionately reduced as hereinabove in this Article
provided; or (2) give notice to Tenant at any time within sixty (60) days
after such damage, terminating this Lease as of the date specified in
such notice, which date shall be no more than thirty (30) days after the
giving of such notice. In the event of giving such notice, this Lease
shall expire and all interest of the Tenant in the Premises shall
terminate on the date so specified in such notice and the Minimum Rent,
reduced by a proportionate reduction, based upon the extent, if any, to
which such damage interfered with the business carried on by the Tenant
in the Premises, shall be paid up to date of said such termination.
Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct
or restore the Premises when the damage resulting from any casualty
covered under this Article occurs during the last twenty-four months of
the term of this Lease or any extension thereof.
Landlord shall not be required to repair any injury or damage by
fire or other cause, or to make any repairs or replacements of any
leasehold improvements, fixtures or other personal property of Tenant.
1. EMINENT DOMAIN. If more than twenty-five (25%) percent of the
Premises shall be taken or appropriated by any public or quasi-public
authority under the power of eminent domain, either party hereto shall
have the right, at its option, within sixty (60) days after said taking,
to terminate this Lease upon thirty (30) days written notice. If either
less than or more than 25% of the Premises are taken (and neither party
elects to terminate as herein provided), the Minimum Rent thereafter to
be paid shall be equitably reduced. If any part of the Shopping Center
other than the Premises may be so taken or appropriated, Landlord shall
within sixty (60) days of said taking have the right at its option to
terminate this Lease upon written notice to Tenant. In the event of any
taking or appropriation whatsoever, Landlord shall be entitled to any and
all awards and/or settlements which may be given and Tenant shall have no
claim against Landlord for the value of any unexpired term of this Lease.
2. PARKING AND COMMON AREAS. Landlord covenants that upon completion
of the Shopping Center an area approximately equal to the common and
parking areas as shown on the attached Exhibit "All shall be at all times
available for the non-exclusive use of Tenant during the full term of
this Lease or any extension of the term hereof, provided that the
condemnation or other taking by any public authority, or sale in lieu of
condemnation, of any or all of such common and parking areas shall not
constitute a violation of this covenant. Landlord reserves the right to
change the entrances, exits, traffic lanes and the boundaries and
locations of such parking area or areas.
27.A. Prior to the date of Tenant's opening for business in the
Premises, Landlord shall cause said common and parking area or areas to
be graded, surfaced, marked and landscaped at no expense to Tenant.
27.B. The Landlord shall keep said automobile parking and common
areas in a neat, clean and orderly condition and shall repair any damage
to the facilities thereof, but all expenses in connection with said
automobile parking and common areas shall be charged and prorated in the
manner as set forth in Article 7 hereof.
27.C. Tenant, for the use and benefit of Tenant, its agents,
employees, customers, licensees and sub-tenants, shall have the
nonexclusive right in common with Landlord, and other present and future
owners, tenants and their agents, employees, customers, licensees and
sub-tenants, to use said common and parking areas during the entire term
of this Lease, or any extension thereof, for ingress and egress, and
automobile parking.
27.D. The Tenant, in the use of said common and parking areas,
agrees to comply with such reasonable rules, regulations and charges for
parking as the Landlord may adopt from time to time for the orderly and
proper operation of said common and parking areas. Such rules may
include but shall not be limited to the following: (1) The restricting of
employee parking to a limited, designated area or areas; and (2) the
regulation of the removal, storage and disposal of Tenant's refuse and
other rubbish at the sole cost and expense of Tenant.
3. SIGNS. The Tenant may affix and maintain upon the glass panes and
supports of the show windows and within twelve (12) inches of any window
and upon the exterior walls of the Premises only such signs, advertising
placards, names, insignia, trademarks and descriptive material as shall
have first received the written approval of the Landlord as to type,
size, color, location, copy nature and display qualities. Anything to
the contrary in this Lease notwithstanding, Tenant shall not affix any
sign to the roof. Tenant shall, however, erect one sign on the front of
the Premises not later than the date Tenant opens for business, in
accordance with a design to be prepared by Tenant and approved in writing
by Landlord.
4. DISPLAYS. The Tenant may not display or sell merchandise or allow
grocery carts or other similar devices within the control of Tenant to be
stored or to remain outside the defined exterior walls and permanent
doorways of the Premises. Tenant further agrees not to install any
exterior lighting, amplifiers or similar devices or use in or about the
Premises any advertising medium which may be heard or seen outside the
Premises, such as flashing lights, searchlights, loudspeakers,
phonographs or radio broadcasts.
5. AUCTIONS. Tenant shall not conduct or permit to be conducted any
sale by auction in, upon or from the Premises whether said auction be
voluntary, involuntary, pursuant to any assignment for the payment of
creditors or pursuant to any bankruptcy or other insolvency proceeding.
6. HOURS OF BUSINESS. Subject to the provisions of Article 25 hereof,
Tenant shall continuously during the entire term hereof conduct and carry
on Tenant's business in the Premises and shall keep the Premises open for
business and cause Tenant's business to be conducted therein during the
usual business hours of each and every business day as is customary for
businesses of like character in the city in which the Premises are
located to be open for business; provided, however, that this provision
shall not apply if the Premises should be closed and the business of
Tenant temporarily discontinued therein on account of strikes, lockouts
or similar causes beyond the reasonable control of Tenant. Tenant shall
keep the Premises adequately stocked with merchandise, and with
sufficient sales personnel to care for the patronage, and to conduct said
business in accordance with sound business practice.
In the event of breach by the Tenant of any of the conditions
contained in this Article, the Landlord shall have, in addition to any
and all remedies herein provided, the right at its option to collect not
only the Minimum Rent herein provided, but additional rent at the rate of
one-thirtieth (1/30) of the Minimum Rent herein provided for each and
every day that the Tenant shall fail to conduct its business as herein
provided; said additional rent shall be deemed to be in lieu of any
percentage rent that might have been earned during such period of the
Tenant's failure to conduct its business as herein provided.
7. MERCHANT'S ASSOCIATION. If a majority of tenants in the Shopping
Center shall determine that it is in the best interests of the Shopping
Center, Tenant will become a member of, and participate fully in, and
remain in good standing in the Merchants' Association (as soon as the
same has been formed), organized for tenants occupying premises in the
Shopping Center, and Tenant will abide by the regulations of such
Association. Each member tenant shall have one (1) vote, and the
Landlord shall also have one (1) vote in the operation of said
Association. The objects of such Association shall be to encourage its
members to deal fairly and courteously with their customers to encourage
ethical business practices, and to assist the business of the tenants by
sales promotion and centerwide advertising. The tenant agrees to pay
minimum dues to the Merchant's Association, provided however, that in no
event shall the dues paid by Tenant in any fiscal year of said
Association be in excess of twenty (.20) cents per square foot of
Premises leased to Tenant. Default in payment of dues shall be treated
in similar manner to default in rent with like rights of Landlord at its
option to the collection thereof on behalf of the Merchants' Association.
8. GENERAL PROVISIONS.
(i) Plats and Riders. Clauses, plats, riders and addendums, if
any, affixed to this Lease are a part hereof.
(ii) Waiver. The waiver by Landlord of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of such
term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent
acceptance of rent hereunder by Landlord shall not be deemed to be a
waiver of any preceding default by Tenant of any term, covenant or
condition of this Lease, other than the failure of the Tenant to pay the
particular rental so accepted, regardless of Landlord's knowledge of such
preceding default at the time of the acceptance of such rent.
(iii) Joint Obligation. If there be more than one Tenant the
obligations hereunder imposed shall be joint and several.
(iv) Marginal Headings. The marginal headings and article titles
to the articles of this Lease are not a part of the Lease and shall have
no effect upon the construction or interpretation of any part hereof.
(v) Time. Time is of the essence of this Lease and each and all
of its provisions in which performance is a factor.
(vi) Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind
the heirs, successors, executors, administrators and assigns of the
parties hereto.
(vii) Recordation. Neither Landlord nor Tenant shall record this
Lease, but a short form memorandum hereof may be recorded at the request
of the Landlord.
(viii) 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 possession of the Premises for the entire term
hereof, subject to all the provisions of this Lease.
(ix) Late Charges. Tenant hereby acknowledges that late payment
by Tenant to Landlord of rent or other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult to ascertain. Such costs include,
but are not limited to, processing and accounting charges and late
charges which may be imposed upon Landlord by terms of any mortgage or
trust deed covering the Premises. Accordingly, if any installment of
rent or any sum due from Tenant shall not be received by Landlord or
Landlord's designee within five (5) days after said amount is past due,
then Tenant shall pay to Landlord a late charge equal to the maximum
amount permitted by law (and in the absence of any governing law, ten
percent of such overdue amount), plus any attorney's fees incurred by
Landlord by reason of Tenant's failure to pay rent and/or other charges
when due hereunder. The parties hereby agree that such late charges
represent a fair and reasonable estimate of the cost that Landlord will
incur by reason of the late payment by Tenant. Acceptance of such late
charges by the Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted
hereunder.
(x) 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 understanding pertaining to any such
matters 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.
(ii)Inability to Perform. This Lease and the obligations 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.
(iii)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 provision hereof and such other provision shall
remain in full force and effect.
(xiii) Cumulative Remedies. No remedy or election hereunder shall
be deemed exclusive but shall, whenever possible, be cumulative with all
other remedies at law or in equity.
(xiv) Choice of Law. This Lease shall be governed by the laws of
the State in which the Premises are located.
(xv) Attorneys' Fees. In the event of any action or proceeding
brought by either party against the other under this Lease the prevailing
party shall be entitled to recover for the fees of its attorneys in such
action or proceeding, including costs of appeal, if any, in such amount
as the court may adjudge reasonable as attorneys' fees. In addition,
should it be necessary for Landlord to employ legal counsel to enforce
any of the provisions herein contained, Tenant agrees to pay all
attorneys' fees and court costs reasonably incurred.
(xvi) 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; and the purchaser, at such sale or any subsequent sale of the
Premises shall be deemed, without any further agreement between the
parties or their successors in interest or between the parties and any
such purchaser, to have assumed and agreed to carry out any and all of
the covenants and obligations of the Landlord under this Lease.
(xvii) 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
lending institution, now or hereafter in force against the Premises, and
to all advances made or hereafter to be made upon the security thereof.
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. The provisions of this
Article to the contrary notwithstanding, and so long as Tenant is not in
default hereunder, this Lease shall remain in full force and effect for
the full term hereof.
(xviii) Notices. All notices and demands which may or are to
be 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 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: 23046 Avenida De La Carlota, Suite 520, Laguna Hills,
CA 92653
To Tenant at: 1201 Katella Avenue, Orange CA 92667
(xix) Tenant's Statement. Tenant shall at any time and from time
to time, upon not less than three 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 the prospective purchaser or encumbrancer
of all or any portion of the real property of which the Premises are a
part.
(xx) Authority of Tenant. If Tenant is a corporation, each
individual executing this Lease on behalf of said corporation represents
and warrants that he is duly authorized to execute and deliver this Lease
on behalf of said corporation, in accordance with the by-laws of said
corporation and that this Lease is binding upon said corporation.
34. Brokers. Tenant warrants that it has had no dealings with any
real estate broker or agents in connection with the negotiation of this
Lease excepting Coldwell Banker Commercial and WM. S. Frantz and Assoc,
and it knows of no other real estate broker or agent who is entitled to a
commission in connection with this Lease.
Consult Your Attorney:
If this Lease has been filled in it has been prepared for submission to
your attorney for his approval. No representation or recommendation is
made as to the legal sufficiency, legal effect, or tax consequences of
this Lease.
ORANGE NEWPORT ASSOCIATES ORANGE NATIONAL BANK
Richard L. Cramer, General Partner Wayne F. Miller,
President
Robert W. Creighton,
Exec. Vice President
(Landlord) (Tenant)
ADDENDUM TO LEASE DATED SEPTEMBER 29, 1989 BY AND BETWEEN
ORANGE NEWPORT ASSOCIATES, A GENERAL PARTNERSNIP, AS LANDLORD
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The (ease to which this Addendum is modified in the following particulars
only and accept as here and otherwise expressly set forth, the terms and
conditions of the Lease attached hereto shall govern the relationship of
the parties. To the extent that the provisions hereinafter set forth
either add to, modify or contradict any of the terms, provisions, or
conditions of a Lease attached hereto, the provisions hereinafter set
forth shall prevail.
13. ASSIGNMENT AND SUBLETTING (Continued):
If Tenant desires at any time to assign this Lease or to sublet the
Leased Premises or any portion thereof, Tenant shall submit to LandLord
at least sixty (60) days prior to the proposed effective date of the
assignment or sublease ("Proposed Effective Date"), in writing: (1) a
notice of intention to assign or sublease, setting forth the Proposed
Effective Date, which shall be no Less than sixty (60) or more than
ninety (90) days after the sending of such notice; (2) the name of the
proposed subtenant or assignee; (3) the terms and provisions of the
proposed sublease or assignment; and (4) such financial information as
Landlord may request concerning the proposed subtenant or assignee. No
consent by Landlord to any assignment or subletting by Tenant shall
relieve Tenant of any obligation to be performed by Tenant under this
Lease, whether occurring before or after such consent, assignment or -
subletting. Any permitted assignment or sublease of the Leased Premises
shall be subject to and Limited by the restriction on permissible uses of
the Leased Premises as set forth in this Lease.
35. OPTION TO RENEW:
In the event that Tenant is not in breach or default of any of the
terms and conditions of this Lease, Tenant shall have the option, for its
sole and exclusive use, to extend the original term of this tease for two
(2) five (5) year period(s) (hereinafter "Extended Term") upon the same
terms and conditions as herein contained, except that the guaranteed
minimum monthly rental payable under Paragraph IV during the first year
of the Extended Term shall be the then prevailing "Fair Market" rent for
similar premises determined as provided hereinbelow. Should Tenant elect
to exercise said option it shall give written notice thereof to Landlord
not Less than six (6) months prior to the expiration of the original term
or Extended Term hereof.
Thereafter, the parties hereto shall negotiate in good faith to
determine the guaranteed minimum monthly rental for the first year of the
Extended Term based upon said prevailing rentals, and when so fixed such
rental shall be payable in advance on the first day of each and every
calendar month of the Extended Term.
Should the parties fail to agree upon the monthly rental for the
first year of the Extended Term at Least four months prior to the
commencement of the Extended Term, Tenant shall, at Least one hundred
twenty (120) days prior to commencement of the Extended Term, appoint one
arbitrator and notify Landlord in writing of said appointment and of the
name and address of said arbitrator so appointed by it, and Landlord
shall also within said time period appoint one arbitrator and notify
Tenant in writing of said appointment and of the name and address of said
arbitrator so appointed by Landlord. If the two (2) said arbitrators are
unable to agree upon the guaranteed minimum monthly rental for the
demised premises for the first year of the Extended Term within ten (10)
days next following said last mentioned period, then they shall appoint a
third arbitrator within ten (10) days and the decision of any two (2) of
said three (3) arbitrators shall be final and binding upon the parties
hereto.
Should the Tenant fail to appoint its arbitrator or should the
original two arbitrators be unable to agree upon such guaranteed minimum
monthly rental and also fail to agree on the appointment of a third
arbitrator within the time provided, or should they appoint such third
arbitrator and any two of the said three arbitrators for any reason be
unable, during the sixty (60) days next following the appointment of said
third arbitrator, to fix such guaranteed minimum monthly rental, then and
in any of said cases, the option to extend shall terminate. The parties
shall each bear the cost of the arbitrators selected by them and one-half
of the cost of the third arbitrator.
In no event shall the guaranteed minimum monthly rental for the
first year of the Extended Term be Less than the monthly rental paid
under Paragraph 4A and 48 during the preceding Lease year.
ADDENDUM TO LEASE
4. MINIMUM RENT: (4A.)
Tenant shall have sixty (60) days from the execution of this lease
document to acquire any and al necessary approvals from the City of
Orange to build and operate a Financial Institution in said shopping
center. Tenant's Minimum Month Rent shall commence sixty (60) days
following city approval, sixty (60) days after said sixty (60) day
approval period, or when Tenant opens for business, whichever first
occurs. Should Tenant fail to have City (60) day approval period and the
sixty (60) Tenant shall pay a minimum monthly rent approval after said
sixty build out period, then $3,184.50 for an additional sixty (60) days.
Should Tenant fail to have City approval after the third (3rd) sixty
(60) day period, then this lease all become null and void, and Landlord
and Tenant shall have no further obligation as to the terms of this
contract. In any event, should the City of Orange approval come within
the 3rd sixty-day period, the Tenant shall have sixty days of reduced
rental from the date of City approval.
36. RIGHT TO OPERATE:
During the time the bank is operating a banking institution in the
shopping center as shown on the attached Exhibits "C", the Landlord shall
not allow or consent to any other national or state chartered bank
opening for business in said shopping center. Landlord shall be
permitted to place other financial institutions that do not take deposits
in the shopping center, such as credit unions, financial companies, and
loan production offices.
37. RIGHT OF FIRST REFUSAL:
Tenant shall have the Right of First Refusal to lease the cleaners
space adjacent and contiguous to Tenant's leased Premises.
38. DESIGNATED PARKING:
Landlord shall designate the parking surrounding Tenant's leased
Premises as twenty (20) minute parking as shown on the attached Exhibit
"D".
39. CONDITION OF LEASED PREMISES:
Tenant agrees that Tenant is leasing space in its "as is"
condition. Landlord shall have the right to reasonably approve Tenant's
Tenant Improvement work.
EXHIBIT 10.8
1. Basic Provisions ("Basic Provisions"). July 25, 1997 is made by
1.1 Parties: This Lease ("Lease'), dated for reference purposes only,
and between First American Trust Company, Trustee of the Pauline Ravera
Trust and Orange National Bank, a National Banking Association
(collectively the 'Parties," or individually a 'Party").
1.2 (a) Premises: That certain portion of the Building, including all
improvements therein or to be provided by Lessor under the terms of this
Lease, commonly known by the street address of 800 Glenneyre County of
Orange, State of California, located in the City of Laguna Beach with zip
code, as outlined on Exhibit A attached hereto ("Premium"). The
'Building' is that certain building containing the Premises and generally
described as (describe briefly the nature of the Building): 800-850
Glenneyre including 2nd floor office and common area bathroom and hallway
Approximately 5,893 rentable sq.ft.
In addition to Lessee's rights to use and occupy the Promises as
hereinafter specified, Lessee shall have non-exclusive rights to the
Common Areas (as defined in Paragraph 2.7 below) as hereinafter
specified, but shall not have any rights to the roof, exterior walls or
utility raceways of the Building or to any other buildings in the
Industrial Center. The Premi5es, the Building, the Common Areas, the
land upon which they are located, along with all other buildings and
improvements thereon, are herein collectively referred to as the
"Industrial Center." (Also see Paragraph 2.)
1.2 (b) Parking: 11 unreserved vehicle parking spaces ("Unreserved
Parking Spaces"); and reserved vehicle parking spaces ("Reserved Parking
Spaces"). (Also see Paragraph 2.6.) See Exhibit C
1.3 Term: 10 years and 0 months ("Original Term") commencing August 25,
1997 ("Commencement Date") and ending August 24, 2007 ("Expiration
Date"). (Also see Paragraph 3.) See Addendum
1.4 Early Possession: N/A ("Early Possession Date"). (Also see
Paragraphs 3.2 and 3.3.) See addendum paragraph 50
1.5 Base Rent: $ 9,933 per month ("Base Rent"), payable on the 25 day
of each month commencing August 25, 1997 (Also see Paragraph 4.) See
Addendum Paragraph 51.04. If this box is checked, this Lease provides
for the Base Rent to be adjusted per Addendum, attached hereto.
1.6 (a) Bass Rent Paid Upon Execution: $9,933 as Base Rent for the
period August 25 - September 24, 1997
1.6 (b) Lessee's Share of Common Area Operating Expenses: seventy-two
percent ( 72 %) ("Lessee's Share") as determined by prorata square
footage of the Premises as compared to the total square footage of the
Building or other criteria as described in Addendum
1.7 Security Deposit: $N/A("Security Deposit"). (Also see Paragraph
5.)
1.8 Permitted Use: Financial institution, general office and any
other lawful retail use subject to Paragraph 6.2 ('Permitted Use) (Also
see Paragraph 6.)
1.9 Insuring Party. Lessor is the "Insuring Party." (Also see
Paragraph 8.)
1.10 (a) Real Estate Brokers. The following real estate broker(s)
(collectively, the "Brokers") and brokerage relationships exist in this
transaction and are consented to by the Parties (check applicable boxes):
[XI Matlow-Kennedy Commercial R.E. Serv represents Lessor exclusively
("Lessor's Broker");
XI Gary Mierau represents Lessee exclusively ('Lessee's Broker"); or
represents both Lessor and Lessee ("Dual Agency"). (Also see Paragraph
15.)
1.10 (b) Payment to Brokers. Upon the execution of this Lease by both
Parties, Lessor shall pay to said Broker(s) jointly, or in such separate
shares as they may mutually designate in writing, a fee as set forth in a
separate written agreement between Lessor and said Broker(s) (or in the
event there is no separate written agreement between Lessor and said
Broker(s), the sum of $65,081 ) for brokerage services rendered by said
Broker(s) in connection with this transaction.
1.11 Guarantor. The obligations of the Lessee under this Lease are to
be guaranteed by ("Guarantor"). (Also see Paragraph 37.)
1.12 Addenda and Exhibits. Attached hereto is an Addendum or Addenda
consisting of Paragraphs 49 through 59 and Exhibits A through , all of
which constitute a part of this Lease.
2. Promises, Parking and Common Areas.
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Premises, for the term, at the rental, and upon all of
the terms, covenants and conditions set forth in this Lease. Unless
otherwise provided herein, any statement of square footage set forth in
this Lease, or that may have been used in calculating rental and/or
Common Area Operating Expenses, is an approximation which Lessor and
Lessee agree is reasonable and the rental and Lessee's Share (as defined
in Paragraph 1.6(b)) based thereon is not subject to revision whether or
not the actual square footage is more or less.
2.2 Condition. Lessor shall deliver the Premises to Lessee clean and
free of debris on the Commencement Date and warrants to Lessee that the
existing plumbing, electrical systems, fire sprinkler system, lighting,
air conditioning and heating systems and loading doors, if any, in the
Premises, other than those constructed by Lessee, shall be in good
operating condition on the Commencement Date. If a non-compliance with
said warranty exists as of the Commencement Date, Lessor shall, except as
otherwise provided in this Lease, promptly after receipt of written
notice from Lessee setting forth with specificity the nature and extent
of such non-compliance, rectify same at Lessor's expense. If Lessee does
not give Lessor written notice of a non-compliance with this warranty
within thirty (30) days after the Commencement Date, correction of that
non-compliance shall be the obligation of the Lessee at the Lessee's
sole cost and expense.
2.4 Acceptance of Promises. Lessee hereby acknowledges: (a) that it
has been advised by the Broker(s) to satisfy itself with respect to the
condition of the Premises (including but not limited to the electrical
and fire sprinkler systems, security, environmental aspects, seismic and
earthquake requirements, and compliance with the Americans with
Disabilities Act and applicable zoning, municipal, county, state and
federal laws, ordinances and regulations and any covenants or
restrictions of record (collectively, 'Applicable Laws') and the present
and future suitability of the Premises for Lessee's intended, (b) that
Lessee has made such investigation as it deems necessary with reference
to such matters, is satisfied with reference thereto, and assumes all
responsibility therefore as the same relate to Lessee's occupancy of the
Premises and/or the terms of this Lease; and (c) that neither Lessor, nor
any of Lessor's agents, has made any oral or written representations or
warranties with respect to said matters other than as set forth in this
Lease.
2.5 As Prior Owner/Occupant. The warranties made by Lessor in this
Paragraph 2 shall be of no force or effect if immediately prior to the
date set forth in Paragraph 1.1 Lessee was the owner or occupant of the
Premises. In such event, Lessee shall, at Lessee's sole cost and
expense, correct any noncompliance of the Premises with said warranties.
2.6 Vehicle Parking. Lessee shall be entitled to use the number of
Unreserved Parking Spaces and Reserved Parking Spaces specified in
Paragraph 1.2(b) on those portions of the Common Areas designated from
time to time by Lessor for parking. Lessee shall not use more parking
spaces than said number. Said parking spaces shall be used for parking
by vehicles no larger than full-size passenger automobiles or pick-up
trucks, herein called 'Permitted Size .' Vehicles other than Permitted
Size Vehicles shall be parked and loaded or unloaded as directed by
Lessor in the Rules and Regulations (as defined in Paragraph 40) issued
by Lessor. (Also see Paragraph 2.9.)
(a) Lessee shall not permit or allow any vehicles that belong to
or are controlled by Lessee or Lessee's employees, suppliers, shippers,
customers, contractors or invitees to be, unloaded, or parked in areas
other than those designated by Lessor for such activities.
(b) It Lessee permits or allows any of the prohibited activities
described in this Paragraph 2.6, then Lessor shall have the right,
without notice, in addition to such other rights and remedies that it may
have, to remove or tow away the vehicle involved and charge the cost to
Lessee, which cost shall be immediately payable upon demand by Lessor
(c) Lessor shall at the Commencement Date of this Lease, provide
the parking facilities required by Applicable Law.
2.7 Common Areas - Definition. The term "Common Areas" is defined as
all areas and facilities outside the Premises and within the exterior
bound any line of the Center and interior utility raceways within the
Premises that are provided and designated by the Lessor from time to
time for the general non-exclusive use of Lessor, Lessee and other
lessees of the Center and their respective employees, suppliers,
shippers, customers, contractors and invitees, including parking areas,
loading and unloading areas, trash areas, roadways, sidewalks, walkways,
parkways, driveways and landscaped areas.
2.8 Common Areas - Lessee's Rights. Lessor hereby grants to Lessee,
for the benefit of Lessee and its employees, suppliers, shippers,
contractors, customers and invitees, during the term of this Lease, the
non-exclusive right to use, in common with others entitled to such use,
the Common Areas as they exist from time to time, subject to any rights,
powers, and privileges reserved by Lessor under the terms hereof or under
the terms of any rules and regulations or restrictions governing the use
of the Center. Under no circumstances shall the right herein granted to
use the Common Areas be deemed to include the right to store any
property, temporarily or permanently, in the Common Areas. Any such
storage shall be permitted only by the prior written consent of Lessor or
Lessor's designated agent, which consent may be revoked at any time. In
the event that any unauthorized storage shall occur then Lessor shall
have the right, without notice, in addition to such other rights and
remedies that it may have, to remove the property and charge the cost to
Lessee, which cost shall be immediately payable upon demand by Lessor.
2.9 Common Areas - Rules and Regulations. Lessor or such other
person(s) as Lessor may appoint shall have the exclusive control and
management of the Common Areas and shall have the right, from time to
time, to establish, modify, amend and enforce reasonable Rules and
Regulations with respect thereto in accordance with Paragraph 401 Lessee
agrees to abide by and conform to all such Rules and Regulations, and to
cause its employees, suppliers, shippers, customers, contractors and
invitees to so abide and conform. Lessor shall not be responsible to
Lessee for the non-compliance with said rules and regulations by other
lessees of the Center See Addendum Paragraph 52
2.10 Common Areas - Changes. Lessor shall have the right, in Lessors
sole discretion, from time to time:
See Add Paragraph 53
(a) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of dry
entrances, parking spaces, parking areas, loading and unloading areas,
ingress, egress, direction of traffic, landscaped areas, walkways and
utility raceways
(b) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available,
(c)
(d) To add improvements to the Common Areas,
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Center, or any portion
thereof, and
(f) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Center as Lessor
may, in the exercise of sound business judgment, deem to be appropriate.
3. Term.
3.1 Term. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
3.2 Early Possession. If an Early Possession Date is specified in
Paragraph 1.4 and if Lessee totally or partially occupies the Premises
after the Early Possession Date but prior to the Commencement Date, the
obligation to pay Base Rent shall be abated for the period of such early
occupancy. All other terms of this Lease, however, (including but not
limited to the obligations to pay Lessee's Share of Common Area Operating
Expenses and to carry the insurance required by Paragraph 8) shall be in
effect during such period. Any such early possession shall not affect
nor advance the Expiration Date of the Original Term.
3.3 Delay In Possession. If for any reason Lessor cannot deliver
possession of the Premises to Lessee by the Early Possession Date, it one
is specified in Paragraph 1.4, or it no Early Possession Date is
specified, by the Commencement Date, Lessor shall not be subject to any
liability therefor, nor shall such failure affect the validity of this
Lease, or the obligations of Lessee hereunder, or extend the term hereof,
but in such case, Lessee shall not, except as otherwise provided herein,
be obligated to pay rent or perform any other obligation of Lessee under
the terms of this Lease until Lessor delivers possession of the Premises
to Lessee. If possession of the Premises is not delivered to Lessee
within sixty (60) days after the Commencement Date, Lessee may, at its
option, by notice in writing to Lessor within ten (10) days after the end
of said sixty (60) day period, cancel this Lease, in which event the
parties shall be discharged from all obligations hereunder; provided
further, however, that if such written notice of Lessee is not received
by Lessor within said ten (10) day period, Lessee's right to cancel this
Lease hereunder shall terminate and be of no further force or effect.
Except as may be otherwise provided, and regardless of when the Original
Term actually commences, it possession is not tendered to Lessee when
required by this Lease and Lessee does not terminate this Lease, as
aforesaid, the period free of the obligation to pay Base Rent, it any,
that Lessee would otherwise have enjoyed shall run from the date of
delivery of possession and continue for a period equal to the period
during which the Lessee would have otherwise enjoyed under the terms
hereof, but minus any days of delay caused by the acts, changes or
omissions of lessee.
4. Rent.
4.1 Base Rent. Lessee shall pay Base Rent and other rent or charges,
as the same may be adjusted from time to time, to Lessor in lawful money
of the United States without offset or deduction or before the day on
which it is due under the terms of this Lease. Base Rent and all other
rent and charges for any period during the term hereof which is for less
than one full month shall be prorated based upon the actual number of
days of the month involved. Payment of Bass Rent and other charges
shall be made to Lessor at its address stated herein or to such other
persons or at such other addresses as Lessor may from time to time
designate in writing to Lessee. See Addendum Paragraph 54
4.2 Common Area Operating Expenses. Lessee shall pay to Lessor during
the term hereof, in addition to the Base Rent, Lessee's Share (as
specified in Paragraph 1.6(b)) of all Common Area Operating Expenses, as
hereinafter defined, during each calendar year of the term of this Lease,
in accordance with the following provisions:
(a) "Common Area Operating Expenses" are defined, for purposes
of this Lease, as all costs incurred by Lessor relating to the ownership
and operation of the Center, including, but not limited to, the
following: - See Exhibit 'Am
(i) The operation, repair and maintenance, in neat,
clean, good order and condition, of the following:
(aa) The Common Areas, including parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
driveways, landscaped areas, striping, bumpers, irrigation systems,
Common Area lighting facilities, fences and gates, steps and Post.
(bb) Exterior signs and any tenant directories.
(cc) Fire detection and sprinkler systems.
(ii) The cost of water, gas, electricity and telephone to
service the Common Areas.
not to exceed
(iii) Trash disposal, property management and security
services
(iv) Reserves set aside for maintenance and repair of
Common Areas.
(v) Real Property Taxes (as defined in Paragraph 10.2) to
be paid by Lessor for the Building and the Common Areas under Paragraph
10 hereof.
(vi) The cost of the premiums for the insurance policies
maintained by Lessor under Paragraph 8 hereof.
(vii) Any deductible portion of an insured loss concerning
the Building or the Common Areas.
(viii) Any other services to be provided by Lessor that
are stated elsewhere in this Lease to be a Common Area Operating
Expense.
(b) Any Common Area Operating Expenses and Real Property Taxes
that are specifically attributable to the Building or to any other
building in the Center or to the operation, repair and maintenance
thereof, shall be allocated entirely to the Building or to such other
building. However, any Common Area Operating Expenses and Real Property
Taxes that are not specifically attributable to the Building or to any
other building or to the operation, repair and maintenance thereof,
shall be equally allocated by Lessor to all buildings in the enter.
(c) The inclusion of the improvements, facilities and services
set forth in Subparagraph 4.2(a) shall not be deemed to impose an
obligation upon Lessor to 90w have said improvements or facilities or to
provide those services unless the or Lessor has agreed elsewhere in this
Lease to provide the same or some of them.
(d) Lessee's Share of Common Area 0perating Expenses shall be
payable by Lessee within ten (10) days after a reasonable detailed
statement of actual expenses is presented to Lessee by Lessor. At
Lessor's option, or, an amount may be estimated by Lessee of Lessee's
Share of Common Area Expenses and the same shall be payable monthly or
quarterly, as Lessor shall designate during a 12 month period of the
lease term, on the same day as the Base Rent is due hereunder. Lessor
shall deliver to Lessee within sixty (60) days after the expiration of
each calendar year a reasonably detailed statement showing Lessee's
Share of the actual Common Area Operating Expenses during the preceding
year. If Lessee's payments under this paragraph 4.2(d) during said
preceding year exceed Lessee's Share as indicated on said statement,
Lessee shall be credited the amount of such over payment of Lessee's
Share of Common Area Operating Expenses next becoming due. It Lessee's
payments under Paragraph 4.2(d) during said preceding year were less
than Lessee's Share as indicated on said statement, Lessee shall pay to
Lessor the amount of the deficit within ten (10) days after delivery by
Lessor to Lessee of said statement.
6. Use.
6.1 Permitted Use.
(a) Lessee shall use and occupy the Premises only for the
Permitted Use set forth in paragraph 1.8, or any other legal use which is
reasonably comparable thereto, and for no other purpose. Lessee shall
not use or permit the use of the Premises in a manner that is unlawful,
creates waste or a nuisance, or that disturbs owners and/or occupants of,
or causes damage to the Premises or neighboring premises or properties.
(b) Lessor hereby agrees to not unreasonably withhold or delay its
consent to any written request by Lessee, Lessee's assignees or
subtenants, and by prospective assignees and subtenants of Lessee, its
assignees and subtenants, for a modification of said Permitted Use, so
long as the same will not impair the structural integrity of the
improvements on the Premises or in the Building or the mechanical or
electrical systems therein, does not conflict with uses by other lessees,
is not significantly more burdensome to the Premises or the Building and
the improvements thereon, and is otherwise permissible pursuant to this
Paragraph 6. It Lessor elects to withhold such consent, Lessor shall
within five (5) business days after such request give a written
notification of same, which notice shall include an explanation of
Lessors reasonable objections to the change in use.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous
Substance" as used in this Lease shall mean any product, substance,
chemical, material or waste whose presence, nature, quantity and/or
intensity of existence, use. manufacture. disposal, transportation,
spill, release or effect, either by itself or in combination with other
materials expected to be on the Premises. is either: (ii) potentially
injurious to the public health, safety or welfare, the environment, or
the Premises, (ii) regulated or monitored by any governmental authority,
or (iii) a basis for potential liability of Lessor to any governmental
agency or third party under any applicable statute or common law theory.
Hazardous Substance shall include, but not be limited to, hydrocarbons,
petroleum gasoline, crude oil or any products or by-products thereof
Lessee shall not engage in any activity n or about the Premises which
constitutes a Reportable Use (as hereinafter defined) of Hazardous
Substances without the express prior written consent of Lessor and
compliance in a timely manner (at Lessee's sole cost and expense) with
all Applicable Requirements (as defined in Paragraph 6.3) "Reportable
Use" shall mean (i) the installation or use of any above or below ground
storage tank, (ii) the generation. possession. storage, use,
transportation. or disposal of a Hazardous Substance that requires a
permit from, or with respect to which a report, notice. registration or
business plan is required to be filed with, any governmental authority,
and (iii) the presence in, on or about the Premises of a Hazardous
Substance with respect to which any Applicable Laws require that a notice
be given to persons entering or occupying the Premises or neighboring
properties. Notwithstanding the foregoing, Lessee may, without Lessor s
prior -consent, but upon notice to Lessor and in compliance with all
Applicable Requirements, use any ordinary and customary materials
reasonably required to be used by Lessee in the normal course of the
Permitted Use, so long as such use is not a Reportable Use and does not
expose the Premises or neighboring properties to any meaningful risk of
contamination or damage or expose Lessor to any liability therefor. In
addition, Lessor may (but without any obligation to do so) condition its
consent to any Reportable Use of any Hazardous Substance by Lessee upon
Lessee's giving Lessor such additional assurances as Lessor, in its
reasonable discretion, deems necessary to protect itself. the public. the
Premises and the environment against damage, contamination or injury
and/or liability therefor, including but not limited to the installation
(and. at Lessor's option, removal on or before Lease expiration or
earlier termination) of reasonably necessary protective modifications to
the Premises (such as concrete encasements) and/or the deposit of an
additional Security Deposit under Paragraph 5 hereof.
(b) Duty to Inform Lessor. If Lessee knows. or has reasonable
cause to believe, that a Hazardous Substance has come to be located in,
on, under or about the Premises or the Building, other than as previously
consented to by Lessor, Lessee shall immediately give Lessor written
notice thereof, together with a copy of any statement, report, notice,
registration, application, permit, business plan, license, claim,
action, or proceeding given to, or received from, any governmental
authority or private party concerning the presence, spill, release,
discharge of, or exposure to, such Hazardous Substance including but not
limited to all such documents as may be involved in any Reportable Use
involving the Premises. Lessee shall not cause or permit any Hazardous
Substance to be spilled or released in, on, under or about the Premises
(including, without limitation, through the plumbing or sanitary sewer
system).
6.3 Lessee's Compliance with Requirements. Lessee shall, at Lessee's
sole cost and expense, fully, diligently and in a timely manner, comply
with all "Applicable Requirements," which term is used in this Lease
to mean all laws, rules, regulations, ordinances, directives, covenants,
easements and restrictions of record, permits, the requirements of any
applicable fire insurance underwriter or rating bureau, and the
recommendations of Lessor's engineers and/or consultants, relating in any
manner to the Premises (including but not limited to matters pertaining
to (i) industrial hygiene, (ii) environmental conditions on, in, under or
about, removal, about the Premises. including soil and groundwater
conditions land (iii) the use, generation, storage, spill, or release of
any Hazardous Substance), now in effect or which may hereafter come into
effect. Lessee shall, within five (5) days after receipt of Lessors
written request, provide Lessor with copies of all documents and
information, including but not limited to permits, registrations,
manifests, applications, reports and certificates, evidencing Lessee's
compliance with any Applicable Requirements specified by Lessor, and
shall immediately upon receipt, notify Lessor in writing (with copies of
any documents involved) of any threatened or actual claim, notice,
citation, warning, complaint or report pertaining to or involving failure
by Lessee or the Premises to comply with any Applicable Requirements. See
Addendum Paragraph 62
6.4 Inspection; Compliance with Law. Lessor, Lessor's agents,
employees, contractors and designated representatives, and the holders of
any mortgages, deeds of trust or ground leases on the Premises
("Lenders") shall have the right to enter the Premises at any time in the
case of an emergency, and otherwise at reasonable times for the purpose
of inspecting the condition of the Premises and for verifying compliance
by Lessee with this Lease and all Applicable I Requirements (as defined
in Paragraph 6.3), and Lessor shall be entitled to employ experts and/or
consultants in connection therewith to advise Lessor with respect to
Lessee's activities, including but not limited to Lessee's installation,
operation, use, monitoring, maintenance, or removal of any Hazardous
Substance on or from the Premises. The costs and expenses of any such
inspections shall be paid by the party requesting same, unless a Default
or Breach of this Lease by Lessee or a violation of Applicable
Requirements or a contamination, caused or materially contributed to by
Lessee, is found to exist or to be imminent, or unless the inspection is
requested or ordered by a governmental authority as the result of any
such existing or imminent violation or contamination. In such case,
Lessee shall upon request reimburse Lessor or Lessor's Lender, as the
case may be, for the costs and expenses of such inspections. See
Additional Paragraph 55
7. Maintenance, Repairs, Utility Installations, Trade Fixtures and
Alterations.
7.1 Lessee's Obligations.
(a) Subject to the provisions of Paragraphs 2.2 (Condition), 2.3
(Compliance with Covenants, Restrictions and Building Code), 7.2
(Lessor's Ob4igations), 9 (Damage or Destruction), and 14 (Condemnation),
Lessee shall, at Lessee's sole cost and expense and at all times, keep
the Premises and every part thereof in good order, condition and repair
(whether or not such portion of the Premises requiring repair, or the
means of repairing the same, are reasonably or readily accessible to
Lessee, and whether or not the need for such repairs occurs as a result
of Lessee's use, any prior use, the elements or the age of such portion
of the Premises), including, without limiting the generality of the
foregoing, all equipment or facilities specifically serving the Premises,
such as plumbing, heating, air conditioning, ventilating, electrical,
lighting facilities, boilers, fired or unfired pressure vessels, fire
hose connections it within the Premises, fixtures, interior walls,
interior surfaces of exterior walls, ceilings, floors. windows, doors,
plate glass, and skylights, but excluding any items which are the
responsibility of Lessor pursuant to Paragraph 7.2 below. Lessee, in
keeping the Premises in good order, condition and repair, shall exercise
and perform good maintenance practices. Lessee's obligations shall
include restorations, replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof in good order,
condition and state of repair.- See Addendum paragraph 56
(b) Lessee shall, at Lessees sole cost and expense, procure and
maintain a contract, with copies to Lessor, in customary form and
substance for and with a contractor specializing and experienced in the
inspection, maintenance and service of the heating, air conditioning and
ventilation system for the Premises. However, Lessor reserves the right,
upon notice to Lessee, to procure and maintain the contract for the
heating, air conditioning and ventilating systems, and if Lessor so
elects, Lessee shall reimburse Lessor, upon demand, for the cost thereof.
(c) If Lessee fails to perform Lessee's obligations under this
Paragraph 7.1, Lessor may enter upon the Premises after ten (10) days'
prior written notice to Lessee (except in the case of an emergency, in
which case no notice shall be required), perform such obligations on
Lessee's behalf, and put the Premises in good order, condition and
repair, in accordance with Paragraph. 13.2 below.
7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2
(Condition), 2.3 (Compliance with Covenants, Restrictions and Building
Code),
4.2 (Common Area Operating Expenses).'6 (Use), 7.1 (Lessee's
Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Lessor
shall keep in good order, condition and repair the foundations, exterior
walls, structural condition of interior bearing walls, exterior fire
sprinkler arid/or standpipe and hose (if located in the Common Areas) or
other automatic fire extinguishing system including fire alarm and/or
smoke detection systems and equipment, fire hydrants, parking lots,
walkways, parkways, driveways, landscaping, fences, signs and utility
systems serving the Common Areas and all parts thereof, as well as
providing the services for which there is a Common Area Operating Expense
pursuant to Paragraph 4.2. Lessor shall not be obligated to paint the
exterior or interior surfaces of exterior walls nor shall Lessor be
obligated to maintain, repair or replace windows, doors or plate glass of
the Premises. Lessee expressly waives the benefit of any statute now or
hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of
Lessor's failure to keep the Building, Center or Common Areas in good
order, condition and repair.
7.3 Utility lnstallations, Trade Fixtures, Alterations. SEE
ADDENDUM, PARAGRAPH 57
(a) Definitions; Consent Required. The term "Utility
Installations" is used in this Lease to refer to all air lines, power
panels, electrical distribution, security, fire protection systems,
communications systems, lighting fixtures, heating, ventilating and 3ir
conditioning equipment, plumbing, and fencing in, on or about the
Premises. The term "Trade Fixtures" shall mean Lessee's machinery and
equipment which can t)e removed without doing material damage to the
Premises. The term "Alterations" shall mean any modification of the
improvements on the Premises which are provided by Lessor under the terms
of this Lease, other than Utility Installations or Trade Fixtures.
"Lessee-Owned Alterations and/or 'Utility Installations" are defined as
Alterations and/or Utility Installations made by Lessee that are not yet
owned by Lessor pursuant to Paragraph 7.4(a). Lessee shall not make nor
cause to be made any Alterations or Utility Installations in, on, under
or about the Premises without Lessor's prior written consent. Lessee
may, however, make non-structural Utility Installations to the interior
of the Promises (excluding the roof) without Lessor's consent but upon
notice to Lessor, so long as they are not visible from the outside of the
Promises, do not involve puncturing, relocating or removing the roof or
any existing walls, or changing or interfering with the fire sprinkler or
fire detection systems and the cumulative cost thereof during the term of
this Lease as extended does not exceed $2,500.00.
(b) Consent. Any Alterations or Utility Installations that
Lessee shall desire to make and which require the consent of the Lessor
shall be presented to Lessor in written form with detailed plans. All
consents given by Lessor, whether by virtue of Paragraph 7.3(a) or by
subsequent specific consent, shall be deemed conditioned upon: (i)
Lessee's acquiring all applicable permits required by governmental
authorities; (ii) the furnishing of copies of such permits together with
a copy of the plans and specifications for the Alteration or Utility
Installation to Lessor prior to commencement of the work thereon; and
(iii) the compliance by Lessee with all conditions of said permits in a
prompt and expeditious manner. Any Alterations or Utility Installations
by Lessee during the term of this Lease shall be done in a good and
workmanlike manner, with good and sufficient materials, and be in
compliance with all Applicable Requirements. Lessee shall promptly upon
completion thereof furnish Lessor with as-built plans and specifications
therefor. Lessor may, (but without obligation to do so) condition its
consent to any requested Alteration or Utility Installation that costs
$2,500.00 or more upon Lessee's providing Lessor with a lien and
completion bond in an amount equal to one and one-half times the
estimated cost of such Alteration or Utility Installation.
(c) Lien Protection. Lessee shall pay when due all claims for
labor or materials furnished or alleged to have been furnished to or for
Lessee at or for use on the Premises, which claims are or may be secured
by any mechanic's or materialmen's lien against the Premises or any
interest therein. Lessee shall give Lessor not less than ten (10) days'
notice prior to the commencement of any work in, on, or about the
Premises, and Lessor shall have the right to post notices of non-
responsibility in or on the Premises as provided by law. It Lessee
shall, in good faith, contest the validity of any such lien, claim or
demand, then Lessee shall, at its sole expense, defend and protect
itself, Lessor and the Premises against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof against the Lessor or the Premises. If Lessor shall
require, Lessee shall furnish to Lessor a surety bond satisfactory to
Lessor in an amount equal to one and one-halt times the amount of such
contested lien claim or demand, indemnifying Lessor against liability for
the same, as required by law for the holding of the Premises free from
the effect of Such lien or claim. In addition, Lessor may require Lessee
to pay Lessor's attorneys' fees and costs in participating in such action
it Lessor shall decide it is to its best interest to do so
7.4 Ownership, Removal, Surrender, and Restoration.
(a) Ownership. Subject to Lessor's right to require their
removal and to cause Lessee to become the owner thereof as hereinafter
provided in this Paragraph 7.4, all Alterations and Utility Installations
made to the Premises by Lessee shall be the property of and owned by
Lessee, but considered a part of the Premises. Lessor may, at any time
and at its option, elect in writing to Lessee to be the owner of all or
any specified part of the Lessee-Owned Alterations and Utility
Installations. Unless otherwise instructed per Subparagraph 7.4(b)
hereof, all Lessee-Owned Alterations and Utility Installations shall, at
the expiration or earlier termination of this Lease, become the property
of Lessor and remain upon the Premises and be surrendered with the
Premises by Lessee.
(c) Surrender/Restoration. Lessee shall surrender the Premises by
the end of the last day of the Lease term or any earlier termination
date, clean and tree of debris and in good operating order, condition and
state of repair, ordinary wear and tear excepted. Ordinary wear and tear
shall not include any damage or deterioration that would have been
prevented by good maintenance practice or by Lessee performing all of its
obligations under this Lease. Except as otherwise agreed or specified
herein, the Premises, as surrendered, shall include the Alterations and
Utility Installations. The obligation of Lessee shall include the repair
of any damage occasioned by the installation, maintenance or removal of
Lessee's Trade Fixtures, furnishings, equipment, and Lessee-Owned
Alterations and Utility Installations, as well as the removal of any
storage tank installed by or for Lessee, and the removal, replacement, or
remediation of any soil, material or ground water contaminated by Lessee,
all as may then be required by Applicable Requirements and/or good
practice. Lessee's Trade Fixtures shall remain the property of Lessee
and shall be removed by Lessee subject to its obligation to repair and
restore the Premises per this Lease.
8. Insurance; Indemnity.
8.1 Payment of Premiums. The cost of the premiums for the insurance
policies maintained by Lessor under this Paragraph 8 shall be a Common
Area Operating Expense pursuant to Paragraph 4.2 hereof. Premiums for
policy periods commencing prior to, or extending beyond, the term of this
Lease shall be prorated to coincide with the corresponding Commencement
Date or Expiration Date.
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain aid keep in force
during the term of this Lease a Commercial General Liability policy of
insurance protecting Lessee, Lessor and any Lender(s) whose names have
been provided to Lessee in writing (as additional insureds) against
claims for bodily injury, personal injury and property damage based upon,
involving or arising out of the ownership, use, occupancy or maintenance
of the Premises and all areas appurtenant thereto. Such insurance shall
be on an occurrence basis providing single limit coverage in an amount
not less than $1,000,000 per occurrence with an 'Additional Insured-
Managers or Lessors of Premises" endorsement and contain the "Amendment
of the Pollution Exclusion' endorsement for damage caused by heat, smoke
or fumes from a hostile fire. The policy shall not contain any intra-
insured exclusions as between insured persons or organizations, but shall
include coverage for liability assumed under this Lease as an "Insured
contract" for the performance of Lessee's indemnity obligations under
this Lease. The limits of said insurance required by this Lease or as
carried by Lessee shall not, however, limit the liability of Lessee nor
relieve Lessee of any obligation hereunder. All insurance to be carried
by Lessee shall be primary to and not contributory with any similar
insurance carried by Lessor, whose insurance shall be considered excess
insurance only.
(b) Carried by Lessor. Lessor shall also maintain liability
insurance described in Paragraph 8.2(a) above, in addition to and not in
lieu of, the insurance required to be maintained by Lessee. Lessee shall
not be named as an additional insured therein Lessor's insurance shall
include the common areas.
8.3 Property Insurance-Building, Improvements and Rental Value.
(a) Building and Improvements. Lessor shall obtain and keep in
force during the term of this Lease a policy or policies in the name of
Lessor, with loss payable to Lessor and to any Lender(s), insuring
against loss or damage to the Premises. Such insurance shall be for full
replacement cost, as the same shall exist from time to time, or the
amount required by any Lender(s), but in no event more than the
commercially reasonable and available insurable value thereof if, by
reason of the unique nature or age of the improvements involved, such
latter amount is less than full replacement cost. Lessee-Owned
Alterations and Utility Installations, Trade Fixtures and Lessee's
personal property shall be insured by Lessee pursuant to Paragraph 8.4.
It the coverage is available and commercially appropriate, Lessor's
policy or policies shall insure against all risks of direct physical loss
or damage (except the perils of flood and/or earthquake unless required
by a Lender), including coverage for any additional costs resulting from
debris removal and reasonable amounts of coverage for the enforcement of
any ordinance or law regulating the reconstruction or replacement of any
undamaged sections of the Building required to be demolished or removed
by reason of the enforcement of any building, zoning, safety or land use
laws as the result of a covered loss, but not including plate glass
insurance. Said policy or policies shall also contain an agreed
valuation provision in lieu of any co-insurance clause. waiver of
subrogation, and inflation guard protection causing an increase in the
annual property insurance coverage amount by a factor of not less than
the adjusted U.S. Department of Labor Consumer Price Index for All Urban
Consumers or the city nearest to where the Premises are located.
(b) Rental Value. Lessor shall also obtain and keep in force
during the term of this Lease a policy or policies in the name of Lessor,
with loss payable to Lessor and any Lender(s), insuring the loss of the
full rental and other charges payable by all lessees of the Building to
Lessor for one year (including all Real Property Taxes, insurance costs,
all Common Area Operating Expenses and any scheduled rental increases).
Said insurance may provide that in the event the Lease is terminated by
reason of an insured loss, the period of indemnity for such coverage
shall be extended beyond the date of the completion of repairs or
replacement of the Premises, to provide for one full year's loss of
rental revenues from the date of any such loss. Said insurance shall
contain an agreed valuation provision in lieu of any coinsurance clause,
and the amount of coverage shall be adjusted annually to reflect the
projected rental income, Real Property Taxes, insurance premium costs and
other expenses, if any, otherwise payable, for the next 12-month period.
Common Area Operating Expenses shall include any deductible amount in
the event of such loss.
(c) Adjacent Premises. Lessee shall pay for any increase in the
premiums for the property insurance of the Building and for the Common
Areas or other buildings in the Industrial Center it said increase is
caused by Lessee's acts, omissions, use or occupancy of the Premises.
(d) Lessee's improvements. Since Lessor is the Insuring Party,
Lessor shall not be required to insure Lessee-Owned Alterations and
Utility Installations unless the item in question has become the property
of Lessor under the terms of this Lease.
8.4 Property insurance. Subject to the requirements of Paragraph 8.5,
Lessee at its cost shall either by separate policy or, at Lessor's
option, by endorsement to a policy already carried, maintain insurance
coverage on all of Lessee's personal property, Trade Fixtures and
Lessee-Owned Alterations and Utility installation in, on, or about the
Premises similar in coverage to that carried by Lessor as the Insuring
Party under Paragraph 8.3(a). Such insurance shall be full replacement
cost coverage with a deductible not to exceed $1,000 per occurrence.
The proceeds from any such insurance shall be used by Lessee for the
property and the restoration of Trade Fixtures and Lessee-Owned
Alterations and Utility Installations. Upon request from Lessor, Lessee
shall provide Lessor with written evidence that such insurance is in
force.
8.5 Insurance policies. Insurance required hereunder shall be in
companies duly licensed to transact business in the state where the
Premises are located, and maintaining during the policy term a A General
Policyholders Rating of at least B+, V, or such other rating as may be
required by a Lender, as set forth in the most current issue of ABest's
Insurance Guide.' Lessee shall not do or permit to be done anything
which shall invalidate the insurance policies to in paragraph 8. Lessee
shall cause to be delivered to Lessor, within seven (7) days after the
earlier of it* Early copies of, or certificates evidencing the
existence and amounts of, do insurance required under Paragraph 8.2(a)
and 8.4. No such policy shall be cancelable of subject to modification
except after thirty (30) days' prior written notice to Lessor. Lessee
shall at least thirty (30) days prior to the expiration of such
policies, furnish Lessor with of renewals or Insurance binders' a rig
renewal or Lessor may order such insurance and charge the cost thereof
to Lessee, which amount shall be payable by to Lessor upon demand.
8.6 Waiver of Subrogation. Without affecting any other rights or
remedies, Lessee and Lessor each hereby and relieve the other, and waive
their entire right to recover damages ( in or in tort) against the other,
for loss or damage to their property arising out of or to the rights
required to be insured against under Paragraph 8. The effect of such
releases and waivers of the right to recover damages shall not be limited
by the amount of insurance carried or required, or by any deductibles
applicable thereto. Lessor and Lessee agree to have their respective
insurance companies issuing property damage insurance waive any right to
subrogation that such companies may have against Lessor or Lessee, as the
case may be, so long as the insurance is not invalidated thereby.
8.8 Exemption of Lessor from Liability. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other
property of Lessee, Lessee's employees, contractors, invitees, customers,
or any other person in or about the Premises, whether such damage or
injury is caused by or results from fire, steam, electricity, gas, water
or rain, or from the breakage, leakage, obstruction or other defects of
pipes, fire sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures, or from any other cause, whether said injury or damage
results from conditions arising upon the Premises or upon other portions
of the Building of which the Premises are a part, from other sources or
places, and regardless of whether the cause of such damage or injury or
the means of repairing the same is accessible or not. Lessor shall not
be liable for any damages arising from any act or neglect of any other
lessee of Lessor nor from the failure by Lessor to enforce the provisions
of any other lease in the Center. Notwithstanding Lessor's negligence or
breach of this Lease, Lessor shall under no circumstances be liable for
injury to Lessee's business or for any loss of income or profit
therefrom.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to
the Premises. other than Lessee-Owned Alterations and Utility
Installations, the repair cost of which damage or destruction is less than
fifty percent (50%) of the then Replacement Cost (as defined in Paragraph
9.1(d)) of the Premises (excluding Lessee-Owned Alterations and Utility
Installations and Trade Fixtures) immediately prior to such damage or
destruction.
(b) "Premises Total Destruction" shall mean damage or destruction
to the Premises, other than Lessee-Owned Alterations and Utility
Installations, the repair cost of which damage or destruction is fifty
percent (50%) or more of the then Replacement Cost of the Premises
(excluding Lessee-Owned Alterations and Utility Installations and Trade
Fixtures) immediately prior to such damage or destruction. In addition,
damage or destruction to the Building, other than Lessee-Owned
Alterations and Utility Installations and Trade Fixtures of any lessees
of the Building, the cost of which damage or destruction is fifty percent
(50%) or more of the 'then Replacement Cost (excluding Lessee-Owned
Alterations and Utility Installations and Trade Fixtures of any lessees
of the Building) of the Building shall, at the caption of Lessor, be
deemed to be Premises Total Destruction.
(c) "Insured Loss" shall mean damage or destruction to the
Premises, other than Lessee-Owned Alterations and Utility Installations
and Trade Fixtures, which was caused by an event required to be covered
by the insurance described in Paragraph 8.3(a) irrespective of any
deductible amounts or coverage limits involved.
(d) "Replacement Cost" shall mean the cost to repair or rebuild
the improvements owned by Lessor at the time of the occurrence to their
condition existing immediately prior thereto, including demolition,
debris removal and upgrading required by the operation of applicable
building codes, ordinances or laws, and without deduction for
depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence or
discovery of a condition involving the presence of, or a contamination
by, a Hazardous Substance as defined in Paragraph 6.2(a), in, on, or
under the Premises.
9.2 Premises Partial Damage - Insured Loss. If Premises Partial Damage
that is an Insured Loss occurs. then Lessor shall, at Lessor's expense,
repair such damage (but not Lessee's Trade Fixtures or Lessee-Owned
Alterations and Utility Installations) as soon as reasonably possible and
this Lease shall continue in full force and effect. In the event,
however, that there is a shortage of insurance proceeds and such shortage
is due to the fact that, by reason of the unique nature of the
improvements in the Premises, full replacement cost insurance coverage
was not commercially reasonable and available, Lessor shall have no
obligation to pay for the shortage in insurance proceeds or to fully
restore the unique aspects of the Premises unless Lessee provides Lessor
with the funds to cover same, or adequate assurance thereof, within ten
(10) days following receipt of written notice of such shortage and
request therefor. If Lessor receives said funds or adequate assurance
thereof within said ten (10) day period, Lessor shall complete them as
soon as reasonably possible and this Lease shall remain in full force and
effect. If Lessor does not receive such funds or assurance within said
period, Lessor may nevertheless elect by written notice to Lessee within
ten (10) days thereafter to make such restoration and repair as is
commercially reasonable with Lessor paying any shortage in proceeds, in
which case this Lease shall remain in full force and effect. If Lessor
does not receive such funds or assurance within such ten (10) day
period, and if Lessor does not so elect to restore and repair, then this
Lease shall terminate sixty (60) days following the occurrence of the
damage or destruction. Unless otherwise agreed, Lessee shall in no event
have any right to reimbursement from Lessor for any funds contributed by
Lessee to repair any such damage or destruction. Premises Partial Damage
due to flood or earthquake shall be subject to Paragraph 9.3 rather than
Paragraph 9.2, notwithstanding that there may be some insurance coverage,
but the net proceeds of any such insurance shall be made available for
the repairs if made by either Party. and the cost of the repair exceeds
$50,000,
9.3 Partial Damage - Uninsured Loss. If Premises Partial Damage that
is not an Insured Loss circumstances caused by a negligent or willful act
of Lessee (in which event Lessee shall make the repairs at Lessee's
expense and this Lease shall continue in full force and effect), Lessor
may at Lessor's option, either (i) repair such damage as soon as
reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee
within thirty (30) days after receipt by Lessor of knowledge of the
occurrence of such damage of Lessor's desire to terminate this Lease as
of the date sixty (60) days following the date of such notice, In the
event Lessor elects to give such notice of Lessor's intention to
terminate this Lease, Lessee shall have the right within ten (10) days
after the receipt of such notice to give written notice to Lessor of
Lessee's commitment to pay for the repair of such damage totally at
Lessee's expense and without reimbursement from Lessor. Lessee shall
provide Lessor with the required funds or satisfactory assurance thereof
within thirty (30) days following such commitment from Lessee, In such
event this Lease shall continue in full force and effect, and Lessor
shall proceed to make such repairs as soon as reasonably possible after
the required funds are available. If Lessee does not give such notice
and provide the funds or assurance thereof within the times specified
above, this Lease shall terminate as of the date specified in Lessor's
notice of termination. only if the damage or destination is
9.4 Total Destruction. Notwithstanding any other provision hereof, it
Premises Total Destruction occurs (including any destruction required by
any authorized public authority), this Lease shall terminate sixty (60)
days following the date of such Premises Total Destruction an Insured
Loss or was caused by a negligent or willful act of Lessee. In the
event, however, that the damage or destruction was caused by Lessee,
Lessor shall have the right to recover Lessor's damages from Lessee
except as released and waived in Paragraph 9.7.
9.5 Damage Near End of Term. If at any time during the last six (6)
months of the term of this Lease there is damage for which the cost to
repair exceeds one month's Base Rent, whether or not an Insured Loss,
Lessor may, at Lessor's option, terminate this Lease effective sixty (60)
days following the date of occurrence of such damage by giving written
notice to Lessee of Lessor's election to do so within thirty (30) days
after the date of occurrence of such damage. Provided, however, if
Lessee at that time has an exercisable option to extend this Lease or to
purchase the Promises, then Lessee may preserve this Lease by (a)
exercising such option, and (b) providing Lessor with any shortage in
insurance proceeds (or adequate assurance thereof) needed to make the
repairs on or before the earlier of (i) the date which is ten (10) days
after Lessee's receipt of Lessor's written notice purporting to terminate
this Lease, or (if) the day prior to the date upon which such option
expires. If Lessee duly exercises such option during such period and
provides Lessor with funds (or adequate assurance thereof) to cover any
shortage in insurance proceeds, Lessor shall, at Lessor's expense repair
such damage as soon as reasonably possible and this Lease shall continue
in full force and effect. It Lessee fails to exercise such option and
provide such funds or assurance during such period, then this Lease shall
terminate as of the date set forth in the first sentence of this
Paragraph 9.5.
9.6 Abatement of Rent-, Lessee's Remedies.
(a) In the event of (i) Premises Partial Damage or (ii) Hazardous
Substance Condition for which Lessee is not legally responsible, the Base
Rent, Common Area Operating Expenses and other charges, if any, payable
by Lessee hereunder for the period during which such damage or condition,
its repair, remediation or restoration continues, shall be abated in
proportion to the degree to which Lessees use of the Premises is
impaired, but not in excess of proceeds from insurance required to be
carried under Paragraph 8.3(b). Except for abatement of Base Rent, Common
Area Operating Expenses and other charges, if any, as aforesaid, all
other obligations of Lessee hereunder shall be performed by Lessee, and
Lessee shall have no claim against Lessor for any damage suffered by
reason of any such damage, destruction, repair, remediation or
restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Paragraph 9 and shall not commence, in a
substantial and meaningful way, the repair or restoration of the Premises
within ninety (90) days after such obligation shall accrue, Lessee may,
at any time prior to the commencement of such repair or restoration, give
written notice to Lessor and to any Lenders of which Lessee has actual
notice of Lessee's election to terminate this Lease on a date not less
than sixty (60) days following the giving of such notice. If Lessee
gives such notice to Lessor and such Lenders and such repair or
restoration is not commenced within thirty (30) days after receipt of
such notice, this Lease shall terminate as of the date specified in said
notice. If Lessor or a Lender commences the repair or restoration of the
Premises within thirty (30) days after the receipt of such notice, this
Lease shall continue in full force and effect. "Commence" as used in this
Paragraph 9.6 shall mean either the unconditional authorization of the
preparation of the required plans, or the beginning of the actual work on
the Promises, whichever occurs first. See Addendum Paragraph 58
9.8 Termination - Advance Payments. Upon termination of this Lease
pursuant to this Paragraph 9, Lessor shall return to Lessee any advance
payment made by Lessee to Lessor and so much of Lessee's Security Deposit
as has not been, or is not then required to be, used by Lessor under the
terms of this Lease.
9.9 Waiver of Statutes. Lessor and Lessee agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the
Premises and the Building with respect to the termination of this Lease
and hereby waive the provisions of any present or future statute to the
extent it is inconsistent herewith.
10. Real Property Taxes.
10.1 Payment of Taxes. Lessor shall pay the Real Property Taxes, as
defined in Paragraph 10.2, applicable to the Industrial Center, and
except as otherwise provided in Paragraph 10.3, any such amounts shall be
included in the calculation of Common Area Operating Expenses in
accordance with the provisions of Paragraph 4.2.
10.2 Real Property Tax Definition. As used herein, the term "Real Prop"
Taxes" shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than
inheritance, personal income or estate taxes) imposed upon the Industrial
Center by any authority having the direct or indirect power to tax,
including any city, state or federal government, or any school,
agricultural, sanitary, fire, street, drainage, or other improvement
district thereof, levied against any legal or equitable interest of
Lessor in the Industrial Center or any portion thereof, Lessor's right to
rent or other income therefrom, and/or Lessor's business of leasing the
Premises. The term "Real P Taxes" shall also include any tax, fee, levy,
assessment or charge, or any increase therein, imposed by reason of
events occurring, or changes in Applicable Law taking effect, during the
term of this Lease, including but not limited to a change in the
ownership of the Industrial Center or in the improvements thereon, the
execution of this Lease, or any modification, amendment or transfer
thereof, and whether or not contemplated by the Parties. In calculating
Real Property Taxes for any calendar year, the Real Property Taxes for
any real estate tax year shall be included in the calculation of Real
Property Taxes for such calendar year based upon the number of days which
such calendar year and tax year have in common.
10.3 Additional Improvements. Common Area Operating Expenses shall not
include Real Property Taxes specified in the tax assessor's records and
work sheets as being caused by additional improvements placed upon the
Industrial Center by other lessees or by Lessor for the exclusive
enjoyment of such other lessees. Notwithstanding Paragraph 10.1 hereof,
Lessee shall, however, pay to Lessor at the time Common Area Operating
Expenses are payable under Paragraph 4.2, the entirety of any increase in
Real Property Taxes if assessed solely by reason of Alterations, Trade
Fixtures or Utility Installations placed upon the Premises by Lessee or
at Lessee's request.
10.4 Joint Assessment. If the Building is not separately assessed, Real
Property Taxes allocated to the Building shall be an equitable proportion
of the Real Property Taxes for all of the land and improvements included
within the tax parcel assessed, such proportion to be determined by
Lessor from the respective valuations assigned in the assessor's work
sheets or such other information as may be reasonably available.
Lessor's reasonable determination thereof, in good faith, shall be
conclusive.
10.5 Lessee's Property Taxes. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon Lessee-Owned Alterations and
Utility Installations, Trade Fixtures, furnishings, equipment and all
personal property of Lessee contained in the Premises or stored within
the Industrial Center. When possible, Lessee shall cause its Lessee-
Owned Alterations and Utility Installations, Trade Fixtures, furnishings,
equipment and all other personal property to be assessed and billed
separately from the real property of Lessor. If any of Lessee's said
property shall be assessed with Lessor's real property, Lessee shall pay
Lessor the taxes attributable to Lessee's property within ten (10) days
after receipt of a written statement setting forth the taxes applicable
to Lessee's property.
11. Utilities. Lessee shall pay directly for all utilities and
services supplied to the Premises, including but not limited to
electricity, telephone, security, gas and cleaning of the Premises,
together with any taxes thereon. If any such utilities or services are
not separately metered to the Premises or separately billed to the
Premises, Lessee shall pay to Lessor a reasonable proportion to be
determined by Lessor of all such charges jointly metered or billed with
other premises in the Building, in the manner and within the time periods
set forth in Paragraph 4.2(d).
12. Assignment and Subletting.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber (collectively,
'assign') or subpart of Lessee's interest in this Lease or in the
Premises without Lessor's prior written consent given under and subject
to the terms of Paragraph 36.
(b) A change in the control of Lessee shall not constitute an
assignment requiring Lessor's consent. See Addendum Paragraph 59
(c) The involvement of Lessee or its assets in any transaction,
or series of transactions (by way of merger, sale, acquisition,
financing, refinancing, transfer, leveraged buy-out or otherwise),
whether or not a formal assignment or hypothecation of this Lease or
Lessee's assets occurs, which results or will result in a reduction of
the Net Worth of Lessee, as hereinafter defined, by an amount equal to or
greater than twenty-five percent (25%) of such Net Worth of Lessee as it
was represented to Lessor at the time of full execution and delivery of
this Lease or at the time of the most recent assignment to which Lessor
has consented, or as it exists immediately prior to said transaction or
transactions constituting such reduction, at whichever time said Net
Worth of Lessee was or is greater, shall be considered an assignment of
this Lease by Lessee to which Lessor may reasonably withhold its consent.
"Not Worth of Lessee" for purposes of this Lease shall be the net worth
of Lessee (excluding any Guarantors) established under generally accepted
accounting principles consistently applied.
(d) An assignment or subletting of Lessee's interest in this
Lease without Lessor's specific prior written consent shall, at Lessor's
option, be a Default curable after notice per Paragraph 13.1, or a non-
curable Breach without the necessity of any notice and grace period. It
Lessor elects to treat such unconsented to assignment or subletting as a
non-curable Breach, Lessor shall have the right to either: (i) terminate
this Lease, or (ii) upon thirty (30) days' written notice ("Lessor's
Notice"), increase the monthly Base Rent for the Premises to the greater
of the then fair market rental value of the Premises, as reasonably
determined by Lessor, or one hundred ten percent (110%) of the Base Rent
then in effect. Pending determination of the new fair market rental
value, if disputed by Lessee, Lessee shall pay the amount set forth in
Lessors Notice, with any overpayment credited against the next
installments) of Base Rent coming due, and any underpayment for the
period retroactively to the effective date of the adjustment being due
and payable immediately upon the determination thereof. Further, in the
event of such Breach and rental adjustment, (i) the purchase price of any
option to purchase the Premises held by Lessee shall be subject to
similar adjustment to the then fair market value as reasonably determined
by Lessor (without the Lease being considered an encumbrance or any
deduction for depreciation or obsolescence, and considering the Premises
at its highest and t>est use and in good condition) or one hundred ten
percent (110%) of the price previously in effect, (ii) any index-oriented
rental or price adjustment formulas contained in this Lease shall be
adjusted to require that the base index t>e determined with reference to
the index applicable to the time of such adjustment, and (iii) any fixed
rental adjustments scheduled during the remainder of the Lease term shall
be increased in the same ratio as the new rental bears to the Base Rent
in effect immediately prior to the adjustment specified in Lessor's
Notice.
(e) Lessee's remedy for any breach of this Paragraph 12.1 by
Lessor shall be limited to compensatory damages and/or injunctive relief.
12.2 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor's consent, any assignment or subletting
shall not (i) be effective without the express written assumption by such
assignee or sub4essee of the obligations of Lessee under this Lease, (ii)
release Lessee of any obligations hereunder, nor (iii) alter the primary
liability of Lessee for the payment of Base Rent and other sums due
Lessor hereunder or for the performance of any other obligations to be
performed by Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's
obligations from any person other than Lessee pending approval or
disapproval of an assignment. Neither a delay in the approval or
disapproval of such assignment nor the acceptance of any rent for
performance shall constitute a waiver or estoppel of Lessor's right to
exercise its remedies for the Default or Breach by Lessee of any of the
terms, covenants or conditions of this Lease.
(c) The consent of Lessor to any assignment or subletting shall
not constitute a consent to any subsequent assignment or subletting by
Lessee or to any subsequent or successive assignment or subletting by the
assignee or sublessee. However, Lessor may consent to subsequent
sublettings and assignments of the sublease or any amendments or
modifications thereto without notifying Lessee or anyone else liable
under this Lease or the sublease and obtaining their consent, and such
action shall not relieve such persons from liability under this Lease or
the sublease.
(d) In the event of any Default or Breach of Lessee's obligation
under this Lease, Lessor may proceed directly against Lessee, any
Guarantors or anyone else responsible for the performance of the Lessee's
obligations under this Lease, including any subleases, without first
exhausting Lessor's remedies against any other person or entity
responsible therefor to Lessor, or any security held by Lessor.
(e) Each request for consent to an assignment or subletting shall
be in writing, accompanied by information relevant to Lessor's
determination as to the financial and operational responsibility and
appropriateness of the proposed assignee or subleases, including but not
limited to the intended use and/or required modification of the Premises,
if any, together with a non-refundable deposit of processing for consent.
Lessee agrees to provide Lessor with such other or additional
information and/or documentation as may be reasonably requested by
Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by
reason of accepting such assignment or entering into such be deemed, for
the benefit of Lessor, to have assumed and agreed to conform and comply
with each and every term, covenant, condition and obligation herein to be
observed or performed by Lessee during the term of said assignment or
such other than such obligations as are contrary to or inconsistent with
provisions of an assignment or sublease to which has specifically
consented in writing.
(g) The occurrence of a transaction described in Paragraph
12.2(c) shall give Lessor the right (but not the obligation) to require
that the Security Deposit be increased by an amount equal to six (6)
times the then monthly Base Rent, and Lessor may make the by of the
Security a condition to Lessor's consent to such transaction.
12.3 Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Lessee of
all or any part of the Promises and shall be deemed included in all
subleases under this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of
Lessee's interest in all rentals and income arising from any sublease of
all or a portion of the Premises heretofore or hereafter made by Lessee,
and Lessor may collect such rent and income and apply same toward
Lessee's obligations under this Lease; provided, however, that until a
Breach (as defined in Paragraph 13.1) shall occur in the performance of
Lessee's obligations under this Lease, Lessee may, except as otherwise
provided in this Lease, receive, collect and enjoy the rents accruing
under such sublease. Lessor shall not, by reason of the foregoing
provision or any other assignment of such sublease to Lessor, nor by
reason of the collection of the rents from a sublessee, be deemed liable
to the sublessee for any failure of Lessee to perform and comply with any
of Lessee's obligations to such sublessee under such Sublease. Lessee
hereby irrevocably authorizes and directs any such sublessee, upon
receipt of a written notice from Lessor stating that a Breach exists in
the performance of Lessee's obligations under this Lease, to pay to
Lessor the rents and other charges due and to become due under the
sublease. Sublessee shall rely upon any such statement and request from
Lessor and shall pay such rents and other charges to Lessor without any
obligation or right to inquire as to whether such Breach exists and
notwithstanding any notice from or claim from Lessee to the contrary.
Lessee shall have no right or claim against such sublessee, or, until the
Breach has been cured, against Lessor, for any such rents and other
charges so paid by said sublessee to Lessor.
(b) In the event of a Breach by Lessee in the performance of its
obligations under this Lease, Lessor, at its option and without any
obligation to do so, may require any sublessee to attorn to Lessor, in
which event Lessor shall undertake the obligations of the sublessor under
such sublease from the time of the exercise of said option to the
expiration of such sublease; provided, however, Lessor shall not be
liable for any prepaid rents or security deposit paid by such sublessee
to such sublessor or for any other prior defaults or breaches of such
sublessor under such sublease.
(c) Any matter or thing requiring the consent of the sublessor
under a sublease shall also require the consent of Lessor herein.
(d) No sublessee under a sublease approved by Lessor shall
further assign or sublet all or any part of the Premises without
Lessor's prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or
Breach by Lessee to the sublessee, who shall have the right to cure the
Default of Lessee within the grace period. if any, specified in such
notice. The sublessee shall have a right of reimbursement and offset
from and against Lessee for any such Defaults cured by the sublessee.
13. Default; Breach; Remedies.
13.1 Default; Breach. Lessor and Lessee agree that if an attorney is
consulted by Lessor in connection with a Lessee Default or Breach (as
hereinafter defined), $350.00 is a reasonable minimum sum per such
occurrence for legal services and costs in the preparation and service of
a notice of Default, and that Lessor may include the cost of such
services and costs in said notice as rent due and payable to cure said
default. A "Default" by Lessee is defined as a failure by Lessee to
observe, comply with or perform any of the terms. covenants. conditions
or rules applicable to Lessee under this Lease. A "Breach" by Lessee is
defined as the occurrence of any one or more of the following Defaults,
and, where a grace period for cure after notice is specified herein, the
failure by Lessee to cure such Default prior to the expiration of the
applicable grace period, and shall entitle Lessor to pursue the remedies
set forth in Paragraphs 13.2 and/or 13.3:
(b) Except as expressly otherwise provided in this Lease, the failure
by Lessee to make any payment of Base Rent, Lessee s Share of Common Area
Operating Expenses, or any other monetary payment required to be made by
Lessee here under -- the failure by Lessee to provide Lessor with
reasonable evidence of insurance or surety bond required under this
Lease, or the failure of Lessee to fulfill any obligation under this
Lease which endangers or threatens life or property, where such failure
continues for a period of ninety (90) days following written notice
thereof by or on behalf of Lessor to Lessee.
(c) Except as expressly otherwise provided in this Lease the
failure by Lessee to provide Lessor with reasonable written evidence (in
duly executed original form, if applicable) of (i) compliance with
Applicable Requirements per Paragraph 6.3. (ii) the inspection,
maintenance and service contracts required under Paragraph 7.1 (b),
(iii) the rescission of an unauthorized assignment or subletting per
Paragraph 12. 1, (iv) a Tenancy Statement per Paragraphs 16 or 37, (v)
the subordination or non-subordination of this Lease per Paragraph 30,
(vi) the guaranty of the performance of Lessee's obligations under this
Lease it required under Paragraphs 1.11 and 37. (vii) the execution of
any document requested under Paragraph 42 (easements), or (viii) any
other documentation or information which Lessor may reasonably require
of Lessee under the terms of this lease, where any such failure
continues for a period of ten (10) days following written notice by or
on behalf of Lessor to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40
hereof that are to be observed, complied with or performed by Lessee,
other than those described in Subparagraphs 13.1 (a), (b) or (c), above,
where such Default continues for a period of thirty (30) days after
written notice thereof by or on behalf of Lessor to Lessee provided,
however, that it the nature of Lessee's Default is such that more than
thirty (30) days are reasonably required for its curs, then it shall not
be deemed to be a Breach of this Lease by Lessee if Lessee commences such
cure within said thirty (30) day period and thereafter diligently
prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making
by Lessee of any general arrangement or assignment for the benefit of
creditors; (ii) Lessee's becoming a 'debtor' as defined in 11 U.S. Code
Section 101 or any successor statute thereto (unless, in the case of a
petition filed against Lessee, the same is dismissed within sixty (60)
days); (iii) the appointment of a trustee or receiver to take possession
of substantially all of Lessee's assets located at the Premises or of
Lessee's interest in this Lease, where possession is not restored to
Lessee within thirty (30) days; or (iv) the attachment, execution or
other judicial seizure of substantially all of Lessee's assets located at
the Premises or of Lessees interest in this Lease, where such seizure is
not discharged within thirty (30) days; provided, however, in the event
that any provision of this Subparagraph 13.1 (e) is contrary to any
applicable law, such provision shall be of no force or effect, and shall
not affect the validity of the remaining provisions.
(f) The discovery by Lessor that any financial statement of
Lessee or of any Guarantor, given to Lessor by Lessee or any Guarantor,
was made
(g) It the performance of Lessee's obligations under this Lease
is guaranteed: (i) the death of a Guarantor, (ii) the termination of a
Guarantor's liability with respect to this Lease other than in accordance
with the terms of such guaranty, (iii) a Guarantor's becoming insolvent
or the subject of a bankruptcy filing, (iv) a Guarantor's refusal to
honor the guaranty, or (v) a Guarantor's breach of its guaranty
obligation on an anticipatory breach basis, and Lessee's failure, within
sixty (60) days following written notice by or on behalf of Lessor to
Lessee of any such event, to provide Lessor with written alternative
assurances of security, which, when coupled with the then existing
resources of Lessee, equals or exceeds the combined financial resources
of Lessee and the Guarantors that existed at the time of execution of
this Lease.
13.2 Remedies. It Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after
written notice to Lessee (or in case of an emergency, without notice),
Lessor may at its option (but without obligation to do so), perform such
duty or obligation on Lessee's behalf, including but not limited to the
obtaining of reasonably required bonds, insurance policies, or
governmental licenses, permits or approvals. The costs and expenses of
any such performance by Lessor shall be due and payable by Lessee to
Lessor upon invoice therefor. If any check given to Lessor by Lessee
shall not be honored by the bank upon which it is drawn, Lessor, at its
own option, may require all future payments to be made under this Lease
by Lessee to be made only by cashier's check. In the event of a Breach
of this Lease by Lessee (as defined in Paragraph 13.1), with or without
further notice or demand, and without limiting Lessor in the exercise of
any right or remedy which Lessor may have by reason of such Breach,
Lessor may:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall
terminate and Lessee shall immediately surrender possession of the
Premises to Lessor. In such event Lessor shall be entitled to recover
from Lessee: (i) the worth at the time of the award of the unpaid rent
which had been earned at the time of termination; (ii) the worth at the
time of award of the amount by which the unpaid rent which would have
been earned after termination until the time of award exceeds the amount
of such rental loss that the Lessee proves could have been reasonably
avoided; (iii) the worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award exceeds
the amount of such rental loss that the Lessee proves could be reasonably
avoided; and (iv) any other amount necessary to compensate Lessor for all
the detriment proximately caused by the Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, including but not limited to the
cost of recovering possession of the Premises, expenses of reletting, of
the Premises, reasonable attorneys' fees, and that portion of any leasing
commission paid by Lessor in connection with this Lease applicable to the
unexpired term of this Lease. The worth at the time of award of the
amount referred to in provision (iii) of the immediately preceding
sentence shall be computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco or the Federal Reserve
Bank District in which the Premises are located at the time of award plus
one percent (I%). Efforts by Lessor to mitigate damages caused by
Lessees Default or Breach of this Lease shall not waive Lessor's right to
recover damages under this Paragraph 13.2. It termination of this Lease
is obtained through the provisional remedy of unlawful detainer, Lessor
shall have the right to recover in such proceeding the unpaid rent and
damages as are recoverable therein, or Lessor may reserve the right to
recover all or any part thereof in a separate suit for such rent and/or
damages. It a notice and grace period required under Subparagraph 13.1
(b), (c) or (d) was not previously given, a notice to pay rent or quit,
or to perform or quit, as the case may be, given to Lessee under any
statute authorizing the forfeiture of leases for unlawful detainer shall
also constitute the applicable notice for grace period purposes required
by Subparagraph 13.1 (b),(c) or (d). In such case, the applicable grace
period under the unlawful detainer statue shall run concurrently after
the one such statutory notice, and the failure of Lessee to cure the
Default within the greater of the two (2) such grace periods shall
constitute both an unlawful detainer and a Breach of this Lease entitling
Lessor to the remedies provided for in this Lease and/or by said statute.
(b) Continue the Lease and Lessee's right to possession in effect
(in California under California Civil Code Section 1951.4) after Lessee's
Breach and recover the rent as it becomes due, provided Lessee has the
right to sublet or assign, subject only to reasonable limitations.
Lessor and Lessee agree that the limitations on assignment and subletting
in this Lease are reasonable. Acts of maintenance or preservation,
efforts to relet the Premises, or the appointment of a receiver to
protect the Lessor's interest under this Lease, shall not constitute a
termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises
are located.
(d) The expiration or termination of this Lease and/or the
termination of Lessee's right to possession shall not relieve Lessee from
liability under any indemnity provisions of this Lease as to matters
occurring or accruing during the term hereof or by reason of Lessee's
occupancy of the Premises.
13.3 lnducement Recapture In Event of Breach. Any agreement by Lessor
for free or abated rent or other charges applicable to the Premises, or
for the giving or paying by Lessor to or for Lessee of any cash or other
bonus, inducement or consideration for Lessee's entering into this Lease,
all of which concessions are hereinafter referred to as "Inducement
Provisions" shall be deemed conditioned upon Lessee's full and faithful
performance of all of the terms, covenants and conditions of this Lease
to be performed or observed by Lessee during the term hereof as the same
may be extended. Upon the occurrence of a Breach (as defined in
Paragraph 13.1) of this Lease by Lessee, any such Inducement Provision
shall automatically be deemed deleted from this Lease and of no further
force or effect, and any rent, other charge, bonus, inducement or
consideration theretofore abated, given or paid by Lessor under such an
Inducement Provision shall be immediately due and payable by Lessee to
Lessor, and recoverable by Lessor, as additional rent due under this
Lease, notwithstanding any subsequent cure of said Breach by Lessee. The
acceptance by Lessor of rent or the cure of the Breach which initiated
the operation of this Paragraph 13.3 shall not be deemed a waiver by
Lessor of the provisions of this Paragraph 13.3 unless specifically so
stated in writing by Lessor at the time of such acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor
to incur costs not contemplated by this Lease, the exact amount of which
will be extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges, and late charges which
may be imposed upon Lessor by the terms of any ground lease, mortgage or
deed of trust covering the Premises Accordingly, if any installment of
rent or other sum due from Lessee shall not be received by Lessor or
Lessor's designee within ten (10) days after such amount shall be due,
then, without any requirement for notice to Lessee, Lessee shall pay to
Lessor a late charge equal to six percent (6%) of such overdue amount.
The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of late
payment by Lessee. Acceptance of such late charge by Lessor shall in no
event constitute a waiver of Lessee's Default or Breach with respect to
such overdue amount, nor prevent Lessor from exercising any of the other
rights and remedies granted hereunder. In the event that a late charge
is payable hereunder, whether or not collected, for three (3) consecutive
installments of Base Rent, then notwithstanding Paragraph 4.1 or any
other provision of this Lease to the contrary, Base Rent shall, at
Lessor's option, become due and payable quarterly in advance.
13.5 Breach by Lessor. Lessor shall not be deemed in breach of this
Lease unless Lessor fails within a reasonable time to perform an
obligation required to be performed by Lessor. For purposes of this
Paragraph 13.5, a reasonable time shall in no event be less than thirty
(30) days after receipt by Lessor, and by any Lender(s) whose name and
address shall have been furnished to Lessee in writing for such purpose,
of written notice specifying wherein such obligation of Lessor has not
been performed; provided, however, that if the nature of Lessor's
obligation is such that more than thirty (30) days after such notice are
reasonably required for its performance, then Lessor shall not be in
breach of this Lease if performance is commenced within such thirty (30)
day period and thereafter diligently pursued to completion.
14. Condemnation. It the Premises or any portion thereof are taken
under the power of eminent domain or sold under the threat of the
exercise of said power (all of which are herein called 'condemnation"),
this Lease shall terminate as to the part so taken as of the date the
condemning authority takes title or possession, whichever first occurs.
It more than ten percent (10%) of the floor area of the Premises, or more
than twenty-five percent (25%) of the portion of the Common Areas
designated for Lessees parking, is taken by condemnation, Lessee may, at
Lessees option, to be exercised in writing within ten (10) days after
Lessor shall have given Lessee written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning
authority shall have taken possession) terminate this Lease as of the
date the condemning authority takes such possession. If Lessee does not
terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises
remaining, except that the Base Rent shall be reduced in the same
proportion as the rentable floor area of the Premises taken bears to the
total rentable floor area of the Premises. No reduction of Base Rent
shall occur if the condemnation does not apply to any portion of the
Premises. Any award for the taking of all or any part of the Premises
under the power of eminent domain or any payment made under threat of the
exercise of such power shall be the property of Lessor, whether such
award shall be made as compensation for diminution of value of the
leasehold or for the taking of the fee, or as severance damages:
provided, however, that Lessee shall be entitled to any compensation,
separately awarded to Lessee for Lessee's relocation expenses and/or loss
of Lessee's Trade Fixtures. In the event that this Lease is not
terminated by reason of such condemnation, Lessor shall to the extent of
its net severance damages received, over and above Lessee s Share of the
legal and other expenses incurred by Lessor in the condemnation matter,
repair any damage to the Premises caused by such condemnation authority.
Lessee shall be responsible for the payment of any amount in excess of
such net severance damages required to complete such repair.
15. Brokers' Fees.
15.1 Procuring Cause. The Broker(s) named in Paragraph 1.10 is/are
the procuring cause of this Lease.
15.2 Additional Terms. Unless Lessor and Broker(s) have otherwise
agreed in writing, Lessor agrees that: (a) if Lessee exercises any Option
(as defined in Paragraph 39.1) granted under this Lease or any Option
subsequently granted, or (b) if Lessee acquires any rights to the
Premises or other premises in which Lessor has an interest, or (c) it
Lessee remains in possession of the Premises with the consent of Lessor
after the expiration of the term of this Lease after having failed to
exercise an Option, or (d) if said Brokers are the procuring cause of any
other lease or sale entered into between the Parties pertaining to the
Premises and/or any adjacent property in which Lessor has an interest, or
(e) it Base Rent is increased, whether by agreement or operation of an
escalation clause herein, then as to any of said transactions, Lessor
shall pay said Broker(s) a fee in accordance with the schedule of said
Broker(s) in effect at the time of the execution of this Lease.
15.3 Assumption of Obligations. Any buyer or transferee of Lessor's
interest in this Lease, whether such transfer is by agreement or by
operation of law, shall be deemed to have assumed Lessor's obligation
under this Paragraph 15. Each Broker shall be an intended third party
beneficiary of the provisions of Paragraph 1.10 and of this Paragraph 15
to the extent of its interest in any commission arising from this Lease
and may enforce that right directly against Lessor and its successors.
15.4 Representations and Warranties. Lessee and Lessor each represent
and warrant to the other that it has had no dealings with any person,
firm, broker or finder other than as named in Paragraph 1.10(a) in
connection with the negotiation of this Lease and/or the consummation of
the transaction contemplated hereby, and that no broker or other person,
firm or entity other than said named Broker(s) is entitled to any
commission or finder's fee in connection with said transaction. Lessee
and Lessor do each hereby agree to indemnity, protect, defend and hold
the other harmless from and against liability for compensation or charges
which may be claimed by any such unnamed broker, finder or other similar
party by reason of any dealings or actions of the indemnifying Party,
including any costs, expenses, and/or attorneys' fees reasonably incurred
with respect thereto.
16. Tenancy and Financial Statements.
16.1 Tenancy Statement. Each Party (as "Responding Party") shall within
ten (10) days after written notice from the other Party (the "Requesting
Party") execute, acknowledge and deliver to the Requesting Party a
statement in writing in a form similar to the then most current "Tenancy
Statement" form published by the American Industrial Real Estate
Association, plus such additional information, confirmation and/or
statements as may be reasonably requested by the Requesting Party.
16.2 Financial Statement. It Lessor desires to finance, refinance, or
sell the Premises or the Building, or any part thereof, Lessee and all
Guarantors shall deliver to any potential lender or purchaser designated
by Lessor such financial statements of Lessee and such Guarantors as may
be reasonably required by such lender or purchaser, including but not
limited to Lessee's financial statements for the past three (3) years.
All such financial statements shall be received by Lessor and such lender
or purchaser in confidence and shall t>e used only for the purposes
herein set forth.
17. Lessor's Liability. The term "Lessor" as used herein shall mean
the owner or owners at the time in question of the fee title to the
Premises, In the event of a transfer of Lessor's title or interest in the
Premises or in this Lease, Lessor shall deliver to the transferee or
assignee (in cash or by credit) any unused Security Deposit held by
Lessor at the time of such transfer or assignment. Except as provided in
Paragraph 15.3, upon such transfer or assignment and delivery of the
Security Deposit, as aforesaid, the prior Lessor shall be relieved of all
liability with respect to the obligations and/or covenants under this
Lease thereafter to be performed by the Lessor. Subject to the
foregoing, the obligations and/or covenants in this Lease to be performed
by the Lessor shall be binding only upon the Lessor as hereinabove
defined.
18. Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect
the validity of any other provision hereof.
19. Interest an Past-Due Obligations. Any monetary payment due Lessor
hereunder, other than late charges, not received by Lessor within ten (1
0) days following the date on which it was due, shall bear interest from
the date due at the prime rate charged by the largest state chartered
bank in the state in which the Premises are located plus four percent
(4%) per annum, but not exceeding the maximum rate allowed by law, in
addition to the potential late charge provided for in Paragraph 13.4.
20. Time of Essence. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the Parties
under this Lease.
21. Rent Defined. All monetary obligations of Lessee to Lessor under
the terms of this Lease are deemed to be rent.
22. No Prior or other Agents; Broker Disclaimer. This Lease contains
all agreements between the Parties with respect to any matter mentioned
herein, and no other prior or contemporaneous agreement or understanding
shall be effective. Lessor and Lessee each represents and warrants to
the Brokers that it has made, and is relying solely upon, its own
investigation as to the nature, quality, character and financial
responsibility of the other Party to this Lease and as to the nature,
quality and character of the Premises. Brokers have no responsibility
with respect thereto or with respect to any default or breach hereof by
either Party. Each Broker shall be an intended third party beneficiary
of the provisions of this Paragraph 22.
23. Notices.
23.1 Notice Requirements. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by
messenger or courier service) or may be sent by regular, certified or
registered mail or U.S. Postal Service Express Mail, with postage
prepaid, or by facsimile transmission during normal business hours, and
shall be deemed sufficiently given if served in a manner specified in
this Paragraph 23. The addresses noted adjacent to a Party's signature
on this Lease shall be that Party's address for delivery or mailing of
notice purposes. Either Party may by written notice to the other specify
a different address for notice purposes, except that upon Lessee's taking
possession of the Premises, the Premises shall constitute Lessee's
address for the purpose of mailing or delivering notice to Lessee. A
copy of all notices required or permitted to be given to Lessor hereunder
shall be concurrently transmitted to such party or parties at such
addresses as Lessor may from time to time hereafter designate by written
notice to Lessee.
23.2 Date of Notice. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery
shown on the receipt card, or a no delivery date is shown, the postmark
thereon. If sent by regular mail, the notice shall be deemed given
forty-eight (48) hours after the same is addressed as required herein and
mailed with postage prepaid. Notices delivered by United States Express
Mail or overnight courier that guarantees next day of, a copy is also
sent via delivery or map. If notice is received on a Saturday or a
Sunday or a holiday, it be business day.
24. Waivers. No waiver by Lessor of the Default or Breach of any
term, covenant or condition hereof by Lessee, shall be deemed a covenant
or condition hereof, or of any subsequent Default or Breach by Losses of
the same or any other term, covenant or condition hereof. or approval
of, any such act shall riot be deemed to render unnecessary the
obtaining of Lessor's consent to, or approval of, any other term, a
consent to, or similar act by Lessee, or be construed as the basis of an
estoppel to enforce the provision or provisions of this Lease requiring
such consent. Regardless of Lessor's a of a Default or Breach at the
time of accepting rent, the acceptance of rent by Lessor shall not be a
waiver of any Default or Breach by Lessee of any provision hereof. Any
payment given Lessor by Lessee may be accepted by Lessor on account of
moneys or damages due Lessor, notwithstanding any qualifying statements
or conditions made by Lessee in connection therewith, which such
statements and/or conditions shall be of no force or effect whatsoever
unless specifically agreed to in writing by Lessor at or before the time
of deposit of such payment.
25. Recording. Either Lessor or Lessee shall, upon request of the
other, execute, acknowledge and deliver to the other a short form
memorandum of this, Lease for recording purposes. The Party requesting
recordation shall be responsible for payment of any fees or taxes
applicable thereto.
26. No Right To Holdover. Lessee has no right to retain possession of
the Premises or any part thereof beyond the expiration or earlier
termination of this Lease. In the event that Lessee holds over in
violation of this Paragraph 26 then the Base Rent payable from and after
the time of the expiration or earlier termination of this Lease shall be
increased to 125% of the Base Rent applicable during the month
immediately preceding such expiration or earlier termination. Nothing
contained herein shall be construed as a consent by Lessor to any holding
over by Lessee.
27. Cumulative Remedies. No remedy or election hereunder but shall,
wherever possible, be cumulative with all other remedies E law or in
equity.
28. Covenants end Conditions. All provisions of this Lease to be
observed or performed by Lessee are both covenants and conditions.
29. Binding Effect; Choice of Law. This Lease shall be binding upon
the Parties, their personal representatives, successors and assigns and
be governed by the laws of the State in which the Premises are located.
Any litigation between the Parties hereto concerning this Lease shall be
initiated in the county in which the Premises are located.
30. Subordination; Attornment; Non-Disturbance.
30.1 Subordination. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or
other hypothecation or security device (collectively, "Security Device"),
now or hereafter placed by Lessor upon the real property of which the
Premises are a part, to any and all advances made on the security
thereof, and to all renewals, modifications. consolidations, replacements
and extensions thereof. Lessee agrees that the Lenders holding any such
Security Device shall have no duty, liability or obligation to perform
any of the obligations of Lessor under this Lease, but that in the event
of Lessor's default with respect to any such obligation, Lessee will give
any Lender whose name and address have been furnished Lessee in writing
for such purpose notice of Lessor's default pursuant to Paragraph 13.5.
If any Lender shall elect to have this Lease and/or any Option granted
hereby superior to the lien of its Security Device and shall give written
notice thereof to Lessee, this Lease and such Options shall be deemed
prior to such Security Device, notwithstanding the relative dates of the
documentation or recordation thereof.
30.2 Attornment. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires
ownership of the Premises by reason of a foreclosure of a Security
Device, and that in the event of such foreclosure, such new owner shall
not: (i) be liable for any act or omission of any prior lessor or with
respect to events occurring prior to acquisition of ownership, (ii) be
subject to any offsets or defenses which Lessee might have against any
prior lessor, or (iii) be bound by prepayment of more than one month's
rent.
30.3 Non-Disturbance. With respect to Security Devices entered into by
Lessor after the execution of this lease. Lessee's subordination of this
Lease shall be subject to receiving assurance (a "non-disturbance
agreement") from the Lender that Lessee's possession and this Lease,
including any options to extend the term hereof, will not be disturbed so
long as Lessee is not in Breach hereof and attorns to the record owner of
the Premises.
30.4 Self-Executing. The agreements contained in this Paragraph 30
shall be effective without the execution of any further documentation
provided, however, that upon written request from Lessor or a Lender in
connection with a sale, financing or refinancing of Premises, Lessee and
Lessor shall execute such further writings as may be reasonably required
to separately document any such subordination or non-subordination,
attornment and/or non-disturbance agreement as is provided for herein.
31. Attorneys' Fees. If any Party or Broker brings an action or
proceeding to enforce the terms hereof or declare rights hereunder, the
Prevailing Party (as hereafter defined) in any such proceeding, action,
or appeal thereon, shall be entitled to reasonable attorneys' fees. Such
fees may be awarded in the same suit or recovered in a separate suit,
whether or not such action or proceeding is pursued to decision or
judgment. The term "Prevailing Party" shall include, without limitation,
a Party or Broker who substantially obtains or defeats the relief sought,
as the case may be, whether by compromise, settlement, judgment, or the
abandonment by the other Party or Broker of its claim or defense. The
attorneys' fee award shall not be computed in accordance with any court
fee schedule, but shall be such as to fully reimburse all attorneys' fees
reasonably incurred. Lessor shall be entitled to attorneys' fees, costs
and expenses incurred in preparation and service of notices of Default
and consultations in connection therewith, whether or not a legal action
is subsequently commenced in connection with such Default or resulting
Breach. Broker(s) shall be intended third party beneficiaries of this
Paragraph 31.
32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's
agents shall have the right to enter the Premises in the case of an
emergency, and otherwise at reasonable times for the purpose of showing
he same to prospective purchasers, lenders, or lessees, and making such
alterations, repairs, improvements or additions to the Premises or to
the Building, as Lessor may reasonably deem necessary. Lessor may at
any time place on or about the Premises or Building any ordinary 'For
Sale' signs and Lessor may at any time during the last one hundred
eighty (180) days of the term hereof place on or about the Promises any
ordinary "For Lease" signs, All such activities of Lessor shall be
without abatement of rent or liability to Lessee.
33. Auctions. Lessee shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Premises
without first having obtained Lessor's prior written consent.
Notwithstanding anything to the contrary in this Lease, Lessor shall not
be obligated to exercise any standard of reasonableness in
determining whether to grant such consent.
34. Signs. Lessee shall not place any sign upon the exterior of the
Premises or the Building, except that Lessee may, with Lessor's prior
written consent, install (but not on the roof) such signs as are
reasonably required to advertise Lessee's own business so long as such
signs are in a location designated by Lessor and comply with Applicable
Requirements and the signage criteria established for the Industrial
Center by Lessor. The installation of any sign on the Premises by or for
Lessee shall be subject to the provisions of Paragraph 7 (Maintenance,
Repairs, Utility Installations, Trade Fixtures and Alterations). Unless
otherwise expressly agreed herein, Lessor reserves all rights to the use
of the roof of the Building, and the right to install advertising signs
on the Building, including the roof, which do not unreasonably interfere
with the conduct of Lessee's business; Lessor shall be entitled to all
revenues from such advertising signs.
35. Termination; Merger. Unless specifically stated otherwise in
writing by Lessor, the voluntary or other surrender of this Lease by
Lessee, the mutual termination or cancellation hereof, or a termination
hereof by Lessor for Breach by Lessee, shall automatically terminate any
sublease or lesser estate in the Premises provided, however, Lessor
shall, in the event of any such surrender, termination or cancellation,
have the option to continue any one or all of any existing subtenancies.
Lessor's failure within ten (10) days following any such event to make
a written election to the contrary by written notice to the holder of any
such lesser interest, shall constitute Lessor's election to have such
event constitute the termination of such interest.
36. Consents.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise
provided herein, wherever in this Lease the consent of a Party is
required to an act by or for the other Party, such consent shall not be
unreasonably withheld or delayed. Lessor's actual reasonable costs and
expenses (including but not limited to architects', attorneys',
engineers' and other consultants' fees) incurred in the consideration of,
or response to, a request by Lessee for any Lessor consent pertaining to
this Lease or the Premises, including but not limited to consents to an
assignment a subletting or the presence or use of a Hazardous Substance,
shall be paid by Lessee to Lessor upon receipt of an invoice and
supporting documentation therefor. In addition to the deposit described
in Paragraph 12.2(e), Lessor may, as a condition to considering any such
request by Lessee, require that Lessee deposit with Lessor an amount of
money (in addition to the Security Deposit held under Paragraph 5)
reasonably calculated by Lessor to represent the cost Lessor will incur
in considering and responding to Lessee's request. Any unused portion of
said deposit shall be refunded to Lessee without interest. Lessor's
consent to any act, assignment of this Lease or subletting of the
Premises by Lessee shall not constitute an acknowledgment that no Default
or Breach by Lessee of this Lease exists, nor shall such consent be
deemed a waiver of any then existing Default or Breach, except as may be
otherwise specifically stated in writing by Lessor at the time of such
consent.
(b) All conditions to Lessor's consent authorized by this Lease
are acknowledged by Lessee as being reasonable. The failure to specify
herein any particular condition to Lessor's consent shall not preclude
the impositions by Lessor at the time of consent of such further or other
conditions as are then reasonable with reference to the particular matter
for which consent is being given.
37. Guarantor.
37.1 Form of Guaranty. It there are to be any Guarantors of this Lease
per Paragraph 1.11, the form of the guaranty to be executed by each such
Guarantor shall be in the form most recently published by the American
Industrial Real Estate Association, and each such Guarantor shall have
the same obligations as Lessee under this lease, including but not
limited to the obligation to provide the Tenancy Statement and
information required in Paragraph 16.
37.2 Additional Obligations of Guarantor. It shall constitute a Default
of the Lessee u6der this Lease if any such Guarantor fails or refuses,
upon reasonable request by Lessor to give: (a) evidence of the due
execution of the guaranty called for by this Lease, including the
authority of the Guarantor (and of the party signing on Guarantor's
behalf) to obligate such Guarantor on said guaranty, and resolution of
its board of directors authorizing the making of such guaranty, together
with a certificate of incumbency showing the signatures of the persons
authorized to sign on its behalf, (b) current financial statements of
Guarantor as may from time to time be requested by Lessor, (c) a Tenancy
Statement, or (d) written confirmation that the guaranty is still in
effect.
38. Quiet Possession. Upon payment by Lessee of the rent for the
Premises and the performance of all of the covenants, conditions and
provisions on Lessee's part to be observed and performed under this
Lease, Lessee shall have quiet possession of the Premises for the entire
term hereof subject to all provisions of this Lease.
39.1 Definition. As used in this Lease, the word 'Option" has the
following meaning: (a) the right to extend the term of this Lease or to
this Lease or the term extend or any that Lessee has on other property of
Lessor; (b) the right of first refusal to lease the Promises or the right
of first offer to lease the in or the right of first refusal to lease
other property of Lessor or the right of first offer to lease other
property of Lessor; (c) the right to purchase the Premises, or the right
of first refusal to purchase the Premises, or the right of first offer to
purchase the Premises, or the right to purchase other property of Lessor,
or the right of first refusal to purchase other property of Lessor, or
the right of first offer to purchase other property of Lessor.
39.2 Options to Original Lease. Each Option granted to Lessee in this
Lease is personal to the original Lessee named in Paragraph 1.1 hereof,
and cannot be voluntarily or involuntarily assigned or exercised by any
person or entity other than said original Lessee while the original
Lessee is in full and actual possession of the Premises and without the
intention of thereafter assigning or subletting. The Options, if any,
herein granted to Lessee are not assignable, either as a part of an
assignment of this Lease or separately or apart therefrom, and no Option
may be separated from this Lease in any manner, by reservation or
otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple
Options to extend or renew this Lease, a later option cannot be exercised
unless the prior Options to extend or renew this Lease have been validly
exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary: (i)
during the period commencing with the giving of any notice of Default
under Paragraph 13.1 and continuing until the noticed Default is cured,
or (ii) during the period of time any monetary obligation due Lessor from
Lessee is unpaid (without regard to whether notice thereof is given
Lessee), or (iii) during the time Lessee is in Breach of this Lease, or
(iv) in the event that Lessor has given to Lessee three (3) or more
notices of separate Defaults under Paragraph 13.1 during the twelve (12)
month period immediately preceding the exercise of the Option, whether or
not the Defaults are cured.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's inability to
exercise an Option because of the provisions of Paragraph 39.4(a)
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's
due and timely exercise of the Option, 0, after such exercise and during
the term of this Lease, (i) Lessee fails to pay to Lessor a monetary
obligation of Lessee for a period of thirty (30) days after such
obligation becomes due (without any necessity of Lessor to give notice
thereof to Lessee), or (ii) Lessor gives to Lessee three (3) or more
notices of separate Defaults under Paragraph 13.1 during any twelve (12)
month period, whether or not the Defaults are cured, or (iii) it Lessee
commits a Breach of this Lease.
40. Rules and Regulations. Lessee agrees that it will abide by, and
keep and observe all reasonable rules and regulations ('Rules and
Regulations') which Lessor may make from time to time for the
management, safety, care, and cleanliness of the grounds, the parking
and unloading of vehicles and the preservation of good order, as well as
for the convenience of other occupants or tenants of the Building and
the Industrial Center and their invitees.
41. Security Measures. Lessee hereby acknowledges that the rental
payable to Lessor hereunder does not include the cost of guard service
or other security measures, and that Lessor shall have no obligation
whatsoever to provide same. Lessee assumes all responsibility for the
protection of the Premises, Lessee, its agents and invitees and their
property from the acts of third parties.
42. Reservations. Lessor reserves the right, from time to time, to
grant, without the consent or joinder of Lessee, such easements, rights
of way, utility raceways, and dedications that Lessor deems necessary,
and to cause the recordation of parcel maps and restrictions, so long as
such easements, rights of way, utility raceways, dedications, maps and
restrictions do not reasonably interfere with the use of the Premises by
Lessee. Lessee agrees to sign any documents reasonably requested by
Lessor to effectuate any such easement rights, dedication, map or
restrictions.
43. Performance Under Protest. If at any time a dispute shall arise as
to any amount or sum of money to be paid by one Party to the other under
the provisions hereof, the Party against whom the obligation to pay the
money is asserted shall have the right to make payment 'under protest"
and such payment shall not be regarded as a voluntary payment and there
shall survive the right on the part of said Party to institute suit for
recovery of such sum. If it shall be adjudged that there was no legal
obligation on the part of said Party to pay such sum or any part thereof,
said Party shall be entitled to recover such sum or so much thereof as it
was not legally required to pay under the provisions of this Lease.
44. Authority. It either Party hereto is a corporation, trust, or
general or limited partnership, each individual executing this Lease on
behalf of such entity represents and warrants that he or she is duly
authorized to execute and deliver this Lease on its behalf. If Lessee
is a corporation, trust or partnership, Lessee shall, within thirty (30)
days after request by Lessor, deliver to Lessor evidence satisfactory to
Lessor of such authority.
45. Conflict. Any conflict between the printed provisions of this
Lease and the typewritten or handwritten provisions shall be controlled
by the typewritten or handwritten provisions.
46. Offer. Preparation of this Lease by either Lessor or Lessee or
Lessor's agent or Lessee's agent and submission of same to Lessee or
Lessor shall not be deemed an offer to lease. This Lease is not
intended to be binding until executed and delivered by all Parties
hereto.
47. Amendments. This Lease may be modified only in writing, signed by
the parties in interest at the time of the modification. The Parties
shall amend this Lease from time to time to reflect any adjustments that
are made to the Base Rent or other rent payable under this Lease. As
long as they do not materially change Lessee's obligations hereunder,
Lessee agrees to make such reasonable non-monetary modifications to this
Lease as may be reasonably required by an institutional insurance company
or pension plan Lender in connection with the obtaining of normal
financing or refinancing of the property of which the Premises are a
part.
48. Multiple Parties. Except as otherwise expressly provided herein,
if more than one person or entity is named herein as either Lessor or
Lessee, the obligations of such multiple parties shall be the joint and
several responsibility of all persons or entities named herein as such
Lessor or Lessee.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND
EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS
LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES
HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS
LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE
OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR YOUR
ATTORNEYS REVIEW AND APPROVAL FURTHER, EXPERTS SHOULD BE CONSULTED M
EVALUATE THE CONDITION OF THE PROPERTY FOR THE POSSIBLE PRESENCE OF
ASBESTOS, UNDERGROUND STORAGE LAWS OR HAZARDOUS SUBSTANCES. NO
REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL
ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKERS OR THEIR CONTRACTORS,
AGENTS OR EMPLOYEES AS M THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX
CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES; THE
PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN COUNSEL AS TO THE
LEGAL AND TAX CONSEQUENCES OF THIS LEASE. IF THE SUBJECT PROPERTY IS IN
A STATE OTHER THAN CALIFORNIA, AN ATTORNEY FROM THE STATE WHERE THE
PROPERTY IS LOCATED SHOULD BE CONSULTED.
The parties hereto have executed this Lease at the place and on the
dates specified above their respective signatures.
Executed at:
Executed at:
on:
on:
By LESSOR: By LESSEE:
First American Trust Company Orange National Bank, a National
Banking Association
Trustee of the Pauline Ravpra Trust
BROKER: Matlow-Kennedy Commercial BROKER: Gary Mierau
Real Estate Services
at: Long Beach, CA Executed at: Irvine, CA
OPTION(S) TO EXTEND
ADDENDUM TO
STANDARD LEASE
Dated July 25, 1997 By and Between (Lessor First American Trust company,
Trustee of the Pauline Ravera Trust (Lessee) Orange National Bank, a
National Banking Association
Property Address: 800 Glenneyre, Laguna Beach, CA Paragraph 49
A. OPTION(S) TO EXTEND:
Lessor hereby grants to Lessee the option to extend the term of
this Lease for additional 60 month period(s) commencing when the prior
term expires upon each and all of the following terms and conditions:
(i) Lessee gives to Lessor. and Lessor actually receives on a
date which is prior to the date that the option period would commence (if
exercised) by at least 6 and not more than 12 months, a written notice of
the exercise of the option(s) to extend this Lease for said additional
term(s), time being of essence. If said notification of the exercise of
said option(s) is (are) not so given and received, the option(s) shall
automatically expire, said option(s) may (if more than one) only be
exercised consecutively,
(ii) The provisions of paragraph 39. including the provision
relating to default of Lessee set forth in paragraph 39.4 of this Lease
are conditions of this Option,
(iii) All of the terms and conditions of this Lease except where
specifically modified by this option shall apply:
(iv) The monthly rent for each month of the option period shall be
calculated as follows, using the method(s) indicated below:
(Check Method(s) to be Used and Fill in Appropriately)
I. Cost of Living Adjustment(s) (COL)
(a) On (Fill in COL Adjustment Date(s): monthly rent payable
under paragraph 1.5 ("Base Rent") of the attached Lease shall be adjusted
by the change, if any, from the Base Month specified below, in the
Consumer Price Index of the Bureau of Labor Statistics of the U.S.
Department of Labor for (select one). -- CPI W (Urban Wage Earners and
Clerical Workers) or -- CPI U (All Urban Consumers), for (Fill in Urban
Area): All Items (1982-1984 - 100), herein referred to as "C.P.I."
(b) The monthly rent payable in accordance with paragraph AI(a)
of this Addendum shall be calculated as follows the Base Rent set forth
in paragraph 1.5 of the attached Lease, shall be multiplied by a fraction
the numerator of which shall be the C.Pl. of the calendar month 2 (two)
months prior to the month(s) specified in paragraph AI(a) above during
which the adjustment is to take effect and the denominator of which shall
be the CPI of the calendar month which is two (2) months prior to (select
one): -- the first month of the term of this Lease as set forth in
paragraph 1.3 ("Base Month") or -- (Fill in Other "Base Month"), The sum
so calculated shall constitute the new monthly rent hereunder, but in no
event, shall any such new monthly rent be less than the rent payable for
the month immediately preceding the date for rent adjustment.
(c) In the event the compilation and/or publication of the C.Pl.
shall be transferred to any other governmental department or bureau or
agency or shall be discontinued, then the index most nearly the same as
the CPI shall be used to make such calculation. In the event that Lessor
and Lessee cannot agree on such alternative index, then the matter shall
be submitted for decision to the American Arbitration Association in
accordance with the then rules of said association and the decision of
the arbitrators shall be binding upon the parties. The cost of said
Arbitrators shall be paid equally by Lessor and Lessee.
II. Market Rental Value Adjustment(s) (MRV)
(a) On (Fill in MRV Adjustment Date(s)) August 25, 2007 the
monthly rent payable under paragraph 1.5 ("Base Rent") of the attached
Lease shall be adjusted to the "Market Rental Value" of the property as
follows:
1 ) Four months prior to the Market Rental Value (MRV)
Adjustment Date(s) described above, Lessor and Lessee shall meet to
establish an agreed upon new MRV for the specified term. If agreement
cannot be reached, then:
Lessor and Lessee shall immediately appoint a mutually
acceptable appraiser or broker to establish the new MRV within the next
30 days. Any associated costs will be split equally between the
parties, or
ii) Both Lessor and Lessee shall each immediately select
and pay the appraiser or broker of their choice to establish a MRV within
the next 30 days. If, for any reason, either one of the appraisals is
not completed within the next 30 days, as stipulated, then the appraisal
that is completed at that time shall automatically become the new MRV If
both appraisals are completed and the two appraisers/brokers cannot agree
on a reasonable average MRV then they shall immediately select a third
mutually acceptable appraiser/broker to establish a third M RV within the
next 30 days. The average of the two appraisals closest in value shall
then become the new MRV. The costs of the third appraisal will be split
equally between the parties.
2) In any event, the new MRV shall not be less than a 12%
increase on the rent payable for the month immediately preceding the date
for rent adjustment, or more than 25%, for the option period.
(b) Upon the establishment of each New Market Rental Value
as described in paragraph All.
1) the monthly rental sum so calculated for each term as
specified in paragraph All(a) will become the new "Base Rent" for the
purpose of calculating any further Cost of Living Adjustments as
specified in paragraph AI(a) above and 2) the first month of each Market
Rental Value term as specified in paragraph All(a) shall become the new
"Base Month" for the purpose of calculating any further Cost of Living
Adjustments as specified in paragraph AI(b).
III. Fixed Rental Adjustment(s) (FRA)
The monthly rent payable under paragraph 1.5 ("Base Rent") of the
attached Lease shall be increased to the following amounts on the dates
set forth below:
(Fill in FRA Adjustment Date(s)): The New Base Rental shall be:
B. NOTICE: Unless specified otherwise herein, notice of any
escalations other than Fixed Rental Adjustments shall be made as
specified in paragraph 23 of the attached Lease.
C. BROKER'S FEE:
The Real Estate Brokers specified in paragraph 1.10 of the attached
Lease shall be paid a Brokerage Fee for each adjustment specified above
in accordance with paragraph 15 of the attached Lease.
ADDENDUM NO.1
TO
STANDARD OFFICE LEASE - GROSS
Reference is made to the Lease, dated July 25, 1997, by and between
First American Trust Company, hereinafter "Lessor", and Orange National
Bank, hereinafter "Lessee", for the property located at 800 Glenneyre,
Laguna Beach, California. This Addendum No. I shall serve to amend,
modify and supplement and, to the degree inconsistent with, shall
supersede said Lease.
50) Early Possession
Lessee acknowledges that he is currently in possession of the
premises and is accepting the premises in their "as is" conditions.
There are no representations or warranties by Lessor as to the condition
of the premises or as to its compliance with any applicable building
code, regulations or ordinances in effect on the lease term commencement
date.
51) Base Rent
The Base Rent as defined in Paragraph 1.5 shall be fixed for years
I through 5 and shall increase to $11,125.00 for years 6 through 10.
52) Common Areas - Rules and Regulations
Paragraph 2.9, Sentence 2 is modified to read as follows:
"Provided such rules and regulations do not materially interfere
with the ability of Tenant to conduct its business on the premises,
Lessee agrees to abide by and conform to all such Rules and Regulations,
and to cause its employees, suppliers, shippers, customers, contractors
and invitees to so abide and conform."
53) Common Areas - Changes
Paragraph 2. 10 of the Lease is modified by the addition of the
following sentence:
"Provided any such change in the Common Area does not materially
and adversely affect access or parking for the premises."
54) Rent
The first sentence in Paragraph 4.1 of the Lease is hereby amended
to read as follows:
"Lessee shall pay Base Rent and other rent or charges, as the same
may be adjusted from time to time, to Lessor in lawful money of the
United States, without offset or deduction, except as otherwise provided
for in this Lease, on or before the day on which it is due under the
terms of this Lease."
55) Inspection: Compliance with Law
The first sentence in Paragraph 6.4 of the Lease is hereby amended
to read as follows:
"Lessor, Lessor's agents, employees, contractors and designated
representatives, and the holders of any mortgages, deeds of trust or
ground leases on the Premises ("Lenders") shall have the right to enter
the Premises at any time in the case of an emergency, and otherwise at
reasonable times after reasonable notice and opportunity to provide
adequate supervision and security for the purpose of inspecting the
condition of the Premises and for verifying compliance by Lessee with
this Lease and all Applicable Requirements (as defined in Paragraph 6.3),
and Lessor shall be entitled to employ experts and/or consultants in
connection therewith to advise Lessor with respect to Lessee's
activities, including but not limited to Lessee's installation,
operation, use, monitoring, maintenance, or removal of any hazardous
Substance on or from the Premises."
56) Maintenance, Repairs, Utility Installations, Trade Fixtures
and Alterations
Paragraph 7.1(a) shall be amended by the addition of the following
phrase to the end of the paragraph:
"ordinary wear and tear excepted."
57) Lessor's Obligations
Paragraph 7.2(a) is hereby added to the Lease to read as follows in
its entirety:
"Lessee shall have the right to repair and deduct from their rent
the cost of such repairs only after Lessor fails to repair the premises
after adequate written notice. Lessor shall be allowed a reasonably time
to make the repairs after notification."
58) Abatement of Rent
Paragraph 9.6(c) is hereby added to the Lease to read as follows in
its entirety:
"Lessor shall use due diligence in the completion of construction.
In the event construction is not completed within six (6) months of the
beginning of actual work on the premises or eight (8) months in the event
of Total Destruction. Lessee may give Lessor and lender written notice
of intent to terminate if construction is not completed within sixty (60)
days."
59) Assignment and Subletting
Paragraph 12. I (b) is hereby amended to read as follows:
"A change in the control of Lessee shall not constitute an
assignment requiring Lessor's consent, so long as the acquiring entity is
of a similar business as the existing Lessee and is subject to Paragraph
6.2 and 12. 1 (c).
60) Hazardous Substances
Paragraph 6.2(c) Indemnification is hereby amended to read as
follows:
Either party hereto in the event of it bringing Hazardous
Substances to the premises shall be known as the Defaulting Party
("Defaulting Party"). Said Defaulting Party shall indemnify, protect,
defend and hold Non-Defaulting Party, its agents, employees, lenders and
ground lessor, if any, and the Premises, harmless from and against any
and all damages, liabilities, judgments, costs, claims, liens, expenses,
penalties, loss of permits and attorneys and consultants' fees arising
out of or involving any Hazardous Substances brought onto the Premises by
Defaulting Party or by anyone under Defaulting Parties control.
Defaulting Parties obligations under this Paragraph 6.2(c) shall include,
but not be limited to, the effects of any contamination or injury to
person, property or the environment created or suffered by Defaulting
Party, and the cost of investigation (including consultants' and
attorneys' fees and testing), removal, remediation, restoration and/or
abatement thereof, or of any contamination therein involved, and shall
survive the expiration or earlier termination of this Lease. No
termination, cancellation or release agreement entered into by Lessor and
Lessee shall release Defaulting Party from its obligation under this
Lease with respect to Hazardous Substances, unless specifically so agreed
by Non-Defaulting Party in writing at the time of such agreement.
61) Insurance, Indemnity
Paragraph 8.7 Indemnity is hereby amended to read as follows:
Either party hereto, in the event of its negligence, misconduct or
breach of any term or provision of this Lease shall be known as the
Defaulting Party ("Defaulting Party"). Said Defaulting Party shall
indemnify, defend and hold harmless the other party from and against (i)
any and all liabilities, penalties, losses, damages, costs and expenses,
demands, causes of action, claims or judgments in connection with any
injury or death to persons or damage to property occurring within the
Premises, the Common Area or Building in which the Subleased Premises are
located, or as a result of any accident or other occurrence occasioned by
act or omission of the Defaulting Party, its officers, employees, agents,
servants, subtenants, concessionaires, contractors or visitors, or
arising from the use, maintenance, occupation or operation of the
Premises; (11) any breach of any term or provision of the Lease,
violation of any statute, ordinance or law by a Defaulting Party; and
(iii) all legal costs and charges, including reasonable attorneys' fees,
in connection with the above matters and defense of any action arising
out of the same or in discharging the Premises from any and all liens,
charges or judgments which may accrue or be placed thereon by any reason
of any act or omission of the Defaulting Party.
62) Use. 6.3 Lessee's Compliance with Requirements "Applicable
Requirements". Notwithstanding the provisions of Paragraph 6.3, the
party responsible for the maintenance of that portion of the Premises as
set forth in Paragraph 7, shall be the party responsible for compliance
with Applicable Requirements affecting or relating to such portion of the
Premises.
LESSOR LESSE
BUILDING OPERATING COST ADDENDUM (BOCA)
1. Building Operating Costs is defined as those expenses which
are paid by Tenant. Notwithstanding anything to the contrary, the
following items shall be excluded from the calculation of Building
Operating Costs:
(a) any expenses which under generally accepted accounting
principles and sound management practices consistently applied would not
be considered a normal maintenance or operating expense;
(b) all costs associated with the operation of the business of
the entity which constitutes "Landlord" (as distinguished from the costs
of Building operations) including, but not limited to, Landlord's or
Landlord's Managing Agents general corporate overhead and general
administrative expenses or such costs that would be normally included in
a management fee (e.g., placement fees for management-level employees,
risk management costs, corporate accounting, employee training programs,
health/sports club dues, tickets to special events, bank charges, etc.);
(c) costs incurred by Landlord in connection with the correction
of defects in design and construction of the Building or Project;
(d) costs of a capital nature, including, but not limited to,
capital improvements, capital repairs, capital equipment, and capital
tools, all as determined in accordance with generally accepted accounting
principles and sound management practices consistently applied, except
costs of 1) any capital improvement made to the Building which
improvement actually reduces Building Operating Costs, limited to the
amount of actual savings realized or 2) which is required by government
regulation enacted following Tenant's occupancy the amount of all such
costs to be amortized on a straight-line basis over the useful life or 3)
any cost incurred that is considered recurring, routine maintenance
(e.g., painting of the common area and replacement of common area carpet,
the aggregate cost of which does not exceed $10,000 in any Lease Year
for any particular project), the amount of all such costs to be amortized
on a straight-line basis over the useful life;
(e) any costs of any services said or provided to tenants or
other occupants for which Landlord or Managing Agent is entitled to be
reimbursed by such tenants or other occupants as an additional charge or
rental over and above the basic rent (and escalation's thereof);
(f) expenses in connection with services or other benefits which
are provided to another tenant or occupant and do not benefit Tenant;
(g) overhead or profits paid to subsidiaries or affiliates of
Landlord, or to any party as a result of a non-competitive selection
process, for management or other services to the Building, or far
supplies or other materials, to the extent that the costs of such
services, supplies, or materials exceed the costs that would have been
paid had the services, supplies or materials been provided by parties
unaffiliated with the Landlord on a competitive basis and is consistent
with that utilized by similar buildings in the same metropolitan area in
which the Building is located;
(h) wages, salaries and other compensation paid to any executive
employee of Landlord or Landlord's Managing Agent above the grade of
Building Manager,
(i) any cost or expense related to removal, cleaning, abatement
or remediation of "hazardous material" in or about the Building/Common
Area or real property, including without limitation, hazardous substances
in the ground water or soil; unless caused by acts of the Lessee.
(j) advertising and promotional costs including tenant relation
programs and events;
(k) Landlord's gross receipts taxes, personal and corporate
income taxes, inheritance and estate taxes, other business taxes and
assessments, franchise, gift and transfer taxes, and all other real
estate taxes relating to a period or payable outside the term of the
Lease;
(1) any fines, costs, penalties or interest resulting from the
negligence, misconduct or omission of the Landlord or its agents,
contractors, or employees;
(m) any costs, fees, dues, contributions or similar expenses for
political charitable, industry association or similar organizations;
(n) any rental and any associated costs, either actual or not,
for the Landlord's or Landlord's Managing Agent's management and/or
leasing office;
(o) acquisition costs for sculptures, paintings, or other objects
of art or the display of such items;
(p) costs incurred in connection with the original design and
construction of the Building or Project or any major changes to same,
including but not limited to additions or deletions of floors,
renovations of the common areas (except as expressly permitted under
Paragraph I (d) above). Upgrades of major Building or Project systems
and the repair of damage to the Building or Project in connection with
any types of casualty, event of damage or destruction or condemnation;
(q) costs incurred in connection with upgrading the Building to
comply with disability or life insurance requirements, or life safety
codes, ordinances, statutes, or other laws in effect prior to the
Commencement Date, including without limitation the Americans With
Disabilities Act, including penalties or damages incurred as a result of
non-compliance;
AUDIT BY TENANT
2(a) Landlord shall provide to Tenant in substantial detail each
year the calculations performed to determine the Building Operating Costs
in accordance with the paragraph 4.2d of the Lease. Landlord shall show
by account the total operating costs for the Building and all adjustments
corresponding to the requirements as set forth. Landlord shall provide
in reasonable detail the calculation of Tenant's prorata share of the
Building Operating Costs as defined in the Lease.
Landlord shall also provide the average Building occupancy for such
year.
(b) Tenant shall have the right, at its own cost and expense (of
which Tenant is not required to pay Landlord's costs of complying with
such audit provision), to audit or inspect Landlord's detailed records
each year with respect to Building Operating Costs, as well as all other
additional rent payable by Tenant pursuant to the Lease for any Lease
Year (not to exceed one time per year). Landlord shall utilize, and
cause to be utilized, accounting records and procedures for each Lease
Year conforming to generally accepted accounting principles consistently
applied with respect to all of the Building Operating Costs for such
Lease Year, including without limitation, all payments for Building
Operating Costs, to enable the audit or inspection by Tenant pursuant to
this clause to be conducted Pursuant to the foregoing, Landlord shall be
obligated to keep such records for all Lease Years associated with this
Lease until two (2) years following the termination of the Lease. Tenant
shall give Landlord not less than ten (10) business days prior written
notice of its intention to conduct any such audit Landlord shall
cooperate with Tenant during the course of such audit, which shall be
conducted during normal business hours in Landlord's Building management
office Landlord agrees to make such personnel available to Tenant as is
reasonably necessary for Tenant, Tenant's employees and agents, to
conduct such audit. Landlord shall make such records available to
Tenant, Tenant's employees and agents, for inspection during normal
business hours Tenant, Tenant's employees and agents, shall be entitled
to make photostatic copies of such records, provided Tenant bears the
expense of such copying, and further provided that Tenant keeps such
copies in a confidential manner and does not show or distribute such
copies to any other third party
(c) The results of such audit, as reasonably determined by both
parties, shall be binding upon Landlord and Tenant If such audit
discloses that the amount paid by Tenant as Tenant's Share of Building
Operating Costs, or of other additional rental payable pursuant to the
Lease, has been overstated by more than three percent (3%), then, in
addition to immediately repaying such overpayment and associated interest
to Tenant, Landlord shall also pay the costs incurred by Tenant in
connection with such audit (which cost shall not exceed the amount
overcharged repaid or credited to Tenant).
INITIAL
RULES AND REGULATIONS FOR
STANDARD OFFICE LEASE
Dated: July 25, 1997
By and Between First American Trust Company, Trustee of the
Pauline Ravera Trust, as Lessor and
Orange National Bank, a National Banking Association, as
Lessee
GENERAL RULES
1. Lessee shall not suffer or permit the obstruction of any Common
Areas, including driveways, walkways and stairways.
2. Lessor reserves the right to refuse access to any persons Lessor
in good faith judges to be a threat to the safety, reputation, or
property of the Office Building Project and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or
interfere with other lessees or persons having business within the
Office Building Project.
4. Lessee shall not keep animals or birds within the Office Building
Project, and shall not bring bicycles, motorcycles or other vehicles
into areas not designated as authorized for same.
5. Lessee shall not make, suffer or permit litter except in
appropriate receptacles for that purpose.
6. Lessee shall not alter any lock or install new or additional locks
or bolts.
7. Lessee shall be responsible for the inappropriate use of any
toilet rooms, plumbing or other utilities. No foreign substances of any
kind are to be inserted therein.
8. Lessee shall not deface the walls, partitions or other surfaces of
the premises or Office Building Project.
9. Lessee shall not suffer or permit any thing in or around the
Premises or Building that causes excessive vibration or floor loading in
any part of the Office Building Project.
10. Furniture, significant freight and equipment shall be moved into
or out of the building only with the Lessor's knowledge and consent, and
subject to such reasonable limitations, techniques and timing, as may be
designated by Lessor. Lessee shall be responsible for any damage to the
Office Building Project arising from any such activity.
11. Lessee shall not employ any service or contractor for services or
work to be performed in the Building, except as approved by Lessor.
12.
13. Lessee shall return all keys at the termination of its tenancy and
shall be responsible for the cost of replacing any keys that are lost.
14. No window coverings, shades or awnings shall be installed or used
by Lessee.
15. No Lessee, employee or invitee shall go upon the roof of the
Building.
16. Lessee shall not suffer or permit smoking or carrying of lighted
cigars or cigarettes in areas reasonably designated by Lessor or by
applicable governmental agencies as non-smoking areas.
17. Lessee shall not use any method of heating or air conditioning
other than as provided by Lessor.
18. Lessee shall not install, maintain or operate any vending machines
upon the Premises without Lessor's written consent.
19. The Premises shall not be used for lodging or manufacturing,
cooking or food preparation.
20. Lessee shall comply with all safety, fire protection and
evacuation regulations established by Lessor or any applicable
governmental agency.
21. Lessor reserves the right to waive any one of these rules or
regulations, and/or as to any particular Lessee, and any such waiver
shall not constitute a waiver of any other rule or regulation or any
subsequent application thereof to such Lessee.
22. Lessee assumes all risks from theft or vandalism and agrees to
keep its Premises locked as may be required.
23. Lessor reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the
appropriate operation and safety of the Office Building Project and its
occupants. Lessee agrees to abide by these and such rules and
regulations.
PARKING RULES
1. Parking areas shall be used only for parking by vehicles no longer
than full size, passenger automobiles herein called "Permitted Size
Vehicles" Vehicles other than Permitted Size Vehicles are herein
referred to as "Oversized Vehicles"
2. Lessee shall not permit or allow any vehicles that belong to or
are controlled by Lessee or Lessee's employees, suppliers, shippers,
customers, or invitees to be loaded, unloaded, or parked in areas other
than those designated by Lessor for such activities.
3. Parking stickers or identification devices shall be the property
of Lessor and be returned to Lessor by the holder thereof upon
termination of the holder's parking privileges. Lessee will pay such
replacement charge as is reasonably established by Lessor for the loss
of such devices.
4. Lessor reserves the right to refuse the sale of monthly
identification devices to any person or entity that willfully refuses to
comply with the applicable rules, regulations, laws and/or agreements.
5. Lessor reserves the right to relocate all or a part of parking
spaces from floor to floor, within one floor, and/or to reasonably
adjacent offsite location(s), and to reasonably allocate them between
compact and standard size spaces, as long as the same complies with
applicable laws, ordinances and regulations.
6. Users of the parking area will obey all posted signs and park only
in the areas designated for vehicle parking.
7. Unless otherwise instructed, every person using the parking area
is required to park and lock his own vehicle. Lessor will not be
responsible for any damage to vehicles, injury to persons or loss of
property, all of which risks are assumed by the party using the parking
area.
8. Validation, it established, will be permissible only by such
method or methods as Lessor and/or its licensee may establish at rates
generally applicable to visitor parking.
9. The maintenance, washing, waxing or cleaning of vehicles in the
parking structure or Common Areas is prohibited.
10. Lessee shall be responsible for seeing that all of its employees,
agents and invitees comply with the applicable parking rules,
regulations, laws and agreements.
11. Lessor reserves the right to modify these rules and/or adopt such
other reasonable and non-discriminatory rules and regulations as it may
deem necessary for the proper operation of the parking area.
12. Such parking use as is herein provided is intended merely as a
license only and no bailment is intended or shall be created hereby.
EXHIBIT 10.9
AMENDMENT AND ASSIGNMENT OF LEASE CONTRACT
THIS AMENDMENT AND ASSIGNMENT OF LEASE CONTRACT is made effective
as of the lst day of August, 1992, by and between USAA REAL ESTATE
EQUITIES, INC., a Delaware corporation as successor in interest to all
right, title and interest of HON DEVELOPMENT COMPANY under the Lease
described herein ("Landlord"), LAGUNA BANK, N.A. ("Assignor") and ORANGE
NATIONAL BANK, a California corporation ("Assignee").
WHEREAS, under that certain Lease dated January 2, 1974; First
Amendment to Eldorado Bank Lease dated February 28, 1975; and Second
Amendment to Eldorado Bank Lease dated July 14, 1975 (herein
collectively referred to as the "Lease"), by and between Landlord and
Assignor, Assignor leases approximately 6,737 square feet of space
located in La Paz Office Plaza, 25255 Cabot Road, Laguna Hills,
California 92653 (the "Demised Premises"), as more particularly
described in the Lease; and
WHEREAS, Assignor desires to assign said Lease to Assignee and
Assignee desires to accept said assignment; and
WHEREAS, the Lease requires Landlord's consent to an assignment of
the Lease and Landlord agrees to said assignment by Assignor to
Assignee; and
WHEREAS, Landlord, Assignor and Assignee desire to amend the Lease
effective August 18, 1992, to release Assignor of all obligations and
liabilities under the Lease, and accept Assignee as Tenant thereunder.
NOW THEREFORE, in consideration of the mutual covenants and
agreements set forth in the Lease and in this agreement, Landlord,
Assignor and Assignee agree as follows:
1. Assignor does hereby sell, assign, and set over unto
Assignee said Lease and all the estate, title and interest of Assignor
in and to said Lease and the Demised Premises, TO HAVE AND TO HOLD the
same from August 1, 1992 ("Assignment Date") for and during the
remainder of the term of said Lease; subject, however to all the
conditions, covenants, agreements, provisions, terms and rents in said
Lease contained; and
2. Assignor covenants and agrees that said Lease is genuine and
in full force and effect; that Assignor has good right to assign said
Lease with the consent of Landlord; that the interest hereby assigned is
free and clear from all encumbrances; and Assignor and Landlord have
fully performed all covenants and obligations to be performed and
observed under said Lease, that Assignee shall be responsible for any
obligations or liabilities which arise prior to the Assignment Date; and
3. Assignor hereby assigns to Assignee and Assignee accepts any
and all interest Assignor may have in any security deposit delivered to
Landlord; and
4. Assignee, in consideration of said Assignment and of
Landlord's consent thereto, hereby assumes and agrees to perform all
obligations of Tenant under the Lease as of the Assignment Date and
agrees to pay all rent and other sums due from and on the part of the
Tenant thereunder required to be kept and performed; and
5. Effective as of the Assignment Date, all references to
Tenant in the Lease shall be revised to reflect ORANGE NATIONAL BANK, a
California
corporation as Tenant in all respects as though named as Tenant in the
Lease.
6. Section 21. Notice is hereby amended to delete the name and
address of Assignor as it appears and insert the following as the notice
address for Tenant:
ORANGE NATIONAL BANK
1201 E. Katella Avenue
Orange California 92667
7. ALL OTHER PROVISIONS of the Lease shall remain unmodified
and in full force and effect, except as specifically set forth herein.
EXECUTED on the date shown below to be effective as of the date
first written. ASSIGNOR:
WITNESSES: THE LAGUNA BANK, N.A.
ASSIGNEE:
WITNESSES: ORANGE NATIONAL BANK,
a California corporation
AGREED AND ACCEPTED:
LANDLORD:
WITNESSES: USAA REAL ESTATE EQUITIES, INC., a
Delaware corporation
By: PACIFIC WEST ASSET MANAGEMENT CORPORATION, a California
corporation, Its Managing Agent
By:
STEPHEN S. KING
Vice President
Date:
RECEIVED MARCH 6, 1988
BANK LEASE
HON DEVELOPMENT COMPANY, Landlord
AND
ELDORADO BANK, Tenant
January 2, 1974
LEASE
THIS LEASE is made and entered into this day of January, 1974 by
and between BARRY G. HON, doing business as HON DEVELOPMENT COMPANY
("Landlord" herein), and ELDORADO BANK, A California corporation
("Tenant" herein).
RECITALS:
WHEREAS, Landlord is the owner of that certain real property
located on Cabot Road at La Paz Road in the County of Orange, State of
California, more particularly described in Exhibit A attached hereto
("subject property" herein); and
WHEREAS, Landlord desires to lease to Tenant and Tenant desires
to hire from Landlord, for the term, at the rental and upon the terms,
covenants and conditions hereinafter specified, those certain premises
(the "Premises" herein) hereinafter described which comprise the
hereinafter described portion of that certain professional office
building (the "building" herein) contemplated to be constructed by
Landlord upon the subject property. A plot plan showing the location of
the building and improvements on the subject property is attached hereto
as Exhibit B;
NOW,THEREFORE, in consideration of the foregoing. recitals and the
mutual covenants and agreements herein contained, the parties hereto
agree as follows:
ARTICLE I
PREMISES
Landlord hereby leases and demises to Tenant, and Tenant hereby
hires from Landlord, for the term, at the rental and upon the terms and
conditions set forth herein, that portion of the ground floor of the
building comprising approximately five thousand five hundred (5,500
square feet (the "premises") which are to be constructed pursuant to
architect's plans and specifications approved by Tenant in accordance
with Article IV on Construction of this lease, and Including the
improvements to the premises as set forth in said Article IV.
ARTICLE 11
TERM OF LEASE
Section 1 Base Term.
The base term of this lease shall be for a period of thirty years
which term shall commence on the "commencement date" as hereinafter
defined. Section 2. Commencement Date. the term "commencement date" as
used herein shall be construed to mean the earlier to occur of 'the
following:
(a) Thirty (30) days after (1) Landlord's architect certifies by
issuing a certificate of completion that the building and the premises,
including Landlord's required construction pursuant to Article IV ;.re
substantially completed; and (ii) the premises are delivered to Tenant
for commencement of Tenant's improvements; or
(b) The date upon which Tenant first opens for business.
Landlord agrees-that, subject to Section 3 of Article XXII, the rental
commencement date shall occur within seven (7) months from the date of
approval of final plans and specifications as provided in Article IV and
the securing of all necessary approvals by the appropriate governmental
authorities. In the event the building is not completed as described
above, the provision on Section 5, paragraph 3 of pages shall apply.
Section 3. Options to Extend.
Provided that Tenant is not then in default, Landlord hereby
grants to Tenant three (3) options to extend the term, of this I ease
upon the same terms and conditions as herein provided, except as to
rental, as follows:
(a) First Option to Extend: For a period of five (5) years
commencing upon the expiration of the base term.
(b) Second Option to Extend: In the event the foregoing first
option to extend is exercised, for a further extended term of five (5)
years commencing upon the expiration-of the first option heretofore
elected and terminating upon the expiration of five (5) years from the
date of expiration of the first option to extend.
(c) Third Option to Extend: in the event the foregoing second
option to extend is exercised, for a further extended term of five years
upon the expiration of the second option heretofore elected and
terminating upon the expiration of five (5) years from the date of
expiration of the second Option to extend. In the event Tenant
exercises one or more of the options herein granted to extend the term
of this lease, the monthly rental for each option period shall be a sum
equal to the monthly rental provided in Paragraph (c) of Article III
increased by ten percent (10%).
ARTICLE III RENTAL Section 1 Commencement of Rental.
Monthly rental payments by Tenant shall commence upon the
commencement date as the same is defined pursuant to Section 2 of
Article II. In the event that the commencement date of this lease
occurs on a day other than the first day of a calendar month, then the
base rental payment for said partial month shall be prorated and the
amount thereof added to and payable with the regular monthly installment
due on the first day of the immediately succeeding calendar month.
Section 2. Base Rental.
As base rental, Tenant shall pay to Land-lord on the first day of
each month', in advance, the sum of Sixty Cents (60) multiplied by the
gross number of square feet of the promises, inclusive of walls and
partitions of the premises. It is anticipated that the. Bank Building
will be 5500 square feet which when multiplied by 60 per square foot
derives a monthly rental of $3300.00. Said square footage shall be
certified by the architectural firm selected by Landlord pursuant to
Article IV of this lease and shall be calculated in conformity pursuant
to the standards and criteria generally accepted in the trade ("the
gross square footage of the premises") . However, in any event the exact
square footage shall not vary more than 10%, from 5500 square feet.
Section 3. Adjustment of Base Rental.
The base rental shall be adjusted at the times and in the manner
as follows:
(a) Upon the commencement of the eleventh (llth) year of the
lease term, the monthly base rental shall be increased by twenty percent
(20%) per month, over the previous period.
(b) Upon the commencement of the sixteenth(16th) year of the
lease, term, the monthly rental as adjusted pursuant to paragraph (a) of
this section shall be increased by ten percent (10%) per month over the
previous
(c) Upon the commencement of the twenty-first (21st) year and
the twenty-sixth (26th) year of the lease term, the monthly rental as
adjusted pursuant to paragraph (b) of this section shall be increased by
ten percent (10%) per month over the previous period.
ARTICLE IV CONSTRUCTION Section 1 Plans and Specifications.
Landlord shall construct a professional office building of
approximately twenty five thousand (25,000) square feet plus a parking
lot with a capacity of at least one hundred twenty five (125)
automobiles on the subject property substantially in accord with the
plans and specifications prepared by an architect of Landlord's
selection. Except as provided in Section 3 of this Article, Landlord
shall cause the plans and specifications to be prepared at Landlord's
expense. The plans and specifications which are prepared for the
premises by Landlord's architect shall be subject to the approval of
Tenant in the following manner: Landlord and Landlord's architect shall
consult with Tenant from time to time during the preparation of such
plans and specifications regarding the proposed construction and layout
of the premises. Upon the presentation of said plans and specifications
to Tenant by Landlord for approval, Tenant will, within twenty (20)
days, either return the same approved or with written corrections and/or
amendments requested by Tenant. In the event Tenant fails to so accept
or reject within said twenty (20) day period, the plans and
specifications shall be deemed approved. If rejected, Landlord shall
take all necessary and proper steps to have the plans and
specifications revised or amended in such a way or ways required to
eliminate t he objections by Tenant. The plans and specifications shall
then be again submitted to Tenant for specifications Tenant's written
approval. Upon approval, said plans and shall be identified and the
approval thereof evidenced by the signatures of Landlord and Tenant
thereon. Landlord may reject such-suggested corrections and/or
amendments if in the exercise of good faith and reasonable judgement
Landlord determines such corrections and/or amendment's world be such as
affect adversely the appearance or function of the proposed building or
unreasonable increase the cost of construction or unreasonably increase
the anticipated cost of repairs or rate of obsolescence or depreciation.
However, Landlord shall not unreasonably withhold consent to such
suggested changes. Subsequent minor changes in said plans and
specifications shall not require the signatures of the parties.
Tenant shall contract directly with the architect for the purpose
of laying out the floor plan of the premises, the interior improvements
and the drive-up banking and window facilities; provided, however, that
Landlord shall have the prior right to approve the plans and
specifications for the interior improvements and drive-up units as to
conformity and compatibility with the design of the building.
Section 2. Commencement of Construction.
Landlord shall commence the construction of the building as soon
as reasonable practical after the final plans and specifications have
been approved by Landlord and Tenant and the Issuance of necessary or
convenient governmental permits and authorizations, but in no event
later than August 31, 1974, and shall diligently prosecute such
construction to completion using first class materials and workmanship
in compliance with said plans and specifications and with all applicable
laws and regulations of federal, state, county and municipal
authorities, but Landlord shall not be liable for delays occasioned by
Acts of God, of the government, of the elements, or by fire, flood,,
storm,- earthquake, freight embargoes, inability to obtain labor or
materials, strikes, riots, boycotts, delays by contractors or
subcontractors (except to the extent that if the penalty clause of the
construction agreement is triggered by such a delay Tenant shall receive
21.891, of said penalty clause payment) or other causes beyond
Landlord's control.
The construction project for herein shall include the building
containing the premises and parking and common area improvements as
depicted in the graphic description attached hereto as Exhibit B and as
provided for in the plans and specifications
Section 3. Allocation of Construction Cost.
Landlord shall contribute the maximum sum of Thirty Dollars
($30.00) per gross square foot of the premises, which sum is to provide
for the following ,costs of construction of the premises:
(a) A prorata share of the architectural and engineering fees,
governmental fees, permit fees, grading costs, necessary offsite costs,
and parking and common area improvements attributable to the entire
building as used in this lease. The proration shall be in the
proportion that the gross square footage of Tenant's premises bears to
the gross square footage of the entire building as certified and
calculated by Landlord's architect pursuant to standards and criteria
generally accepted in the trade. Wherever a proportion or proportionate
share based on square footage is required pursuant to this lease, the
proportion shall be as herein calculated,
(b) A concrete floor in a condition to be covered by Tenant.
(c) Interior sheetrock walls ready for finishing by Tenant.
(d) Sheetrock or equivalent ceiling ready for finishing by
Tenant.
(e) Electrical wiring and outlets ready for installation of
standard
fixtures and lighting.
(f) Lighting fixtures or allowance for lighting fixtures to
building standards.
(g) All window glass, and adequate heating and air conditioning.
(h) All plumbing in restroom and employee lounge area ready for
installation of Tenant's fixtures.
(i) Concrete vault excepting vault door, and other items to be
specified by architect and to be agreed upon by Landlord and Tenant.
In the event Landlord acts as general contractor pursuant to
Section 5 of this Article, the Thirty Dollar ($30.00) per square foot
maximum contribution shall include ten percent (10%) for contractor
profit and five percent (5%) for costs of supervision and overhead.
Section 4. Tenant's Work.
Tenant shall provide, at Tenant's sole cost and expense,
furniture, furnishings, equipment and other improvements desired by
Tenant, in addition to or in lieu of the work to be performed by
Landlord for Tenant as provided in this Article.
In addition to the foregoing, it is specifically understood that
Tenant shall provide, at Tenant's sole cost and expense, all alarm and
security equipment, including installation, construction of the drive-
up banking units and drive up lane area including retaining walls as
required (but excluding rough grading), all signs as permitted pursuant
to this lease), and purchase and of the Vault door.
Landlord shall give to Tenant Ninety (90) days notice of the date
Landlord estimates the building ill be ready for occupancy and Tenant
shall have the right to proceed with the installation of signs, trade
fixtures and equipment during said ninety (90) day period, provided that
such installation shall be done in such manner as to avoid interference
with Landlord's construction of the building.
Section 5. General Contractor.
Landlord and Tenant shall each designate three (3) reputable
general contractors who shall submit bids for the construction of said
building, appurtenances and other improvements to be located upon the
subject property. Each bid must include separate allocation for the
cost of construction Tenant's promises to the extend required in Section
3 of this Article, as well as the overall cost of construction of the
building, appurtenances and other Improvements. Landlord shall award
the construction contract to the contractor Landlord, in Landlord's sole
discretion, deems to be the most qualified of the contractors submitting
bids; provided that In the event the bid selected by Landlord or all of
the bids submitted provide for construction costs of the premises in
excess of Landlord's maximum contribution, as previously defined, then
Tenant may require rebidding. If rebidding does not lower the contract
price, then Tenant will contribute its pro-rata share of the costs in
excess of Landlord's maximum contribution. In this event Tenant shall
immediately deposit funds equal to such excess cost in a bank trustee
account to be disbursed by Landlord's construction lender in accordance
with the loan disbursement control provisions of the constriction loan.
After approval of the cost of construction by Landlord and Tenant,
Landlord shall promptly execute a construction contract with a general
contractor covering such construction. Tenant shall have the right to
approve the construction contract, which approval shall not be
unreasonable withheld.
In the event the building is not completed by the contractor on
schedule, Tenant shall receive a proportionate share (21.8%) of the
penalty clause. In the event the. building is completed by the
contractor prior to its scheduled completion date, Tenant shall
contribute its proportionate share (21.8%) to the contractor's bonus as
set forth in the bonus clause of the construction contract.
Notwithstanding anything to the contrary contained herein,
Landlord shall have the option to act as general contractor or the
construction of the building, appurtenances and other improvements on
the subject property; provided, however, that the cost of construction
of the premises pursuant to Section 3 of this Article shall not exceed
the Landlord's maximum contribution as therein defined without the prior
written approval of Tenant, in which event the excess amount shall be
placed in a bank trustee account to be disbursed by Landlord's
construction lender in accordance with the loan disbursement control
provisions of the construction loan Landlord shall select the project
architect.
Section 6. Excess Costs.
In the event costs or charges in excess of the fixed construction
contract amount are directly attributable to change orders requested by
Tenant or by improvements in the premises instituted by Tenant, Tenant
will assume the additional costs and will pay to Landlord such excess
costs or charges, with reasonable contract draws during the course of
construction. Any excess charges, (Change orders), shall be approved by
Tenant prior to Landlord authorized such expenditures.
Section 7. Completion of Construction.
Upon completion of the building and improvements, including the
premises, the architect supervising construction shall certify in
writing to Landlord and Tenant that the same are complete and ready for
use and occupancy, Concurrently, Landlord and Tenant shall cooperate in
securing proper certificates of occupancy or other permits which may be
required prior to Tenant's commencing to transact business.
ARTICLE V
FINANCING AND SUBORDRNATION
Landlord intends to finance the construction of the building and
improvements. In the event Landlord cannot obtain financing acceptable
to Landlord within three (3) months after completion and approval by
Landlord and Tenant of plans and specification, Landlord may so notify
Tenant, in writing, and this lease shall thereupon be void and Landlord
shall refund to Tenant any sums paid by Tenant to Landlord.
In the event that any institutional lender from which financing of
the proposed building and improvements is sought shall request a
modification of this lease or the execution and delivery of any
supplemental agreement and Landlord shall communicate such request to
Tenant, in writing, Tenant shall not unreasonable withhold its consent
to and/or joinder in such a lease modification or supplemental
agreement provided that Tenant's rights under this lease are not
materially diminished and its obligations hereunder are not materially
increased.
Tenant agrees that this lease shall be subordinate to any mortgage
or deed of trust that may hereafter be placed upon the leased premises
and to any and all advances made or to be made under said obligations
and to any. renewals, replacements and extensions thereof; such
subordination, however, Is subject to the condition that Landlord shall
require any mortgagee or beneficiary to agree that the mortgagee or
beneficiary in such mortgage or deed of trust shall recognize this lease
of Tenant and agree that in the event of sale or foreclosure under such
mortgage or deed of trust, the purchaser shall take subject to this
lease so long as Tenant is not in default under the terms of the lease.
If any mortgagee or beneficiary elects to have this lease superior
to its mortgage or deed of trust and if said mortgagee or beneficiary
gives written notice of such election to Tenant, then this lease shall
be superior to the lien of any such mortgage or deed of trust whether
this lease is dated or recorded before or after the date of said
mortgage or deed of trust.
In the event of the sale of the property containing the premises,
upon foreclosure or upon the exercise of a power of sale under any such
mortgage or deed of trust, Tenant will, upon written request of the
purchaser made within thirty (30) days after such sale, attorn to the
purchaser and recognize the purchaser as the Landlord under this lease.
ARTICLE VI
USE AND REGULATIONS
The premise shall be continuously used for general banking, safe
deposit and trust services purposes by Eldorado Bank and, except as
provided in Article XVI, Assignment and Subletting, for not other
business or purpose without the written consent of Landlord.
Tenant agrees that Tenant will comply with and will require its
employees, agents, invitees and licensees and sublessees to comply with
reasonable rules and regulations now or hereafter adopted by Landlord
for the protection, care and safety of the building and of all who may
use the same and for the care and cleanliness of the promises and the
preservation of good order therein and such rules and regulations as are
now in force or which may hereafter be adopted by Landlord are hereby
expressly made a part of this lease. The rules and regulations
presently adopted by Landlord are set forth in Exhibit C attached
hereto and made a part hereof.
Tenant shall not use or suffer or permit any person to use the
premises, or any portion thereof, for any purpose, in Violation of any
lien, ordinance or regulation applicable thereto; subject, however, to
Tenant's right to contest in any manner provided by law the validity or
applicability of any such law, ordinance or regulation. Tenant agrees
not to conduct or permit to be conducted any public or private nuisance
thereon or permit to be committed any waste upon the premises except as
provided in Article I.V..
ARTICLE VII
TAXES AND ASSESSMENTS
Section 1 Taxes and Assessments of Building and Subject Property.
Tenant agrees to pay, at lease twenty one (21) days prior to
delinquency, a proportionate share based on square footage of any
increase in real property taxes (as such increase in hereinafter
defined) and a proportionate share of any general or special assessments
levied upon the completed building and underlying and surrounding land
as shown on Exhibit A. The proportion applicable to Tenant shall be in
the proportion that the sum of gross square footage of the premises
bears to the total gross square feet of the entire building.
The base period for the determination of real property tax
Increases shall be deemed to be the first tax assessment year in which
the completed building and improvements are first assessed after the
commencement date as provided in Article 11. The proportionate amount
for which Tenant shall become liable shall be in the increase, if any,
which takes place the following assessment year and all subsequent
assessment years thereafter over the base year.
With respect to any assessment which may be levied against or upon
the premises after the commencement date of this lease and which may be
evidenced by improvement or other bonds or may be paid in annual
installments, Tenant shall pay each year only its proportion of such
annual installment or portion thereof, with appropriate proration for
any partial year. Tenant shall have no obligation to continue such
payments after the termination of the lease.
In the event that the taxes and/or special assessments levied upon
the premises exceed there average taxes and/or general or special
assessments on the entire building during the first tax assessment year
in which the completed building and improvements are first assessed,
Tenant shall pay such excess to Landlord within twenty (20) days prior
to the tax delinquency date.
Landlord and Tenant agree to retain the firm of Morton and Schaff
or a comparable tax appraisal firm to allocate the taxes and/or general
or special assessments on the building to the premises. Landlord and
Tenant each agree to pay one-half (1/2) of the costs and expenses
incurred in the employment of such tax appraisal firm.
Taxes and special assessments shall be prorated for any fractional
year at the end of the term of this lease.
Section 2. Taxes and Assessments Against Personal Property.
Tenant shall also pay prior to delinquency all taxes assessed for
or during the term hereof against or on any or all personal property and
trade or business fixtures in the possession of Tenant, or installed by
or for Tenant In, upon or about the premises. Said obligation is
assumed by Tenant whether such assessment Is made against Tenant in the
first instance or is made against Landlord as the owner of said
building, either separately or as a part of the assessment of said
entire building.
Section 3. Tax on Rent.
If at any time during the term of this lease, under the laws of the
State of California or any political subdivision thereof, or under the
laws of the United States, a tax or excise tax on rents or other tax,
however described, is levied or assessed by any such taxing authority
against Landlord on account of the rental expressly reserved hereunder
Tenant shall pay and discharge so much of said tax or excise on rents or
other taxes to the extent of the amount thereof which is attributable to
the rental payable under the terms of this lease.
Section 4. Parking Taxes.
In the event a tax or surcharge is imposed upon Landlord for the
maintenance of any parking. spaces upon the subject property, Tenant
will pay to Landlord, within ten (10) days prior to the delinquency for
any such tax or surcharge, the amount of such tax or surcharge on such
parking spaces which Tenant is given a license to use for its Customers,
employees and invitees pursuant to Article XVII.
ARTICLE VIII
COMMON AREA
Section 1 . Establishment.
Landlord agrees that common areas in the parking lot and
surrounding open areas will be established as outlined in green and red
on Exhibit B attached hereto for the use of tenants and customers of
tenants or subtenants occupying said building.
Section 2. License to Use.
Landlord hereby grants to Tenant, Tenant's subtenants and
customers of Tenant a non-exclusive license to use said common area
during the term of this lease and any extensions thereof, jointly and in
common with other tenants, customers, invitees and licensees of Landlord
to whom similar rights shall from time to time be given thereto (all
such repairs shall be of at least equal quality to the original work).
It is understood that windows and plate glass shall not be considered to
be exterior walls for the purpose of repair and maintenance and Tenant
shall, at Tenant's expense, be solely responsible for the repair,
replacement and maintenance of any windows or plate glass.
Tenant waives the benefit of the provisions of Subsection 1 of
Section 1932 and of Sections 1941 and 1942 of the Civil Code of the
State of California, and all rights to make repairs at the expense of
Landlord, as provided in Section 1942 of that Code.
Should Tenant fail to make, with reasonable promptness after
notice from Landlord,. any repairs which are the obligation of Tenant
under any of the provisions of this lease, Landlord may, at its option,
make the same and all costs and expenses incurred by Landlord in
connection therewith shall become immediately due and payable to
Landlord as additional rental hereunder.
Upon removal by Tenant of any alterations, additions or
improvements which Tenant is entitled to remove, Tenant, at its
expense, shall repair all damage resulting from installation and removal
thereof and shall restore the leased premises to the reasonable
satisfaction. of Landlord.
Section 2. Alterations.
No alteration, addition or improvement to the premises shall be
made by Tenant without the written consent of Landlord; provided,
however, that, Tenant may construct a drive-up unit as depicted on the
attached Exhibit B, with the prior approval by Landlord as to the
architectural rendering and the plans and specifications.
Section 3 . Fixtures and Equipment.
Notwithstanding anything to the contrary contained in this lease,
any fixtures, equipment and other personal property installed in or
attached to the premises by and at the expense of Tenant and which are
not in replacement of similar articles originally installed by Landlord,
and any drive-up unit installed by Tenant pursuant to the provisions of
this case, shall remain the
Section 3. Refusal of Access.
Landlord reserves the right to refuse access to or the use of any
part of the common area to any person or persons who in the sole
judgement and opinion of Landlord may conduct or have conducted
themselves in a manner inconsistent with good and orderly public
deportment or who may violate the rules and regulations promulgated by
Landlord.
Section 4. Manner of Operation.
Landlord agrees, at the expense of Landlord, to maintain, subject
to the provisions of Article IX, said common areas in a clear, efficient
and first class manner. Tenant agrees to cooperate in so maintaining
the common areas and to abide by the rules and regulations relating
thereto promulgated by Landlord.
ARTICLE IX
REPAIRS, MAINTENANCE AND ALTERATIONS
Section Repairs and Maintenance.
Landlord shall, at its expense, keep and maintain the exterior of
the building, roof, the common area to the south of the building as
designated on the attached Exhibit B, in good condition and repair,
reasonable use and wear thereof and damages by Acts of God excepted,
throughout the term of this lease, any extensions, and Landlord shall
provide landscaping for the subject property.
Landlord shall, at its expense, keep and maintain the common
areas,, parking lot, and drive up lanes shown on Exhibit B attached
hereto. Tenant shall reimburse landlord monthly for its proportionate
share of said common area upkeep and maintenance. Tenant's proportional
share of the common areas, parking lot, and drive up lanes is outlined
on Exhibit B attached hereto in green and red and represents
approximately thirty-seven percent (37%) of said total areas. Tenant
shall also be responsible for any major repair of said common area
outlined in green and red as shown on Exhibit B.
Tenant shall, at its expense, keep and maintain the premises and
every part thereof, including but not limited to interior walls,
plumbing, air-conditioning ducts and other apparatus located in the
premises, electrical systems and signs, in good order, condition and
repair, reasonable use and wear thereof and damages by Acts of God
excepted and shall promptly make all repairs property of Tenant, and
Landlord agrees that Tenant shall have the right at any time, and from
time to time, to remove any and all of its fixtures, equipment and other
personal property which it may have stored or installed in the
.premises, including but not limited to, counters, shelving, showcases,
mirrors, vault doors, safe deposit accommodations and equipment, and all
other movable personal property. Tenant, at its expense, shall repair
any damage occasioned to the premises by reason of the removal of any
such trade fixtures, equipment or other property.
ARTICLE X
LIABILITY AND INDEMNITY
Landlord shall not be liable to Tenant for any in use or damage
that may result to any person or property by or from any cause
whatsoever and without limiting the generality of the foregoing, whether
caused by water leakage of any character from the roof, walls, basement
or other portions of the building and property of which the premises are
a part, or caused by gas, fire, oil, electricity or any like or unlike
cause whatsoever in, on or about any facilities (without prejudice to
the generality of the term, "facilities", as herein used, shall be
construed to mean elevators, stairways, lobbies, passageways, hallways
or restrooms), the use of which Tenant may have in conjunction with
other tenants of the building in which the premises are situated, or
caused by any existing or future condition, defect, matter or thing on
or in the promises, or the building or property of which said premises,
or the building or property of which said premises are a part, or caused
by acts, omissions or negligence of other persons or tenants in or about
the premises or the said building and property. Landlord shall not be
liable for any loss or theft of any baggage, cash items, valuable
papers, materials and all other valuable possessions of every kind and
nature, whether belonging to customers 'of Tenant or to Tenant or to any
other persons. Tenant agrees to indemnify and hold Landlord harmless
from and to defend Landlord against any and all claims, liabilities,
costs or expenses for or on account of any injury (fatal or non-fatal)
or damage to any person or property Whatsoever (including the personal
property of officers, employees, agents, customers and invitees of
Tenant (a) occurring in, on or about the premises or said building or
property or any part thereof; or (b) occurring in, on or about any
"facilities" in, on or about the premises of said building or any part
thereof, such injury or damage shall be caused in part or in whole by
the act, negligence or fault of, or omission of any duty with respect to
the same, by Tenant.
Notwithstanding anything in this lease to the contrary neither
party shall be liable or responsible to the other for any consequential
or indirect damages, including, but not necessarily limited to, loss or
interruption of business.
ARTICI.E XI
JNSURANCE
Section 1. Landlord's Insurance.
Landlord shall procure and maintain a policy or policies of
insurance' covering the premises in an amount not less than eighty
percent (80%) of the full replacement value thereof against any hazard
covered by "fire and extended coverage insurance" (as those terms are
generally understood in the insurance industry), and Landlord shall also
carry insurance against malicious mischief and vandalism. Tenant shall
be named as additional insured on all insurance policies pursuant to
this Section.
Section 2. Tenant's Insurance.
Tenant shall procure and maintain a policy or policies of public
liability and property damage insurance insuring against claims arising
out of the use, operation or condition of the premises and naming
Landlord as an additional insured. The limits of liability on said
insurance shall not be less than Five Hundred Thousand Dollars ($500,
000) for injury or death of more than one (1) person, and not less than
One Hundred Thousand Dollars ($100,000) property damage.
Tenant shall procure and maintain adequate workmen's compensation'
insurance.
Tenant shall obtain said insurance policies prior to the taking of
possession of the premises, pursuant to this lease, and shall, at
Landlord's request, deliver to Landlord copies of the same.
Tenant's insurance required in this article shall be primary
insurance and not participating with another insurance placed by
Landlord.
Section 3. Termination of Insurance.
All insurance policies required in this Articles all contain a
provision that said policies shall not be cancelled or terminated
without thirty (30) days' prior notice from the insurance company to the
other party to this lease. The parties agree that on or before ten (10)
days prior to expiration of any insurance policy, each will deliver to,
the other written notification in the form of a receipt of other similar
document from the applicable insurance company that said policy or
policies have been renewed, or deliver certificates of coverage from
another good and solvent insurance company for such coverage.
Section 4 Waiver of Subrogation.
Landlord and Tenant shall procure appropriate clauses in, or
endorsements on, all policies of fire and extended coverage insurance
herein above required pursuant to which the insurer waives subrogation
or consents to a waiver of right of recovery against the other party to
this lease, its officers, agents or employees or, in the event either
party hereto is a partnership, the Individual partners of said
partnership.
Section S. Blanket Coverage.
Notwithstanding the foregoing provisions with respect to insurance
It is agreed that the Landlord or Tenant may bring their insurance
within the coverage of a so-called blanket policy or policies of
insurance carried and maintained by Landlord or Tenant.
ARTICLE XII
DESTRUCTFON OF PREMISES
Section 1. Minor Damage.
Should the building be damaged by reason of any casualty for which
insurance is required to be carried pursuant to the Article entitled
"INSURANCE" to such extent that repair of such damage in Landlord's
opinion will cost less than thirty-three and one-third percent (33-1/3%)
of the total replacement value of the premises immediately prior to such
damage, Landlord shall prioritize and with due diligence repair such
damage, and this lease shall continue in effect subject to the
provisions of Section 5 of this
Article XII. Section 2. Major Damage.
Should the building be damaged to an extent greater than that
described in Section 1. hereof or should the premises be substantially
damaged by, reason of any casualty not covered by Landlord's insurance
herein above required, Landlord may, at its option, either terminate
this lease by giving written notice to Tenant thereof or continue this
lease in effect and proceed with reasonable diligence to repair or,
reconstruct the building and re-deliver possession thereof to Tenant.
As used in this Section, the term "substantially damaged" refers
to damage, the cost of repair of which, when added to Landlord's capital
investment in the building and subject property, would, on the basis of
reasonable rental value of 'the space in the building prevailing at the
time of such destruction, result in an income to Landlord amounting to a
yield which is less than yields from comparable structures in the
vicinity at such time. In determining reasonable rental value, the rent
payable by tenants of the building under leases having unexpired terms
of one (1) year or more shall, as to the space covered by such leases,
be deemed to represent the reasonable rental value.
Notwithstanding anything in the foregoing to the contrary
appearing, in the event of damage to the building which, in the
reasonable estimate of a qualified building contractor, would require
more than one hundred eighty (180) days to repair, Tenant may terminate
this lease at any time within a period of Thirty (30) days after the
occurrence of such damage by delivering to Landlord a written notice of
termination accompanied by a written estimate of a qualified contractor.
Section 3. Waiver.
Tenant hereby waives the provisions of Sections 1932 (2) and 1933
(4) of the California Civil Code.
Section 4. Abatement of Rental.
During the repair or reconstruction there shall be abated an
equitable portion of the rent accruing during the period of time Tenant
is deprived of the full use of the promises unless the damage was caused
by Tenant or Tenant's employees. Such abatement shall be in the ratio
of the square feet of floor space of which Tenant is deprived to the
total square feet of the premises. Landlord shall not otherwise be
liable for any damage that may he suffered, by reason of any such
casualty or repair or, reconstruction or deprivation of possession, or
interruption of business, except in the case of damage or destruction
caused by negligence on the part of Landlord.
ARTICLE XIII
CONDEMNATION
Section I Condemnation of the Whole.
In the event that 'the whole of the premises shall be taken under
the power of eminent domain, this lease shall thereupon terminate as of
the date possession shall be so taken.
Section 2. Condemnation of a Portion.
In the event that a portion of the premises shall be taken under
the power of eminent domain and the portion not so taken will be
inadequate, in the reasonable judgment of Tenant, for the operation of
Tenant's business notwithstanding Landlord's offer of performance of
restoration as hereinafter In this Section 2 provided, this lease ma be
terminated by Tenant by written notice to Landlord given at any time
within ninety (50) days after Tenant receives notice of such taking. In
the event of any taking of a lesser portion of the premises or if Tenant
does not terminate this lease as aforesaid, any obligation of Tenant
under this lease to pay rent shall. remain in full force and effect,
except that the rent shall be reduced in the same proportion that the
amount of. rentable floor area of the premises taken bears to the total
rentable floor area of the premises immediately prior to such taking,
and Landlord shall at Landlord's own cost and expense, Landlord such
part of the premises as is not taken to as near its former condition as
the circumstances will permit and Tenant shall do likewise with respect
to all interior signs, trade fixtures, equipment, display cases,
furniture, furnishings and other installations of Tenant.
Section 3. Allocation of the Award.
All damages awarded for any such taking under the power of eminent
domain, whether for the whole or a part of the premises, shall belong to
and be the property of Landlord, whether such damages shall be awarded
as compensation for diminution in value of the leasehold or for the fee
of the premises; provided, however, that the Landlord shall not be
entitled to any award made to Tenant for loss of or damage to Tenant's
trade fixtures and removable personal property provided further that
Landlord shall pay to Tenant out of such award the then unamortized
amount of such of Tenant's leasehold improvements
as shall be so taken less Landlord's cost of restoring the premises if
such restoration is performed as provided in Section 2 of this Article.
Section 4 . Rental Refund.
If this lease Is terminated as provided in this Article, all rent
shall be paid up to the date of termination, and Landlord shall make an
equitable refund of any rent paid by Tenant in advance and not yet
earned.
Section S. "Taking" defined.
A voluntary sale by Landlord to any public or quasi-public body,
agency or person, corporate or otherwise, having the power of eminent
domain, either under threat of condemnation or while condemnation
proceedings are pending shall be deemed to be a taking by eminent domain
for the purposes of this Article.
Section 6. Temporary Taking.
The requisitioning of the promises or any part thereof by military
or other public authority for purposes arising out of a temporary
emergency or other temporary situation or circumstance shall constitute
a taking of the premises by eminent domain only when the use and
occupancy by the requisitioning authority has continued for one hundred
eighty (160) days, provided that for the duration of the use and
occupancy of the premises by the requisitioning authority, Tenant's
obligation to pay rent shall be reduced in the same proportion that the
amount of the rentable floor area of the premises bears to the total
rentable floor area, subject to Landlord's right to payment to Landlord
of whatever compensation may be payable from the requisitioning
authority for the use and occupation of the Premises for the period
involved.
ARTICLE XIV
BANKRUPTCY - INSOLVENCY
Tenant agrees that in the event all or substantially all of
Tenant's assets. be placed in the hands of a receiver or trustee, and
such receivership or trusteeship continues for a period of thirty (30)
days, or should Tenant make an assignment for the benefit of creditors,
or should Tenant institute any proceedings under the Bankruptcy Act as
the same now exists or under any amendment thereof which may hereafter
be enacted, or under any other act relating to the subject of bankruptcy
wherein Tenant seeks to be adjudicated a bankrupt, or to be discharged
of its debts, or to effect a plan of liquidation, composition or
reorganization, or should any involuntary proceedings be filed against
Tenant under such bankruptcy laws and Tenant consents thereto or
acquiesces therein by pleading or default, such event shall constitute a
material breach and default in this lease, and, in any such event and in
addition to any and all rights or remedies of Landlord hereunder or by
law provided, it shall be lawful for Landlord to declare the term hereof
ended and to re-enter the promises and take possession thereof and
remove all persons therefrom, and Tenant shall have no further claim
thereon or hereunder.
ARTICLE XV
EFAULT, TERMINATION AND REMEDIES
Section 1 Default.
Any of the following shall constitute a material breach and
default In this lease by Tenant:
(1) Tenant shall fail to comply with any of the terms, covenants
or conditions of this lease and shall fail to remedy the same within
fifteen (15 days after written notice from Landlord which specifies the
nature of such default, a copy of which be forwarded to any mortgagee
which shall have previously requested notice of any such default; or
(2) Tenant shall abandon or vacate the premise for ten (10)
consecutive days after receipt of written notice from Landlord.
Landlord shall not be deemed to be in default in the performance of any
obligation required to be performed by it hereunder unless and until it
has failed to perform such obligation within fifteen (15) days after
written notice by Tenant to Landlord specifying wherein Landlord has
failed to perform such obligation; provided, however, that if the nature
of Landlord's obligation is such that more than fifteen (15) days are
required for its performance, then Landlord shall not be deemed to be in
default if it shall commence such performance within such fifteen (15)
day period and thereafter diligently prosecute the same to completion.
Section 2. Remedies.
In the event of any breach of this lease by Tenant, which default
shall remain uncured ten (10) days after written notice from Landlord,
Landlord, in addition to other rights or remedies Landlord may have,
shall have the right to:
(a) Immediately terminate Tenant's right to possession of the
premises, and repossess the same by summary proceedings or other
appropriate action, and Landlord shall thereupon be entitled to receive
from Tenant all damages specified in California Civil Code Section
1951.2(a), including, without limitations the right to receive the worth
at the time of the award, of the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of such
rental loss for the same period that Tenant proves could be reasonable
avoided; all of which damages to the extent specified In Section 1951.2
(b) shall be computed by allowing interest at the maximum rate permitted
by law.
(b) Continue this lease in effect without terminating Tenant's
right to possession even though Tenant has breached this lease and
abandoned the premises; and to enforce all of Landlord's rights and
remedies under this lease, including the right to recover the rent as it
becomes due under this lease; provided, however, that Landlord may at
any time thereafter elect to terminate this lease for such previous
breach by notifying Tenant in writing that Tenant's right to possession
of the premises has been terminated.
ARTICLE XVI
ASSIGNMENT AND SUBLETTING
Tenant shall not transfer' sublet, assign or hypothecate this
lease of Tenant's interest in and to the premises by operation of law or
otherwise without first procuring the written consent of Landlord, and
any such Attempted transfer shall be void and of no force and effect.
A transfer of Tenant's interest to another corporation in
connection with a corporate reorganization of Tenant or the merger of
Tenant into or consolidation of Tenant with another corporation or
corporations shall not be deemed a transfer or assignment for purposes
of this Article. Further, anything in this lease to the contrary
notwithstanding, Tenant may, without Landlord's prior written consent,
assign this lease to any successor to the entire business of Tenant or
the major part thereof, provided that said successor acquires this lease
as a result of a voluntary transaction between solvent parties.
ARTICLE XVII
PARKING AREA AND DRIVE-UP WINDOW
Landlord hereby exclusively grants to the customers, patrons,
employees suppliers and business invitees of Tenant a license to use
those certain parking spaces denominated "Reserved Bank Parking"
outlined in green on the plot plan of the subject property attached
hereto as Exhibit B. Landlord reserves the sole, unconditional and
exclusive right to use the spaces (or to enter into license or lease
agreements with respect to such spaces) denominated "Building Reserved
Parking", outlined in blue, on the attached Exhibit B.
Landlord reserves the right to change the entrances, exits,
traffic lanes and the boundaries and locations of such parking area or
areas; provided, however, that said parking area shall at all times
provide for the same number of spaces as specified hereinabove and on
Exhibit B, subject to the same provisions as contained herein for each
purpose, and the approval of Tenant, which approval shall not be
unreasonably withheld.
Tenant, in the use of said parking area, agrees to comply with
such rules and regulations as Landlord may from time to time adopt for
the orderly and proper operation of the parking areas.
The drive-up unit as located on the plot plan of the subject
property attached hereto as Exhibit B is to be built, maintained and
controlled by Tenant at Tenant's sole cost and expense. Further-more,
Tenant, at Tenant's sole cost and expense, is to build, pay and maintain
the access lanes, retaining walls, and directional signing used in
connection with the drive-up units, which access lanes are indicated on
the Attached Exhibit B. So long as Tenant is not in default under the
terms of this lease, Landlord exclusively grants to Tenant a license to
use the property designated for drive-up window unit for access to its
drive-up window units in the area outlined in red on the attached
Exhibit B. Landlord also grants tenant a license to use the parking lot
outlined in red on Exhibit B along with other tenants and customers of
tenants or subtenants occupying the office building of Landlord.
ARTICLE XVIII
UTILITIES
Landlord shall provide the necessary mains, ducts and conduits in
order to bring water, gas, electricity, steam and telephone service to
the premises. All means of distribution of such services within the
premises shall be maintained by Tenant, at Tenant's expense, and Tenant
shall pay directly for all such services. Tenant shall contract
directly with the applicable utility to secure, at Tenant's expense, the
installation of appropriate metering devices.
Landlord may interrupt or suspend the supply of any such services
to the premises in order to make any necessary repair or alteration to
the building. There shall be no abatement in rent because of any such
interruption or suspension; provided, however, that Landlord shall make
such repair or alteration with reasonable diligence; and provided,
further, that such repair or alteration shall not unreasonable interfere
with Tenant's business In the premises.
Tenant will provide its own janitorial services for the premises,
at Tenant's sole cost and expense.
ARTICLE XIX
LIENS AND CLAIMS
Landlord shall at all times have the right to post and to keep
posted on the premises such notices provided for under or by virtue of
the laws of the State of California for the protection of the premises
from mechanic's liens or liens of a similar nature.
Notwithstanding anything to the contrary herein contained, if
Tenant shall in good faith contest the validity of any lien, claim or
demand then Tenant shall, at its expense, defend itself and Landlord
against the same, and shall pay and satisfy any final adverse judgment
that may be rendered therein before the enforcement thereof against
Landlord or the premises, and Tenant shall furnish to Landlord a surety
bond satisfactory to Landlord in an amount equal to such contested lien,
claim or demand indemnifying Landlord against liability for the same.
Tenant shall not suffer or permit any mechanic's liens or any
other claims or demands arising from any work of a Iteration' or repair,
as herein provided, or otherwise, to be enforced against the premises or
any part thereof, and Tenant agrees to hold Landlord and said premises
free and harmless from all liability for any such liens, claims or
demands, together with all costs and expenses in connection therewith.
ARTICLE XX
SIGNS AND NAME
So long as Tenant continues to occupy the premises, the building
shall be known as the Eldorado Bank Building. Tenant shall have the
exclusive right to sign its portion of the building subject, to
governmental; sign regulations All signs shall comply with all
applicable local, state and federal laws, ordinances and regulations and
shall be installed and maintained at Tenant's sole cost and expense.
Prior to the placement of any signs, Tenant must first obtain the
written approval of Landlord. The sign identifying the building as the
"Eldorado Bank Building" shall be placed on the exterior wall adjacent
to Tenant's premises and shall be subject to Landlord's approval as to
design, which approval shall not be unreasonable withheld so long as the
said sign is comparable to the standard Eldorado Bank sign.
ARTICLE-XXI
CONTINGENCIES
The continuing effectiveness of this lease is contingent upon the
following:
(1) Approval of the lease by the lender.
ARTICLE XXII
MISCELLANE0US
Landlords Right of Access.
Except for reasonable limitations imposed by the nature of
Tenant's business, tenant shall permit Landlord or Landlord's agents or
representatives to enter upon the premises for the purpose of
inspecting, determining whether agreements herein contained are being
complied with, for purposes of maintaining, repairing or altering the
promises, or for the purpose of showing the premises to prospective
tenants, purchasers, mortgagees, and/or beneficiaries under deeds of
trust.
Section 2. Attorney's Fees.
(a) In the event Landlord shall, without any fault on the part
of Landlord, be made a party to any litigation commenced by or against
Tenant growing out of or having relation to the premises or to this
lease, then Tenant agrees to pay to Landlord, on demand, all costs and
reasonable attorney's fees incurred by Landlord in any such litigation.
(b) Should either party hereto bring suit against the other any
dispute arising out of the subject matter of this lease, the prevailing
party shall be entitled to reasonable attorney's fees and all costs
reasonable incurred in preparation for such suit.
Section 3. Force Majeure.
Subject to the provisions set forth elsewhere heroin, neither of
the parties hereto shall be chargeable with, liable for, or responsible
to the other for anything or in any amount for any delay caused by fire,
earthquake, explosion, flood, hurricane, the, elements, acts of God or
the public enemy, action or Interference of governmental authorities or
agents, war, invasion, Insurrection, rebellion, riots, strikes or
lockouts or any other cause whether similar or dissimilar to the
foregoing which is beyond the control of such party and any delay due to
said causes or any of them shall not be deemed a breach of or default in
the performance of this lease, it being agreed that any time limit
provision contained in this lease shall be extended for the same period
of time lost by causes hereinbefore set forth; provided, however, this
provision shall in no way alter or modify Tenant's obligation to pay
rent or other sums pursuant to the terms of this lease.
Section 4. Surrender at End of Term.
On the last day of the term or any extension hereof or on sooner
termination hereof, Tenant shall quit and surrender the leased premises
in as good condition as reasonable use thereof will permit, reasonable
wear and tear and damage by act of God excepted, together with all
alterations, additions and improvements, including trade fixtures which
may have been made in, to or on the promises, except movable furniture
or unattached movable trade fixtures put in at the expense of Tenant,
and excepting such alterations, additions and improvements which
Landlord, previous to such termination, shall have agreed In writing may
be removed by Tenant.
Subject to the provisions of Article IX, Tenant shall ascertain
from Landlord within thirty (30) days prior to the termination of this
lease, whether Landlord desires removal of any alterations, additions or
improvements installed by or for Tenant at Tenant's expense, and
thereupon Tenant shall promptly remove any thereof so designated by
Landlord and shall repair and restore the premises as hereinabove
specified, all at Tenant's expense. If Tenant, on or before the end of
the term or sooner termination of this lease, falls to do said work of
removal, repair and restoration, Landlord may cause said work to be
done, and Tenant shall reimburse Landlord for all costs and expenses
thereof; or at Landlord's option, the property not so removed shall be
deemed to be abandoned by Tenant and shall become the sole property of
Landlord.
Section S. Quiet Enjoyment.
Landlord hereby covenants and agrees that so long as Tenant shall
faithfully perform each and all of the terms and conditions required by
it to be performed hereunder, Tenant shall have quiet and peaceful
possession of the premises during the entire term hereof.
Section 6. Suitability of Premises.
It is understood that neither Landlord nor any agent or
representative of Landlord has made any warranty or other representation
with respect to the premises or building or regarding the suitability of
either for Tenant's use. The taking of possession of the premises by
Tenant shall be conclusive that the premises and building were in
satisfactory and acceptable condition at such time.
Section 7. Holding Over.
In the event Tenant shall hold over the premises after the
expiration of the term hereof with the consent of Landlord, either
express or implied, such holding over shall be construed to be only a
tenancy from month to month, subject to all the covenants, conditions
and obligations hereof, and Tenant hereby agrees to pay Landlord the
same rentals provided for by this lease for such additional time as
Tenant shall hold such property.
Section 8. Relationship with Real Estate Broker.
Tenant warrants that it has not had any relationship with any real
estate broker or agent in regard to this lease upon which Landlord is or
may become liable for commission or other compensation.
Section 9. Compliance with Governmental Regulations.
Tenant shall, at its own cost and expense, promptly and property
observe, comply with and execute, including the making of any
alteration, addition or change to the premises, all present and future
orders, regulations, directions, rules, laws, ordinances and
requirements of all governmental authorities (including but not limited
to state, municipal, county and federal governments and their
departments, bureaus, boards and officials), arising from the use or
occupancy of, or applicable to, the premises or the vaults, franchises
or privileges appurtenant to or connected with the enjoyment of the
premises. Tenant shall have the right to contest or review, by legal
procedure or in such other manner as Tenant may deem suitable, at its
own expense, any such order, regulation, direction, rule, law, ordinance
or requirement and if able, may have the same cancelled, removed,
revoked or modified, provided that Landlord is not subject to a criminal
prosecution and that Landlord's title to the premises is not subject to
forfeiture, and Tenant hereby agrees to indemnify and hold Landlord
harmless from and against any civil liability as a result of any such
contest or review. Any such proceedings shall be conducted promptly and
shall include, if Tenant so decides, appropriate appeals. Whenever
requirements become absolute after a contest, Tenant shall diligently
comply with the same or so much thereof as shall have been judicially
sustained.
Section 10. Waiver.
No waiver of any breach of any of the terms, covenants agreements,
restrictions or conditions of this lease shall be construed as a waiver
of any succeeding breach of the same or other covenants, agreements,
restrictions and conditions hereof.
Section 11. Time of the Essence.
Time is of the essence with respect to the performance of each and
every provision of this lease.
Section 12. Notices.
Any notice required or permitted to be given hereunder shall be in
writing and may be served personally or by mail. If served by mail, it
shall be addressed as follows:
Landlord:.
Hon Development Company
La Paz Professional Center,
Suite 210
25200 La Paz Road
Laguna Hills, California 92653
Attention:. Mr. Barry Hon
Tenant:
Eldorado Bank
17434 Seventeenth Street
Tustin, California 92680
Attention: Mr. Dennis P. Frank
Any notice so given by mail shall be deemed received and effective
forty-eight (48) hours after being deposited in the United States mail,
registered or certified mail, return receipt-requested, postage prepaid
and addressed as specified above. Either party may from time to time by
written notice to the other specify a different address for notice
purposes except that Landlord may in any event use the premises as
Tenant's address for notice purposes.
Section 13. Scope of Agreement.
This lease is and shall be considered to be the only agreement
between the parties hereto, and all negotiations and oral agreements
acceptable to both parties are included herein.
Section 14. Estoppel Certificates.
Tenant shall, at any time and from time to time, upon not less
than twenty (20) days prior written request by Landlord, deliver a
statement in writing certifying that this lease is unmodified and in
full force and effect (or If there has been any modification thereof,
that the same is in full force and effect, as modified and stating the
modification or modifications) and the dates to which the rent and other
charges have been paid in advance, if any. It is expressly understood
and agreed that any such statement delivered pursuant thereto may be
relied upon by any prospective purchaser of the fee or the mortgages or
the trustee or beneficiary of any deed of trust of the fee of the
premises.
Section 15. Inurement.
Each and all of the covenants, conditions and agreements herein
contained shall inure to the benefit of Landlord and apply to and bind
Tenant, their respective heirs, legatees, devisees, executors,
administrators, successors, assigns, sublessees or any person who may
come into possession of said premises or any part thereof if any manner
whatsoever. Nothing in this section contained shall in any way alter
the provisions relating to assignment or subletting hereinabove
provided.
Section 16. Assignment by Landlord.
In the event Landlord shall sell or transfer the premises or any
part thereof and as a part of said transaction shall assign its interest
as Landlord in and to this lease, then from and after the effective date
of said sale, assignment or transfer, Landlord shall have no further
liability hereunder to Tenant except as to matters of liability which
shall have accrued and be unsatisfied as of such date.
Section 17. Relationship of Parties.
The relationship of the parties hereto is that of Landlord and
Tenant, and it is expressly understood and agreed that Landlord does not
in any way nor for any purpose become a partner of Tenant in the conduct
of Tenant's business or otherwise, or a joint venturer with Tenant, and
that the provisions of this lease and the agreements relating to rent
payable hereunder are included solely for the purpose of providing a
method whereby rental payments are to be measured and ascertained.
Section 18. Captions and Terms.
The captions of the paragraphs 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.
Whenever the singular is used in this lease and, when required by
the context, the same shall include the plural and the masculine gender
shall include the feminine and neuter genders, and the word "person"
shall include corporation, firm or association, and if Tenant or
Landlord be more than one (1) person, the obligations imposed under this
lease upon Tenant or Landlord shall be joint and several.
Section 19. Short Form Lease.
The parties hereto shall, concurrently with the execution of this
lease execute and deliver a short form Memorandum of Lease for the
purpose of recording the same.
Section 20. Entire Agreement.
This lease contains the entire agreement of the parties hereto
with respect to the matters covered hereby, and not other previous
Agreement, statement or promise made by and party hereto which is not
contained herein shall be binding or valid.
IN WITNESS WEJEREOR, the parties hereto have executed this Lease
on the day and year first hereinabove written.
HON DEVELOPMENT COMPANY
Landlord
a California corporation
"Tenant"
Eldorado Bank
EXHIBIT 10.10
STANDARD OFFICE LEASE GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Basic Lease Provisions ("Basic Lease Provisions")
1.1 Parties: This Lease dated for reference purposes only October 15,
1997 is made by and between Universal Bank (herein called "Lessor") and
Orange National Bank doing business under the name of (herein called
"Lessee").
1.2 Premises: Suite Number(s) west wing, consisting of approximately
13,845 feet more or less, as defined in paragraph 2 and as shown on
Exhibit "A" hereto (the "Premises".).
1.3 Building: Commonly described as being located at 1249 East Katella
in the City of Orange County of Orange State of California as more
particularly described In Exhibit "A" hereto, and as defined in
paragraph 2.
1.4 Use: Bank-Branch/ Office Use/ATM/Night Depository subject to
paragraph 6.
1.5 Term: Sixty-two months commencing November 7, 1997
("Commencement Date") and ending January 6, 2003 as defined In
paragraph 3.
1.6 Base Rent: $11,429.40 per month, payable on the lst day of each
month, per paragraph 4.1
1.7 Base Rent increase: On November 6, 1998 the monthly Base Rent
payable under paragraph 1.6 above should be adjusted as provided in
paragraph 4.3 below.
1.8 Rent Paid Upon Execution: $11,429.40
1.9 Security Deposit: $11,429.40
1.10 Lessee's Share of Operating Expense Increase: 64.6% as defined in
paragraph 4.2.
2. Premises, Parking and Common Areas.
2.1 Premises: The Premises are a portion of a building, herein
sometimes referred to as the "Building" Identified In paragraph 1.3 of
the Basic Lease Provisions. "Building" shall include adjacent parking
structures used in connection therewith. The Premises, the Building, the
Common Areas, the land upon which the same are located, along with all
other buildings and improvements thereon or thereunder, are herein
collectively referred to as the "Office Building Project" Lessor hereby
leases to Lessee and Lessee leases from Lessor for the term, at the
rental and upon all of the conditions set forth herein, the real property
referred to in the Basic Lease Provisions, paragraph 1.2, as the
"Premises" including rights to the Common Areas as hereinafter
specified.
2.2 Vehicle Parking: So long as Lessee is not in default and subject to
the rules and regulations attached hereto, and as established by Lessor
from time to time, Lessee shall be entitled to rent and use 19 parking
spaces in the Office Building Project.
2.2.1 If Lessee commits, permits or allows any of the prohibited
activities described in the Lease or the rules then in effect then Lessor
shall have the right, without notice, in addition to such other rights
and remedies that it may have, to remove or tow away the vehicle involved
and charge the cost to Leases, which Cost shall be Immediately payable
upon demand by Lessor.
2.2.2 The monthly parking rate per parking space will be $ -O- per month
at the commencement of the term of this Lease. Monthly parking fees
shall be payable one month in advance prior to the first day of the
calendar month.
2.3 Common Areas-Definition. The term "Common Areas" Is defined as all
areas and facilities outside the Premises and within the exterior
boundary line of the Office Building Project that are provided and
designated by the Lessor from time to time for the general non-exclusive
use of Lessor. Lessee and of other lessees of the Office Building
Project and their respective employees, suppliers, shippers. Customers
and invitees, including but not limited to common entrances, lobbies,
corridors, stairways and stairwells, public restrooms, elevators,
escalators, parking areas to the extent not otherwise prohibited by this
Lease, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, ramps, driveways, landscaped areas and decorative
walls.
2.4 Common Areas-Rules and Regulations. Lessee agrees to abide by and
conform to the rules and regulations attached hereto as Exhibit B with
respect to the Office Building Project and Common Areas, and to cause its
employees, suppliers, shippers, customers, and invitees to so abide and
conform. Lessor of such other person(s) as Lessor may appoint shall have
the exclusive control and management of the Common Areas and shall have
the right, from time to time, to modify, amend and enforce said rules and
regulations. Lessor shall not be responsible to Lessee for the
noncompliance with said rules and regulations by other lessors, their
agents, employees and invitees of the Office Building Project.
2.5 Common Areas-Changes. Lessor shall have the right, in Lessor's
sole discretion, from time to time:
(a) To make changes to the Building interior and exterior and
Common Areas, Including, without limitation, changes in the location,
size, shape, number, and appearance thereof, including but not limited to
the lobbies, windows, stairways, air shafts, elevators, escalators,
restrooms, driveways, entrances, parking spaces, parking areas, loading
and unloading areas, Ingress, egress, direction of traffic, decorative
Wells, landscaped areas and walkways; provided however Lessor shall at
all times provide the parking facilities required by applicable law:
(b) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Promises remains available;
(c) To designate other land and Improvements Outside the
boundaries of the Office Building Project to be a part of the Common
Areas, provided that such other land and Improvements have a reasonable
and functional relationship to the Office Building Project;
(d) To add additional buildings and Improvements to the Common
Areas;
(e) To use the Common Areas while engaged in making additional
Improvements, repairs or alterations to the Office Building Project, or
any portion thereof:
(f) To do and perform such other acts and make such other changes
in, to or with respect to the Common Areas and Office Building Project as
Lessor may, In the exercise of sound business judgment deem to be
appropriate.
3. Term.
3.1 Term. The term and Commencement Date of this lease shall be as
specified in paragraph 1.5 of the Basic Lease Provisions.
3.2 Delay in Possession. Notwithstanding said Commencement date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee on
said date and subject to paragraph 3.2.2, Lessor shall not be subject to
any liability therefore, nor shall such failure affect the validity of
this Lease or the obligations of Losses hereunder or extend the term
hereof; but, in such case, Lessee shall not be obligated to pay rent or
perform any other obligation of Lessee under the terms of this Lease,
except as may be otherwise provided in this Lease, until possession of
the Premises is tendered to Lessee, as hereinafter defined: provided,
however, that It Lessor shall not have delivered Possession of the
Premises within sixty (60) days following said Commencement Date, as the
same may be extended under the terms of a Work Letter executed by Lessor
and Lessee, Lessee may, at Lessee's option, by notice In writing to
Lessor within ten (10) days thereafter, cancel this Lease, in which event
the parties shall be discharged from all obligations hereunder; provided,
however, that, as to Lessee's obligations, Lessee first reimburses Lessor
for all Costs incurred for Non-Standard Improvements and. as to Lessor's
obligations, Lessor's all return any money previously deposited by
Lessee (less any offsets due Lessor for Non Standard Improvements and
provided further, that if such written notice by Lessee Is not received
by Lessor within said ten (10) day period, Lessee's right to cancel this
Lease hereunder shall terminate and be of no further force or effect.
3.2.1 Possession Tendered-Defined. Possession of the Premises shall be
deemed tendered to Lessee ("Tender of Possession") when (1) the
improvements to be provided by Lessor under this Lease are substantially
completed (2) the Building utilities are ready for use In the Premises,
(3) Lessee has reasonable access to the Premises, and (4) ten (10) days
shall have expired following advance written notice to Lessee of the
occurrence of the matters described In (1), (2) and (3), above of this
paragraph 3.2. 1.
3.2.2 Delays Caused by Lessee. There shall be no abatement of rent and
the sixty (60) day period following the Commencement Date before which
Lessees right to cancel this Lease accrues under paragraph 3.2, shall be
deemed extended to the extent of any delays caused by acts or omissions
of Lessee, Lessee's agents, employees and contractors.
3.3 Early Possession. If Lessee occupies the Premises prior to said
Commencement Date, such occupancy shall be subject to all Provisions of
this Lease, such occupancy shall not change the termination date, and
Lessee shall pay rent for such occupancy.
3.4 Uncertain Commencement. In the event commencement of the Lease term
Is defined as the completion of the improvements, Lessee and Lessor shall
execute an amendment to this Lease establishing the date of Tender of
Possession (as defined In paragraph 3.2.1) or the actual taking of
possession by Lessee whichever first occurs, as the Commencement Date.
4. Rent
4.1 Base Rent. Subject to adjustment as hereinafter provided in
paragraph 4.3, and except as may be otherwise expressly provided in this
Lease, Lessee to pay to Lessor the Base Rent for the Premises set forth
in paragraph 1.6 of the Basic Lease Provisions, without offset or
deduction. Lessee shall pay Lessor upon execution hereof the advance
Base Rent described In paragraph 1.8 of the Basic Lease Provision Rent
for any period during the term hereof which is for less than one month
shall be prorated based upon the actual number of days of the calendar
month involved. Rent shall be payable In Lawful money of the United
States to Lessor at the address stated herein or to such other persons or
at such other places as Lessor may designate in writing.
4.2 Operating Expense Increase. Lessee shall pay to Lessor during the
term hereof, In addition to the Base Rent, Lessee's Share, as hereinafter
defined, of the amount by which all Operating Expenses, as hereinafter
defined, for each Comparison Year exceeds the amount of all Operating
Expenses for the Base Year, such excess being hereinafter referred to as
the "Operating Expense Increase" in accordance with the following
provisions:
(a) "Lessee's Share" is defined, for purposes of this Lease, as
the percentage set forth In paragraph 1.10 of the Basic Lease Provisions,
which percentage has been determined by dividing the approximate square
footage of the Premises by the total approximate square footage of the
rentable space contained In the Office Building Project. It is
understood and agreed that the square footage figures set forth In the
Basic Lease Provisions are approximations which Lessor and Lessee agree
are reasonable and shall not be subject to revision except In connection
with an actual change In the size of the Premises or a change In the
space available for lease In the Office Building Project.
(b) "Base Year" Is defined as the calendar year in which the Lease
term commences.
(c) "Comparison Year" Is defined as each calendar year during the
term of this Lease subsequent to the Base Year; provided, however, Lessee
shall have no obligation to pay a share of the Operating Expense Increase
applicable to the first twelve (12) months of the Lease Term (other than
such as are mandated by a governmental authority, as to which government
mandated expenses Lessee shall pay Lessee's Share, notwithstanding they
occur during the first twelve (12) months). Lessee's Share of the
Operating Expense Increase for the first and last Comparison Years of the
Lease Term shall be prorated according to that portion of such Comparison
Year as to which Lessee Is responsible for a share of such Increase,
(d) "Operating Expenses" is defined, for purposes of this Lease,
to include all costs, It any, Incurred by Lessor In the exercise of Its
reasonable discretion for the operation, repair, maintenance, and
replacement, in neat, clean, safe, good order and condition, of the
Office Building Project, Including but not limited to, the following:
(aa) The Common Areas, Including their surfaces, coverings,
decorative Items, carpets, drapes and window coverings, and Including
parking areas, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, stairways, parkways, driveways, landscaped areas,
striping, bumpers, irrigation systems. Common Area lighting facilities,
building exteriors and roofs, fences and gates:
(bb) All heating, air conditioning, plumbing, electrical
systems, life safety equipment, telecommunication and other equipment
used in common by or for the benefit of lessor occupants of the Office
Building Project, including elevators and escalators, tenant directories,
fire detection systems Including sprinkler system maintenance and repair.
(ii) Trash disposal, janitorial and security
services:
(iii) Any other service to be provided by Lessor that
is elsewhere in this Lease stated to be an "Operating Expense":
(iv) The cost of the premiums for the liability and
properly insurance policies to be maintained by Lessor under paragraph 8
hereof:
(v) The amount of the real properly taxes to be paid
by Lessor under paragraph 10.1 hereof;
The cost of water, sewer, gas, electricity, and other
publicly mandated services to the Office Building Project;
(vi) Labor, salaries and applicable fringe benefits
and costs, materials, supplies and tools, used in maintaining and/or
cleaning the Office Building Project and accounting and a management fee
attributable to the operation of the Office Building Project:
(vii) Replacing and/or adding Improvements mandated by
any governmental agency and any repairs or removals necessitated thereby
amortized over Its useful life according to Federal income tax
regulations or guidelines for depreciation thereof (including interest on
the unamortized balance as is then reasonable In the judgment of Lessee's
accountants):
(ix) Replacements of equipment or improvements that
have a useful life for depreciation purposes according to Federal income
tax guidelines of five (5) years or less, as amortized over such life.
(e) Operating Expenses shall not Include the costs of
replacements of equipment or improvements that have a useful life for
Federal income tax purposes In excess of five (5) years unless it is of
the type described in paragraph 4.2(d)(viii). In which case their cost
shall be included as above provided.
(f) Operating Expenses shall not include any expenses paid by any
lessee directly to third parties or as to which Lessor is otherwise
reimbursed by any third party, other tenant, or by Insurance proceeds.
(g) Lessee's Share of Operating Expense Increase shall be payable
by Lessee after a reasonably detailed statement of actual expenses is
presented to Lessee by Lessor. An amount will be estimated by Lessor
from time to time in advance of Lessee's Share of the Operating Expense
Increase for any Comparison Year, and the same shall be payable monthly
as Lessor shall designate, during each Comparison Year of the Lease term,
on the same day as the Base Rent Is due hereunder. In the event that
Lessee pays Lessor's estimate of Lessee's Share of Operating Expense
Increase as aforesaid, Lessor shall deliver to Lessee within sixty (60)
days after the expiration of each Comparison Year a reasonably detailed
statement showing Lessee's Share of the actual Operating Expense Increase
Incurred during such year. If Lessee's payments under this paragraph
4.2(g) during said Comparison Year exceed Lessee's Share as indicated on
said statement, Lessee shall be entitled to credit the amount of such
overpayment against Lessee's Share of Operating Expense Increase next
falling due. If Lessee's payments under this paragraph during said
Comparison Year were less than Lessee's Share as Indicated on said
statement, Lessee shall pay to Lessor the amount of the deficiency within
ten (10) days after delivery by Lessor to Lessee of said statement,
Lessor and Lessee shall forthwith adjust between them by cash payment any
balance determined to exist with respect to that portion of the last
Comparison Year for which Lessee is responsible as to Operating Expense
Increases. notwithstanding that the Lease term may have terminated before
the end of such Comparison Year.
4.3 Rent Increases
4.3.1 At times set forth in paragraph 1.7 of the Basic Lease Provisions,
the monthly Base Rent payable under paragraph 4.1 of this Lease in the
Consumer Price Index of the Bureau of Labor Statistics Of the Department
of Labor for All Urban Consumers (1967=100) All Items for the city
nearest the location of the Building, herein referred to as "C.P.I."
since the date of this Lease.
4.3.2 The monthly Base Rent payable pursuant to paragraph 4.3.1 shall be
calculated as follows: the Base Rent payable for the first month of the
term of this Lease, as set forth in paragraph 4.1 of this Lease, shall be
multiplied by a fraction the numerator of which shall be the CPI of the
calendar month during which the adjustment Is to take effect, and the
denominator of which shall be the CPI for the calendar month in which the
original Lease term commences. The sum so calculated shall constitute
the new monthly Base Rent hereunder, but, in no event, shall such new
monthly Base Rent be less than the Base Rent payable for the month
Immediately preceding the date for the rent adjustment.
4.3.3 In the event the compilation and/or publication of the CPI shall
be transferred to any other governmental department or bureau or agency
or shall be discontinued, then the index most nearly the same as the CPI,
shall be used to make such calculations. In the event that Lessor
and Lessee cannot agree on such alternative index, then the matter shall
be submitted for decision to the American Arbitration Association in the
County in which the Premises are located, In accordance with the then
rules of said association and the decision of the arbitrators shall be
binding upon the parties. notwithstanding one party failing to appear
after due notice of the proceeding. The cost of said Arbitrators shall
be paid equally by Lessor and Lessee.
4 3.4 Lessee shall continue to pay the rent at the rate previously in
effect until the increase, if any. is determined. Within five (5) days
following the date on which the increase is determined, Lessee shall make
such payment to Lessor as will bring the increased rental current
commencing with the effective date of such increase through the date of
any rental installments then due. Thereafter the rental shall be paid at
the increased rate.
5. Security Deposit. Lessee shall deposit with Lessor upon execution
hereof the security deposit set forth in paragraph 1.9 of the Basic Lease
Provisions as security for Lessee's faithful performance of Lessee's
obligations hereunder, If Lessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this
Lease, Lessor may use, apply or retain all or any portion of said deposit
for the payment of any rent or other charge in default for the payment of
any other sum to which Lessor may become obligated by reason of Lessee's
default, or to compensate Lessor for any loss or damage which Lessor may
suffer thereby. If Lessor so uses or applies all or any portion of said
deposit, Lessee shall within ten (10) days after written demand therefor
deposit cash with Lessor in an amount sufficient to restore said deposit
to the full amount then required of Lessee. If the monthly Base Rent
shall, from time to time, increase during the term of this Lease, Lessee
shall, at the time of such increase, deposit with Lessor additional money
as a security deposit so that the total amount of the security deposit
held by Lessor shall at all times bear the same proportion to the then
current Base Rent as the initial security deposit bears to the initial
Base Rent set forth In paragraph 1.6 of the Basic Lease Provisions.
Lessor shall not be required to keep said security deposit separate from
its general accounts. It Lessee performs all of Lessee's obligations
hereunder. said deposit, or so much thereof as has not heretofore been
applied by Lessor, shall be returned, without payment of interest or
other increment for its use, to Lessee (or, at Lessor's option, to the
last assignee, if any, of Lessee's interest hereunder) at the expiration
of the term hereof, and after Lessee has vacated the Premises. No trust
relationship is created herein between Lessor and Lessee with respect to
said Security Deposit
6. Use.
6.1 Use. The Premises shall be used and occupied only for the purpose
set forth in paragraph 1.4 of the Basic Lease Provisions or any other use
which is reasonably comparable to that use and for no other purpose.
6.2 Compliance with Law
(a) Lessor warrants to Lessee that the Premises, in the state
existing on the date that the Lease term commences, but without regard to
alterations or improvements made by Lessee or the use for which Lessee
will occupy the Premises, does not violate any covenants or restrictions
of record. or any applicable building code, regulation or ordinance in
effect on such Lease term Commencement Date. In the event it is
determined that this warranty has been violated, then it shall be the
obligation of the Lessor, after written notice from Lessee, to promptly,
at Lessor's sole cost and expense, rectify any such violation.
(b) Except as provided In paragraph 6.2(a) Lessee shall, at
Lessee's expense, promptly comply with all applicable statutes,
ordinances, rules, regulations, orders, covenants and restrictions of
record, and requirements of any fire insurance underwriters or rating
bureaus, now in effect or which may hereafter come Into effect, whether
or not they reflect a change in policy from that now existing, during the
term or any part of the term hereof, relating In any manner to the
Premises and the occupation and use by Lessee of the Premises. Lessee
shall conduct its business in a lawful manner and shall not use or
permit the use of the Premises or the Common Areas in any manner that
will tend to create waste or a nuisance of shall tend to disturb other
occupants of the Office Building Project.
6.3 Condition of Premises.
(b) Lessor shall deliver the Premises to Lessee in a clean Condition on
the Lease Commencement Date (unless Lessee is already in possession) and
Lessor warrants to Lessee that the plumbing, lighting, air conditioning,
and heating system in the Premises shall be in good operating condition
In the event that it is determined that this warranty has been violated,
then it shall be the obligation of Lessor, after receipt of written
notice from Lessee setting forth with specificity the nature of the
violation, to promptly, at Lessor's sole cost, rectify such violation.
(b) Except as otherwise provided in this Lease, Lessee hereby
accepts the Premises and the Office Building Project in their condition
existing as of the Lease Commencement Date or the date that Lessee takes
possession of the Premises, whichever is earlier, subject to all
applicable zoning, municipal. county and state laws, ordinances and
regulations governing and regulating the use of the Premises. and any
easements, covenants or restrictions of record, and accepts this Lease
subject thereto and to all matters disclosed thereby and by any exhibits
attached hereto. Lessee acknowledges that It has satisfied itself by Its
own independent investigation that the Premises are suitable for its
intended use, and that neither Lessor nor Lessor's agent or agents has
made any representation or warranty as of the present or future
suitability of the Premises, Common Areas, or Office Building Project for
the conduct of Lessee's business.
7. Maintenance, Repairs, Alterations and Common Area Services.
7.1 Lessor's Obligations. Lessor shall keep the Office Building
Project, including the Premises interior and exterior walls, roof and
common areas, and the equipment whether used exclusively for the Premises
or in common with other premises, in good condition and repair, provided,
however, Lessor shall not be obligated to paint, repair or replace wall
coverings, or to repair or replace any improvements that are not
ordinarily a part of the Building or are above then Building standards.
Except as provided in paragraph 9.5, there shall be no abatement of rent
or liability of Lessee on account of any Injury or Interference with
Lessee's business with respect to any improvements, alterations or
repairs made by Lessor to the Office Building Project or any part
thereof. Lessee expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of
Lessor's failure to keep the Premises in good order, condition and
repair.
7.2 Lessee's Obligations. Notwithstanding Lessor's obligation to keep
the Premises in good condition and repair, Lessee shall be responsible
for payment of the cost thereof to Lessor as additional rent for that
portion of the cost of any maintenance and repair of the Premises, or any
equipment (wherever located) that serves only Lessee or the Premises, to
the extent such cost is attributable to causes beyond normal wear and
tear. Lessee shall be responsible for the cost of painting, repairing or
replacing wall coverings and to repair or replace any Premises
improvements that are not ordinarily a part of the Building or that are
above then Building standards. Lessor may, at its option upon reasonable
notice elect to have Lessee perform any particular such maintenance or
repairs the cost of which is otherwise Lessee's responsibility hereunder.
(b) On the last day of the term hereof, or on any sooner
termination. Lessee shall surrender the Premises to Lessor in the same
condition as received, ordinary wear and tear excepted, clean and free of
debris. Any damage or deterioration of the Premises shall not be deemed
ordinary wear and tear if the same could have been prevented by good
maintenance practices by Lessee. Lessee shall repair any damage to the
Premises occasioned by the installation or removal of Lessee's trade
fixtures, alterations, furnishings and equipment. Except as otherwise
stated in this Lease, Lessee shall leave the air lines, power panels,
electrical distribution systems, lighting fixtures, air conditioning,
window coverings, wall coverings, carpets, wall, paneling, ceilings and
plumbing on the Premises and in good operating condition.
7.3 Alterations and Additions. Lessee shall not without Lessor's
prior written consent make any alterations, improvements, additions,
Utility Installations or repairs in, on or about the Premises, or the
Office Building Project. As used in this paragraph 7.3 the term "Utility
Installation" shall mean carpeting, window and wall coverings, power
panels, electrical distribution systems, lighting fixtures, air
conditioning, plumbing, and telephone and telecommunication wiring and
equipment. At the expiration of the term, Lessor may require the removal
of any or all of said alterations, improvements, additions or Utility
Installations, and the restoration of the Premises and the Office
Building Project to their prior condition, at Lessee's expense. Should
Lessor permit Lessee to make its own alterations, improvements, additions
or Utility Installations. Lessee shall use only such contractor as has
been expressly approved by Lessor, and Lessor may require Lessee to
provide Lessor, at Lessee's sole cost and expense, a lien and completion
bond in an amount equal to one and one-half times the estimated cost of
such improvements, to insure Lessor against any liability for mechanic's
and materialmen's liens and to Insure completion of the work. Should
Lessee make any alterations, improvements, additions or Utility
Installations without the prior approval of Lessor, or use a contractor
not expressly approval by Lessor, Lessor may, at any time during the term
of this Lease require that Lessee remove any part or all of the same.
(b) Any alterations, improvements, additions or Utility
Installations in or about the Premises or the Office Building Project
that Lessee shall desire to make shall be presented to Lessor in written
form, with proposed detailed plans. If Lessor shall give its consent to
Lessee's making such alteration, improvement, addition or Utility
Installation, the consent shall be deemed conditioned upon Lessee
acquiring a permit to do so from the applicable governmental agencies,
furnishing a copy thereof to Lessor prior to the commencement of the
work, and compliance by Lessee with all conditions of said permit in a
prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for
use in the Premises, which claims are or may be secured by any mechanic's
or materialmen's lien against the Premises, the Building or the Office
Building Project, or any interest therein.
(d) Lessee sha11 give Lessor not less than ten (10) days' notice
prior to the commencement of any work in the Premises by Lessee, and
Lessor shall have the right to post notices of non-responsibility in or
on the Premises or the Building as provided by law If Lessee shall, in
good faith. contest the validity of any such lien, claim or demand, then
Lessee shall, at its sole expense defend itself and Lessor against the
same and shall pay and satisfy any such adverse Judgment that may be
rendered thereon before the enforcement thereof against the Lessor or the
Premises, the Building or the Office Building Project, upon the condition
that If Lessor shall require, Lessee shall furnish to Lessor a surety
bond satisfactory to Lessor in an amount equal to such contested lien
claim or demand indemnifying Lessor against liability for the same and
holding the Premises, the Building and the Office Building Project free
from the effect of such lien or claim, In addition, Lessor may require
Lessee to pay Lessor's reasonable attorneys' fees and costs in
participating in such action if Lessor shall decide it is to Lessor's
best interest so to do.
(e) All alterations, improvements, additions and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made to the Premises by Lessee,
including but not limited to, floor coverings, panelings, doors, drapes,
built-ins, moldings, sound attenuation, and lighting and telephone or
communication systems, conduit, wiring and outlets, shall be made and
done In a good and workmanlike manner and of good and sufficient quality
and materials shall be the properly of Lessor and remain upon and be
surrendered with the Premises at the expiration of the Lease term, unless
Lessor require their removal pursuant to paragraph 7.3(a). Provided
Lessee is not In default, notwithstanding the provisions of this
paragraph 7.3(e), Lessee's personal properly and equipment, other than
that which is affixed to the Premises so that it cannot be removed
without material damage to the Premises or the Building, and other than
Utility Installations, shall remain the property of Lessee and may be
removed by Lessee subject to the provisions of paragraph 7.2.
(f) Lessee shall provide Lessor with as-built plans and
specifications for any alterations, improvements, additions or Utility
Installations.
7.4 Utility Additions. Lessor reserves the right to Install new or
additional utility facilities throughout the Office Building Project for
the benefit of Lessor or Lessee, or any other lessee of the Office
Building Project, including, but not by way of limitation, such utilities
as plumbing, electrical systems, communication systems, and fire
protection and detection systems, so long as such Installations do not
unreasonably Interfere with Lessee's use of the Premises.
8. Insurance; Indemnity.
8.1 Liability Insurance-Lessee. Lessee shall, at Lessee's expense,
obtain and keep In force during the term of this Lease a policy of
Comprehensive General Liability insurance utilizing an Insurance Services
Office standard form in an amount of not less than $1,000,000 per
occurrence of bodily Injury and property damage combined and shall insure
Lessee with Lessor as an additional Insured against liability arising out
of the use, occupancy or maintenance of the Premises. Compliance with
the above requirement shall not, however, limit the liability of Lessee
hereunder.
8.2 Liability Insurance-Lessor. Lessor shall obtain and keep In force
during the term of this Lease a policy of Combined Single Limit Bodily
Injury and Broad Form Property Damage insurance, plus coverage against
such other risks Lessor deems advisable from time to time, insuring
Lessor, but not Lessee, against liability arising out of the ownership,
use, occupancy or maintenance of the Office Building Project In an amount
not less than $5,000.000.00 per occurrence.
8.3 Property insurance-Lessee. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease for the benefit of
Lessee, replacement cost fire and extended coverage Insurance, with
vandalism and malicious mischief, sprinkler leakage and earthquake
sprinkler leakage endorsements, in an amount sufficient to cover not less
than 100% of the full replacement cost, as the same may exist from time
to time of all of Lessee's personal property, fixtures, equipment and
tenant Improvements.
8.4 Property Insurance-Lessor. Lessor shall obtain and keep In force
during the term of this Lease a policy or policies of Insurance covering
loss or damage to the Office Building Project Improvements, but not
Lessee's personal property, fixtures, equipment or tenant Improvements,
In the amount of the full replacement cost thereof, as the same may exist
from time to time, utilizing Insurance Services Office standard form, or
equivalent, providing protection against all perils Included within the
classification of fire, extended coverage, vandalism, malicious mischief,
plate glass, and such other perils as Lessor deems advisable or may be
required by a lender having a lien on the Office Building Project. In
addition. Lessor shall obtain and keep In force, during the term of this
Lease, a policy of rental value Insurance covering a period of one year,
with loss payable to Lessor, which Insurance shall also cover all
Operating Expenses for said period. Lessee will not be named in any such
policies carried by Lessor and shall have no right to any proceeds
therefrom. The policies required by these paragraphs 8.2 and 8.4 shall
contain such deductibles as Lessor or the aforesaid lender may determine.
In the event that the Premises shall suffer an Insured loss as defined
in paragraph 9.10 hereof, the deductible amounts under the applicable
Insurance policies shall be deemed an Operating Expense. Lessee shall
not do or permit to be done anything which shall invalidate the Insurance
policies carried by Lessor. Lessee shall pay the entirety of any
increase in the property Insurance premium nor the Office Building
Project over what it was Immediately prior to the commencement of the
term of this Lease If the Increase is specified by Lessor's Insurance
carrier as being caused by the nature of Lessee's occupancy or any act or
omission of Lessee.
8.5 Insurance Policies. Lessee shall deliver to Lessor copies of
liability insurance policies required under paragraph 8.l or certificates
evidencing the existence and amounts of such Insurance within seven (7)
days after the Commencement Date of this Lease. No such policy shall be
cancelable or subject to reduction of coverage or other modification
except after thirty (30) days prior written notice to Lessor. Lessee
shall, at least thirty (30) days prior to the expiration of such
policies, furnish Lessor with renewals thereof.
8.6 Waiver of Subrogation. Lessee and Lessor each hereby release and
relieve the other, and waive their entire right of recovery against the
other, for direct or consequential loss or damage arising out of or
Incident to the perils covered by property insurance carried by such
party, whether due to the negligence of Lessor or Lessee or their agents,
employees, contractors and/or invitees. If necessary all property
Insurance policies required under this Lease shall be endorsed to so
provide.
8.7 Indemnity Lessee shall Indemnity and hold harmless Lessor and its
agents, Lessor's master or ground lessor, partners and lenders, from and
against any and all claims for damage to the person or property of anyone
or any entity arising from Lessee's use of the Office Building Project,
or from the conduct of Lessee's business or from any activity, work or
things done, permitted or suffered by Lessee In or about the Premises or
elsewhere and shall further Indemnity and hold harmless Lessor from and
against any and all Claims, Costs and expenses arising from any breach or
default In the performance of any obligation on Lessee's part to be
performed under the terms of this Lease, or arising from any act or
omission of Lessee, or any of Lessee's agents, contractors, employees, or
invitees, and from and against all costs, attorney's fees, expenses and
liabilities Incurred by Lessor as the result of any such use, conduct,
activity, work, things done, permitted or suffered, breach, default or
negligence, and In dealing reasonably therewith, Including but not
limited to the defense or pursuit of any claim or any action or
proceeding involved, therein; and In case any action or proceeding be
brought against Lessor by reason of any such matter, Lessee upon notice
from Lessor shall defend the same at Lessee's expense by counsel
reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee
In such defense. Lessor need not have first paid any such claim In order
to be so indemnified. Lessee, as a material part of the consideration to
Lessor, hereby assumes all risk of damage to property of Lessee or Injury
to persons, In, upon or about the Office Building Project arising from
any cause and Lessee hereby waives all claims In respect thereof against
Lessor.
8.8 Exemption of Lessor from Liability. Lessee hereby agrees that
Lessor shall not be liable for Injury to Lessee's business or any loss of
Income therefrom or for loss of or damage to the goods, wares,
merchandise or other property of Lessee, Lessee's employees, invitees,
Customers, or any other person In or about the Premises or the Office
Building Project, nor shall Lessor be liable for injury to the person of
Lessee, Lessee's employees. agents or contractors, whether such damage or
injury Is caused by or results from theft, fire, steam, electricity, gas,
water or rain, or from the breakage, leakage, obstruction or other
defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, or from any other cause, whether said
damage or Injury results from conditions arising upon the Premises or
upon other portions of the Office Building Project, or from other sources
Of places, or from new construction or the repair, alteration or
improvement of any part of the Office Building Project, or of the
equipment, fixtures or appurtenances applicable thereto, and regardless
of whether the cause of such damage or Injury or the means of repairing
the same is inaccessible, Lessor shall not be liable for any damages
arising from any act or neglect of any other lessee, occupant or user of
the Office Building Project, nor from the failure of Lessor to enforce
the provisions of any other lease of any other lessee of the Office
Building Project.
8.9 No Representation of Adequate Coverage. Lessor makes no
representation that the limits or forms of coverage of insurance
specified in this paragraph 8 are adequate to cover Lessee's property or
obligations under this Lease.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Damage" shall mean if the Premises are damaged or
destroyed to any extent.
(b) "Premises Building Partial Damage" shall mean if the
Building of which the Premises are a part is damaged or destroyed to the
extent that the cost to repair Is less than fifty percent (60%) of the
then Replacement Cost of the building.
(c) "Premises Building Total Destruction" shall mean if the
Building of which the Premises are a part Is damaged or destroyed to the
extent that the Cost to repair is fifty percent (50%) or more of the then
Replacement Cost of the Building.
(d) "Office Building Project Buildings" shall mean all of the
buildings on the Office Building Project site.
(e) "Office Building Project Buildings Total Destruction" shall
mean If the Office Building Project Buildings are damaged or destroyed
to the extent that the cost of repair is fifty percent (50%) or more of
the then Replacement Cost of the Office Building Project Buildings.
(f) "Insured Loss" shall mean damage or destruction which was
caused by an event required to be covered by the Insurance described in
paragraph 5. The fact that an Insured Loss has a deductible amount shall
not make the loss an uninsured loss.
(g) "Replacement Cost" shall mean the amount of money necessary
to be spent In order to repair or rebuild the damaged area to the
condition that existed Immediately prior to the damage occurring,
excluding all Improvements made by lessees, other then those Installed by
Lessor at Lessee's expense.
9.2 Premises Damage; Premises Building Partial Damage.
(a) Insured Loss: Subject to the provisions of paragraphs 9.4 and
9.5, if at any time during the term of this Lease there is damage which
is an Insured Loss and which falls into the classification of either
Premises Damage or Premises Building Partial Damage, then Lessor shall,
as soon as reasonably possible and to the extent the required materials
and labor are readily available through usual commercial channels, at
Lessor's expense, repair such damage (but not Lessee's fixtures,
equipment or tenant improvements originally paid for by Lessee) to its
condition existing at the time of the damage, and this Lease shall
continue in full force and effect
(b) Uninsured Loss: Subject to the provisions of paragraphs 9.4
and 9.5, if at any time during the term of this Lease there is damage
which is not an Insured Loss and which falls within the classification of
Premises Damage or Premises Building Partial Damage, unless caused by a
negligent or willful act of Lessee (in which event Lessee shall make the
repairs at Lessee's expense). which damage prevents Lessee from making
any substantial use of the Premises. Lessor may at Lessor's option
either (i) repair such damage as soon as reasonably possible at Lessor's
expense, in which event this Lease shall continue in full force and
effect, or (ii) give written notice to Lessee within thirty (30) days
after the date of the occurrence of Such damage of Lessor's intention to
cancel and terminate this Lease as of the date of the occurrence of such
damage, in which event this Lease shall terminate as of the date of the
occurrence of such damage
9.4 Promises Building Total Destruction; Office Building Project Total
Destruction. Subject to the provisions of paragraphs 9.4 and 9.5, if at
any time during the term of this Lease there is damage, whether or not it
is an Insured Loss, which falls Into the classifications of either (I)
Premises Building Total Destruction, or (11) Office Building Project
Total Destruction, then Lessor may at Lessor's option either (I) repair
such damage or destruction as soon as reasonably possible at Lessor's
expense (to the extent the required materials are readily available
through usual commercial channels) to Its condition existing at the time
of the damage, but not Lessee's fixtures, equipment or tenant
Improvements, and this Lease shall continue in full force and effect, or
(II) give written notice to Lessee within thirty (30) days after the date
of occurrence of such damage of Lessor's intention to cancel and
terminate this Lease, in which case this Lease shall terminate as of the
date of the occurrence of such damage.
9.4 Damage Near End of Term.
(a) Subject to paragraph 9.4(b), if at any time during the last
twelve (12) months of the term of this Lease there Is substantial damage
to the Premises, Lessor may at Lessor's option cancel and terminate this
Lease as of the date of occurrence of such damage by giving written
notice to Lessee of Lessor's election to do so within 30 days after the
date of occurrence of such damage.
(b) Notwithstanding paragraph 9.4(a), in the even that Lessee has
an option to extend or renew this Lease, and the time within which said
option may be exercised has not yet expired, Lessee shall exercise such
option, if it Is to be exercised at all no later than twenty (20) days
after the occurrence of an Insured Loss falling within the classification
of Premises Damage during the last twelve (12) months of the term of this
Lease. If Lessee duly exercises such option during said twenty (20) day
period, Lessor shall, at Lessor's expense, repair such damage, but not
Lessee's fixtures, equipment or tenant Improvements, as soon as
reasonably possible and this Lease shall continue In full force and
effect. If Lessee fails to exercise such option during said twenty (20)
day period then Lessor may at Lessor's option terminate and cancel this
Lease as of the expiration of said twenty (20) day period by giving
written notice to Lessee of Lessor's election to do so within ten (10)
days after the expiration of said twenty (20) day period notwithstanding
any term or provision in the grant of option to the contrary.
9.5 Abatement of Rent; Lessor's Remedies.
(a) In the event Lessor repairs or restores the Building or
Premises pursuant to the provisions of this paragraph 9, and any part of
the Premises are not usable (including loss of use due to loss of access
or essential services), the rent payable hereunder (including Lessee's
Share of Operating Expense Increase) for the period during which such
damage, repair or restoration Continues shall be abated, provided (1) the
damage was not the result of the negligence of Lessee, and (2) such
abatement shall only be to the extent the operation and profitability of
Lessee's business as operated from the Premises is adversely affected.
Except for said abatement of rent, if any, Lessee shall have no claim
against Lessor for any damage suffered by reason of any such damage,
destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the
Premises or the Building under the provisions of this Paragraph 9 and
shall not commence such repair or restoration within ninety (90) days
after such occurrence, or if Lessor shall not complete the restoration
and repair within six (6) months after such occurrence. Lessee may at
Lessee's option cancel and terminate this Lease by giving Lessor written
notice of Lessee's election to do so at any time prior to the
commencement or completion, respectively, of such repair or restoration.
In such event this Lease shall terminate as of the date of such notice.
(c) Lessee agrees to cooperate with Lessor in connection with any
such restoration and repair, including but not limited to the approval
and/or execution of plans and specifications required.
9.6 Termination-Advance Payments. Upon termination of this Lease
pursuant to this paragraph 9, an equitable adjustment shall be made
concerning advance rent and any advance payments made by Lessee to
Lessor. Lessor shall, in addition return to Lessee so much of Lessee's
security deposit as has not theretofore been applied by Lessor.
9.7 Waiver. Lessor and Lessee waive the provisions of any statute
which relate to termination of leases when leased property is destroyed
and agree that such event shall be governed by the terms of this Lease.
10. Real Property Taxes.
10.1 Payment of Taxes. Lessor shall pay the real properly tax, as
defined in paragraph 10.3, applicable to the Office Building Project
subject to reimbursement by Lessee of Lessee's Share of such taxes in
accordance with the provisions of paragraph 4.2, except as otherwise
provided in paragraph 10.2.
10.2 Additional Improvements. Lessee shall not be responsible for
paying any increase in real property tax specified In the tax assessor's
records and work sheets as being caused by additional improvements placed
upon the Office Building Project by other lessees or by Lessor for the
exclusive enjoyment of any other lessee. Lessee shall, however, pay to
Lessor at the lime that Operating Expenses are payable under paragraph
4,2(c) the entirety of any increase in real property tax if assessed
solely by reason of additional improvements placed upon the Premises by
Lessee of at Lessee's request.
10.3 Definition of "Real Property Tax" As used herein, the term "real
properly tax" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary and any license fee,
commercial rental tax, improvement bond or bonds, levy or tax (other than
Inheritance, personal income or estate taxes) Imposed on the Office
Building Project or any portion thereof by any authority having the
direct or Indirect power to tax, including any city, county, state or
federal government, or any school, agricultural, sanitary, fire, street,
drainage or other improvement district thereof. as against any legal or
equitable interest of Lessor in the Office Building Project or in any
portion thereof, as against Lessor's right to rent or other income
therefrom, and as against Lessor's business of leasing the Office
Building Project. The term "real property tax" shall also include any
tax, fee levy, assessment or charge (I) in substitution of, partially or
totally, any tax, fee, levy, assessment or charge hereinabove Included
within the definition of "real properly tax" or (II) the nature of which
was hereinbefore included within the definition of "real property tax:'
or (III) which is imposed for a service on but not charged prior to June
1, 1978, or, if previously charged, has been increased since June 1,
1978, or (iv) which is imposed as a result of a change in ownership, as
defined by applicable local statutes for property tax purposes, of the
Office Building Project or which is added to a tax or charge hereinbefore
included within the definition of real property lax by reason of such
change of ownership, or (v) which is Imposed by reason of this
transaction, any modifications or changes hereto, or any transfers hereof
10.4 Joint Assessment If the improvements or properly the taxes for
which are to be paid separately by Lessee under paragraph 10 2 or 10 5
are not separately assessed, Lessee's portion of that tax shall be
equitably determined by Lessor from the respective valuations assigned in
the assessor's work sheets or such other Information (which may include
the cost of construction) as may be reasonably available. Lessor's
reasonable determination thereof, in good faith, shall be conclusive.
10.5 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all
other personal properly of Lessee contained In the Premises or elsewhere.
(b) If any of Lessee's said personal property shall be assessed
with Lessor's real properly, Lessee shall pay to Lessor the taxes
attributable to Lessee within ten (10) days after receipt of a written
statement setting forth the taxes applicable to Lessee's property.
11. Utilities.
11.1 Services provided by Lessor. Lessor shall provide heating,
ventilation, air conditioning, and janitorial service as reasonably
required able amounts of electricity for normal lighting and office ATM
machines, water for reasonable and normal drinking and lavatory use, and
replacement light bulbs and/or fluorescent tubes and ballasts for
standard overhead fixtures.
11.2 Services Exclusive to Lessee. Lessee shall pay for all water. gas,
heat, light, power, telephone and other utilities and services specially
or exclusively supplied and/or metered exclusively to the Premises or to
Lessee, together with any taxes thereon. If any such services are not
separately metered to the Premises, Lessee shall pay at Lessor's option,
either Lessee's Share or p reasonable proportion to be determined by
Lessor of all charges jointly metered with other premises In the
Building.
11.3 Hours of Service. Said services and utilities shall be provided
during generally accepted business days and hours or such other days or
hours as may hereafter be set forth. Utilities and services required at
other times shall be subject to advance request and reimbursement by
Lessee to Lessor of the cost thereof.
11.4 Excess Usage by Lessee, Lessee shall not make connection to the
utilities except by or through existing outlets and shall not install of
use machinery or equipment in or about the Premises that uses excess
water, lighting or power, or suffer or permit any act that causes extra
burden upon the utilities or services, including but not limited to
security services, over standard office usage for the Office Building
Project. Lessor shall require Lessee to reimburse Lessor for any excess
expenses or costs that may arise out of a breach of this subparagraph by
Lessee. Lessor may, in its sole discretion, install at Lessee's expense
supplemental equipment and/or separate metering applicable to Lessee's
excess usage or loading,
11.5 Interruptions. There shall be no abatement of rent and Lessor
shall not be liable in any respect whatsoever for the inadequacy,
stoppage, interruption or discontinuance of any utility or service due to
riot, strike, labor dispute, breakdowns accident, repair or other cause
beyond Lessor's reasonable control or In cooperation with governmental
request or directions.
12. Assignment and Subletting. See Paragraph 56
12.1 Lessor's Consent Required. Lessee shall not voluntarily or by
operation of law assign, transfer. mortgage, sublet. or otherwise
transfer or encumber all or any part of Lessee's interest In the Lease or
In the Premises, without Lessor's prior written consent, which Lessor
shall not unreasonably withhold. Lessor shall respond to Lessee's
request for consent hereunder In a timely manner and any attempted
assignment, transfer, mortgage, encumbrance or subletting without such
consent shall be void, and shall constitute a material default and breach
of this Lease without the need for notice to Lessee under paragraph
13.1."Transfer" within the meaning of this paragraph 112 shall include
the transfer or transfers aggregating: (a) if Lessee Is a corporation,
more than twenty-five percent (25%) of the voting stock of such
corporation or (b) if Lessee is a partnership, more than twenty-five
percent (25%) of the profit and loss participation In such partnership.
12.2 Lessee Affiliate. Notwithstanding the provisions of paragraph 12.1
hereof, Lessee may assign or sublet the Premises, or any portion thereof,
without Lessor's consent, to any corporation which controls, is
controlled by or Is under common control with Lessee, or to any
corporation resulting from the merger or consolidation with Lessee, or to
any person or entity which acquires all the assets of Lessee as a going
concern of the business that is being conducted on the Premises, all of
which are referred to as "Lessee Affiliate"; provided that before such
assignment shall be effective, (a) said assignee shall assume, in full,
the obligations of Lessee under this Lease and (b) Lessor shall be given
written notice of such assignment and assumption. Any such assignment
shall not, In any way, affect or limit the liability of Lessee under the
terms of this Lease even if alter such assignment or subletting the terms
of this Lease are materially changed or altered without the consent of
Lessee, the consent of whom shall not be necessary.
12.3 Terms and Conditions Applicable to Assignment and Subletting.
Regardless of Lessor's consent, no assignment or subletting shall release
Lessee of Lessee's obligations hereunder or alter the primary liability
of Lessee to pay the rent and other Sums due Lessor hereunder including
Lessee's Share of Operating Expense Increase, and to perform all other
obligations to be performed by Lessee hereunder.
(b) Lessor may accept rent from any person other than Lessee
pending approval or disapproval of such assignment.
(c) Neither a delay In the approval or disapproval of such
assignment or subletting, nor the acceptance of rent, shall constitute a
waiver or Lessor's right to exercise Its remedies for the breach of any
of the terms or conditions of this paragraph 12 or this Lease.
(d) If Lessee's obligations under this Lease have been guaranteed
by third parties, then an assignment or sublease and Lessor's consent
thereto shall not be effective unless said guarantors give their written
consent to such sublease and the terms thereof.
(e) The consent by Lessor to any assignment or subletting shall
not constitute a consent to any subsequent assignment or subletting by
Lessee or to any subsequent or successive assignment or subletting by the
sublessee, However, Lessor may consent to subsequent sublettings and
assignments of the sublease or any amendments or modifications thereto
without notifying Lessee or anyone else liable on the Lease or sublease
and without obtaining their consent and such action shall not relieve
such persons from liability under this Lease or said sublease: however,
such persons shall not be responsible to the extent any such amendment or
modification enlarges or increases the obligations of the Lessee or
sublessee under this Lease or such sublease.
(f) In the event of any default under this Lease, Lessor may
proceed directly against Lessee, any guarantors or any one else
responsible for the performance of this Lease, Including the sublettee,
without first exhausting Lessor's remedies against any other person or
entity responsible therefore to Lessor, or any security held by Lessor or
Lessee.
(g) Lessor's written consent to any assignment or subletting of
the Premises by Lessee shall not constitute an acknowledgement that no
default then exists under this Lease of the obligations to be performed
by Lessee nor shall such consent be deemed a waiver of any then existing
default, except as may be otherwise stated by Lessor at the time.
(h) The discovery of the fact that any financial statement relied
upon by Lessor in giving its consent to an assignment or subletting was
materially false shall at Lessor's election, render Lessor's said consent
null and void.
12.4 Additional Terms and Conditions Applicable to Subletting.
Regardless of Lessor's consent, the following terms and conditions shall
apply to any subletting by Lessee of all or any part of the Premises and
shall be deemed included in all subleases under this Lease whether or not
expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease heretofore
of hereafter made by Lessee, and Lessor may collect such rent and income
and apply same toward Lessee's obligations under this Lease provided,
however, that until a default shall occur In the performance of Lessee's
obligations under this Lease, Lessee may receive, collect and enjoy the
rents accruing under such sublease. Lessor shall not by reason of this
or any other assignment of such sublease to Lessor nor by reason of the
collection of the rents from a sublessee, be deemed liable to the
sublessee for any failure of Lessee to perform and comply with any of
Lessee's obligations to such sublessee under such sublease. Lessee
hereby Irrevocably authorizes and directs any such subleases, upon
receipt of a written notice from Lessor stating that a default exists in
the performance of Lessee's obligations under this Lease, to pay to
Lessor the rents due and to become due under the sublease. Lessee agrees
that such sublease shall have the right to rely upon any such statement
and request from Lessor and that such sublessee shall pay such rents to
Lessor without any obligation or right to Inquire as to whether such
default exists and notwithstanding any notice from or claim from Lessee
to the contrary. Lessee shall have no right or claim against said
subleases or Lessor for any such rents so paid by said sublessee to
Lessor,
(b) No sublease entered Into by Lessee shall be effective unless
and until it has been approved In writing by Lessor. In entering into
any sublease, Lessee shall use only such form of sublessee as is
satisfactory to Lessor, and once approved by Lessor, such sublease shall
not be changed or modified without Lessor's prior written consent. Any
sublease shall, by reason of entering Into a sublease under this Lease,
be deemed, for the benefit of Lessor, to have assumed and agreed to
conform and comply with each and every obligation herein to be performed
by Lessee other than such obligations as are contrary to or Inconsistent
with provisions contained In a sublease to which Lessor has expressly
consented In writing.
(c) In the event Lessee shall default in the performance of Its
obligations under this Lease, Lessor at its option and, without any
obligation to do 30, may require any sublessee to attorn to Lessor, In
which event Lessor shall undertake the obligations of Lessee under such
sublease from the time of the exercise of said option to the termination
of such sublease; provided, however, Lessor shall not be liable for any
prepaid rents or security deposit paid by such subleases to Lessee or for
any other prior defaults of Lessee under such sublease.
(d) No sublessee shall further assign or sublet all or any part
of the Premises without Lessor's prior written consent.
(e) With respect to any subletting to which Lessor has consented,
Lessor agrees to deliver a copy of any notice of default by Lessee to the
sublessee. Such sublessee shall have the right to cure a default of
Lessee within three (3) days after service of said notice of default upon
such sublessee, and the subleases shall have a right of reimbursement and
offset from and against Lessee for any such defaults cured by the
sublessee.
12.5 Lessee's Expenses. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting
or If Lessee shall request the consent of Lessor for any act Lessee
proposes to do then Lessee shall pay Lessor's reasonable costs and
expenses incurred In connection therewith, Including attorneys:
architects: engineers' or other consultants' fees.
12.6 Conditions to Consent. Lessor reserves the right to condition any
approval to assign or sublet upon Lessor's determination that (a) the
proposed assignee or sublessee shall conduct a business on the Premises
of a quality substantially equal to that of and consistent with the
general character of the other occupants of the Office Building Project
and not In violation of any exclusives or rights then hold by other
tenants, and (b) the proposed assignee or sublets to at least as
financially responsible as Lessee was expected to be at the time of the
execution of this Lease or of such assignment or subletting, whichever Is
greater.
13. Default; Remedies
13.1 Default. The occurrence of any one or more of the following events
shall constitute a material default of this Lease by Lessee:
(a) The vacation or abandonment of the Premises without payment
of rent by Lessee.
(b) The breach by Lessee of any of the covenants, conditions or
provisions of paragraphs 7.3(a), (b) or (d) (alterations), 12.1
(assignment or subletting), 13.1(a) (vacation or abandonment), 13.1(e)
(insolvency), 13.1(f) (false statement), 16(a) (estoppel certificate),
30(b) (subordination), 33 (auctions), or 41.1 (easements), all of which
are hereby deemed to be material, non-curable defaults without the
necessity of any notice by Lessor to Lessee thereof.
(c) The failure by Lessee to make any payment of rent or any
other payment required to be made by Lessee hereunder, as and when due,
where such failure shall continue for a period of three (3) days after
written notice thereof from Lessor to Lessee. In the event that Lessor
serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable
Unlawful Detainer statutes such Notice to Pay Rent or Quit shall also
constitute the notice required by this subparagraph. The failure by
Lessee to observe or perform any of the covenants. conditions or
provisions of this Lease to be observed or performed by Lessee other than
those referenced in subparagraphs (b) and (c), above. where such failure
shall continue for a period of thirty (30) days after written notice
thereof from Lessor to Lessee: provided. however, that if the nature of
Lessee's noncompliance is such that more than thirty (30) days are
reasonably required for its cure, then Lessee shall not be deemed to be
in default if Lessee commenced such cure within said thirty (30) day
period and thereafter diligently pursues such cure to completion. To the
extent permitted by law such thirty (30) day notice shall constitute the
sole and exclusive notice required to be given to Lessee under applicable
Unlawful Detainer statutes.
(d) (I) The making by Lessee of any general arrangement or
general assignment for the benefit of creditors: (if) Lessee becoming a
"debtor" as defined in 11 U.S.C. 101 or any successor statute thereto
(unless, in the case of, a petition filed against Lessee. the same is
dismissed within sixty (60) days (III) the appointment of a trustee or
receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where
possession is not restored to Lessee within thirty (30) days; or (iv) the
attachment, execution or other judicial seizure of substantially all of
Lessee's assets located at the Premises or of Lessee's Interest in this
Lease, where such seizure is not discharged within thirty (30) days. In
the event that any provision of this paragraph 13.1(e) is contrary to any
applicable law, such provision shall be of no force or effect.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, or its successor in interest or by any guarantor of
Lessee's obligation hereunder, was materially false.
13.2 Remedies. In the event of any material default or breach of this
Lease by Lessee. Lessor may at any time thereafter, with or without
notice or demand and without limiting Lessor in the exercise of any right
or remedy which Lessor may have by reason of such default:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall
terminate and Lessee shall immediately surrender Possession of the
Premises to Lessor, In such event Lessor shall be entitled to recover
from Lessee all damages incurred by Lessor by reason of Lessee's default
including, but not limited to, the cost of recovering Possession of the
Premises; expenses of retailing, including necessary renovation and
alteration of the Premises, reasonable attorneys' fees, and any real
estate commission actually paid; the worth at the time of award by the
court having jurisdiction thereof of the amount by which the unpaid rent
for the balance of the term after the time of such award exceeds the
amount of such rental loss for the same period that Lessee proves could
be reasonably avoided; that portion of the leasing commission paid by
Lessor pursuant to paragraph 15 applicable to the unexpired term of this
Lease.
(b) Maintain Lessee's right to possession in which Case this
Lease shall continue in effect whether or not Lessee shall have vacated
or abandoned the Premises. In such event Lessor shall be entitled to
enforce all of Lessor's rights and remedies under this Lease, Including
the right to recover the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises
are located. Unpaid installments of rent and other unpaid monetary
obligations of Lessee under the terms of this Lease shall bear interest
from the date due at the maximum rate then allowable by law.
13.3 Default by Lessor. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time,
but in no event later than thirty (30) days after written notice by
Lessee to Lessor and to the holder of any first mortgage or deed of trust
covering the Premises whose name and address shall have theretofore been
furnished to Lessee in writing, specifying wherein Lessor has failed to
perform such obligation provided, however, that if the nature of
Lessor's obligation is such that more than thirty (30) days are required
for performance then Lessor shall not be in default If Lessor commences
performance within such 30-day period and thereafter diligently pursues
the same to completion.
13.4 Late Charges. Lessee hereby acknowledges that late payment by
Lessee to Lessor of Base Rent, Lessee's Share of Operating Expense
Increase or other Sums due hereunder will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to be certain. Such Costs include, but are not limited to
processing and accounting charges, and late charges which may be imposed
on Lessor by the terms of any mortgage or trust deed covering the Office
Building Project. Accordingly, if any installment of Base Rent,
Operating Expense Increase. or any other sum due from Lessee shall not be
received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, then, without any requirement for notice to Lessee,
Lessee shall pay to Lessor a late charge equal to 6% of such overdue
amount. The parties hereby agree that such late charge represents a fair
and reasonable estimate of the costs Lessor will incur by reason of late
payment by Lessee. Acceptance of such late charge by Lessor shall in no
event constitute a waiver of Lessee's default with respect to such
overdue amount. nor prevent Lessor from exercising any of the other
rights and remedies granted hereunder.
14. Condemnation. If the Premises or any portion thereof or the Office
Building Project are taken under the power of eminent domain, or sold
under the threat of the exercise of said power (all of which are herein
called "condemnation"), this Lease shall terminate as to the part so
taken as of the date the condemning authority takes title or possession,
whichever first occurs; provided that if so much of the Premises or the
Office Building Project are taken by such condemnation as would
substantially and adversely affect the operation and profitability of
Lessee's business conducted from the Premises, Lessee shall have the
option, to be exercised only in writing within thirty (30) days after
Lessor shall have given Lessee written notice of such taking (or In the
absence of such notice, within thirty (30) days after the condemning
authority shall have taken Possession, to terminate this Lease as of the
date the condemning authority takes such possession, If Lessee does not
terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises
remaining, except that the rent and Lessee's Share of Operating Expense
Increase shall be reduced in the proportion that the floor area of the
Premises taken bears to the total floor area of the Premises. Common
Areas taken shall be excluded from the Common Areas Usable by Lessee and
no reduction of rent shall occur with respect thereto or by reason
thereof, Lessor shall have the option In its sole discretion to terminate
this Lease as of the taking of possession by the condemning authority, by
giving written notice to Lessee of such election within thirty (30) days
after receipt of notice of a taking by condemnation of any part of the
Premises or the Office Building Project. Any award for the taking of all
or any Dart of the Premises or the Office Building Project under the
power of eminent domain or any payment made under threat of the exercise
of such power shall be the property of Lessor, whether such award shall
be made as compensation for diminution In value of the leasehold or for
the taking of the fee, or as severance damages, provided, however that
Lessee shall be entitled to any separate award for loss of or damage to
Lessee's trade fixtures, removable personal properly and unamortized
tenant improvements that have been paid for by Lessee. For that purpose
the cost of such improvements shall be amortized over the original term
of this Lease excluding any options. In the event that this Lease Is not
terminated by reason of such condemnation, Lessor shall to the extent of
severance damages received by Lessor In connection with such
condemnation, repair any damage to the Premises caused by such
condemnation except to the extent that Lessee has been reimbursed
therefor by the condemning authority Lessee shall pay any amount in
excess of such severance damages required to complete such repair.
15. Broker's Fees
(a) The brokers involved in this transaction are Dan Mitchell,
Voit as "listing broker" and Brian Doner Daum as "Cooperating
broker," licensed real estate broker(s). A "cooperating broker" is
defined as any broker other than the listing broker entitled to a share
of any commission arising under this Lease. Upon execution of this Lease
by both parties, Lessor shall pay to said brokers jointly, or In such
separate shares as they may mutually designate In writing, a fee as set
forth in a separate agreement between Lessor and said broker(s), for
brokerage services rendered by said broker(s) to Lessor In this
transaction.
16. Estoppel Certificate.
(a) Each party (as "responding party") shall at any time upon not
less than ten (10) days' prior written notice from the other party
("requesting party") execute, acknowledge and deliver to the requesting
party a statement in writing (I), certifying that this Lease is
unmodified and in full force and effect (or, it 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 rent and
other charges are paid in advance, it any, and (ii) acknowledges that
there are not, to the responding party's knowledge, any uncured defaults
on the part of the requesting party, or specifying Such defaults if any
are claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Office Building Project or
of the business of Lessee.
(b) At the requesting party's option, the failure to deliver such
statement within such time shall be a material default of this Lease by
the party who is to respond, without any further notice to such party, or
it shall be conclusive upon such party that (I) this Lease is in full
force and effect, without modification except as may be represented by
the requesting party, (ii) there are no uncured defaults In the
requesting party's performance, and (iii) if Lessor is the requesting
party, not more than one month's rent has been paid in advance.
(c) If Lessor desires 10 finance, refinance, or sell the Office
Building Project, or any part thereof, Lessee hereby agrees to deliver to
any lender or purchaser designated by Lessor such financial statements of
Lessee as may be reasonably required by such lender or purchaser. Such
statements shall include the past three (3) years' financial statements
of Lessee. All such financial statements shall be received by Lessor and
such lender or purchaser in confidence and shall be used only for the
purposes herein set forth,
17. Lessor's Liability. The term "Lessor" as Used herein shall mean
only the owner or owners, at the time in question, of the fee title or a
lessee's interest in a ground lease of the Office Building Project, and
except as expressly provided in paragraph 15, In the event of any
transfer of such title or interest, Lessor herein named (and in case of
any subsequent transfers then the grantor) shall be relieved from and
after the date of such transfer of all liability as respects Lessor's
obligations thereafter to be performed, provided that any funds in the
hands of Lessor or the then grantor at the time of such transfer, in
which Lessee has an Interest, shall be delivered to the grantee. The
obligations contained in this Lease to be performed by Lessor shall,
subject as aforesaid, be binding on Lessor's successors and assigns, only
during their respective periods of ownership
18. Severability. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction shall in no way affect
the validity of any other provision hereof.
19. Interest on Past-due Obligations. Except as expressly herein
provided, any amount due to Lessor not paid when due shall bear interest
at the maximum rate then allowable by law or judgments from the date due.
Payment of such interest shall not excuse or cure any default by Lessee
under this Lease: provided, however, that Interest shall not be payable
on late charges Incurred by Lessee nor on any amounts upon which late
charges are paid by Lessee.
20. Time of Essence. Time is of the essence with respect to the
obligations to be performed under this Lease.
2I. Additional Rent All monetary obligations of Lessee to Lessor under
the terms of this Lease, Including but not limited to Lessee's Share of
Operating Expense Increase and any other expenses payable by Lessee
hereunder shall be deemed to be rent.
22. Incorporation of Prior Agreements; Amendments. This Lease contains
all agreements of the parties with respect to any matter mentioned
herein. No prior or contemporaneous agreement or understanding
pertaining to any such matter shall be effective. This Lease may be
modified in writing only, signed by the parties in interest at the time
of the modification. Except as otherwise stated In this Lease, Lessee
hereby acknowledges that neither the real estate broker listed In
paragraph 15 hereof nor any cooperating broker on this transaction nor
the Lessor or any employee or agents of any of said persons has made any
oral or written warranties or representations to Lessee relative to the
condition or use by Lessee of the Premises or the Office Building Project
and Lessee acknowledges that Lessee assumes all responsibility regarding
the Occupational Safety Health Act, the legal use and adaptability of the
Premises and the compliance thereof with all applicable laws and
regulations In effect during the term of this Lease.
23. Notices. Any notice required or permitted to be given hereunder
shall be in writing and may be given by personal delivery or by certified
or registered mail, and shall be deemed sufficiently gives if delivered
or addressed to Lessee or to Lessor at the address noted below or
adjacent to the signature of the respective parties, as the case may be.
Mailed notices shall be deemed given upon actual receipt at the address
required or forty-eight hours following deposit In the mall, postage
prepaid, whichever first occurs. Either party may by notice to the other
specify a different address for notice purposes except that upon Lessee's
taking possession of the Premises, the Premises shall constitute Lessee's
address for notice purposes. A copy of all notices required or permitted
to be given to Lessor hereunder shall be concurrently transmitted to such
party or parties at such addresses as Lessor may from time to time
hereafter designate by notice to Lessee.
24. Waivers. No waiver by Lessor of an provision hereof shall be deemed
a waiver of any other provision hereof or of any subsequent breach by
Lessee of the same or any other provisions Lessor's consent to, or
approval of, any act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to or approval of any subsequent act by
Lessee. The acceptance of rent hereunder by Lessor shall not be a waiver
of any preceding breach by Lessee of any provision hereof, other than the
failure of Lessee to pay the particular rent so accepted, regardless of
Lessor's knowledge of such preceding breach at the time of acceptance of
such rent.
26. Holding Over. If Lessee, with Lessor's consent, remains in
possession of the Premises or any part thereof after the expiration of
the term hereof such occupancy shall be a tenancy from month to month
upon all the provisions of this Lease pertaining to the obligations of
Lessee, except that the rent payable shall be one-hundred twenty-five
percent (125%) of the rent payable immediately preceding the termination
date of this Lease, and all Options, it any, granted under the terms of
this Lease shall be deemed terminated and be of no further effect during
said month to month tenancy
27. 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.
28. Covenants and Conditions. Each provision of this Lease performable
by Lessee shall be deemed both a covenant and a condition.
29. Binding Effect; Choice of Law. Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the
provisions of paragraph 17, this Lease shall bind the parties, their
personal representatives, Successors and assigns. This Lease shall be
governed by the laws of the State where the Office Building Project 13
located and any litigation concerning this Lease between the parties
hereto shall be Initiated In the county In which the Office Building
Project Is located.
30. Subordination.
(a) This Lease, and any Option or right of first refusal granted
hereby, at Lessor's option, shall be subordinate to any ground lease,
Mortgage deed of trust, or any other hypothecation or security now or
hereafter placed upon the Office Building Project and to any and all
advances made on the security thereof and to all renewals. modifications,
consolidations, replacements and extensions thereof. Notwithstanding
such subordination, Lessee's right to quiet possession of the Premises
shall not be disturbed if Lessee is not in default and so long as Lessee
shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to Its terms.
If any mortgagee, trustee or ground lessor shall elect to have this Lease
and any Options granted hereby prior to the lien of its mortgage, deed of
trust or ground lease. and shall give written notice thereof to Lessee,
this Lease and such Options shall be deemed prior to such mortgage, deed
of trust or ground lease, whether this Lease or such Options are dated
prior or subsequent to the date of said mortgage, deed of trust or ground
lease or the date of recording thereof.
(b) Lessee agrees to execute any documents required to effectuate
an attornment, a subordination, or to make this Lease or any Option
granted herein prior to the lien of any mortgage, deed of trust or ground
lease, as the case may be. Lessee's failure to execute such documents
within ten (10) days after written demand shall constitute a material
default by Lessee hereunder without further notice to Lessee or, at
Lessor's option, Lessor shall execute such documents on behalf of Lessee
as Lessee's attorney-in-fact. Lessee does hereby make, constitute and
irrevocably appoint Lessor as Lessee's attorney-in-fact and In Lessee's
name, place and stead, to execute such documents In accordance with this
paragraph 30(b).
31. Attorneys' Fees
31.1 If either party or the broker(s) named herein bring an action to
enforce the terms hereof or declare rights hereunder, the prevailing
party in any such action, trial or appeal thereon, shall be entitled to
his reasonable attorneys' fees to be paid by the losing party as fixed by
the court in the same or a separate suit, and whether or not such action
is pursued to decision or judgment. The provisions of this paragraph
shall inure to the benefit of the broker named herein who seeks to
enforce a right hereunder.
31.2 The attorneys' fee award shall not be computed In accordance with
any court fee schedule, but shall be such as to fully reimburse all
attorneys' fees reasonably Incurred In good faith.
31.3 Lessor shall be entitled to reasonable attorneys' fees and all
other costs and expenses Incurred In the preparation and service of
notice of default and consultations In connection therewith, whether or
not a legal transaction Is subsequently commenced In connection with such
default
32. Lessor's Access
32.1 Lessor and Lessor's agents shall have the right to enter the
Premise any services required of Lessor showing the same to prospective
purchasers, lenders, or lessees, taking such safety measures, erecting
such scaffolding or other necessary structures, making such alterations,
repairs, improvements or additions to the Premises or to the Office
Building Project as Lessor may reasonably deem necessary or desirable and
the erecting, using, and maintaining of utilities, services, pipes and
conduits through the Premises and/or other premises as long as there is
no material adverse effect to Lessee's use of the Premises. Lessor may
at any time place on or about the Building any ordinary A For Sale signs
and Lessor may at any time during the last 120 days of the term hereof
place on any ordinary "For Lease".
32.2 All activities of Lessor pursuant to this paragraph shall be
without abatement of rent, nor shall Lessor have any liability to Lessee
for the same.
32 3 Lessor shall have the right to retain keys to the Premises and to
unlock all doors in or upon the Premises other than to files, vaults and
safes, and in the case of emergency to enter the Premises by any
reasonably appropriate means, and any such entry shall not be deemed a
forcible or unlawful entry or detainer of the Premises or an eviction,
Lessee waives any charges for damages or injuries or interference with
Lessee's Property or business in connection therewith.
33. Auctions. Lessee shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Premises or the
Common Areas without first having obtained Lessor's prior written
consent. Notwithstanding anything to the contrary in this Lease, Lessor
shall not be obligated to exercise any standard of reasonableness in
determining whether to grant such consent. The holding of any auction on
the Premises or Common Areas in violation of this paragraph shall
constitute a material default of this Lease.
34. Signs. Lessee shall not place any sign upon the Premises or the
Office Building Project without Lessor's prior written consent. Under no
circumstances shall Lessee place a sign on any roof of the Office
Building Project.
35. Merger. The voluntary or other surrender of this Lease by Lessee,
or a mutual cancellation thereof. or a termination by Lessor, shall not
work a merger, and shall, at the option of Lessor, terminate all or any
existing subtenancies or may, at the option of Lessor, operate as an
assignment to Lessor of any or all of such subtenancies.
36. Consents. Except for paragraphs 33 (auctions) and 34 (signs)
hereof, wherever in this Lease the consent of one party is required to an
act of the other party such consent shall not be unreasonably withhold or
delayed.
37. Guarantor. In the event that there is a guarantor of this Lease,
said guarantor shall have the same obligations as Lessee under this
Lease.
38. Quiet Possession. Upon Lessee paying the rent for the Premises and
observing and performing all of the covenants, conditions and provisions
on Lessee's part to be observed and performed hereunder, Lessee shall
have quiet possession of the Premises for the entire term hereof subject
to all of the provisions of this Lease. The individuals executing this
Lease on behalf of Lessor represent and warrant to Lessee that they are
fully authorized and legally capable of executing this Lease on behalf of
Lessor and that such execution is binding upon all parties holding an
ownership interest in the office Building Project.
39. Options.
39.1 Definition. As Used in this paragraph the word "Option" has the
following meaning: (1) the right or option to extend the term of this
Lease or to renew this Lease or to extend or renew any lease that Lessee
has on other property of Lessor; (2) the option of right of first
refusal to lease the Premises or the right of first offer to lease the
Premises or the right of first refusal to lease other space within the
Office Building Project or other property of Lessor or the right of
first other to lease other space within the Office Building Project or
other property of Lessor; (3) the right or option to Purchase the
Premises or the Office Building Project, or the right of first refusal to
purchase the Premises or the Office Building Project or the right of
first offer to purchase the Premises or the Office Building Project, or
the right or option to purchase other property of Lessor. or the right of
first refusal to purchase other property of Lessor or the right of first
offer to purchase other property of Lessor.
39.2 Options Personal. Each Option granted to Lessee in this Lease is
personal to the original Lessee and may be exercised only by the original
Lessee while occupying the Premises who does 50 without the Intent of
thereafter assigning this Lease or subletting the Promises or any portion
thereof, and may not be exercised or be assigned, voluntarily or
Involuntarily, by or to any person or entity other than Lessee; provided,
however, that an Option may be exercised by or assigned to any Lessee
Affiliate as defined In paragraph 12.2 of this Lease. The Options, If
any, herein granted to Lessee are not assignable separate and apart from
this Lease, nor may any Option be separated from this Lease in any manner
either by reservation or otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple
options to extend or renew this Lease a later option cannot be exercised
unless the prior option to extend or renew this Lease has been so
exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary, (1)
during the time commencing from the date Lessor gives to Lessee a notice
of default pursuant to paragraph 13.1(c) or 13.1(d) and continuing until
the noncompliance alleged in said notice of default 13 cured, or (if)
during the period of time commencing on the day after a monetary
obligation to Lessor Is due from Lessee and unpaid (without any necessity
for notice thereof to Lessee) and continuing until the obligation 13
paid, or (111) in the event that Lessor has given to Lessee three or more
notices of default under paragraph 13.1(c), or paragraph 13.1(d), whether
or not the defaults are cured, during the 12 month period of time
Immediately prior to the time that Lessee attempts to exercise the
subject Option, (iv) It Lessee has committed any non-curable breach,
Including without limitation those described in Paragraph 13.1(b), or is
otherwise In default of any of the terms, covenants or conditions of this
Lease.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's Inability to
exercise an Option because of the provisions of paragraph 39.4(a). I
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's
due and timely exercise of the Option, if, after such exercise and during
the term of this Lease, (I) Lessee falls to pay to Lessor a monetary
obligation of Lessee for a period of thirty (30) days after such
obligation becomes due (without any necessity of Lessor to give notice
thereof to Lessee), or (if) Lessee falls to commence to cure a default
specified in paragraph 13.1(d) within thirty (30) days after the date
that Lessor gives notice to Lessee of such default and/or Lessee falls
thereafter to diligently prosecute said cure to completion, or (iii)
Lessor gives to Lessee three or more notices of default under paragraph
13.1(c), or paragraph 13,1(d), whether or not the defaults are cured, or
(iv) if Lessee has committed any non-curable breach, including without
limitation those described in paragraph 13.1(b), or is otherwise in
default of any of the terms. covenants and conditions of this Lease.
40.Security Measures-Lessor's Reservations.
40.1 Lessee hereby acknowledges that Lessor shall have no obligation
whatsoever to provide guard service or other security measures for the
benefit of the Premises or the Office Building Project. Lessee assumes
all responsibility for the protection of Lessee, its agents, and invitees
and the property of Lessee and of Lessee's agents and invitees from acts
of third parties, Nothing herein contained shall prevent Lessor, at
Lessor's sole option, from providing security protection for the Office
Building Project or any part thereof. in which event the cost thereof
shall be included within the definition of Operating Expenses, as set
forth in paragraph 4.2(b),
40.2 Lessor shall have the following rights:
(a) To change the name, address or title of the Office Building
Project or building in which the Promises are located upon not less than
90 days prior written notice; Provided Landlord reimburses Tenant for all
stationary or related costs, Unless such change was due to government
notice or zoning requirements.
(b) To, at Lessee's expense, provide and initial Building
standard graphics on the door of the Premises and such portions of the
Common Areas as Lessor shall reasonably deem appropriate;
(c) To permit any lessee the exclusive right to conduct any
business as long as such exclusive does not conflict with any rights
expressly given herein:
(d) To place such signs, notices or displays as Lessor reasonably
deems necessary or advisable upon the roof, exterior of the buildings or
the Office Building Project or on pole signs In the Common Areas:
However, Lessor should be prohibited from interfering with the Lessee's
rights of ingress and egress or that of its business licensees or
visibility of the premises.
40.3 Lessee shall not
(b) Suffer or permit anyone, except In emergency, to go upon the
roof of the Building.
41. Easements
41.1 Lessor reserves to itself the right, from time to time, to grant
such easements, rights and dedications that Lessor deems necessary or
desirable, and to cause the recordation of Parcel Maps and restrictions,
so long as such easements, rights, dedications, Maps and restrictions do
not unreasonably interfere with the use of the Premises by Lessee.
Lessee shall sign any of the aforementioned documents upon request of
Lessor and failure to do so shall constitute a material default of this
Lease by Lessee without the need for further notice to Lessee.
41.2 The obstruction of Lessee's view, air, or light by any structure
erected in the vicinity of the Building, whether by Lessor or third
parties shall in no way affect this Lease or Impose any liability upon
Lessor.
42. Performance Under Protest. If at any time a dispute shall arise as
to any amount or sum of money to be paid by one party to the other under
the provisions hereof, the party against whom the obligation to pay the
money is asserted shall have the right to make payment "under protest"
and such payment shall not be regarded as a voluntary payment, and there
shall survive the right on the part of said party to institute Suit for
recovery of such sum. If It shall be adjudged that there was no legal
obligation on the part of said party to pay such sum or any part thereof,
said party shall be entitled to recover such sum or so much thereof as It
was not legally required to pay under the provisions of this Lease.
43. Authority. If Lessee is a corporation, trust, general or limited
partnership, Lessee, and each individual executing this Lease on behalf
of said entity. If Lessee Is a corporation, entity represent and
warrant that such individual is duly authorized to execute and (30) days
after execution of this Lease, deliver to Lessor evidence of such
authority satisfactory trust or partnership, Lessee shall, within this
Lease deliver this Lease to Lessor.
44. Conflict. Any conflict between the printed provisions, Exhibits
or Addenda of this Lease and the typewritten or handwritten provisions,
if any, shall be controlled by the typewritten or handwritten
provisions.
45. No Offer. Preparation of this Lease by Lessor or Lessor's agent
and submission of same to Lessee shall not be deemed an offer to Lessee
to lease. This Lease shall become binding upon Lessor and Lessee only
when fully executed by both parties.
46. Lender Modification. Lessee agrees to make such reasonable
modifications to this Lease as may be reasonably required by an
institutional lender in connection with the obtaining of normal
financing or refinancing of the Office Building Project.
47. Multiple Parties. If more than one person or entity Is named as
either Lessor or Lessee herein, except as otherwise expressly provided
herein, the obligations of the Lessor or Lessee herein shall be the
joint and several responsibility of all persons or entitles named herein
as such Lessor or Lessee, respectively.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND
EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE,
SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY
AGREE THAT, AT THE TIME
THIS LEASE IS EXECUTED. THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE
WITH RESPECT TO THE PREMISES.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR
SUBMISSION TO YOUR ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
OR BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY. LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE
TRANSACTION RELATING THERETO; THE PARTIES SHALL RELY SOLELY UPON THE
ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF
THIS LEASE.
LESSOR LESSEE
Universal Bank Orange National Bank
RULES AND REGULATIONS FOR
STANDARD OFFICE LEASE
Dated: September 30, 1997
By and Between Universal Bank
"Lessor" and Orange National Bank "Lessee"
GENERAL RULES
1. Lessee shall not suffer or permit the obstruction of any Common
Areas, including driveways, walkways and stairways
2. Lessor reserves the right to refuse access to any persons Lessor
in good faith judges to be a threat to the safety, reputation, or
property of the Office Building Project and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or
interfere with other lessees or persons having business within the
Office Building Project.
4. Lessee shall not keep animals or birds within the Office Building
Project, and shall not bring bicycles, motorcycles or other vehicles
into areas not designated as authorized for same.
5. Lessee shall not make, suffer or permit litter except in
appropriate receptacles for that purpose.
6. Lessee shall not alter any lock or install new or additional locks
or bolts.
7. Lessee shall be responsible for the inappropriate use of any
toilet rooms, plumbing or other utilities. No foreign substances of any
kind are to be inserted therein.
8. Lessee shall not deface the walls, partitions or other surfaces of
the premises or Office Building Project.
9. Lessee shall not suffer or permit any thing in or around the
Premises or Building that causes excessive vibration or floor loading in
any part of the Office Building Project.
10. Furniture, significant freight and equipment shall be moved into
or out of the building only with the Lessor's knowledge and consent, and
subject to such reasonable limitations, techniques and timing, as may be
designated by Lessor. Lessee shall be responsible for any damage to the
Office Building Project arising from any such activity
11. Lessee shall not employ any service or contractor, for services or
work to be performed in the Building, except as approved by Lessor.
12. Lessor reserves the right to close and lock the Building on
Saturdays, Sundays and legal holidays, and on other days between the
hours of 7 P.M. and 7 A.M. of the following day If Lessee uses the
Premises during such periods, Lessee shall be responsible for securely
locking any doors it may have opened for entry.
13. Lessee shall return all keys at the termination of its tenancy and
shall be responsible for the cost of replacing any keys that are lost.
14. No window coverings, shades or awnings shall be installed or used
by Lessee.
15. No Lessee, employee or invitee shall go upon the roof of the
Building, without Lessor's prior consent.
16. Lessee shall not suffer or permit smoking or carrying of lighted
cigars or cigarettes in areas reasonably designated by Lessor or by
applicable governmental agencies as non-smoking areas.
17. Lessee shall not use any method of heating or air conditioning
other than as provided by Lessor.
18. Lessee shall not install, maintain or operate any vending machines
upon the Premises without Lessor's written consent.
19. The Premises shall not be used for lodging or manufacturing,
cooking or food preparation.
20. Lessee shall comply with all safety, fire protection and
evacuation regulations established by Lessor or any applicable
governmental agency.
21. Lessor reserves the right to waive any one of these rules or
regulations, and/or as to any particular Lessee, and any such waiver
shall not constitute a waiver of any other rule or regulation or any
subsequent application thereof to such Lessee.
22. Lessee assumes all risks from theft or vandalism and agrees to
keep its Premises locked as may be required.
23. Lessor reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the
appropriate operation and safety of the Office Building Project and its
occupants. Lessee agrees to abide by these and such rules and
regulations.
PARKING RULES
1. Parking areas shall be used only for parking by vehicles no longer
than full size passenger automobiles herein called "Permitted Size
Vehicles" Vehicles other than Permitted Size Vehicles are herein
referred to as "Oversized Vehicles"
2. Lessee shall not permit or allow any vehicles that belong to or
are controlled by Lessee or Lessee's employees, suppliers, shippers,
customers, or invitees to be loaded, unloaded, or parked in areas other
than those designated by Lessor for such activities.
3. Parking stickers or identification devices shall be the property
of Lessor and be returned to Lessor by the holder thereof upon
termination of the holder's parking privileges. Lessee will pay such
replacement charge as is reasonably established by Lessor for the loss
of such devices.
4. Lessor reserves the right to refuse the sale of monthly
identification devices to any person or entity that willfully refuses to
comply with the applicable rules, regulations, laws and/or agreements.
5. Lessor reserves the right to relocate all or a part of parking
spaces from floor to floor, within one floor, and/or to reasonably
adjacent offsite locations, and to reasonably allocate them between
compact and standard size spaces, as long as the same complies with
applicable laws, ordinances and regulations.
6. Users of the parking area will obey all posted signs and park only
in the areas designated for vehicle parking.
7. Unless otherwise instructed, every person using the parking area
is required to park and lock his own vehicle. Lessor will not be
responsible for any damage to vehicles, injury to persons or loss of
property, all of which risks are assumed by the party using the parking
area.
8. Validation, if established, will be permissible only by such
method or methods as Lessor and/or its licensee may establish at rates
generally applicable to visitor parking.
9. The maintenance, washing, waxing or cleaning of vehicles in the
parking structure or Common Areas is prohibited.
10. Lessee shall be responsible for seeing that all of its employees,
agents and invitees comply with the applicable parking rules,
regulations, laws and agreements.
11. Lessor reserves the right to modify these rules and/or adopt such
other reasonable and non-discriminatory rules and regulations as it may
deem necessary for the proper operation of the parking area.
12. Such parking use as is herein provided is intended merely as a
license only and no bailment is intended or shall be created hereby.
ADDENDUM TO LEASE DATED SEPTEMBER 30,1997 BY AND BETWEEN UNIVERSAL
BANK AS "LESSOR" AND ORANGE NATIONAL BANK AS "LESSEE".
50. USE.
Lessee shall be allowed to use the facility to house
their SBA Loan Division, Commercial Loan Division and general
administrative office uses. The SBA and Commercial Lending Divisions
will be focusing on the processing of loan applications at this
facility. Customer visitations will be scheduled on an appointment
basis only, and all solicitations for new business will be handled
through the bank branches directly or by personal visitations from the
loan representatives. It is further understood that there will be no
taking in deposits or retail banking activities at this facility.
51. RENT SCHEDULE:
The basic rent schedule for the premises (the west wing) shall be
structured as follows:
A. The basic rental rate for the fist and second
floors consisting of approximately 8,477 rentable square feet (5,072.5
RSF - 1st floor and 3,404.5 RSF 2nd floor) shall be $1.00 per rentable
square foot ($8,477.00) per month, gross. The rental rate shall be
adjusted annually by an amount equal to CPI not to exceed 5% annually.
B. The basic rental rate for the basement/garden
level (approximately 5,368 RSF) shall be $.55 per rentable square foot
($2,952.40) per rentable month, gross. The rental rate shall be
adjusted annually by an amount equal to CPI not to exceed 5% annually.
The combined total monthly base rent shall be
$11,429.40.
52. FREE RENT:
Lessee shall be granted months one and two of the lease term as
free rent.
53. TENANT IMPROVEMENT ALLOWANCE:
Lessor shall provide Lessee a tenant improvement allowance not to
exceed $5.00 per rentable square foot ($42,385.00) for the first and
second floors. In addition, Lessor will provide Lessee Tenant
Improvement Allowance not to exceed $3.00 per rentable square foot
($16,104.00) for the basement/garden level.
The combined total allowance shall be $58,489.00.
Lessor shall reimburse Lessee within thirty (30) days for Lessee's
improvements to the building after supplying Lessor with paid invoices
and lien releases for said improvements.
Lessee shall be responsible for any costs of upgrades or
remediation that are required by any governmental agency due to the
construction of the tenant improvements.
54. SIGNAGE:
Lessor shall grant Lessee the right to install standard suite
signage and directory signage. The suite signage shall be located
outside the entry doors for the first and second floor. All signage is
subject to the prior written approval of the Lessor. There shall be no
outside signage.
55. OPERATING EXPENSES/JANITORIAL SERVICE:
For purposes of calculating operating expenses, Lessee shall be
responsible for its proportionate share of any increases in operating
expenses and real estate taxes over the base year 1998. In addition, it
is understood that the Lessee shall be responsible for providing its own
janitorial service.
56. HEATING, VENTILATING AND AIR CONDITIONING:
The standard HVAC hours for the building are Monday through Friday
7:30 a.m. to 6:30 p.m. and Saturday 8:00 a.m. to 1:00 p.m. The after
hours of air conditioning charge is $1 0.00 per hour.
57. COMMISSION:
It is understood and agreed to by both parties that CB Commercial
represents the Lessor and Daum represents the Lessee. The commission
payable shall be 2% to CB Commercial as Lessor's representative and 4%
to Daum as the Lessee's representative.
58. SUBLEASING AND ASSIGNMENT:
Lessee shall have the right to sublease or assign all or any
portion of the space between a subsidiary or affiliate company without
Lessor's approval subject to use specified in Paragraph 50. A sublet or
assignment to any unrelated parties shall require consent of the Lessor,
which consent shall not be unreasonably withheld. No response within 15
days shall be deemed as Lessor's approval. Lessee shall have the right
to retain 50% of any profits which may be realized for the sublease or
assignment. Profit shall mean sublease rent in excess of Lessee's
current lease and any commissions, tenant improvements or other costs
required to sublease the premises. This right to sublease and assign a
lease is subject to the new Subtenant's use being allowed by the Lessor.
59. SECURITY SYSTEM:
The security system for the west wing of 1249 East Katella is as
follows:
1 . Wells Fargo Alarm Company System: System
printer located on first floor.
2. One universal keypad located on the first floor
entry.
3. Motion detectors in the hallways on all three
floors, including basement.
4. Door contacts on double glass doors on first and
second floor.
5. Fire alarm.
System monitoring is through Wells Fargo Alarm. Wells
Fargo will mail monthly or quarterly billings to Lessee.
60. OPTION To RENEW:
Lessee shall have two (2) five (5) year options to renew the
lease. The rate shall be at the then prevailing fair market value for
like space in the Central Orange County area. Lessee shall provide
notice to Lessor of its desire to exercise this option to renew in
writing, not less than six (6) months nor more than nine (9) months
prior to the expiration of the initial lease term.
61. SECOND FLOOR BREAK Room:
Lessee agrees and warrants to Lessor that Lessee will not use the
second floor break room facility. Said second floor break room shall be
for Universal Bank's sole and exclusive use.
62. HAZARDOUS SUBSTANCES:
(a) Reportable Uses Require Consent. The term
"Hazardous Substance" as used in this lease shall mean any product,
substance, chemical, material or waste whose presence, nature, quantity
and/or intensity of existence, use, manufacture, disposal,
transportation, spill, release or effect, either by itself or in
combination with other materials expected to be on the Premises, is
either (1) potentially injurious to the public health, safety or
welfare, the environment, or the Premises; (ii) regulated or monitored
by any governmental authority; or
(iii) a basis for potential liability of Lessor to any
governmental agency or third party under any applicable statute or
common law theory. Hazardous Substances shall include, but not be
limited to, hydrocarbons, petroleum, gasoline, crude oil or any products
or by-products thereof. Lessee shall not engage in any activity in or
about the Premises which constitutes a Reportable Use (as hereinafter
defined) of Hazardous Substances without the express prior written
consent of Lessor and compliance in a timely manner (at Lessee's sole
cost and expense) with all Applicable Requirements (as defined in
Paragraph 63). "Reportable Use" shall mean (1) the installation or use
of any above or below ground storage tank, (ii) the generation,
possession, storage, use, transportation, or disposal of a Hazardous
Substance that requires a permit from, or with respect to which a
report, notice, registration or business plan is required to be filed
with, any governmental authority, and (iii) the presence in, on or about
the Premises of a Hazardous Substance with respect to which any
Applicable Laws required that a notice be given to persons entering or
occupying the Premises or neighboring properties. Notwithstanding the
foregoing, Lessee may, without Lessor's prior consent, but upon notice
to Lessor and in compliance with all Applicable Requirements, use any
ordinary and customary materials reasonably required to be used by
Lessee in the normal course of the Permitted Use, so long as such use is
not a Reportable use and does not expose the Premises or neighboring
properties to any meaningful risk of contamination or damage or expose
Lessor to any liability therefor. In addition, Lessor may (but without
any obligation to do so) condition its consent to any Reportable Use of
Hazardous Substance by Lessee upon Lessee's giving Lessor such
additional assurances as Lessor, in its reasonable discretion, deems
necessary to protect itself, the public, the Premises and the
environment against damage, contamination or injury and/or liability
therefor, including but not limited to the installation (and, at
Lessor's option, removal on or before Lease expiration or earlier
termination) of reasonably necessary protective modifications to the
Premises (such as concrete encasements) and/or the deposit of an
additional Security Deposit under Paragraph 5 hereof.
(b) Duty to Inform Lessor/Lessee. If Lessee or
Lessor knows, or has reasonable cause to believe, that a Hazardous
Substance has come to be located in, on, under or about the Premises or
the Building, other than as previously consented to by Lessor, Lessee
shall immediately give Lessor written notice thereof, together with a
copy of any statement, report, notice, registration, applicable, permit,
business plan, license, claim, action, or proceeding give to, or
received from, any governmental authority or private party concerning
the presence, spill, release, discharge of, or exposure to, such
Hazardous Substance including but not limited to all such documents as
may be involved in any Reportable Use involving the Premises. Lessee
shall not cause or permit any Hazardous Substance to be spilled or
released in, on, under or about the Premises (including, without
limitation, through the plumbing or sanitary sewer system).
(c) Indemnification. Lessor shall indemnify,
protect, defend and hold Lessee, its agents or employees, harmless from
and against any and all damages, liabilities, judgements, costs, claims,
liens, expenses, penalties, loss of permits and attorney's and
consultant's fees arising out of or involving any Hazardous Substance
brought onto the Premises or currently on the Premises by or for Lessor
or by anyone under Lessor's control. Lessee shall indemnify, protect
and hold Lessor, its agents, employees, lenders and ground lessor, if
any, and the Premises, harmless from and against any and all damages,
liabilities, judgements, costs, claims, liens, expenses, penalties, loss
of permits and attorney's and consultant's fees arising our of or
involving any hazardous substance brought onto the premises upon
occupancy or in the future by anyone under Lessee's control. Lessee's
and Lessor's obligations under this Paragraph 62 shall include, but not
be limited to, the effects of any contamination or injury to person,
property or the environment crated or suffered by Lessee or Lessor, and
the cost of investigation (including consultants' and attorneys' fees
and testing) removal, remediation, restoration and/or abatement thereof,
or of any contamination therein involved, and shall survive the
expiration of earlier termination of this Lease. No termination,
cancellation or release agreement entered into by Lessor and Lessee
shall release Lessee from its obligations under this Lease with respect
to Hazardous Substances, unless specifically so agreed by Lessor in
writing at the time if such agreement.
63. LESSEE'S COMPLIANCE WITH REQUIREMENTS:
Lessee shall, at Lessee's sole cost and expense, fully, diligently
and in a timely manner, comply with all "Applicable Requirements", which
term is used in this Lease to mean all laws, rules, regulations,
ordinances, directives, covenants, easements and restrictions of record,
permits, the requirements of any applicable fire insurance underwriter
or rating bureau, and the recommendations of Lessor's engineers and/or
consultants, relating in any manner to the Premises (including but not
limited to matters pertaining to (1) industrial hygiene, (ii)
environmental conditions on, in, under or about the Premises, including
soil and groundwater conditions, and (iii) the use, generation,
manufacture, production, installation, maintenance, removal,
transportation, storage, spill, or release of any Hazardous Substance),
now in effect or which may hereafter come into effect. Lessee shall,
within five (5) days after receipt of Lessor's written request, provide
Lessor with copies of all documents and information, including but not
limited to permits, registrations, manifests, applications, reports and
certificates, evidencing Lessee's compliance with any Applicable
Requirements specified by Lessor, and shall immediately upon receipt,
notify Lessor in writing (with copies of any documents involved) of any
threatened or actual claim, notice, citation, warning, complaint or
report pertaining to or involving failure by Lessee or the Premises to
comply with any Applicable Requirements.
64. INSPECTION: COMPLIANCE WITH LAW:
Lessor, Lessor's agents, employees, contractors and designated
representatives, and the holders of any mortgages, deeds of trust or
ground leases on the Premises ("Lenders") shall have the right to enter
the Premises at any time in case of an emergency, and otherwise at
reasonable times, for the purpose of inspecting the condition of the
Premises and for verifying compliance by Lessee with this Lease and all
Applicable Requirements (as defined in Paragraph 63) and Lessor shall be
entitled to employ experts and/or consultants in connection therewith to
advise Lessor with respect to Lessee's activities, including but not
limited to Lessee's installation, operation, use, monitoring,
maintenance, or removal of any Hazardous Substance on or from the
Premises. The costs and expenses of any such inspections shall be paid
by the party requesting same, unless a default or breach of this lease
by Lessee or a violation of Applicable Requirements or a contamination,
caused or materially contributed to by Lessee, is found to exist or to
be imminent, or unless the inspection is requested or ordered by a
governmental authority as the result of any such existing or imminent
violation or contamination. In such case, Lessee shall upon written
request reimburse Lessor or Lessor, Lessor's Lender, as the case may be,
for the costs and expense of such inspections.
65. STRUCTURAL/LATENT DEFECT:
Lessor, at Lessor's sole cost and expense, shall be responsible
for repair of any and all structural and/or latent defects in the
Building over the term of the lease, and the Extension Period, and if
such repair is required by the appropriate government agency or is
necessary for the continuance of
66. AMERICAN'S WITH DISABILITIES ACT OF 1990:
If compelled to do so by appropriate government agency,
Lessor shall be responsible for any and all changes to the building or
demised premises required by the Americans with Disabilities Act, unless
such changes are required because of improvements or alterations made to
the demised premises by Lessee after Lessor's initial construction or is
required as a consequence of an act or use by Lessee not permitted under
this Lease.
67. CONDITION OF PREMISES:
Lessee has inspected the Premises and is leasing the
Premises in its present condition "As Is". Lessor shall not be
responsible for payment or construction of any of Lessee' improvements,
repairs or alterations. Lessor shall have no responsibility, liability
or obligation to bring the Premises into compliance with any statute or
ordinance including environmental and hazardous material laws and
regulations, or with any laws, regulations or ordinances dealing with
disabled or handicapped persons. Lessee shall have the right, at its
sole cost and expense, to make improvements and alterations to the
Premises in accordance with all applicable statutes, ordinances and
governmental regulations and subject to the written approval of Lessor.
Lessee shall comply with all laws, regulations and ordinances now in
force or enacted in the future which apply to Lessee's improvements and
occupancy of the Premises, and shall obtain all necessary permits and
certificates required to carry out the construction of any improvements.
68. NO REPRESENTATION OR WARRANTIES BY LESSOR:
Lessee acknowledges that Lessor has made no representations
or warranties In regard to the suitability of the Premises for Lessee's
use; its compliance with zoning ordinances; the availability of parking,
compliance of parking with required parking ratios; condition of
building, including but not limited to structural or latent defects;
compliance of building with all applicable laws, ordinances and
regulations of whatever type, including but not limited to seismic
requirements, hazardous materials (including asbestos); and structural
components, including roof, plumbing, electrical and HVAC.
69. COMPLIANCE WITH APPLICABLE LAWS:
Lessee shall comply with all statutes, laws, ordinances and
governmental regulations (including without limitation, environmental
laws pertaining to toxic materials and hazardous waste) pertaining to or
affecting Lessee's improvements; or Lessee's use of the Premises; and
agrees to hold harmless, defend, indemnify and protect Lessor for any
damages, fines, penalties or claims of whatever nature, type, or form
arising as a result of Lessee's violation thereof which occurs during
Lessee's occupancy of the Premises. Lessee covenants and agrees that it
is taking possession of the Premises in "As Is" condition. Nothing in
the Lease shall be construed which existed, prior to Lessee's occupancy
of the Premises.
AGREED AND ACCEPTED:
LESSOR: UNIVERSAL BANK LESSEE: ORANGE NATIONAL BANK
EXHIBIT 10.11
ORANGE NATIONAL BANK OF ORANGE, CALIFORNIA
DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this 17th day of January 1996 by and
between Orange National Bank (the "Company"), and Kenneth J. Cosgrove
(the "Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's
Board of Directors, the Company is willing to provide to the Director a
deferred fee opportunity. The Company will pay the benefits from its
general assets.
AGREEMENT
The Director and the Company agree as follows:
Article I
Definitions
1. 1 Definitions. Whenever used in this Agreement, the
following words and phrases shall
have the meanings specified:
1. 1. I "Change of Control" means the transfer of 51% or more of
the Company's outstanding voting common stock or the transfer of 51% or
more of Orange National Bancorp's (the Company's holding company)
outstanding voting common stock followed within twelve (12) months by
termination of the Director's status as a member of the Company's Board
of Directors.
1. 1.2 "Code" means the Internal Revenue Code of 1986, as
amended. References to a Code section shall be deemed to be to that
section as it now exists and to any successor provision.
1.1.3 "Disability" means, if the Director is covered by a
Company-sponsored disability insurance policy, total disability as
defined in such policy without regard to any waiting period. If the
Director is not covered by such a policy, Disability means the Director
suffering a sickness, accident or injury which, in the judgment of a
physician satisfactory to the Company, prevents the Director from
performing substantially all of the normal duties of a director. As a
condition to any benefits, the Company may require the Director to submit
to such physical or mental evaluations and tests as the Company's Board
of Directors deems appropriate.
1. 1.4 "Election Form" means the Form attached as Exhibit 1.
1.1.5 "Fees" means the total directors fees payable to the
Director including fees earned by a Director who elects to participate in
the Company's Director Emeritus Program.
1.1.6 "Normal Termination Date" means the Director attaining
age 65.
1.1.7 "Termination of Service" means the Director's ceasing
to be a member of the Company's Board of Directors for any reason
whatsoever.
1.1.8 "Director" means a member of the Company's Board of
Directors and includes any Director who elects to participate in the
Company's Director Emeritus Program.
Article 2
Deferral Election
2.1 Initial Election. The Director shall make an initial
deferral election under this Agreement by filing with the Company a
signed Election Form within 30 days after the date of this Agreement.
The Election Form shall set forth the amount of Fees to be deferred. The
Election Form shall be effective to defer only Fees earned after the date
the Election Form is received by the Company.
2.2 Election Changes
2.2.1 Generally. The Director may modify (either increase or
decrease) the amount of Fees to be deferred by filing a subsequent signed
Election Form with the Company. The modified deferral shall not be
effective until the calendar year following the year in which the
subsequent Election Form is received by the Company.
2.2.2 Hardship. If an unforeseeable financial emergency
arising from the death of a family member, divorce, sickness, injury,
catastrophe or similar event outside the control of the Director occurs,
the Director, by written instructions to the Company may reduce future
deferrals under this Agreement, in which event the modified deferral
shall be effective immediately.
Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a
Deferral Account-on its books for the Director, and shall credit to the
Deferral Account the following amounts:
3. 1. 1 Deferrals. The Fees deferred by the Director as
of the time the Fees would have otherwise been paid to the Director.
3.1.2 Interest. On the first day of each month and
immediately prior to the payment of any benefits, interest on the account
balance since the preceding credit under this Section 3.1.2, if any, at
an annual rate, compounded monthly, equal to the rate determined
prospectively by the Company's Board of Directors, in its sole
discretion, on December 31 of each year this Agreement is in effect.
3.2 Statement of accounts. The Company shall provide to the
Director, within one hundred twenty (120) days after each anniversary of
this Agreement, a statement setting forth the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a
device for measuring amounts to be paid under this Agreement. The
Deferral Account is not a trust fund of any kind. The Director is a
general unsecured creditor of the Company for the payment of benefits.
The benefits represent the mere Company promise to pay such benefits.
The Director's rights are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment,
or garnishment by the Director's creditors.
Article 4
Lifetime Benefits
4.1 Normal Termination Benefit. Upon the Director's Termination
of Service, the Company shall pay to the Director the benefit described
in this Section 4.1.
4.1.I Amount of Benefit. The benefit under this Section
4.1 is the Deferral Account balance at the Director's Termination of
Service.
4.1.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.1 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.2 Early Termination Benefit. If the Director terminates
service as a director before the Normal Termination Date, and for reasons
other dm death or Disability, the Company shall pay to the Director the
benefit described in this Section 4.2.
4.2.1 Amount of Benefit. The benefit under this Section 4.2
is the Deferral Account balance at the Director's Termination of Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.2 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.3 Disability Benefit. If the Director terminates service as a
director for Disability prior to the Normal Retirement Date, the Company
shall pay to the Director the benefit described in this Section 4.3.
4.3.1 Amount of Benefit. The benefit under this Section 4.3
is the Deferral Account balance at the Director's Termination of Service.
4.3.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.4 Change of Control Benefit. Upon a Change of Control while
the Director is in the active service of the Company, the Company shall
pay to the Director the benefit described in this Section 4.4 in lieu of
any other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4
is the Deferral Account balance at the date of the Director's Termination
of Service.
4.4.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.5 Hardship Distribution. Upon the Company's determination
(following petition by the Director) that the Director has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the
Company shall distribute to the Director all or a portion of the Deferral
Account balance as determined by the Company, but in no event shall the
distribution be greater than is necessary to relieve the financial
hardship.
Article 5
Death Benefits
5.1 Death During Active Service. If the Director dies while in
the active service of the Company, the Company shall pay to the
Director's beneficiary the benefit described in this Section 5. 1.
5. 1. 1 Amount of Benefit. The benefit under Section 5. 1
is the greater of the Deferral Account balance at the date of the
Director's death or $227,315.
5.1.2 Payment of Benefit. The Company shall pay the benefit
to the beneficiary within 60 days following the Director's death.
5.2 Death During Benefit Period. If the Director dies after
benefit payments have commenced under this Agreement but before
receiving all such payments, the Company shall pay the remaining
benefits to the Director's beneficiary at the same time and in the same
amounts they would have been paid to the Director had the Director
survived.
Article 6
Beneficiaries
6. 1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company. The
Director may revoke or modify the designation at any time by filing a new
designation. However, designations will only be effective if signed by
the Director and accepted by the Company during the Director's lifetime.
The Director's beneficiary designation shall be deemed automatically
revoked if the beneficiary predeceases the Director, or if the Director
names a spouse as beneficiary and the marriage is subsequently dissolved.
If the Director dies without a valid beneficiary designation, all
payments shall be made to the Director's surviving spouse, if any, and if
none, to the Director's surviving children and the descendants of any
deceased child by right of representation, and if no children or
descendants survive, to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to
a person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to
the guardian, legal representative or person having the care or custody
of such minor, incompetent person or incapable person. The Company may
require proof of incompetency, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution
shall completely discharge the Company from all liability with respect to
such benefit.
Article 7
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay any benefit under this Agreement that is
attributable to the Company's matching contributions or the interest
earned on such contributions:
7.1 Termination for Cause. If the Company terminates the
Director's service as a director
for:
7.1.1 Gross negligence or gross neglect of duties;
7.1.2 Commission of a felony or of a gross misdemeanor
involving moral turpitude;
or
7.1.3 Fraud, disloyalty, dishonesty or willful violation of any
law or significant Company policy committed in connection with the
Director's service and resulting in an adverse financial effect on the
Company.
7.2 Suicide. If the Director commits suicide within two years
after the date of this Agreement, or if the Director has made any
material misstatement of fact on any application for life insurance
purchased by the Company.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. The Company shall notify the Director's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or noneligibility for
benefits under the Agreement. If the Company determines that the
beneficiary is not eligible for benefits or full benefits, the notice
shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is
based, (3) a description of any additional information or material
necessary for the claimant to perfect his or her claim, and a description
of why it is needed, and (4) an explanation of the Agreement's claims
review procedure and other appropriate information as to the steps to be
taken if the beneficiary wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring
additional time to make a decision, the Company shall notify the
beneficiary of the special circumstances and the date by which a decision
is expected to be made, and may extend the time for up to an additional
ninety-day period.
8.2 Review Procedure. If the beneficiary is determined by the
Company not to be eligible for benefits, or if the beneficiary believes
that he or she is entitled to greater or different benefits, the
beneficiary shall have the opportunity to have such claim reviewed by the
Company by filing a petition for review with the Company within sixty
(60) days after receipt of the notice issued by the Company. Said
petition shall state the specific reasons which the beneficiary believes
entitle him or her to benefits or to greater or different benefits.
Within sixty (60) days after receipt by the Company of the petition, the
Company shall afford the beneficiary (and counsel, if any) an opportunity
to present his or her position to the Company orally or in writing, and
the beneficiary (or counsel) shall have the right to review the pertinent
documents. The Company shall notify the beneficiary of its decision in
writing within the sixty-day period, stating specifically the basis of
its decision, written in a manner calculated to be understood by the
beneficiary and the specific provisions of the Agreement on which the
decision is based. If, because of the need for a hearing, the sixty-day
period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of the Company, but notice of this
deferral shall be given to the beneficiary.
Article 9
Amendments and Termination
This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Director.
Article 10
Miscellaneous
10.1 Binding Effect. This Agreement shall bind the Director and
the Company, and their beneficiaries, survivors, executors,
administrators and transferees.
10.2 No Guaranty of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain a director
of the Company, nor does it interfere with the shareholders' rights to
replace the Director. It also does not require the Director to remain a
director nor interfere with the Director's right to terminate services at
any time.
10.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any
manner.
10.4 Tax Withholding. The Company shall withhold any taxes that
are required to be withheld from the benefits provided under this
Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall
be governed by the laws of California, except to the extent preempted by
the laws of the United States of America.
10.6 Unfunded Arrangement. The Director and beneficiary are
general unsecured creditors of the Company for the payment of benefits
under this Agreement. The benefits represent the mere promise by the
Company to pay such benefits. The rights to benefits are not subject in
any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors. Any
insurance on the Director's life is a general asset of the Company to
which the Director and beneficiary have no preferred or secured claim.
IN WITNESS WHEREOF, the Director and a duly
authorized Company officer have signed this Agreement.
COMPANY:
ORANGE NATIONAL BANK
EXHIBIT 10.12
ORANGE NATIONAL BANK OF ORANGE, CALIFORNIA
DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this 17th day of January 1996 by and
between Orange National Bank (the "Company"), and Robert W. Creighton
(the "Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's
Board of Directors, the Company is willing to provide to the Director a
deferred fee opportunity. The Company will pay the benefits from its
general assets.
AGREEMENT
The Director and the Company agree as follows:
Article I
Definitions
1. 1 Definitions. Whenever used in this Agreement, the
following words and phrases shall
have the meanings specified:
1. 1. I "Change of Control" means the transfer of 51% or more of
the Company's outstanding voting common stock or the transfer of 51% or
more of Orange National Bancorp's (the Company's holding company)
outstanding voting common stock followed within twelve (12) months by
termination of the Director's status as a member of the Company's Board
of Directors.
1. 1.2 "Code" means the Internal Revenue Code of 1986, as
amended. References to a Code section shall be deemed to be to that
section as it now exists and to any successor provision.
1.1.3 "Disability" means, if the Director is covered by a
Company-sponsored disability insurance policy, total disability as
defined in such policy without regard to any waiting period. If the
Director is not covered by such a policy, Disability means the Director
suffering a sickness, accident or injury which, in the judgment of a
physician satisfactory to the Company, prevents the Director from
performing substantially all of the normal duties of a director. As a
condition to any benefits, the Company may require the Director to submit
to such physical or mental evaluations and tests as the Company's Board
of Directors deems appropriate.
1. 1.4 "Election Form" means the Form attached as Exhibit 1.
1.1.5 "Fees" means the total directors fees payable to the
Director including fees earned by a Director who elects to participate in
the Company's Director Emeritus Program.
1.1.6 "Normal Termination Date" means the Director attaining
age 65.
1.1.7 "Termination of Service" means the Director's ceasing
to be a member of the Company's Board of Directors for any reason
whatsoever.
1.1.8 "Director" means a member of the Company's Board of
Directors and includes any Director who elects to participate in the
Company's Director Emeritus Program.
Article 2
Deferral Election
2.1 Initial Election. The Director shall make an initial
deferral election under this Agreement by filing with the Company a
signed Election Form within 30 days after the date of this Agreement.
The Election Form shall set forth the amount of Fees to be deferred. The
Election Form shall be effective to defer only Fees earned after the date
the Election Form is received by the Company.
2.2 Election Changes
2.2.1 Generally. The Director may modify (either increase or
decrease) the amount of Fees to be deferred by filing a subsequent signed
Election Form with the Company. The modified deferral shall not be
effective until the calendar year following the year in which the
subsequent Election Form is received by the Company.
2.2.2 Hardship. If an unforeseeable financial emergency
arising from the death of a family member, divorce, sickness, injury,
catastrophe or similar event outside the control of the Director occurs,
the Director, by written instructions to the Company may reduce future
deferrals under this Agreement, in which event the modified deferral
shall be effective immediately.
Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a
Deferral Account-on its books for the Director, and shall credit to the
Deferral Account the following amounts:
3. 1. 1 Deferrals. The Fees deferred by the Director as
of the time the Fees would have otherwise been paid to the Director.
3.1.2 Interest. On the first day of each month and
immediately prior to the payment of any benefits, interest on the account
balance since the preceding credit under this Section 3.1.2, if any, at
an annual rate, compounded monthly, equal to the rate determined
prospectively by the Company's Board of Directors, in its sole
discretion, on December 31 of each year this Agreement is in effect.
3.2 Statement of accounts. The Company shall provide to the
Director, within one hundred twenty (120) days after each anniversary of
this Agreement, a statement setting forth the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a
device for measuring amounts to be paid under this Agreement. The
Deferral Account is not a trust fund of any kind. The Director is a
general unsecured creditor of the Company for the payment of benefits.
The benefits represent the mere Company promise to pay such benefits.
The Director's rights are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment,
or garnishment by the Director's creditors.
Article 4
Lifetime Benefits
4.1 Normal Termination Benefit. Upon the Director's Termination
of Service, the Company shall pay to the Director the benefit described
in this Section 4. 1.
4. 1. I Amount of Benefit. The benefit under this Section
4. 1 is the Deferral Account balance at the Director's Termination of
Service.
4.1.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.1 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.2 Early Termination Benefit. If the Director terminates
service as a director before the Normal Termination Date, and for reasons
other dm death or Disability, the Company shall pay to the Director the
benefit described in this Section 4.2.
4.2.1 Amount of Benefit. The benefit under this Section 4.2
is the Deferral Account balance at the Director's Termination of Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.2 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.3 Disability Benefit. If the Director terminates service as a
director for Disability prior to the Normal Retirement Date, the Company
shall pay to the Director the benefit described in this Section 4.3.
4.3.1 Amount of Benefit. The benefit under this Section 4.3
is the Deferral Account balance at the Director's Termination of Service.
4.3.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.4 Change of Control Benefit. Upon a Change of Control while
the Director is in the active service of the Company, the Company shall
pay to the Director the benefit described in this Section 4.4 in lieu of
any other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4
is the Deferral Account balance at the date of the Director's Termination
of Service.
4.4.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.5 Hardship Distribution. Upon the Company's determination
(following petition by the Director) that the Director has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the
Company shall distribute to the Director all or a portion of the Deferral
Account balance as determined by the Company, but in no event shall the
distribution be greater than is necessary to relieve the financial
hardship.
Article 5
Death Benefits
5.1 Death During Active Service. If the Director dies while in
the active service of the Company, the Company shall pay to the
Director's beneficiary the benefit described in this Section 5. 1.
5. 1. 1 Amount of Benefit. The benefit under Section 5. 1
is the greater of the Deferral Account balance at the date of the
Director's death or $227,315.
5.1.2 Payment of Benefit. The Company shall pay the benefit
to the beneficiary within 60 days following the Director's death.
5.2 Death During Benefit Period. If the Director dies after
benefit payments have commenced under this Agreement but before
receiving all such payments, the Company shall pay the remaining
benefits to the Director's beneficiary at the same time and in the same
amounts they would have been paid to the Director had the Director
survived.
Article 6
Beneficiaries
6.1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company. The
Director may revoke or modify the designation at any time by filing a new
designation. However, designations will only be effective if signed by
the Director and accepted by the Company during the Director's lifetime.
The Director's beneficiary designation shall be deemed automatically
revoked if the beneficiary predeceases the Director, or if the Director
names a spouse as beneficiary and the marriage is subsequently dissolved.
If the Director dies without a valid beneficiary designation, all
payments shall be made to the Director's surviving spouse, if any, and if
none, to the Director's surviving children and the descendants of any
deceased child by right of representation, and if no children or
descendants survive, to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to
a person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to
the guardian, legal representative or person having the care or custody
of such minor, incompetent person or incapable person. The Company may
require proof of incompetency, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution
shall completely discharge the Company from all liability with respect to
such benefit.
Article 7
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay any benefit under this Agreement that is
attributable to the Company's matching contributions or the interest
earned on such contributions:
7.1 Termination for Cause. If the Company terminates the
Director's service as a director
for:
7.1.1 Gross negligence or gross neglect of duties;
7.1.2 Commission of a felony or of a gross misdemeanor
involving moral turpitude;
or
7.1.3 Fraud, disloyalty, dishonesty or willful violation of any
law or significant Company policy committed in connection with the
Director's service and resulting in an adverse financial effect on the
Company.
7.2 Suicide. If the Director commits suicide within two years
after the date of this Agreement, or if the Director has made any
material misstatement of fact on any application for life insurance
purchased by the Company.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. The Company shall notify the Director's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or noneligibility for
benefits under the Agreement. If the Company determines that the
beneficiary is not eligible for benefits or full benefits, the notice
shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is
based, (3) a description of any additional information or material
necessary for the claimant to perfect his or her claim, and a description
of why it is needed, and (4) an explanation of the Agreement's claims
review procedure and other appropriate information as to the steps to be
taken if the beneficiary wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring
additional time to make a decision, the Company shall notify the
beneficiary of the special circumstances and the date by which a decision
is expected to be made, and may extend the time for up to an additional
ninety-day period.
8.2 Review Procedure. If the beneficiary is determined by the
Company not to be eligible for benefits, or if the beneficiary believes
that he or she is entitled to greater or different benefits, the
beneficiary shall have the opportunity to have such claim reviewed by the
Company by filing a petition for review with the Company within sixty
(60) days after receipt of the notice issued by the Company. Said
petition shall state the specific reasons which the beneficiary believes
entitle him or her to benefits or to greater or different benefits.
Within sixty (60) days after receipt by the Company of the petition, the
Company shall afford the beneficiary (and counsel, if any) an opportunity
to present his or her position to the Company orally or in writing, and
the beneficiary (or counsel) shall have the right to review the pertinent
documents. The Company shall notify the beneficiary of its decision in
writing within the sixty-day period, stating specifically the basis of
its decision, written in a manner calculated to be understood by the
beneficiary and the specific provisions of the Agreement on which the
decision is based. If, because of the need for a hearing, the sixty-day
period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of the Company, but notice of this
deferral shall be given to the beneficiary.
Article 9
Amendments and Termination
This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Director.
Article 10
Miscellaneous
10.1 Binding Effect. This Agreement shall bind the Director and
the Company, and their beneficiaries, survivors, executors,
administrators and transferees.
10.2 No Guaranty of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain a director
of the Company, nor does it interfere with the shareholders' rights to
replace the Director. It also does not require the Director to remain a
director nor interfere with the Director's right to terminate services at
any time.
10.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any
manner.
10.4 Tax Withholding. The Company shall withhold any taxes that
are required to be withheld from the benefits provided under this
Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall
be governed by the laws of California, except to the extent preempted by
the laws of the United States of America.
10.6 Unfunded Arrangement. The Director and beneficiary are
general unsecured creditors of the Company for the payment of benefits
under this Agreement. The benefits represent the mere promise by the
Company to pay such benefits. The rights to benefits are not subject in
any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors. Any
insurance on the Director's life is a general asset of the Company to
which the Director and beneficiary have no preferred or secured claim.
IN WITNESS WHEREOF, the Director and a duly
authorized Company officer have signed this Agreement.
COMPANY:
ORANGE NATIONAL BANK
EXHIBIT 10.13
ORANGE NATIONAL BANK OF ORANGE, CALIFORNIA
DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this 17th day of January 1996 by and
between Orange National Bank (the "Company"), and Charles R. Fougler
(the "Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's
Board of Directors, the Company is willing to provide to the Director a
deferred fee opportunity. The Company will pay the benefits from its
general assets.
AGREEMENT
The Director and the Company agree as follows:
Article I
Definitions
1.1 Definitions. Whenever used in this Agreement, the
following words and phrases shall
have the meanings specified:
1.1.I "Change of Control" means the transfer of 51% or more of
the Company's outstanding voting common stock or the transfer of 51% or
more of Orange National Bancorp's (the Company's holding company)
outstanding voting common stock followed within twelve (12) months by
termination of the Director's status as a member of the Company's Board
of Directors.
1.1.2 "Code" means the Internal Revenue Code of 1986, as
amended. References to a Code section shall be deemed to be to that
section as it now exists and to any successor provision.
1.1.3 "Disability" means, if the Director is covered by a
Company-sponsored disability insurance policy, total disability as
defined in such policy without regard to any waiting period. If the
Director is not covered by such a policy, Disability means the Director
suffering a sickness, accident or injury which, in the judgment of a
physician satisfactory to the Company, prevents the Director from
performing substantially all of the normal duties of a director. As a
condition to any benefits, the Company may require the Director to submit
to such physical or mental evaluations and tests as the Company's Board
of Directors deems appropriate.
1.1.4 "Election Form" means the Form attached as Exhibit 1.
1.1.5 "Fees" means the total directors fees payable to the
Director including fees earned by a Director who elects to participate in
the Company's Director Emeritus Program.
1.1.6 "Normal Termination Date" means the Director attaining
age 65.
1.1.7 "Termination of Service" means the Director's ceasing
to be a member of the Company's Board of Directors for any reason
whatsoever.
1.1.8 "Director" means a member of the Company's Board of
Directors and includes any Director who elects to participate in the
Company's Director Emeritus Program.
Article 2
Deferral Election
2.1 Initial Election. The Director shall make an initial
deferral election under this Agreement by filing with the Company a
signed Election Form within 30 days after the date of this Agreement.
The Election Form shall set forth the amount of Fees to be deferred. The
Election Form shall be effective to defer only Fees earned after the date
the Election Form is received by the Company.
2.2 Election Changes
2.2.1 Generally. The Director may modify (either increase or
decrease) the amount of Fees to be deferred by filing a subsequent signed
Election Form with the Company. The modified deferral shall not be
effective until the calendar year following the year in which the
subsequent Election Form is received by the Company.
2.2.2 Hardship. If an unforeseeable financial emergency
arising from the death of a family member, divorce, sickness, injury,
catastrophe or similar event outside the control of the Director occurs,
the Director, by written instructions to the Company may reduce future
deferrals under this Agreement, in which event the modified deferral
shall be effective immediately.
Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a
Deferral Account-on its books for the Director, and shall credit to the
Deferral Account the following amounts:
3. 1. 1 Deferrals. The Fees deferred by the Director as
of the time the Fees would have otherwise been paid to the Director.
3.1.2 Interest. On the first day of each month and
immediately prior to the payment of any benefits, interest on the account
balance since the preceding credit under this Section 3.1.2, if any, at
an annual rate, compounded monthly, equal to the rate determined
prospectively by the Company's Board of Directors, in its sole
discretion, on December 31 of each year this Agreement is in effect.
3.2 Statement of accounts. The Company shall provide to the
Director, within one hundred twenty (120) days after each anniversary of
this Agreement, a statement setting forth the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a
device for measuring amounts to be paid under this Agreement. The
Deferral Account is not a trust fund of any kind. The Director is a
general unsecured creditor of the Company for the payment of benefits.
The benefits represent the mere Company promise to pay such benefits.
The Director's rights are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment,
or garnishment by the Director's creditors.
Article 4
Lifetime Benefits
4.1 Normal Termination Benefit. Upon the Director's Termination
of Service, the Company shall pay to the Director the benefit described
in this Section 4.1.
4.1.I Amount of Benefit. The benefit under this Section
4.1 is the Deferral Account balance at the Director's Termination of
Service.
4.1.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.1 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.2 Early Termination Benefit. If the Director terminates
service as a director before the Normal Termination Date, and for reasons
other dm death or Disability, the Company shall pay to the Director the
benefit described in this Section 4.2.
4.2.1 Amount of Benefit. The benefit under this Section 4.2
is the Deferral Account balance at the Director's Termination of Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.2 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.3 Disability Benefit. If the Director terminates service as a
director for Disability prior to the Normal Retirement Date, the Company
shall pay to the Director the benefit described in this Section 4.3.
4.3.1 Amount of Benefit. The benefit under this Section 4.3
is the Deferral Account balance at the Director's Termination of Service.
4.3.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.4 Change of Control Benefit. Upon a Change of Control while
the Director is in the active service of the Company, the Company shall
pay to the Director the benefit described in this Section 4.4 in lieu of
any other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4
is the Deferral Account balance at the date of the Director's Termination
of Service.
4.4.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.5 Hardship Distribution. Upon the Company's determination
(following petition by the Director) that the Director has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the
Company shall distribute to the Director all or a portion of the Deferral
Account balance as determined by the Company, but in no event shall the
distribution be greater than is necessary to relieve the financial
hardship.
Article 5
Death Benefits
5.1 Death During Active Service. If the Director dies while in
the active service of the Company, the Company shall pay to the
Director's beneficiary the benefit described in this Section 5. 1.
5. 1. 1 Amount of Benefit. The benefit under Section 5. 1
is the greater of the Deferral Account balance at the date of the
Director's death or $227,315.
5.1.2 Payment of Benefit. The Company shall pay the benefit
to the beneficiary within 60 days following the Director's death.
5.2 Death During Benefit Period. If the Director dies after
benefit payments have commenced under this Agreement but before
receiving all such payments, the Company shall pay the remaining
benefits to the Director's beneficiary at the same time and in the same
amounts they would have been paid to the Director had the Director
survived.
Article 6
Beneficiaries
6. 1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company. The
Director may revoke or modify the designation at any time by filing a new
designation. However, designations will only be effective if signed by
the Director and accepted by the Company during the Director's lifetime.
The Director's beneficiary designation shall be deemed automatically
revoked if the beneficiary predeceases the Director, or if the Director
names a spouse as beneficiary and the marriage is subsequently dissolved.
If the Director dies without a valid beneficiary designation, all
payments shall be made to the Director's surviving spouse, if any, and if
none, to the Director's surviving children and the descendants of any
deceased child by right of representation, and if no children or
descendants survive, to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to
a person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to
the guardian, legal representative or person having the care or custody
of such minor, incompetent person or incapable person. The Company may
require proof of incompetency, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution
shall completely discharge the Company from all liability with respect to
such benefit.
Article 7
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay any benefit under this Agreement that is
attributable to the Company's matching contributions or the interest
earned on such contributions:
7.1 Termination for Cause. If the Company terminates the
Director's service as a director
for:
7.1.1 Gross negligence or gross neglect of duties;
7.1.2 Commission of a felony or of a gross misdemeanor
involving moral turpitude;
or
7.1.3 Fraud, disloyalty, dishonesty or willful violation of any
law or significant Company policy committed in connection with the
Director's service and resulting in an adverse financial effect on the
Company.
7.2 Suicide. If the Director commits suicide within two years
after the date of this Agreement, or if the Director has made any
material misstatement of fact on any application for life insurance
purchased by the Company.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. The Company shall notify the Director's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or noneligibility for
benefits under the Agreement. If the Company determines that the
beneficiary is not eligible for benefits or full benefits, the notice
shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is
based, (3) a description of any additional information or material
necessary for the claimant to perfect his or her claim, and a description
of why it is needed, and (4) an explanation of the Agreement's claims
review procedure and other appropriate information as to the steps to be
taken if the beneficiary wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring
additional time to make a decision, the Company shall notify the
beneficiary of the special circumstances and the date by which a decision
is expected to be made, and may extend the time for up to an additional
ninety-day period.
8.2 Review Procedure. If the beneficiary is determined by the
Company not to be eligible for benefits, or if the beneficiary believes
that he or she is entitled to greater or different benefits, the
beneficiary shall have the opportunity to have such claim reviewed by the
Company by filing a petition for review with the Company within sixty
(60) days after receipt of the notice issued by the Company. Said
petition shall state the specific reasons which the beneficiary believes
entitle him or her to benefits or to greater or different benefits.
Within sixty (60) days after receipt by the Company of the petition, the
Company shall afford the beneficiary (and counsel, if any) an opportunity
to present his or her position to the Company orally or in writing, and
the beneficiary (or counsel) shall have the right to review the pertinent
documents. The Company shall notify the beneficiary of its decision in
writing within the sixty-day period, stating specifically the basis of
its decision, written in a manner calculated to be understood by the
beneficiary and the specific provisions of the Agreement on which the
decision is based. If, because of the need for a hearing, the sixty-day
period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of the Company, but notice of this
deferral shall be given to the beneficiary.
Article 9
Amendments and Termination
This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Director.
Article 10
Miscellaneous
10. 1 Binding Effect. This Agreement shall bind the Director and
the Company, and their beneficiaries, survivors, executors,
administrators and transferees.
10.2 No Guaranty of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain a director
of the Company, nor does it interfere with the shareholders' rights to
replace the Director. It also does not require the Director to remain a
director nor interfere with the Director's right to terminate services at
any time.
10.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any
manner.
10.4 Tax Withholding. The Company shall withhold any taxes that
are required to be withheld from the benefits provided under this
Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall
be governed by the laws of California, except to the extent preempted by
the laws of the United States of America.
10.6 Unfunded Arrangement. The Director and beneficiary are
general unsecured creditors of the Company for the payment of benefits
under this Agreement. The benefits represent the mere promise by the
Company to pay such benefits. The rights to benefits are not subject in
any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors. Any
insurance on the Director's life is a general asset of the Company to
which the Director and beneficiary have no preferred or secured claim.
IN WITNESS WHEREOF, the Director and a duly
authorized Company officer have signed this Agreement.
COMPANY:
ORANGE NATIONAL BANK
EXHIBIT 10.14
ORANGE NATIONAL BANK OF ORANGE, CALIFORNIA
DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this 17th day of January 1996 by and
between Orange National Bank (the "Company"), and San E. Vaccaro (the
"Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's
Board of Directors, the Company is willing to provide to the Director a
deferred fee opportunity. The Company will pay the benefits from its
general assets.
AGREEMENT
The Director and the Company agree as follows:
Article I
Definitions
1.1 Definitions. Whenever used in this Agreement, the
following words and phrases shall
have the meanings specified:
1.1.I "Change of Control" means the transfer of 51% or more of
the Company's outstanding voting common stock or the transfer of 51% or
more of Orange National Bancorp's (the Company's holding company)
outstanding voting common stock followed within twelve (12) months by
termination of the Director's status as a member of the Company's Board
of Directors.
1.1.2 "Code" means the Internal Revenue Code of 1986, as
amended. References to a Code section shall be deemed to be to that
section as it now exists and to any successor provision.
1.1.3 "Disability" means, if the Director is covered by a
Company-sponsored disability insurance policy, total disability as
defined in such policy without regard to any waiting period. If the
Director is not covered by such a policy, Disability means the Director
suffering a sickness, accident or injury which, in the judgment of a
physician satisfactory to the Company, prevents the Director from
performing substantially all of the normal duties of a director. As a
condition to any benefits, the Company may require the Director to submit
to such physical or mental evaluations and tests as the Company's Board
of Directors deems appropriate.
1.1.4 "Election Form" means the Form attached as Exhibit 1.
1.1.5 "Fees" means the total directors fees payable to the
Director including fees earned by a Director who elects to participate in
the Company's Director Emeritus Program.
1.1.6 "Normal Termination Date" means the Director attaining
age 65.
1.1.7 "Termination of Service" means the Director's ceasing
to be a member of the Company's Board of Directors for any reason
whatsoever.
1.1.8 "Director" means a member of the Company's Board of
Directors and includes any Director who elects to participate in the
Company's Director Emeritus Program.
Article 2
Deferral Election
2.1 Initial Election. The Director shall make an initial
deferral election under this Agreement by filing with the Company a
signed Election Form within 30 days after the date of this Agreement.
The Election Form shall set forth the amount of Fees to be deferred. The
Election Form shall be effective to defer only Fees earned after the date
the Election Form is received by the Company.
2.2 Election Changes
2.2.1 Generally. The Director may modify (either increase or
decrease) the amount of Fees to be deferred by filing a subsequent signed
Election Form with the Company. The modified deferral shall not be
effective until the calendar year following the year in which the
subsequent Election Form is received by the Company.
2.2.2 Hardship. If an unforeseeable financial emergency
arising from the death of a family member, divorce, sickness, injury,
catastrophe or similar event outside the control of the Director occurs,
the Director, by written instructions to the Company may reduce future
deferrals under this Agreement, in which event the modified deferral
shall be effective immediately.
Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a
Deferral Account-on its books for the Director, and shall credit to the
Deferral Account the following amounts:
3.1.1 Deferrals. The Fees deferred by the Director as
of the time the Fees would have otherwise been paid to the Director.
3.1.2 Interest. On the first day of each month and
immediately prior to the payment of any benefits, interest on the account
balance since the preceding credit under this Section 3.1.2, if any, at
an annual rate, compounded monthly, equal to the rate determined
prospectively by the Company's Board of Directors, in its sole
discretion, on December 31 of each year this Agreement is in effect.
3.2 Statement of accounts. The Company shall provide to the
Director, within one hundred twenty (120) days after each anniversary of
this Agreement, a statement setting forth the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a
device for measuring amounts to be paid under this Agreement. The
Deferral Account is not a trust fund of any kind. The Director is a
general unsecured creditor of the Company for the payment of benefits.
The benefits represent the mere Company promise to pay such benefits.
The Director's rights are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment,
or garnishment by the Director's creditors.
Article 4
Lifetime Benefits
4.1 Normal Termination Benefit. Upon the Director's Termination
of Service, the Company shall pay to the Director the benefit described
in this Section 4.1.
4.1.I Amount of Benefit. The benefit under this Section
4.1 is the Deferral Account balance at the Director's Termination of
Service.
4.1.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.1 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.2 Early Termination Benefit. If the Director terminates
service as a director before the Normal Termination Date, and for reasons
other dm death or Disability, the Company shall pay to the Director the
benefit described in this Section 4.2.
4.2.1 Amount of Benefit. The benefit under this Section 4.2
is the Deferral Account balance at the Director's Termination of Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.2 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.3 Disability Benefit. If the Director terminates service as a
director for Disability prior to the Normal Retirement Date, the Company
shall pay to the Director the benefit described in this Section 4.3.
4.3.1 Amount of Benefit. The benefit under this Section 4.3
is the Deferral Account balance at the Director's Termination of Service.
4.3.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.4 Change of Control Benefit. Upon a Change of Control while
the Director is in the active service of the Company, the Company shall
pay to the Director the benefit described in this Section 4.4 in lieu of
any other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4
is the Deferral Account balance at the date of the Director's Termination
of Service.
4.4.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.5 Hardship Distribution. Upon the Company's determination
(following petition by the Director) that the Director has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the
Company shall distribute to the Director all or a portion of the Deferral
Account balance as determined by the Company, but in no event shall the
distribution be greater than is necessary to relieve the financial
hardship.
Article 5
Death Benefits
5.1 Death During Active Service. If the Director dies while in
the active service of the Company, the Company shall pay to the
Director's beneficiary the benefit described in this Section 5.1.
5.1.1 Amount of Benefit. The benefit under Section 5.1
is the greater of the Deferral Account balance at the date of the
Director's death or $227,315.
5.1.2 Payment of Benefit. The Company shall pay the benefit
to the beneficiary within 60 days following the Director's death.
5.2 Death During Benefit Period. If the Director dies after
benefit payments have commenced under this Agreement but before
receiving all such payments, the Company shall pay the remaining
benefits to the Director's beneficiary at the same time and in the same
amounts they would have been paid to the Director had the Director
survived.
Article 6
Beneficiaries
6. 1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company. The
Director may revoke or modify the designation at any time by filing a new
designation. However, designations will only be effective if signed by
the Director and accepted by the Company during the Director's lifetime.
The Director's beneficiary designation shall be deemed automatically
revoked if the beneficiary predeceases the Director, or if the Director
names a spouse as beneficiary and the marriage is subsequently dissolved.
If the Director dies without a valid beneficiary designation, all
payments shall be made to the Director's surviving spouse, if any, and if
none, to the Director's surviving children and the descendants of any
deceased child by right of representation, and if no children or
descendants survive, to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to
a person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to
the guardian, legal representative or person having the care or custody
of such minor, incompetent person or incapable person. The Company may
require proof of incompetency, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution
shall completely discharge the Company from all liability with respect to
such benefit.
Article 7
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay any benefit under this Agreement that is
attributable to the Company's matching contributions or the interest
earned on such contributions:
7.1 Termination for Cause. If the Company terminates the
Director's service as a director
for:
7.1.1 Gross negligence or gross neglect of duties;
7.1.2 Commission of a felony or of a gross misdemeanor
involving moral turpitude;
or
7.1.3 Fraud, disloyalty, dishonesty or willful violation of any
law or significant Company policy committed in connection with the
Director's service and resulting in an adverse financial effect on the
Company.
7.2 Suicide. If the Director commits suicide within two years
after the date of this Agreement, or if the Director has made any
material misstatement of fact on any application for life insurance
purchased by the Company.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. The Company shall notify the Director's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or noneligibility for
benefits under the Agreement. If the Company determines that the
beneficiary is not eligible for benefits or full benefits, the notice
shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is
based, (3) a description of any additional information or material
necessary for the claimant to perfect his or her claim, and a description
of why it is needed, and (4) an explanation of the Agreement's claims
review procedure and other appropriate information as to the steps to be
taken if the beneficiary wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring
additional time to make a decision, the Company shall notify the
beneficiary of the special circumstances and the date by which a decision
is expected to be made, and may extend the time for up to an additional
ninety-day period.
8.2 Review Procedure. If the beneficiary is determined by the
Company not to be eligible for benefits, or if the beneficiary believes
that he or she is entitled to greater or different benefits, the
beneficiary shall have the opportunity to have such claim reviewed by the
Company by filing a petition for review with the Company within sixty
(60) days after receipt of the notice issued by the Company. Said
petition shall state the specific reasons which the beneficiary believes
entitle him or her to benefits or to greater or different benefits.
Within sixty (60) days after receipt by the Company of the petition, the
Company shall afford the beneficiary (and counsel, if any) an opportunity
to present his or her position to the Company orally or in writing, and
the beneficiary (or counsel) shall have the right to review the pertinent
documents. The Company shall notify the beneficiary of its decision in
writing within the sixty-day period, stating specifically the basis of
its decision, written in a manner calculated to be understood by the
beneficiary and the specific provisions of the Agreement on which the
decision is based. If, because of the need for a hearing, the sixty-day
period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of the Company, but notice of this
deferral shall be given to the beneficiary.
Article 9
Amendments and Termination
This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Director.
Article 10
Miscellaneous
10.1 Binding Effect. This Agreement shall bind the Director and
the Company, and their beneficiaries, survivors, executors,
administrators and transferees.
10.2 No Guaranty of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain a director
of the Company, nor does it interfere with the shareholders' rights to
replace the Director. It also does not require the Director to remain a
director nor interfere with the Director's right to terminate services at
any time.
10.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any
manner.
10.4 Tax Withholding. The Company shall withhold any taxes that
are required to be withheld from the benefits provided under this
Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall
be governed by the laws of California, except to the extent preempted by
the laws of the United States of America.
10.6 Unfunded Arrangement. The Director and beneficiary are
general unsecured creditors of the Company for the payment of benefits
under this Agreement. The benefits represent the mere promise by the
Company to pay such benefits. The rights to benefits are not subject in
any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors. Any
insurance on the Director's life is a general asset of the Company to
which the Director and beneficiary have no preferred or secured claim.
IN WITNESS WHEREOF, the Director and a duly
authorized Company officer have signed this Agreement.
COMPANY:
ORANGE NATIONAL BANK
EXHIBIT 10.15
ORANGE NATIONAL BANK OF ORANGE, CALIFORNIA
DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this 17th day of January 1996 by and
between Orange National Bank (the "Company"), and James E. Mahoney (the
"Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's
Board of Directors, the Company is willing to provide to the Director a
deferred fee opportunity. The Company will pay the benefits from its
general assets.
AGREEMENT
The Director and the Company agree as follows:
Article I
Definitions
1.1 Definitions. Whenever used in this Agreement, the
following words and phrases shall
have the meanings specified:
1.1.I "Change of Control" means the transfer of 51% or more of
the Company's outstanding voting common stock or the transfer of 51% or
more of Orange National Bancorp's (the Company's holding company)
outstanding voting common stock followed within twelve (12) months by
termination of the Director's status as a member of the Company's Board
of Directors.
1.1.2 "Code" means the Internal Revenue Code of 1986, as
amended. References to a Code section shall be deemed to be to that
section as it now exists and to any successor provision.
1.1.3 "Disability" means, if the Director is covered by a
Company-sponsored disability insurance policy, total disability as
defined in such policy without regard to any waiting period. If the
Director is not covered by such a policy, Disability means the Director
suffering a sickness, accident or injury which, in the judgment of a
physician satisfactory to the Company, prevents the Director from
performing substantially all of the normal duties of a director. As a
condition to any benefits, the Company may require the Director to submit
to such physical or mental evaluations and tests as the Company's Board
of Directors deems appropriate.
1.1.4 "Election Form" means the Form attached as Exhibit 1.
1.1.5 "Fees" means the total directors fees payable to the
Director including fees earned by a Director who elects to participate in
the Company's Director Emeritus Program.
1.1.6 "Normal Termination Date" means the Director attaining
age 65.
1.1.7 "Termination of Service" means the Director's ceasing
to be a member of the Company's Board of Directors for any reason
whatsoever.
1.1.8 "Director" means a member of the Company's Board of
Directors and includes any Director who elects to participate in the
Company's Director Emeritus Program.
Article 2
Deferral Election
2.1 Initial Election. The Director shall make an initial
deferral election under this Agreement by filing with the Company a
signed Election Form within 30 days after the date of this Agreement.
The Election Form shall set forth the amount of Fees to be deferred. The
Election Form shall be effective to defer only Fees earned after the date
the Election Form is received by the Company.
2.2 Election Changes
2.2.1 Generally. The Director may modify (either increase or
decrease) the amount of Fees to be deferred by filing a subsequent signed
Election Form with the Company. The modified deferral shall not be
effective until the calendar year following the year in which the
subsequent Election Form is received by the Company.
2.2.2 Hardship. If an unforeseeable financial emergency
arising from the death of a family member, divorce, sickness, injury,
catastrophe or similar event outside the control of the Director occurs,
the Director, by written instructions to the Company may reduce future
deferrals under this Agreement, in which event the modified deferral
shall be effective immediately.
Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a
Deferral Account-on its books for the Director, and shall credit to the
Deferral Account the following amounts:
3.1.1 Deferrals. The Fees deferred by the Director as
of the time the Fees would have otherwise been paid to the Director.
3.1.2 Interest. On the first day of each month and
immediately prior to the payment of any benefits, interest on the account
balance since the preceding credit under this Section 3.1.2, if any, at
an annual rate, compounded monthly, equal to the rate determined
prospectively by the Company's Board of Directors, in its sole
discretion, on December 31 of each year this Agreement is in effect.
3.2 Statement of accounts. The Company shall provide to the
Director, within one hundred twenty (120) days after each anniversary of
this Agreement, a statement setting forth the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a
device for measuring amounts to be paid under this Agreement. The
Deferral Account is not a trust fund of any kind. The Director is a
general unsecured creditor of the Company for the payment of benefits.
The benefits represent the mere Company promise to pay such benefits.
The Director's rights are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment,
or garnishment by the Director's creditors.
Article 4
Lifetime Benefits
4.1 Normal Termination Benefit. Upon the Director's Termination
of Service, the Company shall pay to the Director the benefit described
in this Section 4.1.
4.1.I Amount of Benefit. The benefit under this Section
4.1 is the Deferral Account balance at the Director's Termination of
Service.
4.1.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.1 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.2 Early Termination Benefit. If the Director terminates
service as a director before the Normal Termination Date, and for reasons
other dm death or Disability, the Company shall pay to the Director the
benefit described in this Section 4.2.
4.2.1 Amount of Benefit. The benefit under this Section 4.2
is the Deferral Account balance at the Director's Termination of Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.2 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.3 Disability Benefit. If the Director terminates service as a
director for Disability prior to the Normal Retirement Date, the Company
shall pay to the Director the benefit described in this Section 4.3.
4.3.1 Amount of Benefit. The benefit under this Section 4.3
is the Deferral Account balance at the Director's Termination of Service.
4.3.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.4 Change of Control Benefit. Upon a Change of Control while
the Director is in the active service of the Company, the Company shall
pay to the Director the benefit described in this Section 4.4 in lieu of
any other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4
is the Deferral Account balance at the date of the Director's Termination
of Service.
4.4.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.5 Hardship Distribution. Upon the Company's determination
(following petition by the Director) that the Director has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the
Company shall distribute to the Director all or a portion of the Deferral
Account balance as determined by the Company, but in no event shall the
distribution be greater than is necessary to relieve the financial
hardship.
Article 5
Death Benefits
5.1 Death During Active Service. If the Director dies while in
the active service of the Company, the Company shall pay to the
Director's beneficiary the benefit described in this Section 5.1.
5.1.1 Amount of Benefit. The benefit under Section 5.1
is the greater of the Deferral Account balance at the date of the
Director's death or $227,315.
5.1.2 Payment of Benefit. The Company shall pay the benefit
to the beneficiary within 60 days following the Director's death.
5.2 Death During Benefit Period. If the Director dies after
benefit payments have commenced under this Agreement but before
receiving all such payments, the Company shall pay the remaining
benefits to the Director's beneficiary at the same time and in the same
amounts they would have been paid to the Director had the Director
survived.
Article 6
Beneficiaries
6.1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company. The
Director may revoke or modify the designation at any time by filing a new
designation. However, designations will only be effective if signed by
the Director and accepted by the Company during the Director's lifetime.
The Director's beneficiary designation shall be deemed automatically
revoked if the beneficiary predeceases the Director, or if the Director
names a spouse as beneficiary and the marriage is subsequently dissolved.
If the Director dies without a valid beneficiary designation, all
payments shall be made to the Director's surviving spouse, if any, and if
none, to the Director's surviving children and the descendants of any
deceased child by right of representation, and if no children or
descendants survive, to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to
a person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to
the guardian, legal representative or person having the care or custody
of such minor, incompetent person or incapable person. The Company may
require proof of incompetency, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution
shall completely discharge the Company from all liability with respect to
such benefit.
Article 7
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay any benefit under this Agreement that is
attributable to the Company's matching contributions or the interest
earned on such contributions:
7.1 Termination for Cause. If the Company terminates the
Director's service as a director
for:
7.1.1 Gross negligence or gross neglect of duties;
7.1.2 Commission of a felony or of a gross misdemeanor
involving moral turpitude;
or
7.1.3 Fraud, disloyalty, dishonesty or willful violation of any
law or significant Company policy committed in connection with the
Director's service and resulting in an adverse financial effect on the
Company.
7.2 Suicide. If the Director commits suicide within two years
after the date of this Agreement, or if the Director has made any
material misstatement of fact on any application for life insurance
purchased by the Company.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. The Company shall notify the Director's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or noneligibility for
benefits under the Agreement. If the Company determines that the
beneficiary is not eligible for benefits or full benefits, the notice
shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is
based, (3) a description of any additional information or material
necessary for the claimant to perfect his or her claim, and a description
of why it is needed, and (4) an explanation of the Agreement's claims
review procedure and other appropriate information as to the steps to be
taken if the beneficiary wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring
additional time to make a decision, the Company shall notify the
beneficiary of the special circumstances and the date by which a decision
is expected to be made, and may extend the time for up to an additional
ninety-day period.
8.2 Review Procedure. If the beneficiary is determined by the
Company not to be eligible for benefits, or if the beneficiary believes
that he or she is entitled to greater or different benefits, the
beneficiary shall have the opportunity to have such claim reviewed by the
Company by filing a petition for review with the Company within sixty
(60) days after receipt of the notice issued by the Company. Said
petition shall state the specific reasons which the beneficiary believes
entitle him or her to benefits or to greater or different benefits.
Within sixty (60) days after receipt by the Company of the petition, the
Company shall afford the beneficiary (and counsel, if any) an opportunity
to present his or her position to the Company orally or in writing, and
the beneficiary (or counsel) shall have the right to review the pertinent
documents. The Company shall notify the beneficiary of its decision in
writing within the sixty-day period, stating specifically the basis of
its decision, written in a manner calculated to be understood by the
beneficiary and the specific provisions of the Agreement on which the
decision is based. If, because of the need for a hearing, the sixty-day
period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of the Company, but notice of this
deferral shall be given to the beneficiary.
Article 9
Amendments and Termination
This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Director.
Article 10
Miscellaneous
10.1 Binding Effect. This Agreement shall bind the Director and
the Company, and their beneficiaries, survivors, executors,
administrators and transferees.
10.2 No Guaranty of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain a director
of the Company, nor does it interfere with the shareholders' rights to
replace the Director. It also does not require the Director to remain a
director nor interfere with the Director's right to terminate services at
any time.
10.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any
manner.
10.4 Tax Withholding. The Company shall withhold any taxes that
are required to be withheld from the benefits provided under this
Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall
be governed by the laws of California, except to the extent preempted by
the laws of the United States of America.
10.6 Unfunded Arrangement. The Director and beneficiary are
general unsecured creditors of the Company for the payment of benefits
under this Agreement. The benefits represent the mere promise by the
Company to pay such benefits. The rights to benefits are not subject in
any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors. Any
insurance on the Director's life is a general asset of the Company to
which the Director and beneficiary have no preferred or secured claim.
IN WITNESS WHEREOF, the Director and a duly
authorized Company officer have signed this Agreement.
COMPANY:
ORANGE NATIONAL BANK
EXHIBIT 10.16
ORANGE NATIONAL BANK OF ORANGE, CALIFORNIA
DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this 17th day of January 1996 by and
between Orange National Bank (the "Company"), and Gerald R. Holte (the
"Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's
Board of Directors, the Company is willing to provide to the Director a
deferred fee opportunity. The Company will pay the benefits from its
general assets.
AGREEMENT
The Director and the Company agree as follows:
Article I
Definitions
1.1 Definitions. Whenever used in this Agreement, the
following words and phrases shall
have the meanings specified:
1.1.I "Change of Control" means the transfer of 51% or more of
the Company's outstanding voting common stock or the transfer of 51% or
more of Orange National Bancorp's (the Company's holding company)
outstanding voting common stock followed within twelve (12) months by
termination of the Director's status as a member of the Company's Board
of Directors.
1.1.2 "Code" means the Internal Revenue Code of 1986, as
amended. References to a Code section shall be deemed to be to that
section as it now exists and to any successor provision.
1.1.3 "Disability" means, if the Director is covered by a
Company-sponsored disability insurance policy, total disability as
defined in such policy without regard to any waiting period. If the
Director is not covered by such a policy, Disability means the Director
suffering a sickness, accident or injury which, in the judgment of a
physician satisfactory to the Company, prevents the Director from
performing substantially all of the normal duties of a director. As a
condition to any benefits, the Company may require the Director to submit
to such physical or mental evaluations and tests as the Company's Board
of Directors deems appropriate.
1.1.4 "Election Form" means the Form attached as Exhibit 1.
1.1.5 "Fees" means the total directors fees payable to the
Director including fees earned by a Director who elects to participate in
the Company's Director Emeritus Program.
1.1.6 "Normal Termination Date" means the Director attaining
age 65.
1.1.7 "Termination of Service" means the Director's ceasing
to be a member of the Company's Board of Directors for any reason
whatsoever.
1.1.8 "Director" means a member of the Company's Board of
Directors and includes any Director who elects to participate in the
Company's Director Emeritus Program.
Article 2
Deferral Election
2.1 Initial Election. The Director shall make an initial
deferral election under this Agreement by filing with the Company a
signed Election Form within 30 days after the date of this Agreement.
The Election Form shall set forth the amount of Fees to be deferred. The
Election Form shall be effective to defer only Fees earned after the date
the Election Form is received by the Company.
2.2 Election Changes
2.2.1 Generally. The Director may modify (either increase or
decrease) the amount of Fees to be deferred by filing a subsequent signed
Election Form with the Company. The modified deferral shall not be
effective until the calendar year following the year in which the
subsequent Election Form is received by the Company.
2.2.2 Hardship. If an unforeseeable financial emergency
arising from the death of a family member, divorce, sickness, injury,
catastrophe or similar event outside the control of the Director occurs,
the Director, by written instructions to the Company may reduce future
deferrals under this Agreement, in which event the modified deferral
shall be effective immediately.
Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a
Deferral Account-on its books for the Director, and shall credit to the
Deferral Account the following amounts:
3.1.1 Deferrals. The Fees deferred by the Director as
of the time the Fees would have otherwise been paid to the Director.
3.1.2 Interest. On the first day of each month and
immediately prior to the payment of any benefits, interest on the account
balance since the preceding credit under this Section 3.1.2, if any, at
an annual rate, compounded monthly, equal to the rate determined
prospectively by the Company's Board of Directors, in its sole
discretion, on December 31 of each year this Agreement is in effect.
3.2 Statement of accounts. The Company shall provide to the
Director, within one hundred twenty (120) days after each anniversary of
this Agreement, a statement setting forth the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a
device for measuring amounts to be paid under this Agreement. The
Deferral Account is not a trust fund of any kind. The Director is a
general unsecured creditor of the Company for the payment of benefits.
The benefits represent the mere Company promise to pay such benefits.
The Director's rights are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment,
or garnishment by the Director's creditors.
Article 4
Lifetime Benefits
4.1 Normal Termination Benefit. Upon the Director's Termination
of Service, the Company shall pay to the Director the benefit described
in this Section 4.1.
4.1.I Amount of Benefit. The benefit under this Section
4.1 is the Deferral Account balance at the Director's Termination of
Service.
4.1.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.1 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.2 Early Termination Benefit. If the Director terminates
service as a director before the Normal Termination Date, and for reasons
other dm death or Disability, the Company shall pay to the Director the
benefit described in this Section 4.2.
4.2.1 Amount of Benefit. The benefit under this Section 4.2
is the Deferral Account balance at the Director's Termination of Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service or, at its option, it shall pay the benefit to the
Participant in 180 monthly installments commencing on the first day of
the month following the Participant's Termination of Service. The
installment payments described in this Section 4.2 shall be determined on
the first month following the Participant's Termination of Service and
the first day of each plan year thereafter as the payment amount required
to amortize the account balance over the remaining term including
interest at the applicable interest rate (as determined under Section
3.1.2).
4.3 Disability Benefit. If the Director terminates service as a
director for Disability prior to the Normal Retirement Date, the Company
shall pay to the Director the benefit described in this Section 4.3.
4.3.1 Amount of Benefit. The benefit under this Section 4.3
is the Deferral Account balance at the Director's Termination of Service.
4.3.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.4 Change of Control Benefit. Upon a Change of Control while
the Director is in the active service of the Company, the Company shall
pay to the Director the benefit described in this Section 4.4 in lieu of
any other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4
is the Deferral Account balance at the date of the Director's Termination
of Service.
4.4.2 Payment of Benefit. The Company shall pay the benefit
to the Director in a lump sum within 60 days after the Director's
Termination of Service.
4.5 Hardship Distribution. Upon the Company's determination
(following petition by the Director) that the Director has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the
Company shall distribute to the Director all or a portion of the Deferral
Account balance as determined by the Company, but in no event shall the
distribution be greater than is necessary to relieve the financial
hardship.
Article 5
Death Benefits
5.1 Death During Active Service. If the Director dies while in
the active service of the Company, the Company shall pay to the
Director's beneficiary the benefit described in this Section 5.1.
5.1.1 Amount of Benefit. The benefit under Section 5.1
is the greater of the Deferral Account balance at the date of the
Director's death or $227,315.
5.1.2 Payment of Benefit. The Company shall pay the benefit
to the beneficiary within 60 days following the Director's death.
5.2 Death During Benefit Period. If the Director dies after
benefit payments have commenced under this Agreement but before
receiving all such payments, the Company shall pay the remaining
benefits to the Director's beneficiary at the same time and in the same
amounts they would have been paid to the Director had the Director
survived.
Article 6
Beneficiaries
6.1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company. The
Director may revoke or modify the designation at any time by filing a new
designation. However, designations will only be effective if signed by
the Director and accepted by the Company during the Director's lifetime.
The Director's beneficiary designation shall be deemed automatically
revoked if the beneficiary predeceases the Director, or if the Director
names a spouse as beneficiary and the marriage is subsequently dissolved.
If the Director dies without a valid beneficiary designation, all
payments shall be made to the Director's surviving spouse, if any, and if
none, to the Director's surviving children and the descendants of any
deceased child by right of representation, and if no children or
descendants survive, to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to
a person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to
the guardian, legal representative or person having the care or custody
of such minor, incompetent person or incapable person. The Company may
require proof of incompetency, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution
shall completely discharge the Company from all liability with respect to
such benefit.
Article 7
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay any benefit under this Agreement that is
attributable to the Company's matching contributions or the interest
earned on such contributions:
7.1 Termination for Cause. If the Company terminates the
Director's service as a director
for:
7.1.1 Gross negligence or gross neglect of duties;
7.1.2 Commission of a felony or of a gross misdemeanor
involving moral turpitude;
or
7.1.3 Fraud, disloyalty, dishonesty or willful violation of any
law or significant Company policy committed in connection with the
Director's service and resulting in an adverse financial effect on the
Company.
7.2 Suicide. If the Director commits suicide within two years
after the date of this Agreement, or if the Director has made any
material misstatement of fact on any application for life insurance
purchased by the Company.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. The Company shall notify the Director's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or noneligibility for
benefits under the Agreement. If the Company determines that the
beneficiary is not eligible for benefits or full benefits, the notice
shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is
based, (3) a description of any additional information or material
necessary for the claimant to perfect his or her claim, and a description
of why it is needed, and (4) an explanation of the Agreement's claims
review procedure and other appropriate information as to the steps to be
taken if the beneficiary wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring
additional time to make a decision, the Company shall notify the
beneficiary of the special circumstances and the date by which a decision
is expected to be made, and may extend the time for up to an additional
ninety-day period.
8.2 Review Procedure. If the beneficiary is determined by the
Company not to be eligible for benefits, or if the beneficiary believes
that he or she is entitled to greater or different benefits, the
beneficiary shall have the opportunity to have such claim reviewed by the
Company by filing a petition for review with the Company within sixty
(60) days after receipt of the notice issued by the Company. Said
petition shall state the specific reasons which the beneficiary believes
entitle him or her to benefits or to greater or different benefits.
Within sixty (60) days after receipt by the Company of the petition, the
Company shall afford the beneficiary (and counsel, if any) an opportunity
to present his or her position to the Company orally or in writing, and
the beneficiary (or counsel) shall have the right to review the pertinent
documents. The Company shall notify the beneficiary of its decision in
writing within the sixty-day period, stating specifically the basis of
its decision, written in a manner calculated to be understood by the
beneficiary and the specific provisions of the Agreement on which the
decision is based. If, because of the need for a hearing, the sixty-day
period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of the Company, but notice of this
deferral shall be given to the beneficiary.
Article 9
Amendments and Termination
This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Director.
Article 10
Miscellaneous
10.1 Binding Effect. This Agreement shall bind the Director and
the Company, and their beneficiaries, survivors, executors,
administrators and transferees.
10.2 No Guaranty of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain a director
of the Company, nor does it interfere with the shareholders' rights to
replace the Director. It also does not require the Director to remain a
director nor interfere with the Director's right to terminate services at
any time.
10.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any
manner.
10.4 Tax Withholding. The Company shall withhold any taxes that
are required to be withheld from the benefits provided under this
Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall
be governed by the laws of California, except to the extent preempted by
the laws of the United States of America.
10.6 Unfunded Arrangement. The Director and beneficiary are
general unsecured creditors of the Company for the payment of benefits
under this Agreement. The benefits represent the mere promise by the
Company to pay such benefits. The rights to benefits are not subject in
any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors. Any
insurance on the Director's life is a general asset of the Company to
which the Director and beneficiary have no preferred or secured claim.
IN WITNESS WHEREOF, the Director and a duly
authorized Company officer have signed this Agreement.
COMPANY:
ORANGE NATIONAL BANK
EXHIBIT 10.17
ORANGE NATIONAL BANK
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is made this 21st day of February 1996 by and between
Orange National Bank (the "Company"), and Kenneth J. Cosgrove (the
"Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company,
the Company is willing to provide salary continuation benefits to the
Executive. The Company will pay the benefits from its general assets.
AGREEMENT
The Executive and the Company agree as follows:
Article 1
Definitions
1.1 Definitions. Whenever used in this Agreement, the following
words and phrases shall
have the meanings specified:
1.1.I " Change of Control" means the transfer of 51% or more of the
Company's
outstanding voting common stock or the transfer of 51% or more of
Orange National
Bancorp's (the Company's holding company) outstanding voting common
stock.
1.1.2 "Code" means the Internal Revenue Code of 1986, as amended.
References to a Code section shall be deemed to be to that section as it
now exists and to any successor provision.
1.1.3 "Disability" means, if the Executive is covered by a Company-
sponsored disability insurance policy, total disability as defined in
such policy without regard to any waiting period. If the Executive is
not covered by such a policy, Disability means the Executive suffering a
sickness, accident or injury which, in the judgment of a physician
satisfactory to the Company, prevents the Executive from performing
substantially all of the Executive's normal duties for the Company. As
a condition to any benefits, the Company may require the Executive to
submit to such physical or mental evaluations and tests as the Company's
Board of Directors deems appropriate.
1.1.4 "Normal Retirement Date" means the Executive attaining age 65.
1.1.5 " Termination of Employment" means the Executive's ceasing to be
employed by the Company for any reason whatsoever, voluntary or
involuntary, other than by reason of an approved leave of absence.
1.1.6 "Plan Year" means twelve months ending on
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. If the Executive terminates employment
on or after the Normal Retirement Date for reasons other than death, the
Company shall pay to the Executive the benefit described in this Section
2.1.
2.1.1 Amount of Benefit. The benefit under this Section 2. 1 is $8,
000 per month.
2.1.2 Payment of Benefit. The Company shall pay the benefit to the
Executive on the first day of each month commencing with the month
following the Executive's Normal Retirement Date and continuing for 179
additional months.
2.2 Early Retirement Benefit Before Age 60. If the Executive
terminates employment prior to attaining age 60, and for reasons other
than death or Disability, the Company shall pay to the Executive the
benefit described in this Section 2.2.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
benefit determined under Schedule A, Column C based on the date of the
Executive's Termination of Employment (or, if Section 2.6 applies as
specified herein, the benefit set forth in Schedule A, Column G).
Schedule A is calculated using the interest method of accounting, a 9%
discount rate, and assuming monthly compounding and monthly benefit
payments.
2.2.2 Payment of Benefit. The Company shall pay the benefit to the
Executive on the first day of each month commencing with the month
following the Executive's Normal Retirement Date and continuing for 179
additional months.
2.3 Early Retirement Benefit After Age 60. If the Executive
terminates employment after attaining age 60 but prior to the Normal
Retirement Date and for reasons other than death or Disability, the
Company shall pay to the Executive the benefit described in this Section
2.3.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is the
benefit determined under Schedule A, Column D based on the date of the
Executive's Termination of Employment (or, if Section 2.6 applies as
specified herein, the benefit set forth in Schedule A, Column H).
2.3.2 Payment of Benefit. The Company shall pay the benefit to the
Executive on the first day of each month commencing with the month
following the Executive's Termination of Employment and continuing for
179 additional months.
2.4 Disability Benefit if Disability Occurs Within the First 5 Years.
If the Executive terminates employment for Disability within 5 years
from the date this Agreement is executed, but prior to the Normal
Retirement Date, the Company shall pay to the Executive the benefit
described in this Section 2.4.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is the
benefit determined under Schedule A, Column I based on the date of the
Executive's Termination of Employment (or, if Section 2.6 applies as
specified herein, the benefit set forth in Schedule A, Column F).
2.4.2 Payment of Benefit. The Company shall pay the benefit to the
Executive in a lump sum within 60 days after Disability (or, if Section
2.6 applies as specified herein, the benefit payable on the first day of
each month commencing with the month following the Executive's
Termination of Employment and continuing until the earlier of (a) the
Executive's recovery from the Disability and his return to active
employment by the Company, or (b) 179 months).
2.5 Disability Benefit if Disability Occurs After the Fifth Year. If
the Executive terminates employment for Disability after 5 years from
the date this Agreement is executed, but prior to the Normal Retirement
Date, the Company shall pay to the Executive the benefit described in
this Section 2.5.
2.5.1 Amount of Benefit. The benefit under this Section 2.5 is the
benefit determined under Schedule A, Column B based on the date of the
Executive's Termination of Employment (or, if Section 2.6 applies as
specified herein, the benefit set forth in Schedule A, Column F).
2.5.2 Payment of Benefit. The Company shall pay the benefit to the
Executive on the first day of each month commencing with the month
following the Executive's Termination of Employment and continuing until
the earlier of (a) the Executive's recovery from the Disability and his
return to active employment by the Company, or (b) 179 months.
2.6 Change of Control Vesting. Upon a Change of Control while the
Executive is in the active service of the Company, where the Executive
is not terminated by the Company as specified in Section 2.7 hereunder,
the Executive shall be vested in the Normal Retirement Benefit so that,
subsequent to a Change of Control, if the Executive becomes eligible for
any Early Retirement Benefit or Disability Benefit, notwithstanding
anything contained herein to the contrary, the amount of any such
benefit shall be measured in accordance with Schedule A.
2.7 Termination by the Company on Account of or After a Change of
Control. Notwithstanding anything contained herein to the contrary, in
the event: (i) the Executive's employment with the Company is terminated
by the Company in conjunction with, or by reason of, a Change of Control
or (ii) by reason of the Company's actions any adverse and material
change occurs in the scope of the Executive's position,
responsibilities, duties, salary, benefits, or location of employment
after a Change of Control occurs; or (iii) the Company causes an event
to occur which reasonably constitutes or results in a demotion, a
significant diminution of responsibilities or authority, or a
constructive termination (by forcing a resignation or otherwise) of the
Executive's employment after a Change of Control occurs, then the
Company shall pay to the Executive the benefit described in this Section
2.7, in lieu of any other benefit under this Agreement.
2.7.1 Amount of Benefit. The benefit under this Section 2.7 is the
benefit determined under Schedule A, Column E based on the later of (a)
the beginning of year 12, or (b) the date of the event triggering this
Section 2.7 benefit.
2.7.2 Payment of Benefit. The Company shall pay the benefit to the
Executive on the first day of each month commencing with the month
following the date of the event triggering this Section 2.7 benefit and
continuing for 179 additional months.
2.8 After Returning to Active Employment from Disability. If the
Executive returns to active employment by the Company after receiving
Disability benefits under Sections 2.4 or 2.5 and becomes otherwise
entitled to any benefits contained in this Agreement, the Company shall
pay such benefits to the Executive except that the benefits shall be
reduced by a fraction, the numerator of which is the total of all
Disability benefits paid to the Executive and the denominator of which
is the total sum of benefits to which the Executive is otherwise
entitled.
Article 3
Death Benefits
3.1 Death During Active Service. If the Executive dies while in the
active service of the Company, the Company shall pay to the Executive's
beneficiary the benefit described in this Section 3.1.
3.1.1 Amount of Benefit. The benefit under Section 3.1 is the lifetime
benefit that would have been paid to the Executive under Section 2.1
calculated as if the date of the Executive's death were the Normal
Retirement Date and reduced as described in Section 2.8, if applicable.
3.1.2 Payment of Benefit. The Company shall pay the benefit to the
Beneficiary on the first day of each month commencing with the month
following the Executive's death and continuing for 179 additional
months.
3.2 Death During Benefit Period. If the Executive dies after benefit
payments have commenced under this Agreement, other than benefits on
account of Disability, but before receiving all such payments, the
Company shall pay the remaining benefits to the Executive's beneficiary
at the same time and in the same amounts they would have been paid to
the Executive had the Executive survived.
3.3 Death after Termination for Disability If the Executive dies after
terminating employment for Disability and before returning to active
employment with the company, the Company shall pay the benefit contained
in Section 3.1, except that such benefit shall be reduced as described
in Section 2.8.
Article 4
Beneficiaries
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Company. The
Executive may revoke or modify the designation at any time by filing a
new designation. However, designations will only be effective if signed
by the Executive and accepted by the Company during the Executive's
lifetime. The Executive's beneficiary designation shall be deemed
automatically revoked if the beneficiary predeceases the Executive, or
if the Executive names a spouse as beneficiary and the marriage is
subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's
surviving spouse, if any, and if none, to the Executive's surviving
children and the descendants of any deceased child by right of
representation, and if no children or descendants survive, to the
Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to
the guardian, legal representative or person having the care or custody
of such minor, incompetent person or incapable person. The Company may
require proof of incompetency, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution
shall completely discharge the Company from all liability with respect
to such benefit.
Article 5
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay certain benefits as described below hereunder:
5.1 Excess Parachute Payment. To the extent the benefit payments are
not deductible by the payor under Section 28OG of the Internal Revenue
Code, if any, such nondeductible payments shall not be made. All
deductible payments under Section 28OG shall be made. For purposes of
determining the nondeductible portion of Section 280G, if any, the
discount rate of 7.74% shall be used.
5.2 Termination for Cause. No benefit payments under this Agreement
shall be paid, if the Company terminates the Executive's employment for:
5.2.1 Gross negligence or gross neglect of duties;
5.2.2 Commission of a felony or of a gross misdemeanor involving moral
turpitude; or
5.2.3 Fraud, disloyalty, dishonesty or willful violation of any law or
significant Company policy committed in connection with the Executive's
employment and resulting in an adverse effect on the Company.
5.3 Suicide. No benefits shall be payable if the Executive commits
suicide within two years after the date of this Agreement, or if the
Executive has made any material misstatement of fact on any application
for life insurance purchased by the Company.
5.4 Regulatory Violation or Impairment of Capital. No benefit
payments shall be payable in violation of any regulatory order or
prohibition, or if such benefit payments would cause the Company's
capital to be impaired.
Article 6
Claims and Review Procedures
6.1 Claims Procedure. The Company shall notify the Executive's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or noneligibility
for benefits under the Agreement. If the Company determines that the
beneficiary is not eligible for benefits or full benefits, the notice
shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is
based, (3) a description of any additional information or material
necessary for the claimant to perfect his or her claim, and a
description of why it is needed, and (4) an explanation of the
Agreement's claims review procedure and other appropriate information as
to the steps to be taken if the beneficiary wishes to have the claim
reviewed. If the Company determines that there are special
circumstances requiring additional time to make a decision, the Company
shall notify the beneficiary of the special circumstances and the date
by which a decision is expected to be made, and may extend the time for
up to an additional ninety-day period.
6.2 Review Procedure. If the beneficiary is determined by the Company
not to be eligible for benefits, or if the beneficiary believes that he
or she is entitled to greater or different benefits, the beneficiary
shall have the opportunity to have such claim reviewed by the Company by
filing a petition for review with the Company within sixty (60) days
after receipt of the notice issued by the Company. Said petition shall
state the specific reasons which the beneficiary believes entitle him or
her to benefits or to greater or different benefits. Within sixty (60)
days after receipt by the Company of the petition, the Company shall
afford the beneficiary (and counsel, if any) an opportunity to present
his or her position to the Company orally or in writing, and the
beneficiary (or counsel) shall have the right to review the pertinent
documents. The Company shall notify the beneficiary of its decision in
writing within the sixty-day period, stating specifically the basis of
its decision, written in a manner calculated to be understood by the
beneficiary and the specific provisions of the Agreement on which the
decision is based. If, because of the need for a hearing, the sixty-day
period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of the Company, but notice of this
deferral shall be given to the beneficiary.
Article 7
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
Article 8
Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, administrators
and transferees.
8.2 No Guaranty of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain
an employee of the Company, nor does it interfere with the Company's
right to discharge the Executive. It also does not require the
Executive to remain an employee nor interfere with the Executive's right
to terminate employment at any time.
8.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any
manner.
8.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of California, except to the extent preempted by
the laws of the United States of America.
8.6 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Company for the payment of benefits under
this Agreement. The benefits represent the mere promise by the Company
to pay such benefits. The rights to benefits are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors. Any insurance on
the Executive's life is a general asset of the Company to which the
Executive and beneficiary have no preferred or secured claim.
8.7 Collateral upon Change of Control. As collateral for the
performance of the obligations due Executive herein, upon a change of
control, as defined in Section 1. 1. 1 hereof, the Board of Directors of
Company, in its sole option and discretion, may require that the
acquiror post a letter of credit, in form and from an issuing entity
acceptable to the Board of Directors, for the full amount of the benefit
payments due under this Agreement. However, notwithstanding this
provision, nothing herein contained shall be deemed to confer or grant
any right to the Executive to require or compel the Company or the
acquiror to collateralize the provisions of this Agreement.
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer
have signed this Agreement.
COMPANY:
ORANGE NATIONAL BANK
EXHIBIT 10.18
ORANGE NATIONAL BANK
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is made this 21st day of February 1996 by and between
Orange National Bank (the "Company"), and Robert W. Creighton (the
"Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company,
the Company is willing to provide salary continuation benefits to the
Executive. The Company will pay the benefits from its general assets.
AGREEMENT
The Executive and the Company agree as follows:
Article 1
Definitions
1.1 Definitions. Whenever used in this Agreement, the following
words and phrases shall
have the meanings specified:
1.1.I " Change of Control" means the transfer of 51% or more of the
Company's
outstanding voting common stock or the transfer of 51% or more of
Orange National
Bancorp's (the Company's holding company) outstanding voting common
stock.
1.1.2 "Code" means the Internal Revenue Code of 1986, as amended.
References to a Code section shall be deemed to be to that section as it
now exists and to any successor provision.
1.1.3 "Disability" means, if the Executive is covered by a Company-
sponsored disability insurance policy, total disability as defined in
such policy without regard to any waiting period. If the Executive is
not covered by such a policy, Disability means the Executive suffering a
sickness, accident or injury which, in the judgment of a physician
satisfactory to the Company, prevents the Executive from performing
substantially all of the Executive's normal duties for the Company. As
a condition to any benefits, the Company may require the Executive to
submit to such physical or mental evaluations and tests as the Company's
Board of Directors deems appropriate.
1.1.4 "Normal Retirement Date" means the Executive attaining age 65.
1.1.5 " Termination of Employment" means the Executive's ceasing to be
employed by the Company for any reason whatsoever, voluntary or
involuntary, other than by reason of an approved leave of absence.
1.1.6 "Plan Year" means twelve months ending on
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. If the Executive terminates employment
on or after the Normal Retirement Date for reasons other than death, the
Company shall pay to the Executive the benefit described in this Section
2.1.
2.1.1 Amount of Benefit. The benefit under this Section 2. 1 is $5,
000 per month.
2.1.2 Payment of Benefit. The Company shall pay the benefit to the
Executive on the first day of each month commencing with the month
following the Executive's Normal Retirement Date and continuing for 179
additional months.
2.2 Early Retirement Benefit Before Age 60. If the Executive
terminates employment prior to attaining age 60, and for reasons other
than death or Disability, the Company shall pay to the Executive the
benefit described in this Section 2.2.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
benefit determined under Schedule A, Column C based on the date of the
Executive's Termination of Employment (or, if Section 2.6 applies as
specified herein, the benefit set forth in Schedule A, Column G).
Schedule A is calculated using the interest method of accounting, a 9%
discount rate, and assuming monthly compounding and monthly benefit
payments.
2.2.2 Payment of Benefit. The Company shall pay the benefit to the
Executive on the first day of each month commencing with the month
following the Executive's Normal Retirement Date and continuing for 179
additional months.
2.3 Early Retirement Benefit After Age 60. If the Executive
terminates employment after attaining age 60 but prior to the Normal
Retirement Date and for reasons other than death or Disability, the
Company shall pay to the Executive the benefit described in this Section
2.3.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is the
benefit determined under Schedule A, Column D based on the date of the
Executive's Termination of Employment (or, if Section 2.6 applies as
specified herein, the benefit set forth in Schedule A, Column H).
2.3.2 Payment of Benefit. The Company shall pay the benefit to the
Executive on the first day of each month commencing with the month
following the Executive's Termination of Employment and continuing for
179 additional months.
2.4 Disability Benefit if Disability Occurs Within the First 5 Years.
If the Executive terminates employment for Disability within 5 years
from the date this Agreement is executed, but prior to the Normal
Retirement Date, the Company shall pay to the Executive the benefit
described in this Section 2.4.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is the
benefit determined under Schedule A, Column I based on the date of the
Executive's Termination of Employment (or, if Section 2.6 applies as
specified herein, the benefit set forth in Schedule A, Column F).
2.4.2 Payment of Benefit. The Company shall pay the benefit to the
Executive in a lump sum within 60 days after Disability (or, if Section
2.6 applies as specified herein, the benefit payable on the first day of
each month commencing with the month following the Executive's
Termination of Employment and continuing until the earlier of (a) the
Executive's recovery from the Disability and his return to active
employment by the Company, or (b) 179 months).
2.5 Disability Benefit if Disability Occurs After the Fifth Year. If
the Executive terminates employment for Disability after 5 years from
the date this Agreement is executed, but prior to the Normal Retirement
Date, the Company shall pay to the Executive the benefit described in
this Section 2.5.
2.5.1 Amount of Benefit. The benefit under this Section 2.5 is the
benefit determined under Schedule A, Column B based on the date of the
Executive's Termination of Employment (or, if Section 2.6 applies as
specified herein, the benefit set forth in Schedule A, Column F).
2.5.2 Payment of Benefit. The Company shall pay the benefit to the
Executive on the first day of each month commencing with the month
following the Executive's Termination of Employment and continuing until
the earlier of (a) the Executive's recovery from the Disability and his
return to active employment by the Company, or (b) 179 months.
2.6 Change of Control Vesting. Upon a Change of Control while the
Executive is in the active service of the Company, where the Executive
is not terminated by the Company as specified in Section 2.7 hereunder,
the Executive shall be vested in the Normal Retirement Benefit so that,
subsequent to a Change of Control, if the Executive becomes eligible for
any Early Retirement Benefit or Disability Benefit, notwithstanding
anything contained herein to the contrary, the amount of any such
benefit shall be measured in accordance with Schedule A.
2.7 Termination by the Company on Account of or After a Change of
Control. Notwithstanding anything contained herein to the contrary, in
the event: (i) the Executive's employment with the Company is terminated
by the Company in conjunction with, or by reason of, a Change of Control
or (ii) by reason of the Company's actions any adverse and material
change occurs in the scope of the Executive's position,
responsibilities, duties, salary, benefits, or location of employment
after a Change of Control occurs; or (iii) the Company causes an event
to occur which reasonably constitutes or results in a demotion, a
significant diminution of responsibilities or authority, or a
constructive termination (by forcing a resignation or otherwise) of the
Executive's employment after a Change of Control occurs, then the
Company shall pay to the Executive the benefit described in this Section
2.7, in lieu of any other benefit under this Agreement.
2.7.1 Amount of Benefit. The benefit under this Section 2.7 is the
benefit determined under Schedule A, Column E based on the later of (a)
the beginning of year 12, or (b) the date of the event triggering this
Section 2.7 benefit.
2.7.2 Payment of Benefit. The Company shall pay the benefit to the
Executive on the first day of each month commencing with the month
following the date of the event triggering this Section 2.7 benefit and
continuing for 179 additional months.
2.8 After Returning to Active Employment from Disability. If the
Executive returns to active employment by the Company after receiving
Disability benefits under Sections 2.4 or 2.5 and becomes otherwise
entitled to any benefits contained in this Agreement, the Company shall
pay such benefits to the Executive except that the benefits shall be
reduced by a fraction, the numerator of which is the total of all
Disability benefits paid to the Executive and the denominator of which
is the total sum of benefits to which the Executive is otherwise
entitled.
Article 3
Death Benefits
3.1 Death During Active Service. If the Executive dies while in the
active service of the Company, the Company shall pay to the Executive's
beneficiary the benefit described in this Section 3. 1.
3.1.1 Amount of Benefit. The benefit under Section 3.1 is the lifetime
benefit that would have been paid to the Executive under Section 2.1
calculated as if the date of the Executive's death were the Normal
Retirement Date and reduced as described in Section 2.8, if applicable.
3.1.2 Payment of Benefit. The Company shall pay the benefit to the
Beneficiary on the first day of each month commencing with the month
following the Executive's death and continuing for 179 additional
months.
3.2 Death During Benefit Period. If the Executive dies after benefit
payments have commenced under this Agreement, other than benefits on
account of Disability, but before receiving all such payments, the
Company shall pay the remaining benefits to the Executive's beneficiary
at the same time and in the same amounts they would have been paid to
the Executive had the Executive survived.
3.3 Death after Termination for Disability If the Executive dies after
terminating employment for Disability and before returning to active
employment with the company, the Company shall pay the benefit contained
in Section 3. 1, except that such benefit shall be reduced as described
in Section 2.8.
Article 4
Beneficiaries
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Company. The
Executive may revoke or modify the designation at any time by filing a
new designation. However, designations will only be effective if signed
by the Executive and accepted by the Company during the Executive's
lifetime. The Executive's beneficiary designation shall be deemed
automatically revoked if the beneficiary predeceases the Executive, or
if the Executive names a spouse as beneficiary and the marriage is
subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's
surviving spouse, if any, and if none, to the Executive's surviving
children and the descendants of any deceased child by right of
representation, and if no children or descendants survive, to the
Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to
the guardian, legal representative or person having the care or custody
of such minor, incompetent person or incapable person. The Company may
require proof of incompetency, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution
shall completely discharge the Company from all liability with respect
to such benefit.
Article 5
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay certain benefits as described below hereunder:
5.1 Excess Parachute Payment. To the extent the benefit payments are
not deductible by the payor under Section 28OG of the Internal Revenue
Code, if any, such nondeductible payments shall not be made. All
deductible payments under Section 28OG shall be made. For purposes of
determining the nondeductible portion of Section 280G, if any, the
discount rate of 7.74% shall be used.
5.2 Termination for Cause. No benefit payments under this Agreement
shall be paid, if the Company terminates the Executive's employment for:
5.2.1 Gross negligence or gross neglect of duties;
5.2.2 Commission of a felony or of a gross misdemeanor involving moral
turpitude; or
5.2.3 Fraud, disloyalty, dishonesty or willful violation of any law or
significant Company policy committed in connection with the Executive's
employment and resulting in an adverse effect on the Company.
5.3 Suicide. No benefits shall be payable if the Executive commits
suicide within two years after the date of this Agreement, or if the
Executive has made any material misstatement of fact on any application
for life insurance purchased by the Company.
5.4 Regulatory Violation or Impairment of Capital. No benefit
payments shall be payable in violation of any regulatory order or
prohibition, or if such benefit payments would cause the Company's
capital to be impaired.
Article 6
Claims and Review Procedures
6.1 Claims Procedure. The Company shall notify the Executive's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or noneligibility
for benefits under the Agreement. If the Company determines that the
beneficiary is not eligible for benefits or full benefits, the notice
shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is
based, (3) a description of any additional information or material
necessary for the claimant to perfect his or her claim, and a
description of why it is needed, and (4) an explanation of the
Agreement's claims review procedure and other appropriate information as
to the steps to be taken if the beneficiary wishes to have the claim
reviewed. If the Company determines that there are special
circumstances requiring additional time to make a decision, the Company
shall notify the beneficiary of the special circumstances and the date
by which a decision is expected to be made, and may extend the time for
up to an additional ninety-day period.
6.2 Review Procedure. If the beneficiary is determined by the Company
not to be eligible for benefits, or if the beneficiary believes that he
or she is entitled to greater or different benefits, the beneficiary
shall have the opportunity to have such claim reviewed by the Company by
filing a petition for review with the Company within sixty (60) days
after receipt of the notice issued by the Company. Said petition shall
state the specific reasons which the beneficiary believes entitle him or
her to benefits or to greater or different benefits. Within sixty (60)
days after receipt by the Company of the petition, the Company shall
afford the beneficiary (and counsel, if any) an opportunity to present
his or her position to the Company orally or in writing, and the
beneficiary (or counsel) shall have the right to review the pertinent
documents. The Company shall notify the beneficiary of its decision in
writing within the sixty-day period, stating specifically the basis of
its decision, written in a manner calculated to be understood by the
beneficiary and the specific provisions of the Agreement on which the
decision is based. If, because of the need for a hearing, the sixty-day
period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of the Company, but notice of this
deferral shall be given to the beneficiary.
Article 7
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
Article 8
Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, administrators
and transferees.
8.2 No Guaranty of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain
an employee of the Company, nor does it interfere with the Company's
right to discharge the Executive. It also does not require the
Executive to remain an employee nor interfere with the Executive's right
to terminate employment at any time.
8.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any
manner.
8.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of California, except to the extent preempted by
the laws of the United States of America.
8.6 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Company for the payment of benefits under
this Agreement. The benefits represent the mere promise by the Company
to pay such benefits. The rights to benefits are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors. Any insurance on
the Executive's life is a general asset of the Company to which the
Executive and beneficiary have no preferred or secured claim.
8.7 Collateral upon Change of Control. As collateral for the
performance of the obligations due Executive herein, upon a change of
control, as defined in Section 1. 1. 1 hereof, the Board of Directors of
Company, in its sole option and discretion, may require that the
acquiror post a letter of credit, in form and from an issuing entity
acceptable to the Board of Directors, for the full amount of the benefit
payments due under this Agreement. However, notwithstanding this
provision, nothing herein contained shall be deemed to confer or grant
any right to the Executive to require or compel the Company or the
acquiror to collateralize the provisions of this Agreement.
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer
have signed this Agreement.
COMPANY:
ORANGE NATIONAL BANK
EXHIBIT 10.19
DEFERRED COMPENSATION AGREEMENT
KENNETH J. COSGROVE
This Agreement is made by and between ORANGE NATIONAL BANK, 1201
East Katella Avenue, Orange, California ('ONB"), and KENNETH J. COSGROVE
('Executive") whose residence is 23 Montpellier, Newport Beach,
California, 92660 with reference to the following:
INTRODUCTION
1 Executive has been employed by ONB from its inception, as is
currently its President and Chief Executive Officer, and has acquired
experience, knowledge and a reputation of considerable value to ONB.
2. ONB desires to retain the services of Executive and would
suffer financial losses should he leave its employ.
3. Executive agrees to remain in faithful performance of his
duties to ONB and ONB wishes to offer an incentive to Executive to remain
in its employ.
AGREEMENT
In consideration of the services rendered and to be rendered by the
Executive the parties agree:
ARTICLE I
Deferral Election
1.1 Deferred Compensation. The Executive's compensation set
forth in the Contract of Employment between ONB and Executive dated
February 21, 1986, as amended from time to time, shall be reduced by the
sum of $5,000.00 per calendar year ("Annual Deferred Compensation") for
twenty-four (24) consecutive years commencing with the year 1988 and
ending on the earlier of December 21, 2011, or on the date his employment
is terminated, whichever occurs first.
1.2 Election Changes. The amount of reduction may from time to
time be modified for any future calendar year by written notice from the
Executive to ONB given at least fifteen (15) days prior to December 31
of each calendar year, or at the date of the December board of directors
meeting, whichever event occurs later, at which time Executive shall
declare the amount of reduction for the following calendar year. In any
event, if Executive does not notify ONB of any change in the amount of
the reduction, the amount of reduction shall remain at $5,000 per
calendar year, until December 31, 2011, or his employment is terminated,
whichever is first. After December 31, 2011, no reduction shall be
required, but Executive may request from year to year further salary
deferral by giving written notice to ONB of an amount of reduction for
the ensuing year.
1.3 Hardship. If an unforeseeable financial emergency arising
from the death of a family member, divorce, sickness, injury, catastrophe
or similar event outside the control of the Executive occurs, the
Executive, by written instructions to ONB may reduce future deferrals
under this Agreement, in which event the modified deferral shall be
effective immediately.
Article 2
Deferral Account
2.1 Establishing and Crediting. ONB shall establish a Deferral
Account on its books for the Executive and shall credit the Deferral
Account the following amounts:
2.1.1 Existing Deferral. The amount of Seventy-One Thousand
Four Hundred Seventy and No/100ths Dollars ($71,470.00) which is the
current existing balance as of December 31, 1996 of the total deferrals
accrued pursuant to the Contract of Employment dated February 21, 1986
between ONB and the Executive,
2.1.2 Deferrals. The aggregate of the total Annual Deferred
Compensation deferred by the Executive after December 31, 1996, and
2.1.3 Interest, Commencing on January 1, 1997, the Interest Rate
shall be
computed as follows: on the first day of each month and immediately prior
to the payment 2 of any benefits, interest on the account balance since
the preceding credit under this Section 2.1.3, if any, at an annual rate,
compounded monthly, equal to the rate determined prospectively by the
ONB's Board of Directors, in its sole discretion, on December 31 of each
year this Agreement is in effect.
2.2 Statement of Accounts. ONB shall provide to the Executive,
within one hundred twenty (120) days after each anniversary of this
Agreement, a statement setting forth the Deferral Account balance.
2.3 Accounting Device Only. The Deferral Account is solely a
device for measuring amounts to be paid under this Agreement. The
Deferral Account is not a trust fund of any kind. The Executive is a
general unsecured creditor of ONB for the payment of benefits. The
benefits represent the mere promise of ONB to pay such benefits. The
Executive's rights are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment,
or garnishment by the Executive's creditors.
Article 3
Lifetime Benefits
3.1 Termination Benefit. Upon the Executive's Termination of
Service, other than death or disability, ONB shall pay to the Executive
the benefit described in this Section 3. 1.
3.1.1 Amount of Benefit. The benefit under this Section 3.1
is the Deferral Account balance at the Executive's Termination of
Service.
3.1.2 Payment of Benefit. ONB shall pay the benefit to the
Executive in a lump sum within 60 days after the Executive's Termination
of Service or, at its option, it shall pay the benefit to the Executive
in 120 monthly installments commencing on the first day of the month
following the Executive's Termination of Service. The installment
payments described in this Section 3.1 shall be determined on the first
month following the Executive's Termination of Service and the first day
of each plan year thereafter as the payment amount required to amortize
the account balance over the remaining term including interest at the
applicable interest rate (as determined under Section 2.1.2).
3.2 Disability Benefit . If the Executive terminates service as
an Executive for Disability prior to his retirement, ONB shall pay to the
Executive the benefit described in this Section 3.3.
3.3.1 Amount of Benefit. The benefit under this Section 3.3
is the Deferral Account balance at the Executive's Termination of
Service.
3.3.2 Payment of Benefit. ONB shall pay the benefit to the
Executive in a lump sum within 60 days after the Executive's Termination
of Service or, at its option, it shall pay the benefit to the Executive
in 120 monthly installments commencing on the first day of the month
following the Executive's Termination of Service. The installment
payments described in this Section 3.1 shall be determined on the first
month following the Executive's Termination of Service and the first day
of each plan year thereafter as the payment amount required to amortize
the account balance over the remaining term including interest at the
applicable interest rate (as determined under Section 2.1.2).
3.4 Change of Control Benefit. Upon a Change of Control while
the Executive is in the active service of ONB, ONB shall pay to the
Executive the benefit described in this Section 3.4 in lieu of any other
benefit under this Agreement.
3.4.1 Amount of Benefit. The benefit under this Section 3.4
is the Deferral Account balance at the date of the Executive's
Termination of Service.
3.4.2 Payment of Benefit. ONB shall pay the benefit to the
Executive in a lump sum within 60 days after the Executive's Termination
of Service.
3.5 Hardship Distribution. Upon ONB's determination (following
petition by the Executive) that the Executive has suffered an
unforeseeable financial emergency as described in Section 1.3, ONB shall
distribute to the Executive all or a portion of the Deferral Account
balance as determined by the ONB, but in no event shall the distribution
be greater than is necessary to relieve the financial hardship.
Article 4
Death Benefits
4.1 Death During Active Service. If the Executive dies while in
the active service of ONB, ONB shall pay to the Executive's beneficiary
the benefit described in this Section 4. 1.
4.1.1 Amount of Benefit. The benefit under Section 4.1 is
the greater of the Deferral Account balance at the date of the
Executive's death or that amount set forth in Exhibit "A" opposite the
year in which the Executive's death occurs.
4.1.2 Payment of Benefit. ONB shall pay the benefit to the
beneficiary set forth herein within 60 days following the Executive's
death.
4.2 Death During Benefit Period. If the Executive dies after
benefit payments have commenced under this Agreement but before receiving
all such payments, ONB shall pay the remaining benefits to the
Executive's beneficiary at the same time and in the same amounts they
would have been paid to the Executive had the Executive survived.
Article 5
Beneficiaries
5.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with ONB. The Executive may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive
and accepted by ONB during the Executive's lifetime. The Executive's
beneficiary designation shall be deemed automatically revoked if the
beneficiary predeceases the Executive, or if the Executive names a spouse
as beneficiary and the marriage is subsequently dissolved. If the
Executive dies without a valid beneficiary designation, all payments
shall be made to the Executive's daughter, Marissa Dee Cosgrove, if she
survives, and, if not, to the trustee of a living intervivos trust
5
established by the Executive during his life time, if any, and if none,
to the Executive's spouse, if any, and if none, to the surviving children
and the descendants of any deceased child by right of representation, and
if no children or descendants survive, to the Executive's estate.
5.2 Facility of Payment. If a benefit is payable to a minor, to
a person declared incompetent, or to a person incapable of handling the
disposition of his or her property, ONB may pay such benefit to the
guardian, legal representative or person having the care or custody of
such minor, incompetent person or incapable person. ONB may require
proof of incompetency, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution
shall completely discharge ONB from all liability with respect to such
benefit. If at any time any Beneficiary entitled to receive payments
shall be a minor or incompetent ONB may make any such payments in its
discretion directly to the Beneficiary, deposit in an account in the name
of the Beneficiary, to an adult agent of the Beneficiary, deposit in an
account in the name of the Beneficiary, to an adult agent of the
Beneficiary. ONB shall not be required to see to the application of any
funds so paid and the receipt of the payee shall be full acquittance to
ONB. Until ONB shall receive from some person written notice of any
death, birth, marriage or other event upon which the right to receive
payments under this Agreement may depend, ONB shall incur no liability
for any payments made or omitted in good faith.
Article 6
Notices
6.1 Notice. Notice hereunder shall be given in writing,
delivered in person or by United States Mail postage prepaid to the
parties at the addresses as follows:
TO:
Orange National Bank
Post Office Box 6040
1201 East Katella Avenue
Orange, California 92867
Attention: Robert W. Creighton
6
TO: Executive:
Kenneth J. Cosgrove
23 Montpellier
Newport Beach, CA 92660
Article 7
General Limitations
Notwithstanding any provision of this Agreement to the contrary,
ONB shall not pay any benefit under this Agreement that is attributable
to ONB's matching contributions or the interest earned on such
contributions:
7.1 Termination for Cause. If ONB terminates the Executive's
service as an Executive for
7.1.1 Gross negligence or gross neglect of duties;
7.1.2 Commission of a felony or of a gross misdemeanor involving
moral turpitude;
or
7.1.3 Fraud, disloyalty, dishonesty or willful violation of
any law or significant ONB policy committed in connection with the
Executive's service and resulting in an adverse financial effect on the
ONB.
7.2 Suicide. If the Executive commits suicide within two years
after the date of this Agreement, or if the Executive has made any
material misstatement of fact on any application for life insurance
purchased by ONB.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. ONB shall notify the Executive's
beneficiary in writing, within ninety
(90) days of his or her written application for benefits, of his or her
eligibility or noneligibility for benefits under the Agreement. If ONB
determines that the beneficiary is not eligible for benefits or full
benefits, the notice shall set forth (1) the specific reasons for such
denial, (2) a specific reference to the provisions of the Agreement on
which the denial is based, (3) a description of any additional
information or material necessary for the claimant to perfect his or her
claim, and a description of why it is needed, and (4) an explanation of
the Agreement's claims review procedure and other appropriate information
as to the steps to be taken if the beneficiary wishes to have the claim
reviewed. If ONB determines that there are special circumstances
requiring additional time to make a decision, ONB shall notify the
beneficiary of the special circumstances and the date by which a decision
is expected to be made, and may extend the time for up to an additional
ninety day period.
8.2 Review Procedure. If the beneficiary is determined by ONB
not to be eligible for benefits, or if the beneficiary believes that he
or she is entitled to greater or different benefits, the beneficiary
shall have the opportunity to have such claim reviewed by ONB by filing a
petition for review with ONB within sixty (60) days after receipt of the
notice issued by ONB. Said petition shall state the specific reasons
which the beneficiary believes entitle him or her to benefits or to
greater or different benefits. Within sixty (60) days after receipt by
ONB of the petition, ONB shall afford the beneficiary (and counsel, if
any) an opportunity to present his or her position to ONB orally or in
writing, and the beneficiary (or counsel) shall have the right to review
the pertinent documents. ONB shall notify the beneficiary of its
decision in writing within the sixty-day period, stating specifically the
basis of its decision, written in a manner calculated to be understood by
the beneficiary and the specific provisions of the Agreement on which the
decision is based. If, because of the need for a hearing, the sixty-day
period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of ONB, but notice of this deferral
shall be given to the beneficiary.
Article 9
Amendments and Termination
This Agreement may be amended or terminated only by a written
agreement signed by ONB and the Executive.
Article 10
Miscellaneous
10.1 Binding Effect. This Agreement shall bind the Executive and
ONB, and their beneficiaries, survivors, executors, administrators and
transferees. None of the payments provided for by this Agreement shall
be subject to seizure for payment of any debts or judgments against the
Executive or any Beneficiary; nor shall the Executive or any Beneficiary
have the right to transfer, modify, anticipate, or encumber any rights or
benefits hereunder; provided, however, that the undistributed portion of
any benefit payable hereunder shall at all times be subject to set off
for debts owed by the Executive to ONB.
10.2 No Guaranty of Service. This Agreement is not a contract for
services. It does not give the Executive the right to remain an
Executive of ONB, nor does it interfere with the shareholders' rights to
replace the Executive. It also does not require the Executive to remain
an Executive nor interfere with the Executive's right to terminate
services at any time.
10.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any
manner. Neither Executive nor his wife nor any Beneficiary shall have
the right to sell, assign, transfer or otherwise convey the right to
receive any payments under this Agreement.
10.4 Tax Withholding Payment of Benefits. If applicable, ONB
shall withhold any taxes that are required to be withheld from the
benefits provided under this Agreement. All payments provided for by
this Agreement shall be made in conformity with the regular payroll
procedures in use by ONB at the time of payment. ONB may withhold from
any payment to be made hereunder such amount as it may be required to
withhold under any applicable Federal, State or other law and transmit
such withheld amounts to the applicable taxing authority.
10.5 Applicable Law. The Agreement and all rights hereunder shall
be governed by the laws of California, except to the extent preempted by
the laws of the United States of America.
10.6 Unfunded Arrangement. The Executive and beneficiary are
general unsecured creditors of ONB for the payment of benefits under this
Agreement. The benefits represent the mere promise by ONB to pay such
benefits. The rights to benefits are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors. Any insurance on
the Executive's life is a general asset of ONB to which the Executive and
beneficiary have no preferred or secured claim.
10.7 Other Benefits. This Agreement shall not limit Executive's
right to participate in or benefit from any pension, profit sharing or
other supplemental compensation arrangement or retirement plan for which
Executive is or may become eligible by reason of his employment. Nor
shall this Agreement replace any contract of employment between ONB and
the Executive, but shall be considered a supplement to it.
10.8 Controlling Agreement Effective Date. This Agreement amends,
replaces and supersedes in its entirety that certain agreement dated
February 16, 1989 which was approved by the Board of Directors of ONB
pursuant to Board Resolution approved on November 19, 1987. The
effective date of this Agreement for all purposes shall be deemed to be
February 16, 1989.
IN WITNESS WHEREOF, the Executive and the duly authorized
representatives of ONB have
signed this Agreement this 19th day of March 1997 at Orange,
California
Executive: ONB:
ORANGE NATIONAL BANK
By: By:
Kenneth J. Cosgrove Armand Durante
Vice chairman
By:
Robert W. Creighton
Chief Financial Officer and Secretary
1 0
EXHIBIT "A"
1988 103,340
1989 103,340
1990 103,340
1991 103,340
1992 103,340
1993 103,340
1994 103,340
1995 105,471
1996 116,416
1997 126,934
1998 137,063
1999 147,055
2000 156,461
2001 165,770
2002 174,977
2003 183,667
2004 192,274
2005 200,597
2006 208,649
2007 216,447
2008 224,005
2009 231,522
2010 238,660
2011 245,625
EXHIBIT 10.20
CONTRACT OF EMPLOYMENT
This Agreement is between ORANGE NATIONAL BANK ("Bank" herein),
ORANGE NATIONAL BANCORP ("Bancorp" herein) (sometimes referred to
collectively and singularly as "Employee') 1201 East Katella, Orange,
California 92667, and KENNETH J. COSGROVE (sometimes referred to as
"Employee") 1201 East Katella, Orange, California 92667.
ARTICLE 1. EMPLOYMENT
Term
Section 1.01. Employer hereby employs Employee and Employee hereby
accepts employment with Employer for a period of thirty-six (36) months
beginning on July 1, 1995 and ending on June 30, 1998. Unless this
Contract of Employment is otherwise terminated, the term of this Contract
shall be automatically extended in annual increments of one (1) year each
so that the contract term shall be three (3) years, less- that portion of
each year which transpires before the contract is extended for another
year. By way of example, on July 1, 1996, the contract term shall be
automatically extended to end June 30, 1999, and on July 1, 1997, the
term shall be extended to end June 30, 2000.
Agreement Subject to Termination
Section 1.02. This agreement may be terminated earlier as
hereinafter provided, notwithstanding the provisions of Section 1.01,
above.
ARTICLE 2. EMPLOYEE'S DUTIES
General Description
Section 2.01. (a) Employee is hereby hired and employed by
Employer as
"President and Chief Executive Officer" of Bank. Employee's duties shall
include the total responsibility for the growth, profitability, solvency
and management of the Bank including the development of strategic
planning, corporate development, board liaison and communications, sound
marketing practices implementing and monitoring all policies, procedures,
and programs adopted by the Employer as to the overall operation and
success of the Bank, such as securing and writing sound loans of
sufficient quality and quantity, compliance with all regulatory
authorities, the overall supervision of the line and operational support
functions of the Bank, responsibility for securing and maintaining
quality personnel, with an objective toward the goal of the Bank to
become a premier performing bank on a long-term basis. Employee's duties
shall always remain subject to all the rules and regulations applicable
to Bank and Bancorp by all levels of government and also subject to those
policies, rules, and directives established by or under the authority of
the respective Boards of Directors of Bank and Bancorp.
Other Employment
Section 2.02. During the term of this contract, employee may not
engage in any other professional activity or employment.
Mutual Consent for Change of Duties
Section 2.03. The duties of Employee may be changed from time to
time by the mutual consent of Employer and Employee without resulting in
a rescission of this contract. Notwithstanding any such change, the
employment of Employee shall be construed as continuing under this
agreement as modified.
Employer Expenses
Section 2.04. During the period of his employment, Employee
is authorized to incur reasonable expense for promoting Employer,
including expense for travel, reasonable and necessary entertainment, and
similar expense, which shall be reimbursed or paid by Employer in
accordance with the general policy and guidelines of the Employer as
established by the Boards of Directors of Employer.
Performance Evaluation
Section 2.05. At least annually but not more often that semi-
annually, Employee shall make himself available to the Chairman of the
Board or to any such personnel committee appointed by the Chairman, for
the purpose of participating in an evaluation of the Employee's
performance during the prior year (or, if requested by the Chairman, for
the prior six months period of employment). The Employee shall prepare a
written summary of the highlights of his performance for the reviewing
year (or six month period) which shall be reviewed by the Chairman and
discussed between the Employee and the Chairman (or any such personnel
committee). The Chairman shall also discuss with the Employee any other
aspects of the Employee's performance and employment as may be deemed
appropriate and constructive. After the interview the Chairman shall
prepare a written performance evaluation which shall be reviewed by the
Employee and which shall become part of the Employee's permanent
personnel file.
Indemnification for Negligence or Misconduct
Section 2.06. Employee shall indemnify and hold harmless Employer
from any liability for loss, damage, or injury to persons or property
resulting from the willful misconduct of Employee.
ARTICLE 3. OBLIGATIONS OF EMPLOYER
Office and Equipment
Section 3.01. During the term of this contract Employer shall
furnish to Employee a suitable office, support staff and equipment, and,
in accordance with the policy and guidelines established by the Boards of
Directors of Employer, the use of an automobile provided at the expense
of Employer to the extent the automobile is used for Employer's benefit.
Any use of Employer's automobile for Employee's personal use shall be
deemed additional compensation to Employee.
ARTICLE 4. COMPENSATION OF EMPLOYEE
Base Salary
Section 4.01. As compensation for services rendered under this
contract, Employee shall be entitled to an annual fixed base salary
(hereafter "Base Salary") of ONE HUNDRED FORTY THOUSAND AND NO/100
DOLLARS ($140,000.00) for Calendar Year 1995-1996, payable in equal semi-
monthly installments during the first year term of this agreement
commencing July 1, 1995, and ending June 30, 1996. Thereafter, the Base
Salary shall be re-negotiated for Calendar Year 1996-1997 and shall be
for the amount agreed upon by Employer and Employee payable in equal
semi-monthly installments commencing July 1, 1996, and ending June 30,
1997. Likewise, the Base Salary shall be re-negotiated for Calendar Year
1997-1998 and shall be for the amount agreed upon by the Employer and
Employee payable in equal semi-monthly installments commencing July 1,
1997 and ending June 30, 1998. Similarly, the Base Salary for each
subsequent Calendar Year that this agreement may be extended pursuant to
Section 1.01 hereof shall be re-negotiated for the ensuing Calendar Year
and shall be for the amount agreed upon by Employer and Employee payable
in equal semi-monthly installments commencing July 1 of each such ensuing
year and ending on 30th day of June of the following year.
Calendar Year/Fiscal Year Defined
Section 4.02. For purposes of this agreement the term "Calendar
Year" shall mean the twelve month period of each year starting on July 1
and ending on June 30 of the following year. The term "Fiscal Year"
shall coincide with the Bank's and Bancorp's fiscal year which shall mean
the twelve month period commencing on January 1 of each year and ending
on December 31 of the same year.
Bonuses
Section 4.03. As additional compensation for services rendered
under this Contract, Employee shall be entitled to two types of bonuses,
one called a "Return on Equity Bonus," and the other called a "Pre-tax
Earnings Bonus". Each of said bonuses shall be determined on the basis
of the Bancorp's Fiscal Year and not the Calendar Year, as said terms are
defined in Section 4.02 hereof.
(a) Under the "Return on Equity Bonus," employee shall annually
receive an amount equal to a percentage of Employee's Base Salary,
depending upon the Return on Equity of the Bancorp (including all its
subsidiaries and subsidiary operations) for the Fiscal Year ending within
each of the Employee's Calendar Year of employment. (For example, the
Return on Equity Bonus for the Employee's 1995-1996 employment year shall
be based on the return on equity on the Fiscal Year ending December 31,
1995. The Return on Equity Bonus for the Employee's 1996-1997 employment
year shall be based on the return on equity on the Fiscal Year ending
December 31, 1996. The Return on Equity bonus for the Employee's 1997-
1998 employment year shall be based on the return on equity on the Fiscal
Year ending December 31, 1997. Similarly, for each year that this
employment agreement is extended pursuant to Section 1.01 hereof, the
Return on Equity Bonus for each such year shall be based on the return on
equity on the Fiscal Year ending on the 3lst day of December of the
Employee's Calendar Year. The amount of "Return on Equity Bonus" shall
be computed in accordance with the following schedule:
RETURN PERCENTAGE BONUS PAID IN EXCESS
ON EQUITY OF BASE SALARY OF BASE SALARY
10 to 11% 8% $ 11,200
11.1 to 12% 9% 12,600
12.1 to 13% 10% 14,000
13.1 to 14% 11% 15,400
14.1 to 15% 12% 16,800
15.1 to 16% 13% 18,200
16.1 to 17% 14% 19,600
17.1 to 18% 15% 21,000
18.1 to 19% 16% 22,400
19.1 to 20% 18% 25,200
20.1% plus 20% 28,000
[for example, if the return on equity for the Bancorp is 13.1 % then the
bonus due employee is $15,400 based on an eleven percent (11 %)
percentage of base salary ($140,000 x 11 % = $15,400)]. The Bonus shall
not be deemed to be earned until the Return on Equity is at least ten
percent (10%), i.e. no Bonus shall be paid to Employee for a Return of
Equity less than 10.0%. The Bonus as computed shall be paid to Employee
no later than January 31 during the calendar year to which the bonus
applies. The amount of bonus paid in January shall be subsequently
adjusted to the extent that the audited financial statements of Bancorp
(as certified by Bancorp's accountants) reflect a Return on Equity
different than the amount determined on January 31 by the Bancorp's
internal accounting staff. Upon receipt of the audited financial
statements from Employer's accountants, Employer shall promptly pay
Employee, or Employee shall promptly pay Employer, whichever the case may
be, any overpayment or underpayment of "Return on Equity Bonus" based
upon any difference in the Return on Equity between the January 31
financial statements and the certified financial statements of Employer.
(b) Under the "Pre-tax Earnings Bonus" Employee shall annually
receive an amount determined by the Board of Directors based upon the
Bancorp's pre-tax earnings for the Fiscal Year ending December 31 of the
Employee's Calendar Year of employment. Pre-tax Earnings as defined
herein shall be deemed to mean the net operating income of the Bancorp
(including its subsidiaries and subsidiary operations) less any net
operating expenses, including allowances for loan loss reserve in the
Bank, plus accruals for the Employee's Bonuses whether paid through the
Bank or Bancorp, plus or minus any gain or loss from the sale of
securities of the Bank or Bancorp and before any adjustments for taxes or
tax accruals. The Pre-tax Earnings Bonus shall be computed by
multiplying one percent (1%) times the Pre-tax Earnings as defined
herein. However, the Pre-tax Earnings Bonus shall not be deemed to be
earned unless the Pre-tax Earnings are in excess of FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) for example:
PRE-TAX EARNINGS 1% BONUS
$499,000 (and below) -0-
$500,000 5,000
$501,000 5,010
$502,000 5,020
etc. up to
$4,000,000 40,000
The amount of the Pre-tax Earnings Bonus shall be determined and paid to
Employee no later than January 31 following the Fiscal Year to which the
bonus applies. The amount of bonus paid in January shall be subsequently
adjusted to the extent that the audited financial statements of Bancorp
(as certified by the Bancorp's accountants) reflect Pre-tax Earnings
different than the amount determined on January 31 by the Bancorp's
internal accounting staff. Upon receipt of the audited financial
statements from Employer's accountants, Employer shall promptly pay
Employee, or Employee shall promptly pay Employer, whichever the case may
be, any overpayment or underpayment of the "Pre-tax Earnings Bonus" based
upon any difference in the Pre-tax Earnings of the Bancorp between the
January 31 financial statements and the certified financial statements of
Employer.
ALLOCATION OF PAYMENT
Section 4.03. The amounts due Employee for the Base Salary, Return
on Equity Bonus and Pre-tax Earnings Bonus may be allocated by Employer
between the Bank and Bancorp as determined in the sole discretion of the
Boards of Directors respectively of the Bank and Bancorp.
Deferred Compensation
Section 4.04. The payment date of any compensation under this
Agreement may be deferred pursuant to any mutually agreeable deferred
compensation agreement entered into between Employer and Employee;
provided, however, the deferred compensation agreement must be entered
into prior to Employee earning the compensation which payment is being
deferred.
Disability
Section 4.05. Should Employee become unable to effectively perform
his duties hereunder because of any physical or mental condition, he
shall be entitled to one hundred percent (100%) of his then base salary,
exclusive of any Bonus, for a period of ninety (90) days after Employee
becomes unable to perform his duties. Commencing on the 91st day of
continuous disability, Employee shall be entitled to one hundred percent
(100%) of his base salary, less any disability benefits received under
any Employer sponsored income continuation/disability plan(s), for a
period not to exceed seven hundred thirty (730) days but in no event
beyond the term of this agreement. During this aforementioned time
period, Employee shall continue to enjoy all benefits and rights of an
employee, including but not limited to participation in group medical and
life insurance programs, but shall only be entitled to any Bonus which
accrued and was earned prior to the date Employee commenced his
disability leave. After the expiration of such time period, and prior to
the expiration term of this agreement, Employer shall only pay Employee
the amount of payments (if any) which Employer receives as a result of
Employee's disability.
EFFECT OF SALE, ACQUISITION OR MERGER
Section 4.06. In the event of a sale, acquisition or merger of the
Bank or the Bancorp within the term of this agreement, and the
purchasing, acquiring or merging entity ("New Entity" herein) elects to
not employ Employee under the terms of an employment agreement acceptable
to both Employee and New Entity, or the New Entity for any reason
refusing to honor the remaining terms of this agreement, Employee shall
have the right to continue to receive his Base Salary (but not the Return
on Equity Bonus or the Pre-tax Earnings Bonus) plus the Employee Benefits
described in Article 5 herein for a period of two (2) years from the date
of such sale, acquisition or merger of such New Entity.
ARTICLE 5. EMPLOYEE BENEFITS
General
Section 5.01. Employee shall be entitled to receive those other
employee benefits made available by Employer to all its employees, plus
vacation each calendar year pursuant to Section 5.02; utilization of an
automobile supplied by Employer, in accordance with the policy and
guidelines established by the Boards of Directors of Employer, with all
operating costs paid by Employer; Life Insurance paid by Employer; Health
Insurance paid by Employer; Disability Insurance paid by Employer; the
option to participate in Employer's deferred compensation plan; and the
option to participate in the Stock Option Plan of Employer already in
effect.
Vacation
Section 5.02. Subject to all governmental Rules and Regulations
applicable to Employer, Employee shall be entitled to an annual vacation
of four (4) weeks, without reduction in salary, to be taken at times
which will not substantially interfere with the business and general
well-being of Employer. Employee must take at least two consecutive
weeks of vacation during each calendar year of Employment, unless the
parties mutually agree to waive this condition due to the business needs
of Employer. Unused vacation shall not be accrued from any calendar year
to any subsequent calendar year; provide however, Employee may utilize
unused vacation in the first calendar quarter following the calendar year
in which the vacation accrued.
Use and Disclosure of Confidential Data
Section 5.03. Employee shall not use any confidential information
or circulate it to any other person or persons, except when specifically
authorized and then only to the extent necessary to further Employer's
best interests.
Competitive Activities During Employment
Section 5.04. During the term of this Agreement, Employee shall
not, directly or indirectly, either as an employee, employer, consultant,
agent, principal, partner, stockholder, director, or in any other
capacity, engage or participate in any competitive activity relating to
the subject matter of his employment with Employer.
Stock Ownership
Section 5.05. Employee shall own and/or control at all times
during the term
of this Contract a minimum of 5,000 shares of common stock in Bancorp.
In the event the
number of issued shares of Bancorp is changed after the Fiscal Year 1995
as a result of a stock split, stock dividend, reorganization, or for any
other reason, the number of shares under this paragraph shall
automatically be changed accordingly. This Section 5.05 shall be deemed
deleted from this contract effective on the date of any merger, transfer
of assets, or dissolution within the provisions of Section 6.04 hereof.
ARTICLE 6. TERMINATION OF EMPLOYMENT
Termination by Employer
Section 6.01. Notwithstanding any other provision of this Contract,
Employer may terminate this Contract by vote of the majority of the total
number of the Boards of Directors of Employer at a meeting of the Boards
of Directors in which a quorum is present, provided Employee is involved
in gross malfeasance in the performance of his duties, or adjudged guilty
of illegal activities by a court of competent jurisdiction. Upon such
termination under this Section 6.01, Employee shall have no further right
under this Contract except to receive payment for benefits earned or
accrued to the date of termination of Employee.
TERMINATION BY EMPLOYEE
Section 6.02. Employee may elect to terminate this agreement for
any reason by providing thirty (30) days prior written notice to
Employer. Upon receipt of Employee's written or oral notice of
termination, Employee shall have no further right under this agreement
except to receive payment for benefits earned or accrued to the date of
termination by Employee.
ARTICLE 7. GENERAL PROVISIONS
Notices
Section 7.01. Any notices to be given by either party to the other
shall be in writing and may be effected either by personal delivery or by
mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at the
addresses appearing in the introductory paragraph of this agreement, but
each party may change address by written notice in accordance with this
section. Notices delivered personally shall be deeded communicated as of
the date of actual receipt; mailed notices shall be deeded communicated
as of the date on which they are mailed.
Entire Agreement
Section 7.02. (a) This agreement supersedes any and all other
agreements,
either oral or in writing, between the parties with respect to the
employment of Employee
by Employer, and contains all of the covenants and agreements between the
parties with
respect to that employment in any manner whatsoever.
(b) Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or
otherwise, other than those set forth herein, have been made by any
party, or anyone acting on behalf of any party, and that no other
agreement, statement, or promise not contained in this agreement shall be
valid or binding.
(c) Any modification of this agreement will be effective only if
it is in writing signed by the party to be charged.
Transferability
Section 7.03. The rights and benefits of Employer under
this Contract shall be transferable, and all rights, benefits, covenants,
and agreements hereunder shall inure to the benefit of Employee and the
successors, transferees, or assigns of Employer, and shall be enforceable
by or against Employee and by or against successors, transferees, or
assigns of Employer, as the case may be.
Attorneys' Fees and Costs
Section 7.04. If any action at law or in equity is necessary
to enforce or
interpret the terms of this agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which he may be
entitled. This provision shall be construed as applicable to the entire
contract. This Section 7.04 shall be considered deleted upon the
effective date of any Employer's merger, transfer of assets, or
dissolution within the confines of Section 4.06.
Partial Invalidity
Section 7.05. If any provision in this agreement is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without
being impaired or invalidated in any way.
Law Governing Agreement
Section 7.06. This agreement shall be governed by and construed in
accordance with the laws of the State of California.
Payment of Moneys Due Deceased Employee
Section 7.07. If Employee dies prior to the expiration of the
term of
employment, any moneys that may be due from Employer under this
agreement as of the
date of Employee's death shall be paid to Employee's executors,
administrators, heirs, personal representatives, successors, and
assigns.
Amendment
Section 7.08. This contract may be changed or amended only in
writing subscribed by the parties hereto.
Executed on July 19, 1995 at Orange California.
EMPLOYEE: EMPLOYER:
ORANGE NATIONAL BANK
By: By:
Kenneth J. Cosgrove Armand Durante
Vice-Chairman
By:
Robert Creighton
Secretary
ORANGE NATIONAL BANCORP
By:
Armand Durante
Vice-Chairman
EXHIBIT 10.21
CONTRACT OF EMPLOYMENT
This Agreement is between ORANGE NATIONAL BANK ("Bank" herein),
ORANGE NATIONAL BANCORP ("Bancorp" herein) (sometimes referred to
collectively and singularly as "Employee') 1201 East Katella, Orange,
California 92667, and ROBERT W. CREIGHTON (sometimes referred to as
"Employee") 1201 East Katella, Orange, California 92667.
ARTICLE 1. EMPLOYMENT
Term
Section l.0l. Employer hereby employs Employee and Employee hereby
accepts employment with Employer for a period of twelve (12) months
beginning on April 1, 1996 (the "Commencement Date") and ending on March
31, 1997 (the "Expiration Date"). The period from the Commencement Date
to and including the Expiration Date is referred to herein as the
"Contract Employment Year'. Thereafter, unless this Contract of
Employment is renewed in writing, the Contract shall automatically
terminate and be of no further force and effect. Any continuation of
employment by the Employee after the Expiration Date that is not pursuant
to a written agreement shall be deemed to be an "At Will" employment
between Employer and Employee.
Agreement Subject to Termination
Section 1.02. This agreement may be terminated earlier as
hereinafter provided, notwithstanding the provisions of Section 1.01,
above.
ARTICLE 2. EMPLOYEE'S DUTIES
General Description
Section 2.01. Employee is hereby hired and employed by
Employer as "Executive Vice-President and Chief Financial Officer" of
Bank and "Executive Vice-President and Chief Financial Officer" of
Bancorp. Employee's duties shall include, as to the Bank, implementing
and monitoring all policies, procedures, and programs adopted by the
Board of Directors of the Bank as to the overall operation and success
of the Financial Administration of the Bank, such as budgeting and
forecasting functions, supervision and maintenance of investment policy
and investment portfolio, supervision of accounting, purchasing and
maintenance of Employees facilities; and as to the Bancorp, implementing
and monitoring all policies, procedures and programs adopted by the
Board of Directors of Bancorp as to the overall financial operations and
success of the Bancorp and its subsidiaries and for performing such
other duties as may be assigned to Employee by the Board of Directors of
Bancorp. Employee's duties shall always remain subject to all the rules
and regulations applicable to Bank and Bancorp by all levels of
government and also subject to those policies, rules, and directives
established by or under the authority of the respective Boards of
Directors of Bank and Bancorp.
Other Employment
Section 2.02. During the term of this contract, employee may not
engage in any other professional activity or employment.
Mutual Consent for Change of Duties
Section 2.0. The duties of Employee may be changed from time to time by
the mutual consent of Employer and Employee without resulting in a
rescission of this contract. Notwithstanding any such change, the
employment of Employee shall be construed as continuing under this
agreement as modified.
Employer Expenses
Section 2.04. During the period of his employment, Employee is
authorized to incur reasonable expenses for promoting Employer, including
expenses for travel, reasonable and necessary entertainment, and similar
expenses, which shall be reimbursed or paid by Employer in accordance
with the general policy and guidelines of the Employer as established by
the Boards of Directors of Employer.
Indemnification for Negligence or Misconduct
any liability for loss, damage, or injury to persons or property
resulting from the willful misconduct of Employee.
ARTICLE 3. OBLIGATIONS OF EMPLOYER
Office and Equipment
Section 3.0l. During the term of this contract Employer shall
furnish to Employee a suitable office, support staff and equipment, and,
in accordance with the policy and guidelines established by the Boards of
Directors of Employer, the use of an automobile provided at the expense
of Employer to the extent the automobile is used for Employees benefit.
Any use of Employees automobile for Employee's personal use shall be
deemed additional compensation to Employee.
ARTICLE 4. COMPENSATION OF EMPLOYEE
Base Salary
Section 4.01. As compensation for services rendered under this
contract, Employee shall be entitled to an annual fixed base salary
(hereafter "Base Salary") of ONE HUNDRED SEVENTEEN THOUSAND AND NO/100
DOLLARS ($117,000.00), payable in equal semi-monthly installments during
the term of this agreement commencing on the Commencement Date and
terminating on the Expiration Date.
Bonuses
Section 4.02. As additional compensation for services rendered
under this Contract, Employee shall be entitled to two types of bonuses,
one called a "Return on Equity Bonus," and the other called a "Pre-tax
Earnings Bonus".
(a) Under the "Return on Equity Bonus" employee shall annually
receive
Section 2.05. Employee shall indemnify and hold harmless Employer
from
an amount equal to a percentage of Employee's Base Salary,
depending upon the Return on Equity of the Bancorp (including all its
subsidiaries and subsidiary operations) for the Bancorp's calendar year
ending on December 31 of the Contract Employment Year. The amount of the
"Return of Equity Bonus" shall be computed in accordance with the
following schedule:
RETURN PERCENTAGE BONUS PAID IN EXCESS
ON EQUITY OF BASE SALARY OF BASE SALARY
10 to 11% 8% $ 9,360
11.1 to 12% 9% 10,530
12.1 to 13% 10% 11,700
13.1 to 14% 11% 12,870
14.1 to 15% 12% 14,040
15.1 to 16% 13% 15,210
16.1 to 17% 14% 16,380
17.1 to 18% 15% 17,550
18.1 to 19% 16% 18,720
19.1 to 20% 18% 21,060
20.1 % plus 20% 23,400
[for example, if the return on equity for the Bancorp is 13.1 %
then the bonus due employee is $12,870.00 based on an eleven percent (11%)
of base salary ($117,000 x 11 % = $12,870)]. The Bonus shall not be
deemed to be earned until the Return on Equity is at least ten percent (10%),
i.e. no Bonus shall be paid to Employee for a Return of Equity less
than 10.0%. The Bonus as computed shall be paid to Employee no later
than January 31 following the calendar year to which the bonus applies.
The amount of bonus paid in January shall be subsequently adjusted to the
extent that the audited financial statements of Bancorp (as certified by
Bancorp's accountants) reflect a Return on Equity different than the
amount determined on January 31 by the Bancorp's internal accounting
staff. Upon receipt of the audited financial statements from Employer's
accountants, Employer shall promptly pay Employee, or Employee shall
promptly pay Employer, whichever the case may be, any overpayment or
underpayment of "Return on Equity Bonus" based upon any difference in the
Return on Equity between the January 31 financial statements and the
certified financial statements of Employer.
(b) Under the "Pre-tax Earnings Bonus" Employee shall annually
receive an amount determined by the Board of Directors based upon the
Bancorp's pre-tax earnings for the calendar year ending December 31 of
the Contract Employment Year. Pre-tax Earnings as defined herein shall
be deemed to mean the net operating income of the Bancorp (including its
subsidiaries and subsidiary operations) less any net operating expenses,
including allowances for loan loss reserve in the Bank, plus accruals for
the Employee's Bonuses whether paid through the Bank or Bancorp, plus or
minus any gain or loss from the sale of securities of the Bank or Bancorp
and before any adjustments for taxes or tax accruals. The Pre-tax
Earnings Bonus shall be computed by multiplying one-half of one percent
(0.5%) times the Pre-tax Earnings as defined herein. However, the Pre-
tax Earnings Bonus shall not be deemed to be earned unless the Pre-tax
Earnings are in excess of SEVEN HUNDRED FIFTY THOUSAND DOLLARS
($750,000.00), for example:
PRE-TAX EARNINGS 0.5% BONUS
$749,000 (and below) $ -o-
$750,000 3,750
$751,000 3,750
$752,000 3,760
etc. up to
$4,000,000 20,000
The amount of the Pre-tax Earnings Bonus shall be determined and paid to
Employee no later than January 31 following the calendar year to which
the bonus applies. The amount of bonus paid in January shall be
subsequently adjusted to the extent that the audited financial
statements of Bancorp (as certified by the Bancorp's accountants)
reflect Pre-tax Earnings different than the amount determined on January
31 by the Bancorp's internal accounting staff. Upon receipt of the
audited financial statements from Employer's accountants, Employer shall
promptly pay Employee, or Employee shall promptly pay Employer,
whichever the case may be, any overpayment or underpayment of the "Pre-
tax Earnings Bonus" based upon any difference in the Pre-tax Earnings of
the Bancorp between the January 31 financial statements and the
certified financial statements of Employer.
ALLOCATION OF PAYMENT
Section 4.03. The amounts due Employee for the Base Salary, Return
on Equity Bonus and Pre-tax Earnings Bonus may be allocated by Employer
between the Bank and Bancorp as determined in the sole discretion of the
Boards of Directors respectively of the Bank and Bancorp.
Deferred Compensation
Section 4.04. The payment date of any compensation under this
Agreement may be deferred pursuant to any mutually agreeable deferred
compensation agreement entered into between Employer and Employee;
provided, however, the deferred compensation agreement must be entered
into prior to Employee earning the compensation for which payment is
being deferred.
Disability
Section 4.05. Should Employee become unable to effectively perform
his duties hereunder because of any physical or mental condition, he
shall be entitled to one hundred percent (100%) of his then base salary,
exclusive of any Bonus, for a period of ninety (90) days after Employee
becomes unable to perform his duties. Commencing on the 91st day of
continuous disability, Employee shall be entitled to one hundred percent
(100%) of his base salary, less any disability benefits received under
the Employee's existing Salary Continuation Agreement between Employee
and Bank, or any other Employer-sponsored income continuation and/or
disability plan(s), for a period not to exceed two hundred seventy-five
(275) days but in no event beyond the term of this agreement. During
this aforementioned time period, Employee shall continue to enjoy all
benefits and rights of an employee, including but not limited to
participation in group medical and life insurance programs, but shall
only be entitled to any Bonus which accrued and was earned prior to the
date Employee commenced his disability leave. After such 275 day period,
and prior to the expiration term of this agreement, Employer shall only
pay Employee the amount of payments (if any) which is due Employee as a
result of Employee's disability under his existing Salary Continuation
Agreement and any other Employer-sponsored income continuation and/or
disability plan(s).
EFFECT OF SALE, ACQUISITION OR MERGER
Section 4.06. In the event of a sale, acquisition or merger of the
Bancorp within the term of this agreement, and the purchasing, acquiring
or merging entity ("New Entity" herein) elects to not employ Employee
under the terms of an employment agreement acceptable to both Employee
and New Entity, or the New Entity for any reason refusing to honor the
remaining terms of this agreement, Employee shall have the right to
continue to receive his Base Salary (but not the Return on Equity Bonus
or the Pre-tax Earnings Bonus) plus the Employee Benefits described in
Article 5 herein for the remaining period of this agreement less any
payments received from the Salary Continuation Agreement between Employee
and Bank. In the event of any conflict between the terms and provisions
of this agreement and the terms and provisions of the Salary Continuation
Agreement, the terms and provision of the Salary Continuation Agreement
shall prevail and control.
ARTICLE 5. EMPLOYEE BENEFITS
General
Section 5.01. Employee shall be entitled to receive those other
employee benefits made available by Employer to all its employees, plus
vacation each calendar year pursuant to Section 5.02; utilization of an
automobile supplied by Employer, in accordance with the policy and
guidelines established by the Boards of Directors of Employer, with all
operating costs paid by Employer; Life Insurance paid by Employer; Health
Insurance paid by Employer; Disability Insurance paid by Employer; the
option to participate in Employees deferred compensation plan; and the
option to participate in the Stock Option Plan of Employer already in
effect.
Vacation
Section 5.02. Subject to all governmental Rules and Regulations
applicable to Employer, Employee shall be entitled to an annual vacation
of four (4) weeks, without reduction in salary, to be taken at times
which will not substantially interfere with the business and general
well-being of Employer. In the event this agreement is renewed, unused
vacation shall not be accrued from any calendar year to any subsequent
calendar year.
Use and Disclosure of Confidential Data
Section 5.0. Employee shall not use any confidential information or
circulate it to any other person or persons, except when specifically
authorized and then only to the extent necessary to further Employees
best interests.
Competitive Activities During Employment
Section 5.04. During the term of this Agreement, Employee shall
not, directly or indirectly, either as an employee, employer, consultant,
agent, principal, partner, stockholder, director, or in any other
capacity, engage or participate in any competitive activity relating to
the subject matter of his employment with Employer.
Stock Ownership
Section 5.05. Employee shall own and/or control at all times
during the term of this Contract a minimum of 5,000 shares of common
stock in Bancorp. In the event the number of issued shares of Bancorp
is changed after the calendar year 1996 as a result of a stock split,
stock dividend, reorganization, or for any other reason, the number of
shares under this paragraph shall automatically be changed accordingly.
This Section 5.05 shall be deemed deleted from this contract effective
on the date of any merger, transfer of assets, or dissolution within the
provisions of Section 6.04 hereof.
ARTICLE 6. TERMINATION OF EMPLOYMENT
Termination by Employer
Section 6.0l Notwithstanding any other provision of this Contract,
Employer may terminate this Contract by vote of the majority of the total
number of the Boards of Directors of Employer at a meeting of the Boards
of Directors in which a quorum is present, provided Employee is involved
in gross malfeasance in the performance of his duties, or adjudged guilty
of illegal activities by a court of competent jurisdiction. Upon such
termination under this Section 6.01, Employee shall have no further right
under this Contract except to receive payment for benefits earned or
accrued to the date of termination of Employee.
TERMINATION BY EMPLOYEE
Section 6.02. Employee may elect to terminate this agreement for
any reason by providing thirty (30) days prior written notice to
Employer. Upon receipt of Employee's written or oral notice of
termination, Employee shall have no further right under this agreement
except to receive payment for benefits earned or accrued to the date of
termination by Employee.
ARTICLE 7. GENERAL PROVISIONS
Notices
Section 7.01. Any notices to be given by either party to the other
shall be in writing and may be effected either by personal delivery or by
mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at the
addresses appearing in the introductory paragraph of this agreement, but
each party may change address by written notice in accordance with this
section. Notices delivered personally shall be deeded communicated as of
the date of actual receipt; mailed notices shall be deeded communicated
as of the date on which they are mailed.
Entire Agreement
Section 7.02.
(a) This agreement supersedes any and all other employment
agreements, either oral or in writing, between the parties with respect
to the employment of Employee by Employer, and contains all of the
covenants and agreements between the parties with respect to that
employment in any manner whatsoever.
(b) Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or
otherwise, other than those set forth herein, have been made by any
party, or anyone acting on behalf of any party, and that no other
agreement, statement, or promise not contained in this agreement shall be
valid or binding.
(c) Any modification of this agreement will be effective only if
it is in writing signed by the party to be charged.
The provisions of this Section 7.02 shall not be deemed to refer to
or have any effect upon the Salary Continuation Agreement or the
Directors Deferred Fee Agreement, or any other non-employment agreement,
it being the intent of this Section 7.02 to apply solely to the
employment relationship between Employee and Employer.
Transferability
Section 7,03. The rights and benefits of Employer under this
Contract shall be transferable, and all rights, benefits, covenants, and
agreements hereunder shall inure to the benefit of Employee and the
successors, transferees, or assigns of Employer, and shall be enforceable
by or against Employee and by or against successors, transferees, or
assigns of Employer, as the case may be.
Attorneys' Fees and Costs
Section 7.04. If any action at law or in equity is necessary
to enforce or interpret the terms of this agreement, the prevailing party
shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which he may be
entitled. This provision shall be construed as applicable to the entire
contract. This Section 7.04 shall be considered deleted upon the
effective date of any Employers merger, transfer of assets, or
dissolution within the confines of Section 4.06.
Partial Invalidity
Section 7.05. If any provision in this agreement is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without
being impaired or invalidated in any way.
Law Governing Agreement
Section 7.06. This agreement shall be governed by and construed in
accordance with the laws of the State of California.
Payment of Moneys Due Deceased Employee
Section 7.07. If Employee dies prior to the expiration of the term
of employment, any moneys that may be due from Employer under this
agreement as of the date of Employee's death shall be paid to Employee's
executors, administrators, heirs, personal representatives, successors,
and assigns.
Amendment
Section 7.08. This contract may be changed or amended only in
writing subscribed by the parties hereto.
Executed on February 21, 1996, at Orange California.
EMPLOYEE: EMPLOYER:
ORANGE NATIONAL BANK
By: By:
Robert W. Creighton Armand Durante
Vice-Chairman
By:
Kenneth J. Cosgrove
President
ORANGE NATIONAL BANCORP
By:
Armand Durante
Vice-Chairman
By:
Kenneth J. Cosgrove
President
EXHIBIT 10.22
CONTRACT OF EMPLOYMENT
This Agreement is between ORANGE NATIONAL BANK ("Bank" herein),
ORANGE NATIONAL BANCORP ("Bancorp" herein) (sometimes referred to
collectively and singularly as "Employee') 1201 East Katella, Orange,
California 92667, and FRANK A. DELGIORGIO (sometimes referred to as
"Employee") 1201 East Katella, Orange, California 92667.
ARTICLE 1. EMPLOYMENT
Term
Section l.0l. Employer hereby employs Employee and Employee hereby
accepts employment with Employer for a period of twelve (12) months
beginning on April 1, 1996 (the "Commencement Date") and ending on March
31, 1997 (the "Expiration Date"). The period from the Commencement Date
to and including the Expiration Date is referred to herein as the
"Contract Employment Year'. Thereafter, unless this Contract of
Employment is renewed in writing, the Contract shall automatically
terminate and be of no further force and effect. Any continuation of
employment by the Employee after the Expiration Date that is not pursuant
to a written agreement shall be deemed to be an "At Will" employment
between Employer and Employee.
Agreement Subject to Termination
Section 1.02. This agreement may be terminated earlier as
hereinafter provided, notwithstanding the provisions of Section 1.01,
above.
ARTICLE 2. EMPLOYEE'S DUTIES
General Description
Section 2.01. Employee is hereby hired and employed by
Employer as "Senior Vice-President and Loan Administrator" of Bank.
Employee's duties shall include, responsibility for overall
administration of the credit and lending functions of the Bank, such as
recommending and enforcing loan policies, approving and reviewing loans,
establishing rates and pricing for the loan function, supervising
collection activities, ensuring proper collateral and documentation, and
supervising the compliance function for the Bank and for performing such
other duties as may be assigned to Employee by the Board of Directors of
Bank. Employee's duties shall always remain subject to all the rules
and regulations applicable to Bank and Bancorp by all levels of
government and also subject to those policies, rules, and directives
established by or under the authority of the respective Boards of
Directors of Bank and Bancorp.
Other Employment
Section 2.02. During the term of this contract, employee may not
engage in any other professional activity or employment.
Mutual Consent for Change of Duties
Section 2.0. The duties of Employee may be changed from time to time by
the mutual consent of Employer and Employee without resulting in a
rescission of this contract. Notwithstanding any such change, the
employment of Employee shall be construed as continuing under this
agreement as modified.
Employer Expenses
Section 2.04. During the period of his employment, Employee is
authorized to incur reasonable expenses for promoting Employer, including
expenses for travel, reasonable and necessary entertainment, and similar
expenses, which shall be reimbursed or paid by Employer in accordance
with the general policy and guidelines of the Employer as established by
the Boards of Directors of Employer.
Indemnification for Negligence or Misconduct
any liability for loss, damage, or injury to persons or property
resulting from the willful misconduct of Employee.
ARTICLE 3. OBLIGATIONS OF EMPLOYER
Office and Equipment
Section 3.0l. During the term of this contract Employer shall
furnish to Employee a suitable office, support staff and equipment, and,
in accordance with the policy and guidelines established by the Boards of
Directors of Employer, the use of an automobile provided at the expense
of Employer to the extent the automobile is used for Employees benefit.
Any use of Employees automobile for Employee's personal use shall be
deemed additional compensation to Employee.
ARTICLE 4. COMPENSATION OF EMPLOYEE
Base Salary
Section 4.01. As compensation for services rendered under this
contract, Employee shall be entitled to an annual fixed base salary
(hereafter "Base Salary") of NINETY-TWO THOUSAND ONE HUNDRED AND NO/100
DOLLARS ($92,100.00), payable in equal semi-monthly installments during
the term of this agreement commencing on the Commencement Date and
terminating on the Expiration Date.
Bonuses
Section 4.02. As additional compensation for services rendered
under this Contract, Employee shall be entitled to two types of bonuses,
one called a "Return on Equity Bonus," and the other called a "Pre-tax
Earnings Bonus".
(a) Under the "Return on Equity Bonus" employee shall annually
receive
Section 2.05. Employee shall indemnify and hold harmless Employer
from
an amount equal to a percentage of Employee's Base Salary,
depending upon the Return on Equity of the Bancorp (including all its
subsidiaries and subsidiary operations) for the Bancorp's calendar year
ending on December 31 of the Contract Employment Year. The amount of the
"Return of Equity Bonus" shall be computed in accordance with the
following schedule:
RETURN PERCENTAGE BONUS PAID IN EXCESS
ON EQUITY OF BASE SALARY OF BASE SALARY
10 to 11% 8% $ 7,368
11.1 to 12% 9% 8,289
12.1 to 13% 10% 9,210
13.1 to 14% 11% 10,131
14.1 to 15% 12% 11,052
15.1 to 16% 13% 11,973
16.1 to 17% 14% 12,894
17.1 to 18% 15% 13,815
18.1 to 19% 16% 14,736
19.1 to 20% 18% 16,578
20.1 % plus 20% 18,420
[for example, if the return on equity for the Bancorp is 13.1 %
then the bonus due employee is $10,131.00 based on an eleven percent (11
%) of base salary ($92,100 x 11 % = $10,131)]. The Bonus shall not be
deemed to be earned until the Return on Equity is at least ten percent
(10%), i.e. no Bonus shall be paid to Employee for a Return of Equity
less than 1 0.0%. The Bonus as computed shall be paid to Employee no
later than January 31 following the calendar year to which the bonus
applies. The amount of bonus paid in January shall be subsequently
adjusted to the extent that the audited financial statements of Bancorp
(as certified by Bancorp's accountants) reflect a Return on Equity
different than the amount determined on January 31 by the Bancorp's
internal accounting staff. Upon receipt of the audited financial
statements from Employer's accountants, Employer shall promptly pay
Employee, or Employee shall promptly pay Employer, whichever the case may
be, any overpayment or underpayment of "Return on Equity Bonus" based
upon any difference in the Return on Equity between the January 31
financial statements and the certified financial statements of Employer.
(b) Under the "Pre-tax Earnings Bonus" Employee shall annually
receive an amount determined by the Board of Directors based upon the
Bancorp's pre-tax earnings for the calendar year ending December 31 of
the Contract Employment Year. Pre-tax Earnings as defined herein shall
be deemed to mean the net operating income of the Bancorp (including its
subsidiaries and subsidiary operations) less any net operating expenses,
including allowances for loan loss reserve in the Bank, plus accruals for
the Employee's Bonuses whether paid through the Bank or Bancorp, plus or
minus any gain or loss from the sale of securities of the Bank or Bancorp
and before any adjustments for taxes or tax accruals. The Pre-tax
Earnings Bonus shall be computed by multiplying 0.35% times the Pre-tax
Earnings as defined herein. However, the Pre-tax Earnings Bonus shall
not be deemed to be earned unless the Pre-tax Earnings are in excess of
SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000.00), for example:
PRE-TAX EARNINGS 0.35% BONUS
$749,000 (and below) $ -0-
$750,000 2,625.00
$751,000 2,628.50
$752,000 2,632.00
etc. up to
$4,000,000 14,000.00
The amount of the Pre-tax Earnings Bonus shall be determined and paid to
Employee no later than January 31 following the calendar year to which
the bonus applies. The amount of bonus paid in January shall be
subsequently adjusted to the extent that the audited financial
statements of Bancorp (as certified by the Bancorp's accountants)
reflect Pre-tax Earnings different than the amount determined on January
31 by the Bancorp's internal accounting staff. Upon receipt of the
audited financial statements from Employer's accountants, Employer shall
promptly pay Employee, or Employee shall promptly pay Employer,
whichever the case may be, any overpayment or underpayment of the "Pre-
tax Earnings Bonus" based upon any difference in the Pre-tax Earnings of
the Bancorp between the January 31 financial statements and the
certified financial statements of Employer.
ALLOCATION OF PAYMENT
Section 4.03. The amounts due Employee for the Base Salary, Return
on Equity Bonus and Pre-tax Earnings Bonus may be allocated by Employer
between the Bank and Bancorp as determined in the sole discretion of the
Boards of Directors respectively of the Bank and Bancorp.
Deferred Compensation
Section 4.04. The payment date of any compensation under this
Agreement may be deferred pursuant to any mutually agreeable deferred
compensation agreement entered into between Employer and Employee;
provided, however, the deferred compensation agreement must be entered
into prior to Employee earning the compensation for which payment is
being deferred.
Disability
Section 4.05. Should Employee become unable to effectively perform
his duties hereunder because of any physical or mental condition, he
shall be entitled to one hundred percent (100%) of his then base salary,
exclusive of any Bonus, for a period of ninety (90) days after Employee
becomes unable to perform his duties. Commencing on the 91st day of
continuous disability, Employee shall be entitled to one hundred percent
(100%) of his base salary, less any disability benefits received under
the Employee's existing Salary Continuation Agreement between Employee
and Bank, or any other Employer-sponsored income continuation and/or
disability plan(s), for a period not to exceed two hundred seventy-five
(275) days but in no event beyond the term of this agreement. During
this aforementioned time period, Employee shall continue to enjoy all
benefits and rights of an employee, including but not limited to
participation in group medical and life insurance programs, but shall
only be entitled to any Bonus which accrued and was earned prior to the
date Employee commenced his disability leave. After such 275 day period,
and prior to the expiration term of this agreement, Employer shall only
pay Employee the amount of payments (if any) which is due Employee as a
result of Employee's disability under his existing Salary Continuation
Agreement and any other Employer-sponsored income continuation and/or
disability plan(s).
EFFECT OF SALE, ACQUISITION OR MERGER
Section 4.06. In the event of a sale, acquisition or merger of the
Bancorp within the term of this agreement, and the purchasing, acquiring
or merging entity ("New Entity" herein) elects to not employ Employee
under the terms of an employment agreement acceptable to both Employee
and New Entity, or the New Entity for any reason refusing to honor the
remaining terms of this agreement, Employee shall have the right to
continue to receive his Base Salary (but not the Return on Equity Bonus
or the Pre-tax Earnings Bonus) plus the Employee Benefits described in
Article 5 herein for the remaining period of this agreement less any
payments received from the Salary Continuation Agreement between Employee
and Bank. In the event of any conflict between the terms and provisions
of this agreement and the terms and provisions of the Salary Continuation
Agreement, the terms and provision of the Salary Continuation Agreement
shall prevail and control.
ARTICLE 5. EMPLOYEE BENEFITS
General
Section 5.01. Employee shall be entitled to receive those other
employee benefits made available by Employer to all its employees, plus
vacation each calendar year pursuant to Section 5.02; utilization of an
automobile supplied by Employer, in accordance with the policy and
guidelines established by the Boards of Directors of Employer, with all
operating costs paid by Employer; Life Insurance paid by Employer; Health
Insurance paid by Employer; Disability Insurance paid by Employer; the
option to participate in Employees deferred compensation plan; and the
option to participate in the Stock Option Plan of Employer already in
effect.
Vacation
Section 5.02. Subject to all governmental Rules and Regulations
applicable to Employer, Employee shall be entitled to an annual vacation
of four (4) weeks, without reduction in salary, to be taken at times
which will not substantially interfere with the business and general
well-being of Employer. In the event this agreement is renewed, unused
vacation shall not be accrued from any calendar year to any subsequent
calendar year.
Use and Disclosure of Confidential Data
Section 5.0. Employee shall not use any confidential information or
circulate it to any other person or persons, except when specifically
authorized and then only to the extent necessary to further Employees
best interests.
Competitive Activities During Employment
Section 5.04. During the term of this Agreement, Employee shall
not, directly or indirectly, either as an employee, employer, consultant,
agent, principal, partner, stockholder, director, or in any other
capacity, engage or participate in any competitive activity relating to
the subject matter of his employment with Employer.
Stock Ownership
Section 5.05. Employee shall own and/or control at all times during the
term of this Contract a minimum of 5,000 shares of common stock in
Bancorp. In the event the number of issued shares of Bancorp is changed
after the calendar year 1996 as a result of a stock split, stock
dividend, reorganization, or for any other reason, the number of shares
under this paragraph shall automatically be changed accordingly. This
Section 5.05 shall be deemed deleted from this contract effective on the
date of any merger, transfer of assets, or dissolution within the
provisions of Section 6.04 hereof.
ARTICLE 6. TERMINATION OF EMPLOYMENT
Termination by Employer
Section 6.0l Notwithstanding any other provision of this Contract,
Employer may terminate this Contract by vote of the majority of the total
number of the Boards of Directors of Employer at a meeting of the Boards
of Directors in which a quorum is present, provided Employee is involved
in gross malfeasance in the performance of his duties, or adjudged guilty
of illegal activities by a court of competent jurisdiction. Upon such
termination under this Section 6.01, Employee shall have no further right
under this Contract except to receive payment for benefits earned or
accrued to the date of termination of Employee.
TERMINATION BY EMPLOYEE
Section 6.02. Employee may elect to terminate this agreement
for any reason by providing thirty (30) days prior written notice to
Employer. Upon receipt of Employee's written or oral notice of
termination, Employee shall have no further right under this agreement
except to receive payment for benefits earned or accrued to the date of
termination by Employee.
ARTICLE 7. GENERAL PROVISIONS
Notices
Section 7.01. Any notices to be given by either party to the other
shall be in writing and may be effected either by personal delivery or by
mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at the
addresses appearing in the introductory paragraph of this agreement, but
each party may change address by written notice in accordance with this
section. Notices delivered personally shall be deeded communicated as of
the date of actual receipt; mailed notices shall be deeded communicated
as of the date on which they are mailed.
Entire Agreement
Section 7.02.
(a) This agreement supersedes any and all other employment
agreements, either oral or in writing, between the parties with respect
to the employment of Employee by Employer, and contains all of the
covenants and agreements between the parties with respect to that
employment in any manner whatsoever.
(b) Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or
otherwise, other than those set forth herein, have been made by any
party, or anyone acting on behalf of any party, and that no other
agreement, statement, or promise not contained in this agreement shall be
valid or binding.
(c) Any modification of this agreement will be effective only if
it is in writing signed by the party to be charged.
The provisions of this Section 7.02 shall not be deemed to refer to
or have any effect upon the Salary Continuation Agreement or the
Directors Deferred Fee Agreement, or any other non-employment agreement,
it being the intent of this Section 7.02 to apply solely to the
employment relationship between Employee and Employer.
Transferability
Section 7,03. The rights and benefits of Employer under this
Contract shall be transferable, and all rights, benefits, covenants, and
agreements hereunder shall inure to the benefit of Employee and the
successors, transferees, or assigns of Employer, and shall be enforceable
by or against Employee and by or against successors, transferees, or
assigns of Employer, as the case may be.
Attorneys' Fees and Costs
Section 7.04. If any action at law or in equity is necessary
to enforce or
interpret the terms of this agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which he may be
entitled. This provision shall be construed as applicable to the entire
contract. This Section 7.04 shall be considered deleted upon the
effective date of any Employers merger, transfer of assets, or
dissolution within the confines of Section 4.06.
Partial Invalidity
Section 7.05. If any provision in this agreement is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without
being impaired or invalidated in any way.
Law Governing Agreement
Section 7.06. This agreement shall be governed by and construed in
accordance with the laws of the State of California.
Payment of Moneys Due Deceased Employee
Section 7.07. If Employee dies prior to the expiration of the term
of employment, any moneys that may be due from Employer under this
agreement as of the date of Employee's death shall be paid to Employee's
executors, administrators, heirs, personal representatives, successors,
and assigns.
Amendment
Section 7.08. This contract may be changed or amended only in
writing subscribed by the parties hereto.
Executed on February 21, 1996, at Orange California.
EMPLOYEE: EMPLOYER:
ORANGE NATIONAL BANK
By: By:
Frank A. DelGiorgio Armand Durante
Vice-Chairman
By:
Kenneth J. Cosgrove
President
ORANGE NATIONAL BANCORP
By:
Armand Durante
Vice-Chairman
By:
Kenneth J. Cosgrove
President
