LEASE
THIS
LEASE is made and entered
into September 23, 2005, by and between Wainwright #3
Partners , hereinafter referred to as “Landlord,”
and Sutter Bank of Commerce, a division of Redding Bank of
Commerce , hereinafter referred to as
“Tenant.”
1.
Use. Landlord hereby leases to Tenant and Tenant
hereby hires from Landlord, the premises described below for the
purpose of operating a financial banking institution and uses
incidental thereto.
2.
Demised Premises. Demised premises leased to Tenant,
together with appurtenances, are hereinafter referred to as the
“demised premises” and are situated at 950 Tharp Road,
Suite 800, Yuba City, California (APN 58-050-065), and are the
premises outlined on the site plan attached hereto as
Exhibit A . Said demised premises contain approximately
4,904 square feet.
3.
Term. The term of this Lease shall be for a period of
five (5) years. The term of this Lease, and Tenant’s
obligations contained herein shall commence November 1, 2005.
Occupying all or any portion of the demised premises by Tenant
shall be conclusive that the premises are in satisfactory condition
and acceptable to Tenant subject to latent defects and deficiencies
listed in writing by Tenant to Landlord within ten (10) days
after Tenant’s occupancy.
Tenant shall be
allowed, prior to commencement of this Lease, to enter upon the
demised premises for the purpose of completing Tenant’s
improvements and fixturing.
4.
Base Rent; Net Lease. Tenant shall pay to the
Landlord, without demand, rent for the demised premises in the
amounts and manner specified hereunder (“base rent”).
Base rent shall be payable in monthly installments in advance on or
before the first day of each calendar month, in lawful money of the
United States, without deduction or offset whatsoever to Landlord
at the address specified above or to such other firm or to such
other place as Landlord may from time to time designate in writing.
Base rent for the first full month of the term shall be paid by
Tenant upon Tenant’s execution of this Lease. If the
obligation for payment of base rent commences on other than the
first day of a month, then rent shall be prorated (calculation on
the basis of 360 days) and the prorated installment shall be paid
on the first day of the next succeeding calendar month.
This Lease
shall be a net lease and all base rent and other payments hereunder
due from and payable by Tenant to Landlord under this Lease
(collectively “rent”) shall be paid to Landlord in
installments as provided for in Paragraph 14 herein,
“Common Area Expenses.” All rent shall include
additional rental under this Lease and Landlord shall be entitled
to exercise the same rights and remedies as provided for in this
Lease for nonpayment of Base Rent.
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Rent Amount When
Paid on
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Rent
Amount When Paid
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After
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First Day of Month
Due
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Seventh Day of
Month Due
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$7,111.00+NNN
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$7,467.00+NNN
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$7,254.00+NNN
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$7,617.00+NNN
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$7,399.00+NNN
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$7,769.00+NNN
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$7,547.00+NNN
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$7,925.00+NNN
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$7,697.00+NNN
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$8,082.00+NNN
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Any monthly
rent payment(s) received by Landlord on or after the seventh (7th)
day of any month during the term hereof will be subject to the late
charge pursuant to Section (a) of this Paragraph, and said
late monthly rent payment(s) will be subject to the interest rate
pursuant to Section (b) of this Paragraph. Monthly rent
payment(s), and any other money payable to Landlord by Tenant in
accordance with the terms and provisions of this Lease shall be
considered paid on the business day said payment(s) is/are received
by Landlord.
(a) Late
Payment Charge : If Tenant shall fail to pay rent or any other
amount due under this Lease when due, Tenant shall pay to Landlord,
in addition to the interest provided for in Section (b) of
this Paragraph, a late payment charge for each occurrence of an
amount equal to five percent (5%) of each and every late payment.
Tenant and Landlord both agree that it would be impractical and
extremely difficult to calculate and prove the amount of damages
whenever the Tenant is late in payment rent, and further that the
late charge mentioned herein is a reasonable endeavor to estimate a
fair compensation for loss which would be sustained by the Landlord
upon default of the payment of rent by Tenant.
(b)
Interest Rate on Delinquencies : If Tenant shall fail to pay
rent within sixty (60) day s when due, such unpaid
amounts shall bear interest at eighteen percent (18%) APR from due
date.
5.
Renewal Option. Tenant is hereby granted the
exclusive right and option to renew this Lease for up an additional
term of five (5) years, commencing from and after the
expiration of the initial term of this Lease. This renewal option
shall be upon the same terms and conditions as contained herein,
except that the rent for such renewal option period shall be as
follows:
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Rent Amount When
Paid on
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Rent Amount When
Paid After
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First Day of
Month Due
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Seventh Day of
Month Due
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$7,851.00+NNN
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$8,244.00
+NNN
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$8,008.00+NNN
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$8,409.00+NNN
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$8,169.00+NNN
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$8,578.00+NNN
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$8,332.00+NNN
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$8,749.00+NNN
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2
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Rent Amount When
Paid on
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Rent Amount When
Paid After
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First Day of Month
Due
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Seventh Day of Month
Due
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$8,499.00+NNN
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$8,924.00
+NNN
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This renewal
option is subject to the condition that: (a) Tenant shall not
be in material default of any provision of the Lease at the time
this option is exercised; (b) Tenant shall be in good standing
on any and all rental payments; (c) Tenant is occupying the
demised premises at the expiration of the initial term.
To exercise
this renewal option herein granted, Tenant shall give to Landlord
notice in writing at least one hundred-twenty (120 )
days prior to the expiration of the initial term of this Lease of
its election to exercise a renewal option herein granted, and it is
expressly agreed by and between the parties hereto that time is of
the essence in the giving of said notice.
In the event
that Tenant is in default any of the provisions above or does not
give written notice of exercise of the renewal option as provided
for herein, this renewal option shall lapse and be of no further
force or effect.
6.
Security Deposit . Tenant, contemporaneously with the
execution of this Lease, will deposit with Landlord the first
month’s rent along with the sum of $7,697.00. Said latter sum
shall be held by Landlord, without liability for interest, as
security for the faithful performance by Tenant of all the terms,
covenants and conditions in this Lease and promptly pay all of the
rents herein provided for as it falls due and all other sums
payable by Tenant to Landlord hereunder, said security deposit
shall be returned to Tenant in full at the end of the term of this
Lease.
7.
Real Estate Taxes/Assessments. In addition to all
rentals herein reserved, Tenant shall pay to Landlord all real
estate taxes and assessments levied against the parcel upon which
the demised premises is located. Tenant shall pay to Landlord said
taxes and assessments in installments as provided for in
Paragraph 14 herein, “Common Area
Expenses.”
The term
“real estate taxes” as used herein shall be deemed to
mean all taxes imposed upon the real property and permanent
improvements and all assessments levied against said property, but
shall not include personal income taxes, personal property taxes,
inheritance taxes, or franchise taxes levied against the Landlord,
but not directly against said property, even though such taxes may
become a lien against said demised premises.
Notwithstanding the above, during
the initial term of this Lease, the Tenant shall not be responsible
nor liable for any Real Estate Taxes/Assessments/Reassessments
whatsoever which are incurred or result from actions taken by the
Landlord, including, but not limited to, the sale, exchange or
transfer for estate planning purposes, of all or any portion of the
demised premises.
8.
Option to Purchase the Demised Premises. Tenant shall
have an option to purchase the demised premises and everything
appurtenant thereto, for a purchase price of $1,127,920.00 (this
price is if the Option is exercised during the fourth (4th) year of
the Lease, this amount will increase by two percent (2%) each and
every year thereafter). Tenant may exercise this option to purchase
at anytime after the third (3 rd )
year of the initial term. The option
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to purchase, as
well as the Lease, shall be fully assignable, transferable, and the
“Memorandum of Lease Agreement with Option to Purchase”
shall be recorded contemporaneously with the commencement of the
lease term. “Memorandum of Lease Agreement with Option to
Purchase” is marked Exhibit B , attached hereto,
and incorporated herein by this reference.
The purchase
escrow shall be opened by Tenant and Landlord as soon as Tenant
exercises its option to purchase, and escrow shall close no later
than ninety (90) days from opening. Escrow fees shall be paid
one-half by Tenant and one-half by Landlord. The terms of any sale
shall be all cash payment, in the amount of the relevant option
price at the time the option is exercised, at close of
escrow.
Tenant/Buyer shall
be provided with a then current preliminary report at
Landlord’s expense. Tenant shall approve or disapprove of any
exceptions within 10 days. Landlord shall cure all disapproved
exceptions prior to close of escrow. Tenant/Buyer shall receive a
California Land Title Association [C.L.T.A.] policy issued by
escrow holder at Landlord’s expense. Title shall be free of
al liens and encumbrances subject to (1) a lien for real
property taxes, bonds, and assessments not then due; and
(2) easements and servitude previously of record; and
exceptions approved by Tenant. Real property taxes and assessments,
interest, rents, premiums on insurance, payments on bonds and
assessments, etc., assumed by Tenant, shall be prorated between
Tenant and Landlord as of the date of recordation of the grant
deed. Any transfer tax or transfer fee(s) shall be paid by
Landlord.
Tenant shall
cooperate with Landlord, and Landlord shall cooperate with Tenant
in the event either desire to enter into an Internal Revenue Code,
section 1031 tax-deferred exchange. Any such 1031 exchange shall
not extend the escrow closing date, nor shall it cost the other
party any additional sums or submit that party to any additional
liability.
Tenants’
ability to exercise this option to purchase shall be invalid if, at
the time Tenant exercises its option to purchase, Tenant is in
substantial and material default of any of the Lease terms. In the
event Tenant determines not to exercise its option to purchase, the
remaining Lease provisions shall remain in full force and
effect.
9.
Construction. Tenant shall be allowed, prior to
commencement to the Lease term, to enter upon the demised premises
for the purpose of completing Tenant’s improvements and
fixturing. Plans and specifications for Tenant’s improvements
shall be provided by Tenant at Tenant’s sole cost and
expense. Said plans and specifications shall be subject to
Landlord’s approval (which shall not be unreasonably
withheld). Tenant’s improvements shall be completed to all
building codes in force, by licensed contractors in a workmanlike
manner, at Tenant’s sole cost and expense.
Tenant is taking the building in its
current “cold shell” condition. Landlord shall
reimburse Tenant for up to $30.00/sf for tenant improvements upon
completion of said improvements.
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10.
Alterations . Tenant shall not make or permit any
other person to make any alterations to said demised premises
without the written consent of Landlord first had and obtained.
Should Landlord consent to the making of any alterations to said
demised premises by Tenant, the alterations shall be made at the
sole cost and expense of Tenant by a contractor or other person
selected by Tenant and approved in writing before work commences by
Landlord. Any and all alterations, additions, or improvements shall
be made by licensed contractors in a workmanlike manner to all
building codes in force and at Tenant’s sole cost and
expense.
During the Term
of this Lease and any fixturing period prior to commencement of the
Lease Term, if required by Landlord, Tenant shall also provide
security for the completion thereof in the form of a bond or other
security satisfactory to Landlord. Tenant shall pay and settle all
expenses and liabilities arising out of or in any way connected
with any and all construction, repairs, alterations or maintenance
of the demised premises, and all liens of mechanics and/or material
men, and all liens of a similar character, arising out of or
growing out of the construction, repair, alterations or maintenance
of the demised premises.
Prior to the
termination of this Lease or any extension thereof, Tenant shall be
permitted to remove from the demised premises all Personalty
(Tenant’s fixtures, furnishings, inventory and equipment on
the demised premises whether nailed, screwed, or otherwise fastened
to the demised premises, including without limitation shelving,
racks, counters, computer equipment, terminals, satellite dish,
building signage, monument and pole sign panels, alarm system,
safe, telephone system, and testing equipment, but excluding HVAC
equipment and light fixtures (collectively, the
“Personalty”)) placed by it or by any subtenant on the
demised premises, provided however, Tenant shall repair all damages
caused by any such removal (except for small holes caused by nails,
fasteners and the like). Any Personalty not so removed by Tenant
prior to termination of this Lease or any extension thereof, shall
become at once a part of the realty and belong to the Landlord
without compensation to Tenant.
11.
Parking and Common Facilities. Subject to the
restrictions set forth herein, Landlord covenants that the common
and parking areas of the parcel, upon which the demised premises is
located, be available for the non-exclusive use of Tenant during
the full term of this Lease and any extension of the term hereof,
provided that the condemnation, other taking by any public
authority, the sale in lieu of condemnation of any or all of such
common and parking areas, or any requirement for compliance by any
governmental authority of any ordinances which may supersede
anything contained in this paragraph shall not constitute a
violation of this covenant.
Tenant, in use
of said common and parking areas, agrees to comply with such
reasonable rules and regulations as Landlord may adopt from time to
time for the orderly and proper operation of said common and
parking areas, and Tenant shall enforce them against Tenant’s
employees.
No parking of
recreational vehicles or trucks shall be permitted in the parking
area except for service and delivery purposes.
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12.
Maintenance and Repair. Tenant shall, subject to
Landlord’s obligations hereinafter provided, at all times
during the term hereof, and at the Tenant’s sole cost and
expense, keep, maintain and repair the building and other
improvements upon the demised premises in good and sanitary order
and condition including without limitation to, the maintenance and
repair of any glass, windows and glazing, doors and storefronts,
interior walls and partitions, floor coverings, plumbing, pipes,
electrical wiring and conduits, ceiling, lighting fixtures
including replacement of tubes, bulbs and ballasts, heating and air
conditioning system(s). Tenant shall periodically sweep and clean
the sidewalks adjacent to the demised premises as
needed.
Tenant shall at
all times maintain, at its expense, a maintenance agreement
acceptable to Landlord on the heating and air conditioning units,
and cause such units to be maintained at regular intervals during
the term of this Lease.
Landlord shall
maintain, at Landlord’s expense, in good repair the exterior
walls, roof and sidewalks; however, any repairs to the roof
necessitated by, or as a result of, penetrations in the completed
roof caused by Tenant shall be made by Tenant at Tenant’s
expense.
By entering
into the demised premises Tenant shall be deemed to have accepted
the demised premises as being in good and sanitary order, condition
and repair and Tenant agrees on the last day of said term, or
sooner termination of this Lease, to surrender the demised premises
with appurtenances, in the same condition as when received,
reasonable use and wear thereof, and damage by fire, act of God, or
by the elements excepted.
13.
Compliance with Laws, Rules and Regulations. Tenant
shall, at its sole cost and expense, comply with all the
requirements of all municipal, state and federal authorities now in
force or which may hereafter be in force pertaining to the demised
premises and use of said demised premises and shall faithfully
observe in said use all municipal ordinances and state and federal
statutes now in force or which shall hereafter be in
force.
14.
Common Area Expenses. Landlord agrees to cause the
common areas to be kept in good and sanitary order and condition in
order to maintain a neat, clean and orderly appearance at all
times. Tenant shall pay to Landlord, in addition to all other
rentals, all of the Landlord’s total reasonable costs and
expenses incurred in operating, maintaining, and managing the
demised premises and its common facilities, including but not
limited to gardening and landscaping maintenance, maintenance and
cleaning of parking lot and walkways, reserves for maintenance and
replacements, the costs of public liability and property damage
insurance, fire and extended coverage insurance, security
protection, removal of trash, rubbish, garbage or other refuse,
real estate taxes and assessments (Paragraph 7) and pro rata
charges for water, sewer, common area lighting, and maintenance and
repairs to lighted common area exterior signs including replacement
of lighting elements, bulbs or tubes as needed.
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A calculated
estimate of Tenant’s pro rata share of Common Area Expenses
and Real Estate Taxes (see Paragraph 7 herein) for the base
year is $0.35/SF/month. This combined amount shall herein be
referred to as “common area expenses”, “common
area maintenance charges”, or “CAM.”
Tenant shall
pay the estimated common area expenses with installments of base
rent for each year to which the estimated common area expenses
applies in monthly installments on the first day of each calendar
month during such year, in advance. If at any time during the
course of the calendar year, Landlord determines that common area
expenses will apparently vary from the then estimated amount by
more than ten percent (10%), Landlord may, by written notice to
Tenant, revise the estimated common area expenses for the balance
of such calendar year and Tenant shall pay Tenant’s pro rata
share of the estimated common area expenses as so revised for the
balance of the then current calendar year on the first of each
calendar month thereafter.
“Common
area expenses adjustment” shall mean the difference between
estimated common area expenses and actual common area expenses for
any calendar year determined as hereinafter provided. Within one
hundred twenty (120) days after the end of each calendar year,
or as soon thereafter as practicable, Landlord shall deliver to
Tenant a statement of common area expenses for the calendar year
just ended accompanied by a computation of common area expenses
adjustment. If such statement shows that Tenant’s payment
based upon estimated common area expenses is less than
Tenant’s pro rata share of common area expenses, then Tenant
shall pay to Landlord the difference within twenty (20) days
after receipt of such statement. If such statement shows that
Tenant’s payments of estimated common area expenses exceed
Tenant’s pro rata share, then (provided that Tenant is not in
default under this Lease), Landlord shall pay to Tenant the
difference within twenty (20) days after the date of such
statement. If this Lease has been terminated or the term hereof has
expired prior to the date of such statement, then the common area
expenses adjustment shall be paid by the appropriate party within
twenty (20) days after the date of delivery of the
statement.
Should this
Lease commence or terminate at any time other than the first day of
the calendar year, Tenant’s pro rata share of the common area
expenses adjustment shall be prorated by reference to the exact
number of calendar days during such calendar year for which Tenant
is obligated to pay rent.
15.
Utilities. Tenant shall pay before delinquent all
charges for gas, heat, electricity, power, telephone services,
water, sewer, garbage, and other services of utilities used in,
upon, or about the demised premises by Tenant or any of its
subtenants or licensees during the term of this Lease.
16.
Entry and Inspection. Tenant shall have the right to
peacefully hold and enjoy the demised premises without unreasonable
hindrance or interruption by Landlord or any persons claiming by,
through, or under Landlord, until the expiration of the lease term;
however, Tenant shall permit Landlord and/or its agent to enter
into and upon the demised premises at all reasonable times for the
purpose of inspecting the same or for the purpose of maintaining
the demised premises.
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Tenant shall
permit Landlord at any time within ninety (90) days prior to
the expiration of this Lease, or any extended term thereof, to
place upon demised premises any usual or ordinary “For
Lease” signs. During such ninety (90) day period,
Landlord or its agents may, during normal business hours, enter
upon demised premises and exhibit it to prospective
tenants.
17.
Assignment and Subletting. Tenant shall not assign
this Lease or any interest therein, and shall not sublet the
demised premises or any part thereof, or any right or privilege
appurtenant thereto, without first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld. Consent
by Landlord to one assignment, subletting, occupation or use by
another person, or entity, shall not be deemed to be consent to any
subsequent assignment, subletting, occupation or use by another
person or entity.
Consent by the
Landlord to an assignment shall not release the originally named
tenant from liability for the continued performance of the terms
and provisions on the part of the Tenant to be kept and performed
unless Landlord specifically releases originally named tenant from
said liability.
Any assignment
or subletting without the prior written consent of Landlord shall
be void and shall, at the option of the Landlord, terminate this
Lease. Neither this Lease nor any interest therein shall be
assignable, as to the interest of Tenant, by operation of law,
without the prior written consent of Landlord.
(a) If
Tenant fails to make any payment required by the provisions of this
Lease, when due, or fails within thirty (30) days after
written notice thereof to correct any breach or default of the
other covenants, terms or conditions of this Lease, or if Tenant
breaches this Lease and abandons the demised premises before the
end of the term, Landlord shall have the right at any time
thereafter to elect to terminate this Lease and Tenant’s
right to possession hereunder. Upon such termination, Landlord
shall have the right to recover against Tenant:
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