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COMMUNITY BANCORP - S-1 - 20040930 - EXHIBIT_10
EXHIBIT 10.3
COMMUNITY BANK OF NEVADA
2000 STOCK APPRECIATION RIGHT PLAN
ADOPTED ON JULY 20, 2000
COMMUNITY BANK OF NEVADA
(THE "COMPANY")
2000 STOCK APPRECIATION RIGHTS PLAN
SECTION 1. ESTABLISHMENT AND PURPOSE.
This Stock Appreciation Rights Plan (this "Plan") is intended to help
attract superior personnel for positions of substantial responsibility with the
Company (and its Subsidiaries), to provide such individuals with an additional
incentive to contribute to the success of the Company (and its Subsidiaries) to
promote the interests of the Company (and its Subsidiaries) by encouraging the
Company's (and its Subsidiaries's) employees, Outside Directors and consultants
to continue in the service of the Company (and its Subsidiaries), and to provide
such persons with incentives and rewards for superior management, growth and
protection of the business of the Company (and its Subsidiaries). The Plan
provides for the issuance of a maximum of fifty thousand (50,000) Stock
Appreciation Rights ("SARs") to such employees, Outside Directors and
consultants, at the sole discretion of the Board of Directors.
Capitalized terms are defined in Section 9.
SECTION 2. ADMINISTRATION.
(a) COMMITTEES OF THE BOARD OF DIRECTORS. The Plan may be administered by
one or more Committees. Each Committee shall consist of one or more members of
the Board of Directors who have been appointed by the Board of Directors. Each
Committee shall have such authority and be responsible for such functions with
respect to this Plan as the Board of Directors has assigned to it. If no
Committee has been appointed, the entire Board of Directors shall administer the
Plan. Any reference to the Board of Directors in the Plan shall be construed as
a reference to the Committee (if any) to whom the Board of Directors has
assigned a particular function.
(b) AUTHORITY OF THE BOARD OF DIRECTORS. Subject to the provisions of the
Plan, the Board of Directors shall have full authority and discretion to take
any actions it deems necessary or advisable for the administration of the Plan.
All decisions, interpretations and other actions of the Board of Directors shall
be final and binding on all Participants and all persons deriving their rights
from a Participant.
SECTION 3. ELIGIBILITY.
Only Employees, Outside Directors and Consultants of the Company (and its
Subsidiaries) shall be eligible for the grant of "SARs."
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SECTION 4. TERMS AND CONDITIONS OF SARs.
(a) SAR AGREEMENT. Each grant of an SAR shall be evidenced by a SAR
Agreement between the Participant and the Company. Such SAR Agreement shall be
subject to all applicable terms and conditions of the Plan and may be subject to
any other terms and conditions which are not inconsistent with the Plan and
which the Board of Directors deems appropriate for inclusion in a SAR Agreement.
The provisions of the various SAR Agreements entered into under the Plan need
not be identical.
(b) MEASURING PERIOD. A SAR shall accrue in value from the Grant Date over
a time period established by the Board of Directors, except that in no event
shall a SAR be payable within the first six (6) months after the Grant Date. In
the written SAR Agreement, the Board of Directors may also provide (but is not
required to provide) that a SAR shall be automatically payable on one or more
specified dates prior to the normal end of the measuring period upon the
occurrence of events selected by the Board of Directors (including, but not
limited to, a Change in Control as set forth in Section 4(h) below) that are
beyond the control of the Participant. The Board of Directors may provide (but
is not required to provide) in the SAR Agreement that in the case of a cash
payment such acceleration in payment shall also be subject to discounting the
payment to reasonably reflect the time value of money using any reasonable
discount rate selected by the Board of Directors in accordance with Treasury
Regulations under Code Section 162(m).
(c) NUMBER OF SHARES. Each SAR Agreement shall specify the number of
Shares with respect to which each SAR is granted and shall provide for the
adjustment of such number in accordance with Section 5.
(d) GRANT PRICE/EXERCISE PRICE. The Grant Price and the Exercise Price of
any SAR granted under the Plan shall be determined by the Committee or the Board
of Directors in their absolute discretion at the time of the grant of such SAR,
and shall be set forth, or a method for determining same shall be set forth, as
the case may be, in the respective SAR Agreement.
(e) BENEFIT UPON EXERCISE. The exercise of a SAR with respect to any
number of Shares shall entitle a Participant to a payment for each SAR, equal to
the excess of (A) the Exercise Price of the SAR over (B) the Grant Price of the
SAR.
(f) WITHHOLDING TAXES. As a condition to the exercise of a SAR, the
Participant shall make such arrangements as the Board of Directors may require
for the satisfaction of any federal, state, local or foreign withholding tax
obligations that may arise in connection with such exercise.
(g) EXERCISABILITY. Each SAR Agreement shall specify the date when all or
any installment of the SAR is to become exercisable, and the method of payment
of same. The
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exercisability provisions of any SAR Agreement shall be determined by the Board
of Directors at its sole discretion.
(h) ACCELERATED EXERCISABILITY. Unless the applicable SAR Agreement
provides otherwise, all of a Participant's SARs shall become exercisable in full
if the Company is subject to a Change in Control before the Participant's
Service terminates.
(i) BASIC TERM. The SAR Agreement shall specify the term of the SAR. The
term shall not exceed five (5) years from the Grant Date. Subject to the
preceding sentence, the Board of Directors at its sole discretion shall
determine when a SAR is to expire.
(j) NONTRANSFERABILITY. Except as provided by the Board in the SAR
Agreement, no SAR shall be transferable by the Participant other than by
beneficiary designation, will or the laws of descent and distribution. A SAR may
be exercised during the lifetime of the Participant only by the Participant or
by the Participant's guardian or legal representative. No SAR or interest
therein may be transferred, assigned, pledged or hypothecated by the Participant
during the Participant's lifetime, whether by operation of law or otherwise, or
be made subject to execution, attachment or similar process.
(k) EXERCISE OF SARs.
(i) Each SAR shall be exercisable on such date or dates, during
such period and with respect to such number of Shares as shall
be determined by the Board of Directors and set forth in the
SAR Agreement evidencing such SAR. Each SAR shall be subject
to such termination, expiration or cancellation provisions as
provided in the SAR Agreement evidencing such SAR.
(ii) Unless otherwise provided in the Plan, each SAR may be
exercised in whole or in part, as provided in the applicable
SAR Agreement. If permitted, the partial exercise of a SAR
shall not cause the expiration, termination or cancellation of
the remaining portion thereof.
(iii) A SAR shall be exercised by delivering written notice to the
Company's principal office, to the attention of the officer
designated by the Company ("Notice of Exercise"). The initial
officer designated for such purpose shall be the President of
the Company. Such notice shall specify the number of Shares
with respect to which the SAR is being exercised and the
effective date of the proposed exercise, which in no event
shall be prior to the date such SAR became exercisable (the
"Exercise Date") and shall be signed by the Participant.
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(iv) During the lifetime of a Participant, each SAR granted to
him/her shall be exercisable only by him/her. No SAR shall be
assignable or transferable otherwise other than by will, the
laws of descent and distribution, and only to the limited
extent provided for herein.
(v) If a Participant's Service terminates for any reason other
than the Participant's death, then the Participant's SARs
shall expire.
The Participant may exercise all or part of the Participant's SARs at any time
before the expiration of such SARs under the preceding provisions, but only to
the extent that such SARs had become exercisable before the Participant's
Service terminated (or became exercisable as a result of the termination). The
balance of such SARs shall lapse when the Participant's Service terminates. In
the event that the Participant dies before the termination of the Participant's
Service and before the expiration of the Participant's SARs, all or part of such
SARs may be exercised (prior to expiration) by the executors or administrators
of the Participant' s estate or by any person who has acquired such SARs
directly from the Participant by beneficiary designation, bequest or
inheritance, but only to the extent that such SARs had become exercisable before
the Participant's Service terminated (or became exercisable as a result of the
termination), as provided below in Subsection (n).
(l) FORM OF PAYMENT. Payment pursuant to a SAR may be made (i) in cash,
(ii) in shares of Stock, (iii) a promissory note (on such payment, interest and
other terms as the Board determines in its sole and absolute discretion), or
(iv) in any combination of the above, as the Board of Directors shall determine
in its sole and absolute discretion. The Board of Directors may elect to make
this determination either at the time the SAR is granted, at the time of payment
or at any time in between such dates. However, any SAR paid upon or subsequent
to the occurrence of a Change in Control (as defined in Section 9) shall be paid
in cash.
(m) LEAVES OF ABSENCE. For purposes of Subsection (i) above, Service shall
be deemed to continue while the Participant is on a bona fide leave of absence,
if such leave was previously approved by the Company in writing and if continued
crediting of Service for this purpose is expressly required by the terms of such
leave or by applicable law (as determined by the Company).
(n) DEATH OF PARTICIPANT. If permitted by the Board of Directors, a
Participant may name a beneficiary or beneficiaries to whom any vested but
unpaid SAR shall be paid in the event of the Participant's death. Each such
designation shall revoke all prior designations by the Participant and shall be
effective only if given in a form and manner acceptable to the Board of
Directors. In the absence of any such designation, any vested benefits remaining
unpaid at the Participant's death shall be paid to the Participant's estate and,
subject to the terms of the Plan and of the applicable SAR agreement, any
unexercised vested SAR may be exercised by the administrator or executor of the
Participant's estate, and the Exercise Price shall be the Book Value as of the
Participant's date of death. No such transfer or distribution of any SAR, or the
right to exercise any SAR shall be effective to bind the Company unless the
Board of Directors shall have
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been furnished with (a) written notice thereof, and with a copy of the will
and/or such evidence as the Board of Directors may deem necessary to establish
the validity of the transfer and (b) an agreement by the transferee to comply
with all the terms and conditions of the SAR that are or would have been
applicable to the Participant and to be bound by the acknowledgments made by the
Participant in connection with the grant of the SAR. If a Participant dies while
the Participant is in Service, then all or part of the Participant's SARs may be
exercised at any time before the expiration of such SARs under the preceding
sentence by the executors or administrators of the Participant's estate or by
any person who has acquired such SARs directly from the Participant by
beneficiary designation, bequest or inheritance, but only to the extent that
such SARs had become exercisable before the Participant's death or became
exercisable as a result of the death. The balance of such SARs shall lapse when
the Participant dies.
(o) NO RIGHTS AS A STOCKHOLDER. A Participant, or a transferee of a
Participant, shall have no rights to receive any Stock and no rights as a
stockholder with respect to or as a result of any SAR granted under the Plan.
(p) MODIFICATION, EXTENSION AND ASSUMPTION OF SARs. Within the limitations
of the Plan, the Board of Directors may modify, or extend outstanding SARs or
may accept the cancellation of outstanding SARs (whether granted by the Company
or another issuer) in return for the grant of new SARs with respect to the same
or a different number of Shares and at the same or a different Exercise Price.
The foregoing notwithstanding, no modification of a SAR shall, without the
consent of the Participant, impair the Participant's rights or increase the
Participant's obligations under such SAR.
SECTIONS 5. ADJUSTMENT OF SARs.
(a) GENERAL. In the event of a issuance of additional stock in the
Company, a subdivision of the Company's outstanding Stock, a declaration of a
dividend by the Company payable in Stock, a combination or consolidation of the
outstanding Stock into a lesser number of Stock, a recapitalization, a spin-off,
a reclassification or a similar occurrence, the Board of Directors shall make
appropriate adjustments in one or more of (i) the number of Shares, with respect
to which any SAR has been granted, covered by each outstanding SAR and/or (ii)
the Grant Price under each outstanding SAR.
(b) MERGERS AND CONSOLIDATIONS. Notwithstanding anything else herein to
the contrary, in the event that the Company is a party to a merger or
consolidation, outstanding SARs shall be subject to the agreement of merger or
consolidation and such agreement, without the Participants' consent, may provide
for the continuation of such outstanding SARs by the Company (if the Company is
the surviving corporation).
(c) INITIAL PUBLIC OFFERING. For any SAR Grant after an IPO, and any post
IPO exercise of any SAR granted prior to the IPO, all references to "Book Value"
shall be deemed to be the "Fair Market Value" of a Share on the relevant day.
Fair Market Value of a Share with respect to any day
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shall be (i) the average of the high and low sales prices on such day of a Share
as reported on the principal securities exchange on which a Share is then listed
or admitted to trading or (ii) if not so reported, the average of the closing
bid and ask prices on such day as reported on the National Association of
Securities Dealers Automated Quotation System or (iii) if not so reported, as
furnished by any member of the National Association of Securities Dealers, Inc.
selected by the Board of Directors. In the event that the price of a Share shall
not be so reported, the Fair Market Value of a Share shall be determined by the
Board of Directors in its absolute discretion.
(d) RESERVATION OF RIGHTS. Except as provided in this Section 5, a
Participant shall have no rights by reason of (i) any subdivision or
consolidation of shares of stock of the Company of any class, (ii) the payment
of any dividend or (iii) any other increase or decrease in the number of shares
of stock of the Company of any class. Any issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the Grant Price or the number of Shares as to which any SAR has been
granted. The grant of a SAR pursuant to the Plan shall not affect in any way the
right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure, to merge or
consolidate or to dissolve, liquidate, sell or transfer all or any part of its
business or assets.
SECTION 6. SECURITIES LAW REQUIREMENTS.
SARs shall not be issued under the Plan unless the issuance thereof and
all payments to be made by the Company upon the exercise thereof shall comply
with (or are exempt from) applicable requirements of law, including, without
limitation, (i) any applicable regulatory law or regulation, and (ii) the
Securities Act of 1933, as amended, the rules and regulations promulgated
thereunder, state securities laws and regulations, and the regulations of any
stock exchange or other securities market on which the Company's securities may
then be traded.
SECTION 7. NO RETENTION RIGHTS.
Nothing in the Plan or in any SAR granted under the Plan shall confer upon
the Participant any right to continue in Service for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Company (or any Parent or Subsidiary employing or retaining the Participant) or
of the Participant, which rights are hereby expressly reserved by each, to
terminate his or her Service at any time and for any reason, with or without
cause, subject to any written employment agreement between Company and
Participant.
SECTION 8. DURATION AND AMENDMENTS.
(a) TERM OF THE PLAN. The Plan, as set forth herein, shall become
effective on the date of its adoption by the Board of Directors. The Plan shall
terminate automatically 10 years after its adoption by the Board of Directors
and may be terminated on any earlier date pursuant to Subsection (b) below.
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(b) RIGHT TO AMEND OR TERMINATE THE PLAN. The Board of Directors may
amend, suspend or terminate the Plan at any time and for any reason.
(c) FORMATION OF HOLDING COMPANY. If the Company forms a Holding Company
(as defined below) then the Plan shall apply to the Holding Company, and all
references in the Plan to "Company" shall automatically be converted to and
deemed to be the "Holding Company"; and all references to "Stock" and "Shares"
and "Book Value" hereunder shall automatically be converted to and deemed to be
Stock and Shares and Book Value of the Common Stock of the Holding Company
without any further action by the Company, the Participant(s) or the Holding
Company.
(d) EFFECT OF AMENDMENT OR TERMINATION. No SARs shall be issued under the
Plan after the termination thereof. The termination of the Plan, or any
amendment thereof, shall not affect any SAR previously granted under the Plan,
or the Participant's right to receive payment in respect thereof, in accordance
with the Plan and the applicable SAR Agreement.
SECTION 9. DEFINITIONS.
(a) "BOARD OF DIRECTORS" shall mean the Board of Directors of the Company,
as constituted from time to time.
(b) "BOOK VALUE" shall mean the per share value of the Company and its
Subsidiary(ies) on a consolidated basis as shown on their respective balance
sheets, or per share value of the Holding Company and its Subsidiary(ies), as
the case may be, except in the event of a Change in Control, Book Value shall be
the price paid for Shares in connection with same.
(c) "CHANGE IN CONTROL" shall mean:
(i) The consummation of a merger or consolidation of the Company
with or into another entity or any other corporate
reorganization, if persons who were not stockholders of the
Company immediately prior to such merger, consolidation or other
reorganization own immediately after such merger, consolidation
or other reorganization, 50% or more of the voting power of the
outstanding securities of each of (A) the continuing or
surviving entity and (B) any direct or indirect parent
corporation of such continuing or surviving entity; or
(ii) The sale, transfer or other disposition of all of the Company's
assets.
A transaction shall not constitute a Change in Control if its sole purpose is to
change the state of the Company's incorporation or to create a holding company
(a "Holding Company") that will be owned in substantially the same proportions
by the persons who held the Company's securities immediately before such
transaction.
(d) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
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(f) "COMPANY" shall mean Community Bank of Nevada, a Nevada corporation,
or its Holding Company, as the case may be.
(g) "CONSULTANT" shall mean a person who performs bona fide services for
the Company, a Parent or a Subsidiary as a consultant or advisor, excluding
Employees and Outside Directors.
(h) "EMPLOYEE" shall mean any individual who is a common-law employee of
the Company, a Parent or a Subsidiary.
(i) "EXERCISE DATE" shall mean the date, which in no event shall be prior
to the date such SAR became exercisable or after it terminates, that the
Participant notifies the Company in writing (pursuant to the notice provisions
hereof) of his or her election to exercise a SAR.
(j) "EXERCISE PRICE" shall mean the Book Value of a Share on the Exercise
Date as reflected on the most recent consolidated quarterly financial statements
of the Company.
(k) "GRANT DATE" shall be the effective date of the grant of the SAR to a
Participant as reflected in the respective SAR Agreement.
(l) "GRANT PRICE" shall mean the Book Value of a Share on the Grant Date
as reflected on the most recent consolidated financial statement of the Company.
(m) "IPO" shall mean the effectiveness of a Registration Statement
covering the initial firmly underwritten public offering of the Company's Common
Stock under the Securities Act of 1933, as amended.
(n) "OUTSIDE DIRECTOR" shall mean a member of the Board of Directors who
is not an Employee.
(o) "PARENT" shall mean any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if each of the
corporations other than the Company owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain. A corporation that attains the status of a Parent on
a date after the adoption of the Plan shall be considered a Parent commencing as
of such date.
(p) "PARTICIPANT" shall mean an individual who holds a SAR.
(q) "PLAN" shall mean this Community Bank of Nevada 2000 Stock
Appreciation Rights Plan.
(r) "SAR" shall mean a Participant's right to receive a payment for the
appreciation in value of each Share over the Measuring Period with respect to
which such right has been granted in an amount determined as provided in Section
4 of the Plan, subject to the terms and conditions of the applicable SAR
Agreement.
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an amount determined as provided in Section 4 of the Plan, subject to the terms
and conditions of the applicable SAR Agreement.
(s) "SAR AGREEMENT" shall mean the agreement between the Company and a
Participant which contains the terms, conditions and restrictions pertaining to
the particular Participant's SARs.
(t) "SERVICE" shall mean service as an Employee, Outside Director or
Consultant.
(u) "SHARE" shall mean one share of Stock, as adjusted in accordance with
Section 5 (if applicable).
(v) "STOCK" shall mean the Common Stock of the Company, with a par value
of $1.00 per Share.
(w) "SUBSIDIARY" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain. A corporation that attains
the status of a Subsidiary on a date after the adoption of the Plan shall be
considered a Subsidiary commencing as of such date.
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TABLE OF CONTENTS
Page No
-------
SECTION 1. ESTABLISHMENT AND PURPOSE ................................................ 1
SECTION 2. ADMINISTRATION .......................................................... 1
(a) Committees of the Board of Directors ..................................... 1
(b) Authority of the Board of Directors ...................................... 1
SECTION 3. ELIGIBILITY .............................................................. 1
SECTION 4. TERMS AND CONDITIONS OF SARs ............................................. 2
(a) SAR Agreement ............................................................ 2
(b) Measuring Period ......................................................... 2
(c) Number of Shares ......................................................... 2
(d) Grant Price/Exercise Price ............................................... 2
(e) Benefit Upon Exercise .................................................... 2
(f) Withholding Taxes ........................................................ 2
(g) Exercisability ........................................................... 2
(h) Accelerated Exercisability ............................................... 3
(i) Basic Term ............................................................... 3
(j) Nontransferability ....................................................... 3
(k) Exercise of SARs ......................................................... 3
(l) Form of Payment .......................................................... 4
(m) Leaves of Absence ........................................................ 4
(n) Death of Participant ..................................................... 4
(o) No Rights as a Stockholder ............................................... 5
(p) Modification, Extension and Assumption of SARs ........................... 5
SECTION 5. ADJUSTMENT OF SARs ....................................................... 5
(a) General .................................................................. 5
(b) Mergers and Consolidations ............................................... 5
(c) Initial Public Offering .................................................. 5
(d) Reservation of Rights .................................................... 6
SECTION 6. SECURITIES LAW REQUIREMENTS .............................................. 6
SECTION 7. NO RETENTION RIGHTS ...................................................... 6
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SECTION 8. DURATION AND AMENDMENTS .................................................. 6
(a) Term of the Plan ......................................................... 6
(b) Right to Amend or Terminate the Plan ..................................... 7
(c) Formation of Holding Company ............................................. 7
(d) Effect of Amendment or Termination ....................................... 7
SECTION 9. DEFINITIONS .............................................................. 7
(a) "Board of Directors" ..................................................... 7
(b) "Book Value" ............................................................. 7
(c) "Change in Control" ...................................................... 7
(d) "Code" ................................................................... 7
(e) "Committee" .............................................................. 8
(f) "Company" ................................................................ 8
(g) "Consultant" ............................................................. 8
(h) "Employee" ............................................................... 8
(i) "Exercise Date" .......................................................... 8
(j) "Exercise Price" ......................................................... 8
(k) "Grant Date" ............................................................. 8
(l) "Grant Price" ............................................................ 8
(m) "IPO" .................................................................... 8
(n) "Outside Director" ....................................................... 8
(o) "Parent" ................................................................. 8
(p) "Participant" ............................................................ 8
(q) "Plan" ................................................................... 8
(r) "SAR" .................................................................... 8
(s) "SAR Agreement" .......................................................... 9
(t) "Service" ................................................................ 9
(u) "Share" .................................................................. 9
(v) "Stock" .................................................................. 9
(w) "Subsidiary" ............................................................. 9
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EXHIBIT 10.4
CITY CENTRE PLACE
400 S. Fourth Street
Las Vegas, Nevada
LEASE AGREEMENT
between
INTOWN OFFICE, LLC
and
Community Bank of Nevada
Dated April 5th, 2002
CITY CENTRE PLACE
LEASE SUMMARY
1. Landlord: Intown Office, LLC
2. Tenant: Community Bank of Nevada
3. Guarantor: n/a
4. Premises: Suite No. ______________________________
5. Rentable Square Feet: 10,512 (total); 5,910 (1st floor) & 4,602
(2nd floor)
6. Usable Square Feet: 9,613 (total); 5,151 (1st floor) & 4,012
(2nd floor)
7. Commencement Date: Earlier of August 1, 2002 or Substantial
Completion
8. Expiration Date: August 31, 2012
9. Term: 10 Years and 1 month
10. Rent Commencement Date: 1 month after lease commencement
11. Initial Base Rent (Monthly): $23,855.46
12. Increase in Base Rent: See Section 1.2
13. Security Deposit: $23,855.46
14. Parking Spaces and
Monthly Fee per Space: Executive Parking (@ $100/space/month):
14-16: (10 employee* and
4-6 customer)
Unreserved Parking (@ $75/space/month): 15
15. Base Operating Expenses: Base Year 2002
16. Tenant's Pro Rata Share
of the Building 10.1%
17. Broker: None
18. Option to Renew: (2) two, five (5) year options (See
Exhibit J)
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Note: This Lease Summary does not in any way modify the terms of the Lease
Agreement, but rather is for information purposes only. The Lease
Agreement should be consulted for all specific terms and in the event of
any conflict between this Lease Summary and the Lease Agreement, the Lease
Agreement shall control.
* AS AMENDED [ILLEGIBLE]/[ILLEGIBLE]
TENANT LANDLORD
LEASE AGREEMENT
TABLE OF CONTENTS
ARTICLES PAGE
-------- ----
ARTICLE 1 DEFINITIONS.......................................................... 1
ARTICLE 2 GRANT OF LEASEHOLD ESTATE............................................ 5
ARTICLE 3 LEASE TERM........................................................... 5
ARTICLE 4 USE OF PREMISES AND COMMON AREAS..................................... 5
ARTICLE 5 BASE RENT AND ADDITIONAL RENT........................................ 6
ARTICLE 6 BASE RENT ADJUSTMENT................................................. 7
ARTICLE 7 SERVICES TO BE FURNISHED BY LANDLORD................................. 8
ARTICLE 8 IMPROVEMENTS TO BE MADE BY LANDLORD.................................. 9
ARTICLE 9 MAINTENANCE AND REPAIR OF PREMISES BY LANDLORD....................... 10
ARTICLE 10 SIGNAGE.............................................................. 10
ARTICLE 11 CARE OF THE PREMISES BY TENANT....................................... 11
ARTICLE 12 REPAIRS AND ALTERATIONS BY TENANT ................................... 11
ARTICLE 13 USE OF ELECTRICAL SERVICES BY TENANT................................. 12
ARTICLE 14 LAWS AND REGULATIONS................................................. 13
ARTICLE 15 BUILDING RULES....................................................... 14
ARTICLE 16 ENTRY BY LANDLORD.................................................... 14
ARTICLE 17 ASSIGNMENT AND SUBLETTING............................................ 14
ARTICLE 18 LIENS................................................................ 16
ARTICLE 19 INSURANCE............................................................ 16
ARTICLE 20 INDEMNITY............................................................ 17
ARTICLE 21 DAMAGE OR DESTRUCTION TO BUILDING.................................... 18
ARTICLE 22 CONDEMNATION......................................................... 19
ARTICLE 23 DAMAGES FROM CERTAIN CAUSES.......................................... 19
ARTICLE 24 EVENTS OF DEFAULT.................................................... 19
ARTICLE 25 LANDLORD'S REMEDIES.................................................. 20
ARTICLE 26 LANDLORD'S DEFAULT .................................................. 23
ARTICLE 27 PEACEFUL ENJOYMENT................................................... 24
RELOCATION RIGHT................................................................ 24
ARTICLE 28 HOLDING OVER......................................................... 24
ARTICLE 29 SUBORDINATION TO MORTGAGE............................................ 24
ARTICLE 30 RESERVED............................................................. 25
ARTICLE 31 BANKRUPTCY OR INSOLVENCY............................................. 25
ARTICLE 32 AMERICANS WITH DISABILITIES ACT...................................... 26
ARTICLE 33 ATTORNEY FEES........................................................ 27
ARTICLE 34 NO IMPLIED WAIVER.................................................... 27
ARTICLE 35 LIMITATION OF LANDLORD LIABILITY..................................... 27
ARTICLE 36 SECURITY DEPOSIT..................................................... 27
ARTICLE 37 NOTICE............................................................... 27
ARTICLE 38 SEVERABILITY......................................................... 28
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ARTICLE 39 RECORDATION.......................................................... 28
ARTICLE 40 GOVERNING LAW........................................................ 28
ARTICLE 41 FORCE MAJEURE........................................................ 28
ARTICLE 42 TIME OF PERFORMANCE.................................................. 28
ARTICLE 43 TRANSFERS BY LANDLORD................................................ 29
ARTICLE 44 COMMISSIONS.......................................................... 29
ARTICLE 45 EFFECT OF DELIVERY OF THIS LEASE..................................... 29
ARTICLE 46 CORPORATE AUTHORITY; PARTNERSHIP AUTHORITY........................... 29
ARTICLE 47 JOINT AND SEVERAL LIABILITY.......................................... 29
ARTICLE 48 INTERPRETATION....................................................... 29
ARTICLE 49 INCORPORATE OF PRIOR AGREEMENTS; MODIFICATIONS....................... 30
ARTICLE 50 WAIVER OF JURY TRIAL................................................. 30
ARTICLE 51 ESTOPPEL CERTIFICATES................................................ 30
ARTICLE 52 NO MERGER............................................................ 30
ARTICLE 53 COUNTERPARTS......................................................... 30
ARTICLE 54 EXHIBITS............................................................. 31
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LIST OF EXHIBITS
Principal Reference
Exhibit Description "In Section/Article"
------- ----------- --------------------
"A" Legal Description...................................................... 1.3
"B" Floor Plan of Premises................................................. 1.15
"C" Parking Agreement...................................................... 4.2(ii)
"D" Work Letter............................................................ 8
"E" Building Rules and Regulations......................................... 15
"F" Commencement Memorandum................................................ 1.7
"G" Guaranty of Lease...................................................... 31.4
"H" Estoppel Certificate................................................... 51
"I" Subordination, Non-Disturbance, and Attornment Agreement............... 51
"J" Option Agreement ...................................................... 1.12
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CITY CENTRE PLACE
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), is made and entered into as of the 3rd
day of April, 2002, between INTOWN OFFICE, LLC, a Nevada limited liability
company ("Landlord"), and COMMUNITY BANK OF NEVADA ("Tenant").
NOW, THEREFORE, Landlord and Tenant agree as follows:
ARTICLE 1
DEFINITIONS
1.1 "Allowance" shall mean an amount equal to $320,705.
1.2 "Base Rent" shall be determined as follows:
(i) Rent during the first month shall be abated.
(ii) During months two (2) through twenty-five (25) of the Lease
Term, the Base Rent shall be Twenty-Three Thousand Eight Hundred Fifty-Five
Dollars and 46 Cents ($23,855.46) per month.
(iii) During months twenty-six (26) through sixty-one (61) of the
Lease Term, the Base Rent shall be Twenty-Five Thousand Three Hundred Eight
Dollars and 26 Cents ($25,308.26) per month.
(iv) During months Sixty-two (62) through ninety-seven (97) of the
Lease Term, the Base Rent shall be Twenty-Seven Thousand Three Hundred
Eighty-Six Dollars and 52 Cents ($27,386.52) per month.
(v) During months ninety-eight (98) through one hundred twenty one
(121) of the Lease Term, the Base Rent shall be Twenty-Nine Thousand Sixty-Two
Dollars and 80 Cents ($29,062.80) per month.
Contemporaneously with Tenant's execution hereof, Tenant shall pay
to Landlord the Base Rent due for the first full calendar month during the Lease
Term
1.3 "Building" shall mean (i) the parcel of real property described in
Exhibit "A" attached hereto and incorporated herein; (ii) the office building
and parking structure built or to be built on such parcel of real property; and
(iii) any and all other improvements thereon and appurtenances thereto. The
street address of the Building is City Centre Place, 400 S. Fourth Street, Las
Vegas, Nevada; such street address may be modified by Landlord from time to time
during the Lease Term.
1.4 "Building Core" shall mean the area within the outermost finish face
of that portion of the Building that incorporates those areas that provide
service to the tenants of that floor and to the Building. Such areas of service
are: restroom facilities for men and women along with the vestibule therefor and
access areas thereto; electrical, mechanical, and telephone rooms; janitorial
closets; elevators and service elevators; lobby; stairs; vestibules; and all
vertical floor penetrations for mechanical, electrical, and plumbing systems for
the Building.
1.5 "Building Shell" shall mean the condition of the Building completed
with the following improvements: (i) outside walls (not including drywall), core
walls, and elevator lobby areas completed to building standard condition for
public areas; (ii) unfinished concrete floors throughout the Premises, broom
clean; (iii) building standard 110 volt 220 amp. power supplied to the Building
Core along with
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277/480 volt fluorescent lighting power supplied to the Building Core; (iv)
men's and ladies' restroom facilities with building standard finished located on
each floor on which the Premises are located; (v) building standard voice
communication speakers and smoke detectors in accordance with applicable
building codes and provided only at the core; and (vi) mechanical, electrical,
plumbing, life safety, heating, air conditioning and ventilation in Building
Core area as required to connect to and service the Premises.
1.6 "Commencement Date" shall mean the earlier of the date that Tenant
actually commences any business operations from the Premises or August 1, 2002.
1.7 "Commencement Memorandum" shall mean a document similar to Exhibit
"F" attached hereto. The Commencement Memorandum, among other things, shall
contain a reference to the Rentable Area of the Premises and Usable Area of the
Premises. Tenant agrees that the Rentable Area and Usable Area of the Premises
stated in the Commencement Memorandum shall be binding throughout the Lease
Term.
1.8 "Default Interest Rate" shall mean the lesser of eighteen percent
(18%) per annum or the maximum interest rate permitted by law, if any.
1.9 "Expense Stop" shall mean the amount (per square foot of Rentable
Area of the Premises) that Landlord herewith agrees to expend as its share of
Operating Expense (which shall be a credit for Tenant to apply to offset
Operating Expenses charged to the Premises), which shall be equal to the total
amount of Operating Expenses for calendar year 2002 (the "Base Year") allocated
on a per square foot of Rentable Area in the Building; provided, however, that
if occupancy of the Building during the Base Year is less than ninety-five
percent (95%), Operating Expenses for the Base Year shall be "grossed up" to
that amount of Operating Expenses that, using reasonable projections, would
normally be expected to be incurred if the Building were ninety-five percent
(95%) occupied during the Base Year; provided, further, that to the extent that
for any reason the Building was only in operation for a portion of the Base
Year, Operating Expenses for the Base year shall be "grossed up" and shall
reflect such adjustments for seasonality and otherwise as Landlord deems
appropriate to that amount of Operating Expenses that, using reasonable
projections and assumptions, would normally be expected to be incurred if the
Building had been in operation during the entire Base Year. With respect to Real
Property Taxes included in Operating Expenses for the Base Year, such amount
shall be determined under the assumption that the Building is fully assessed as
a completed and occupied unit. Landlord shall provide Tenant with a written copy
of its determination of the Base Year Operating Expenses within a reasonable
time after Landlord's calculation of the actual Base Year Operating Expenses,
including any "gross-up" pursuant to the provisions of this Paragraph. The
determination of the Base Year Operating Expenses and the "gross-up" shall be as
reasonably determined by Landlord in accordance with the definition of Operating
Expenses in Section 1.14 hereof and subject to Tenant's audit rights set forth
in Section 6.3 hereof
1.10 "Laws" shall mean all applicable statutes, regulations, ordinances,
requirements and orders promulgated by any federal, state, local or regional
governmental authority now in force or in force after the Commencement Date.
1.11 "Lease Interest Rate" shall mean the lesser of (i) that fluctuating
rate of interest equal to two percentage points (2%) over the rate of interest
announced from time to time by Bank of America, as its prime or reference
commercial lending rate (or in the event such bank ceases to announce such rate,
then by such other federally regulated banking institution as Landlord shall
determine), or (ii) the maximum interest rate permitted by law, if any.
1.12 "Lease Term" shall mean the term commencing on the Commencement Date
and continuing until one hundred twenty one (121) months after the first day of
the first full calendar month following the Commencement Date; provided,
however, that the term of Tenant's and Landlord's rights and obligations
hereunder may be extended pursuant to Exhibit "J" attached hereto.
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1.13 "Mortgagee" shall mean the mortgagee under a mortgage or beneficiary
under a deed of trust holding a lien encumbering the Building or any holder of a
ground leasehold interest in the Building or any part thereof.
1.14 "Operating Expenses" shall mean all reasonable costs of any kind
actually paid or incurred by Landlord in owning, operating, cleaning, equipping,
protecting, lighting, repairing, replacing, heating, air-conditioning and
maintaining the Building as a first class office project, and a proration of
Operating Expenses for all common areas within City Centre Place as determined
by Landlord (subject to Tenant's right of audit as set forth in section 6.3(a)
hereof), including by way of illustration but not limitation, all of the
following: (i) all amounts charged to the Building pursuant to any covenants,
codes, restrictions, or agreements with respect to the real property; (ii) Real
Property Taxes; (iii) all costs, charges and surcharges for utilities, water,
sewage, janitorial, waste disposal and refuse removal and all other utilities
and services provided to the Building; (iv) insurance costs for which Landlord
is responsible under this Lease or which Landlord or any Mortgagee deems
necessary or prudent; (v) any costs levied, assessed or imposed pursuant to any
applicable Laws; (vi) the cost (amortized over such period as Landlord
reasonably determines together with interest at the Lease Interest Rate on the
unamortized balance) of any capital improvements to the Building or equipment
replacements made by Landlord after the Commencement Date that are intended to
reduce other Operating Expenses or are required by any Laws or are reasonably
necessary in order to operate the Building at the same quality level as prior to
such replacement; (vii) costs and expenses of operation, repair and maintenance
of all structural and mechanical portions and components of the Building
including, without limitation, plumbing, communication, heating, ventilating and
air-conditioning ("HVAC"), elevator, and electrical and other common Building
systems; (viii) a pro rata portion of the market rate cost of the management
office rental for City Centre Place; (ix) all costs incurred in the management
and operation of the Building including, without limitation, gardening and
landscaping, maintenance of all parking areas, structures and garages,
maintenance of signs, resurfacing and repaving, painting, lighting, cleaning,
and provision of Building security; (x) all personal property taxes levied on or
attributable to personal property used in connection with the Building; (xi)
depreciation on personal property owned by Landlord which is consumed in the
operation or maintenance of the Building; (xii) rental or lease payments paid by
Landlord for rented or leased personal property used in the operation or
maintenance of the Building; (xiii) management fees, wages, salaries and other
labor costs incurred in the management and operation of the Building which
management fees shall not exceed the average fair market rate charged for third
party management of Class A office Buildings in the Las Vegas Nevada market;
(xiv) fees for required licenses and permits; (xv) reasonable legal, accounting
and other professional fees; (xvi) reasonable and appropriate reserves for
repair and replacement; and (xvii) a reasonable allowance to Landlord for
supervision of all of the foregoing at the market rate for such services for
Class A office Buildings in the Las Vegas Nevada market, not to exceed five
percent (5%) of the total of all other Operating Expenses. If the project is not
fully occupied during any portion of the Lease Term, Landlord shall make an
appropriate adjustment to Operating Expenses for such period employing sound
accounting and management principles, to determine the amount of Operating
Expenses that would have been incurred had the Building been fully occupied
during such period (collectively referred to as "Grossed-Up"). Operating
Expenses shall not include (i) depreciation of the Building or equipment
therein, (ii) commissions of real estate brokers and leasing agents, (iii) any
amounts expended for tenant improvements, and (iv) overhead and profit increment
(including any kickbacks or contract award fees) paid to Landlord or to
subsidiaries of Landlord or companies owned by relatives of Landlord's owners or
shareholders, or affiliates of Landlord, for goods and/or services in the
Building to the extent the same exceeds the costs of such goods and/or services
that would have been rendered by unaffiliated third parties on a competitive
basis to the Building.
1.15 "Premises" shall mean that space outlined on the floor plan attached
to this Lease as Exhibit "B" and incorporated herein. The Premises are
stipulated for all purposes to contain Ten Thousand Five Hundred Twelve (10,512)
square feet of Rentable Area.
1.16 "Real Property Taxes" shall mean and include any form of tax,
assessment, license fee, license tax, business license fee, commercial rental
tax, levy, charge, penalty, tax or similar imposition,
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imposed by any authority having the direct power to tax, including any city,
county, state or federal government, or any school, lighting, drainage,
transportation, air pollution, environmental or other improvement or special
assessment district thereof, as against any legal or equitable interest of
Landlord in the Building and/or the Premises, including, but not limited to, the
following: (i) any tax on Landlord's "right" to rent or "right" to other income
from the Premises or as against Landlord's business of leasing the Premises;
(ii) any assessment, tax, fee, levy or charge in substitution, partially or
totally, of any assessment, tax, fee, levy or charge previously included within
the definition of Real Property Taxes (it is the intention of Tenant and
Landlord that all such new and increased assessments, taxes, fees, levies and
charges be included within the definition of "Real Property Taxes" for the
purposes of this Lease); (iii) any assessment, tax, fee, levy or charge
allocable to or measured by the area of the Premises or the rent payable
hereunder; (iv) any assessment, tax, fee, levy or charge upon this transaction
creating or transferring an interest or an estate in the Premises; (v) any
assessment, tax, fee, levy or charge based upon the number of people employed,
working at, or using the Premises or the Building, or utilizing public or
private transportation to commute to the Premises or the Building; and (vi)
reasonable legal and other professional fees, costs and disbursements incurred
in connection with proceedings to contest, determine or reduce Real Property
Taxes. Real Property Taxes shall not include federal or state income, franchise,
inheritance or estate taxes of Landlord or any of the parties which comprise
Landlord.
1.17 "Rentable Area" of the Premises shall mean the total of the
following measurements to be determined by Landlord: (i) the entire area
included within the Premises, being the area bounded by the inside surface of
any exterior glass walls (or the inside surface of the permanent exterior wall
where there is no glass) of the Building bounding the Premises, the exterior of
all walls separating the Premises from any public corridors or other public
areas (together with any portion of the public corridor required for the build
out of the Premises), and the centerline of all walls separating the Premises
from other areas leased or to be leased to other tenants; (ii) a pro rata
portion based on the space occupied on the floor or floors on which the Premises
is located (the "Floor(s)") of the areas covered by the elevator lobbies,
corridors, restrooms, and by mechanical rooms, electrical rooms and telephone
closets situated on the Floor(s) (such pro rata portion shall be the same
percentage that the amount of Rentable Area in the Premises bears to the
Rentable Area on the Floor(s) on which the Premises is located), other than
those servicing the entire Building; and (iii) a pro rata portion of the lobby
area on the ground floor of the Building and of the area of the Building
containing the electrical/emergency equipment, fire pump equipment, electrical
switching gear, telephone equipment, mail delivery room and other facilities
serving the Building (such pro rata portion shall be the same percentage that
the amount of Rentable Area of the Premises bears to the total Rentable Area in
the entire Building). The Building is stipulated for all purposes to contain One
Hundred Three Thousand One Hundred Ninety-Nine (103,199) square feet of Rentable
Area.
1.18 "Security Deposit" shall mean the sum of Twenty-Three Thousand Eight
Hundred Fifty-Five Dollars and 46 Cents ($23,855.46).
1.19 "Tenant's Share" shall be 10.1%.
1.20 "Usable Area" for the Premises shall be based on a Building Common
Area Factor of 14.7157% and shall be used to describe the Rentable Area for the
Premises, minus the following reductions as determined by Landlord: the sum of
(i) the Premises pro rata portion of the lobby area on the ground floor and
electrical/emergency equipment, fire pump equipment, electrical switching gear,
telephone equipment, mail delivery facilities, elevator penthouse, security
rooms, trash rooms and other areas which service the entire Building as
specified in the definition of Rentable Area, and (ii) the Premises' pro rata
portion of the space occupied on the floor(s) of the Premises covered by the
elevator lobbies, corridors, restrooms, mechanical rooms, electrical rooms and
telephone closets situated on such floors as specified in the definition of
Rentable Area.
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ARTICLE 2
GRANT OF LEASEHOLD ESTATE
Subject to and upon the terms and conditions herein set forth, Landlord
hereby leases to Tenant hereby and Tenant leases from Landlord the Premises.
ARTICLE 3
LEASE TERM
3.1 Delivery of Possession. Landlord will construct or install in the
Premises the Base Building Improvements (as defined in the Work Letter) to be
constructed or installed by Landlord according to the Work Letter. Tenant shall
construct all Tenant Improvements (as defined in the Work Letter) at its sole
cost and expense other than the Allowance, in accordance with the terms of the
Work Letter. Landlord will be deemed to have delivered possession of the
Premises to Tenant on the Commencement Date, regardless of the status of
completion of the Tenant Improvements to be constructed by Tenant. Tenant
acknowledges that neither Landlord nor its agents or employees have made any
representations or warranties as to the suitability or fitness of the Premises
for the conduct of Tenant's business or for any other purpose, nor has Landlord
or its agents or employees agreed to undertake any alterations or construct any
tenant improvements to the Premises except as expressly provided in this Lease
and the Work Letter. If for any reason Landlord cannot deliver possession of the
Premises to Tenant on or before the date the building permit is issued for the
tenant improvements, this Lease will not be void or voidable and Landlord will
not be liable to Tenant for any resultant loss or damage.
3.2 Term. The term of this Lease is the Lease Term.
ARTICLE 4
USE OF PREMISES AND COMMON AREAS
4.1 Premises. The Premises shall be used as follows: (i) the portion of
the Premises located on the second floor of the Building shall be used for
general office purposes and for no other purposes; (ii) the portion of the
Premises located on the first floor of the Building shall be used for general
office purposes and a full service bank and such other purposes as are
consistent with the operation of a full service bank, and for no other purposes.
Tenant will use the Premises in a careful, safe, and proper manner. Tenant
agrees not to use or permit the use of the Premises for any purpose which is
illegal or prohibited by any applicable law, or which, in Landlord's reasonable
opinion, creates a nuisance or would increase the cost of insurance coverage
with respect to the Building. Tenant shall not use or occupy the Premises in
violation of such rules and regulations described in Article 15 below nor in
violation of any other laws, recorded covenants, conditions or restrictions
affecting the Building. Tenant shall not with respect to the Premises or any
portion of it, either itself or allow others to use the Premises in any way
which would violate the terms of any exclusive uses granted by Landlord to other
lessees in the Building or use the Premises for a primary use which is
substantially the same primary use of any other store or tenant on the first
floor of the Building. Tenant shall not place a load upon the Premises exceeding
the average pounds live load per square foot of floor area specified for the
Building by Landlord's architect, with the partitions to be considered part of
the live load, unless approved by the Landlord's architect. Landlord and Tenant
shall mutually agree, prior to the Commencement Date, on the weight and position
of all safes, files, vaults, or other heavy equipment which Tenant's business
requires to be placed within the Premises, so as to distribute properly the
weight thereof.
4.2 Common Areas of Building. Tenant shall have the nonexclusive right
to use in common with other tenants in the Building, and subject to the rules of
the Building referred to in Article 15 below, the following areas ("Common
Areas") appurtenant to the Premises: (i) the common entrances, lobbies,
restrooms, elevators, stairways and accessways, loading docks, ramps, drives and
platforms and any passageways and serviceways thereto, and the common pipes,
conduits, wires and appurtenant equipment serving the Premises; and (ii) parking
areas (subject to the provisions of the Parking
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Agreement attached hereto as Exhibit "C"), loading and unloading areas, trash
areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas
appurtenant to the Building.
4.3 Landlord's Rights in Common Areas. Landlord reserves the right from
time to time without unreasonable interference with Tenant's use: (i) to
install, use, maintain, repair and replace pipes, ducts, conduits, wires and
appurtenant meters and equipment for service to other parts of the Building
above the ceiling surfaces, below the floor surfaces, within the walls and in
the central core areas, and to relocate any pipes, ducts, conduits, wires and
appurtenant meters and equipment included in the Premises which are located in
the Premises or located elsewhere outside the Premises, and to expand the
Building; (ii) to make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways,
entrances, loading and unloading areas, ingress, egress, direction of traffic,
landscaped areas and walkways and, subject to the Parking Agreement, parking
spaces and parking areas, provided that no such changes shall materially impair
the ability of Tenant's employees and customer to gain reasonable access to the
Premises; (iii) to close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available; (iv) to
use the Common Areas while engaged in making additional improvements, repairs or
alterations to the Building, or any portion thereof; and (v) to do and perform
such other acts and make such other changes in, to or with respect to the Common
Areas and Building as Landlord may, in the exercise of sound business judgment,
deem to be appropriate.
4.4 No-Smoking. Tenant acknowledges that the Building is a non-smoking
facility and that smoking is prohibited in all areas of the Building, including
the Premises and Common Areas, except that persons may smoke in the outdoor
smoking areas designated by Landlord. Tenant shall not permit any of its
officers, employees, agents, guests or invitees, to smoke anywhere in the
Premises or the Building other than those specially designated outdoor smoking
areas designated by Landlord. Landlord reserves the right to modify or eliminate
the outdoor smoking areas from time to time, as it chooses in its sole
discretion; provided that the reference to elimination thereof does not indicate
that Landlord may elect to change the Building to a smoking building and the
parties agree that the Building is intended to remain a no-smoking facility
(other than the designated smoking areas) unless mutually agreed by the parties
or to the extent Landlord is required by law to permit smoking.
4.5 Exclusive Use. During the Term of this Lease, as long as Tenant is
not in material default and is operating in accordance with the permitted uses
specified in section 4.1 hereof, Tenant shall have the exclusive use in the
entire Building to operate a full-service federally or state chartered bank or
as a credit union offering full service banking services; provided that
Landlord's obligation with respect to this grant of exclusive use shall be
limited to (i) not hereafter leasing any space in the Building to another tenant
whose business within such space at the time of entering into such lease is the
operation of a federally or state chartered full service bank or as a credit
union offering full service banking services, (ii) include in its tenant leases,
a provision restricting the applicable tenant and its subtenants or assignees
from operating a business in contravention of the exclusive use granted to
Tenant in this Section 4.5. If any tenant thereafter uses any space as a
federally or state chartered full service bank or as a credit union offering
full service banking services, despite such restriction in its lease, such
violation shall not be deemed a Landlord breach hereunder, however, if requested
by Tenant, Landlord agrees to take such reasonable steps to enforce any
exclusive use restrictions at Tenant's sole cost and expense as may be required
in order to enjoin the use of any other space in the Building in violation of
this exclusivity provision. The reference in the foregoing sentence to 'Tenant's
sole cost and expense' shall be as between Landlord and Tenant and shall not
prevent recovery of such fees and expenses from the party violating this
exclusive use provision. This exclusive use provision shall not prevent Landlord
from leasing to tenants who may engage in other financial services or to an ATM
company or other tenant who operates an ATM machine on site.
ARTICLE 5
BASE RENT AND ADDITIONAL RENT
5.1 Base Rent. Tenant agrees to pay to Landlord during the Lease Term,
without any setoff
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or deduction whatsoever the Base Rent, and all such other sums of money as shall
become due hereunder as Additional Rent. Should Tenant fail to pay any
Additional Rent in a timely manner, Landlord shall be entitled to exercise all
such rights and remedies as are herein provided in the case of the nonpayment of
Base Rent. The annual Base Rent for each calendar year or portion thereof during
the Lease Term, together with estimated Additional Rent pursuant to Article 6
hereof then in effect, shall be due and payable in advance, in lawful money of
the United States of America which shall be legal tender at the time of payment,
in twelve (12) equal installments on the first day of each calendar month during
the initial term of this Lease and any extensions or renewals thereof, and
Tenant hereby agrees to pay such Base Rent and Additional Rent to Landlord at
Landlord's address provided herein (or such other address as may be designated
by Landlord in writing from time to time) monthly, in advance, and without
demand. If the Lease Term commences on a day other than the first day of a month
or terminates on a day other than the last day of a month, then the installments
of Base Rent and Additional Rent for such month or months shall be prorated,
based on the number of days in such month. The first monthly installment of Base
Rent shall be due and payable on the date of execution of this Lease by Tenant.
5.2 Additional Rent. All charges payable by Tenant hereunder other than
Base Rent (including, without limitation, Operating Expenses payable pursuant to
Article 6 below) are called "Additional Rent." Unless this Lease provides
otherwise, all Additional Rent shall be paid with the next monthly installment
of Base Rent. Base Rent and Additional Rent are sometimes referred to
collectively as "Rent."
5.3 Interest and Administrative Charges on Late Payments. All
installments of Rent not paid when due and payable shall bear interest and incur
the administrative charges as set forth hereinbelow. Landlord's acceptance of
any late charge or interest shall not constitute a waiver of Tenant's default
with respect to the overdue amount nor prevent Landlord from exercising any of
the other rights and remedies available to Landlord under this Lease or any law
now or hereafter in effect.
ARTICLE 6
BASE RENT ADJUSTMENT
The Base Rent payable hereunder shall be adjusted upward from time to time
in accordance with the following provisions:
6.1 Calculation of Base Rent Adjustment. Tenant shall pay to Landlord as
an adjustment to Rent, an amount equal to the excess (the "Excess") of total
annual Operating Expenses per square foot of Rentable Area of the Premises, as
Grossed-Up, over and above the Expense Stop. The Excess shall be obtained by
multiplying (i) the difference between the annual Operating Expense per square
foot of Rentable Area in the Premises and the Expense Stop, by (ii) the total
Rentable Area of the Premises as set forth in Section 1.15. Such amount shall be
paid in advance in monthly installments on the same dates as Base Rent is due
and payable hereunder based on Landlord's notice delivered to Tenant from time
to time setting forth Landlord's good faith estimate of the Operating Expenses
for the current calendar year. Landlord shall have the right to adjust such
amount no more than once a year to reflect any changes in Landlord's estimate of
Operating Expenses.
6.2 Annual Statement of Operating Expenses. By April 1 of each calendar
year during the Lease Term, or as soon thereafter as practicable but no later
than May 1, Landlord shall furnish to Tenant a statement ("Actual Statement") of
Landlord's annual Operating Expenses, as Grossed-Up, for the previous calendar
year. If for any calendar year the amounts collected from Tenant for the prior
year, as a result of Landlord's estimate of Operating Expenses, exceeds the
amount of the Excess actually due during such prior year, then Landlord shall
refund to Tenant any overpayment (or at Landlord's option, apply such amount
against Rent due or to become due hereunder). Likewise, Tenant shall pay to
Landlord, on demand, any underpayment with respect to the prior year.
6.3 Audit Right. Tenant shall have the right, no more frequently than
once per calendar year, after notice to Landlord and at reasonable times, to
inspect and photocopy Landlord's Operating
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Expenses records at Landlord's offices. If, after such inspection and photocopy,
Tenant continues to dispute the amount of the Excess, the amount of actual
Operating Expenses (including Base Year Operating Expenses and the determination
of reasonableness of such Operating Expenses determined in accordance with the
definition of Operating Expenses under Section 1.14 hereof) or Landlord's
calculation of any of the above as set forth in said statement, Tenant shall be
entitled not later than one-hundred eighty (180) days following Tenant's receipt
of an Actual Statement to retain a national, independent, certified public
accountant who is not contracted on a contingency fee basis and is mutually
acceptable to Landlord and Tenant to audit Landlord's Operating Expenses records
with respect to the calendar year covered by Actual Statement to determine the
proper amount of the Operating Expenses, determined in accordance with the
definition of Operating Expenses set forth in Section 1.14 hereof. Landlord
shall be entitled to review the results of such audit promptly after completion
of same. If the results of such audit states that Landlord has overcharged
Tenant, then within fifteen (15) days after the results of the audit are made
available to Landlord, Landlord shall credit Tenant the amount of such
overcharge toward the payments of Base Rent and Additional Rent next coming due
under this Lease. If such audit proves that Landlord has undercharged Tenant,
then within fifteen (15) days after the results of the audit are made available
to Tenant, Tenant shall pay to Landlord the amount of any such undercharge.
Tenant agrees to pay the cost of such audit, provided that Landlord shall
reimburse Tenant the amount of such cost if the results of such audit states
that Landlord's determination of the Operating Expenses (as set forth in the
Actual Statement) was in error by more than five percent (5%). If Tenant does
not request an audit in accordance with the provisions of this Section 6.3
within one (1) year after Tenant's receipt of an Actual Statement, such Actual
Statement shall be conclusively binding upon Tenant. Landlord shall be required
to maintain records of all Operating Expenses for three (3) years following the
issuance of the Operating Expense statement for such Operating Expenses. The
payment by Tenant of any amounts pursuant to this Article shall not preclude
Tenant from timely questioning the correctness of any such statement.
6.4 Confidentiality. Tenant will keep confidential all agreements
involving the rights provided in this section and the results of any audits
conducted hereunder. Notwithstanding the foregoing, Tenant shall be permitted to
furnish the foregoing information to its attorneys, accountants and auditors to
the extent necessary for such persons to perform their respective services for
Tenant, provided such permitted party agrees in writing to keep all audit
information confidential.
ARTICLE 7
SERVICES TO BE FURNISHED BY LANDLORD
Landlord agrees to furnish Tenant the following services as an Operating
Expense for the Building (except as specifically provided below):
7.1 Water/HVAC. Hot and cold water at those points of supply provided
for general use of other tenants in the Building, central heat and air
conditioning in season, at such temperatures and in such amounts as are
considered by Landlord to be standard or as required by governmental authority;
provided, however, heating and air conditioning service at times other than
"Normal Business Hours" for the Building (which are 6:00 a.m. to 6:00 p.m. on
Mondays through Fridays and 9:00 a.m. to 1:00 p.m. on Saturdays, exclusive of
federally recognized holidays), shall be furnished at Tenant's sole cost and
expense only upon Tenant's request in accordance with Section 13(c) below.
7.2 Routine Maintenance. Routine maintenance and electric lighting
service for all Common Areas and service areas of the Building in the manner and
to the extent deemed by Landlord to be standard.
7.3 Janitorial. Janitorial service with a bonded and insured company,
five (5) days a week, exclusive of federally recognized holidays; provided,
however, if Tenant's floor covering or other improvements require special
treatment, Tenant shall pay the additional cleaning cost attributable thereto as
Additional Rent upon presentation of a statement therefor by Landlord. Landlord
shall provide Tenant notice of the janitorial company contracted to service the
Premises prior to execution of this Lease and thereafter prior to any change of
the janitorial company. Tenant shall have the right to replace the
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janitorial company providing service to the Premises at any time by providing
written notice to Landlord (the "JANITORIAL CHANGE NOTICE"). If Tenant elects to
change the janitorial service for its Premises, the Tenant may elect (which
election shall be included in the Janitorial Change Notice) to either (i) select
a specific janitor for its space and request that the Landlord contract with
such party, in which event, Tenant shall be solely responsible for the
performance of such janitor and the Operating Expenses applicable to Tenant
shall be modified by eliminating Tenant's Share of any building-wide janitorial
service ((provided Tenant's Share of Operating Expenses shall continue to
include the Tenant's Share of Common Area janitorial expenses) and adding to
Operating Expenses all charges incurred by Landlord for the janitor selected by
Tenant, or (ii) provide janitorial services to the Premises and contract for
such services, in which event, Tenant shall have all janitorial obligations with
respect to the Premises at its sole cost and expense, and the Premises portion
of the janitorial costs will be removed from Operating Expenses (provided
Tenant's Share of Operating Expenses shall continue to include the Tenant's
Share of Common Area janitorial expenses). In the event that Tenant exercises
its right under the foregoing provisions to obtain a janitorial company for
Tenant's Premises different than the janitorial service provider for the
remainder of the Building, Landlord agrees that it shall in no event provide the
janitorial service provider for the remainder of the Building with any keys, or
other means of accessing the Tenant's Premises.
7.4 Base Electricity. Subject to the provisions of Article 13,
facilities to provide all electrical current required by a typical office user,
as determined by Landlord, in its use and occupancy of the Premises.
7.5 Light Maintenance. All Building Standard fluorescent bulb
replacement in the Premises and fluorescent and incandescent bulb replacement in
the Common Areas of the Building.
7.6 Access Cards. A system for limited access to the Building during
other than Normal Business Hours shall be provided in such form as Landlord
deems appropriate. Landlord may charge a fee for card keys or other security
devices. Landlord, however, shall have no liability to Tenant, its employees,
agents, invitees or licensees for losses due to theft or burglary, or for
damages resulting from the actions of unauthorized persons on the Premises or in
the Building and Landlord shall not be required to insure against any such
losses. Tenant shall cooperate fully in Landlord's efforts to maintain security
in the Building and shall follow all regulations promulgated by Landlord which
respect thereto.
The failure by Landlord to any extent to furnish, or the interruption or
termination of these defined services in whole or part shall not render Landlord
liable in any respect nor be construed as an eviction of Tenant, nor work an
abatement of Rent, nor relieve Tenant from the obligation to fulfill any
covenant or agreement hereof. Should any of the equipment or machinery used in
the provision of such services for any cause cease to function properly, Tenant
shall have no claim for offset or abatement of rent or damages on account of an
interruption in service resulting therefrom. Notwithstanding the foregoing to
the contrary, if as a result of the negligence or intentional act of Landlord or
its employees, there is an interruption or stoppage of those services listed in
Sections 7.1, 7.4, 7.5 or 7.6, the Premises are rendered untenantable for a
period of five (5) continuous days Tenant shall have the right to an abatement
of daily Base Rent for each day beyond the five (5) day period that such
services continuously remain unavailable. The foregoing shall not limit any
common law right of quiet enjoyment by Tenant of the Premises.
ARTICLE 8
IMPROVEMENTS TO BE MADE BY LANDLORD
Except as otherwise provided in the Work Letter attached hereto as Exhibit
"D," all installations and improvements now or hereafter placed on the Premises
shall be for Tenant's account and at Tenant's cost (and Tenant shall pay ad
valorem taxes and the cost of any increased insurance premiums thereon or
attributable thereto), which cost shall be payable by Tenant to Landlord upon
demand as Additional Rent.
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ARTICLE 9
MAINTENANCE AND REPAIR OF PREMISES BY LANDLORD
Except as otherwise expressly provided herein, Landlord shall not be
required to perform any maintenance or to make any repairs to the Premises.
ARTICLE 10
SIGNAGE
10.1 Graphics; Building Directory. Landlord shall provide and install, at
Tenant's cost, all letters or numerals on doors in the Premises and on the
Building directory; all such letters and numerals shall be in the standard
graphics for the Building and no others shall be used or permitted on the
Premises without Landlord's prior written consent. Landlord shall permit Tenant,
at Tenant's sole cost and expense (including maintenance and operating costs),
to install a prominent lobby sign indicating Tenant's location on the 2nd floor
of the building (the "LOBBY SIGNAGE").
10.2 Exterior Signage. Landlord shall permit Tenant, at Tenant's sole
cost and expense (including maintenance and operating costs), to install its
illuminated company logo, and the name Community Bank of Nevada, between the 1st
and 2nd floors, on the Fourth Street and South side of the Building, the exact
lighting, coloring, size, design and location of which shall be subject to the
reasonable approval of Landlord (the "FIRST FLOOR SIGNAGE"). Additionally,
subject to receipt of all necessary governmental approvals the Landlord shall
construct, at its expense, a Building monument sign designed for multi-tenant
display on the landscaped area south of the Building on Fourth Street. Tenant
shall have the right, at its expense, to install its company logo and the name
Community Bank of Nevada at the top of the monument sign, which space on the
monument signage for tenant shall be larger than any space granted to any other
tenant in the Building (the "MONUMENT SIGNAGE"). The option of back lit or up
lighting shall be mutually agreed upon after review of signage proposals by the
Tenant's and Landlord's sign company. The design, type, size, and location of
all exterior, monument and lobby signage (including the Main Building Signage if
applicable) shall be subject to review and approval by Landlord, and all
appropriate governmental agencies.
If as of the end of the eighteenth calendar month following the
Commencement Date, Landlord has not entered into executed leases or letters of
intent with any other tenant for a greater amount of Rentable Area in the
Building than Tenant, Landlord shall permit Tenant, at Tenant's sole cost and
expense (including maintenance and operating costs), to install its illuminated
company logo, and the name Community Bank of Nevada, on the exterior "top" of
the Building, (the "MAIN BUILDING SIGN"). The exact lighting, coloring, size,
design and location of the Main Building Signage will be mutually acceptable to
Landlord and Tenant and shall meet all code requirements of the City of Las
Vegas. Tenant shall pay for all costs of design and fabrication of such signage,
as well as all costs of obtaining the applicable approvals and permits. Except
as otherwise permitted in Section 17.1 hereof, the rights granted to Tenant for
the Main Building Sign and First Floor Signage are personal to Tenant and no
assignees or subtenants of Tenant have rights to the Main Building Sign or First
Floor Sign unless approved by Landlord in writing. Further, if Tenant assigns or
subleases its second floor space in the Building, Landlord may elect to
terminate Tenant's rights to the Main Building Sign by delivering notice to
Tenant, in which event Tenant shall promptly remove its Main Building Sign.
Further, if Tenant assigns or subleases its first floor space in the Building,
Landlord may elect to terminate Tenant's rights to the Main Building Sign and
the First Floor Signage, or either of them by delivering notice to Tenant, in
which event Tenant shall promptly remove the applicable sign or signs.
10.3 Garage Signage. Landlord shall permit Tenant, at Tenant's sole cost
and expense (including maintenance and operating costs), to install directional
signage on the parking structure and the designed parking spaces.
10.4 Governmental Approvals/Not a Condition to Lease. Landlord makes no
representation or warranty that the exterior or garage signage will be available
or permissible by governmental entities.
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Tenant shall comply with any and all laws regarding the installation,
maintenance and use of the exterior signage. Landlord agrees to use reasonable
efforts to cooperate with Tenant in order to assist Tenant in seeking and
obtaining any governmental approvals, provided that such cooperation results in
no material cost or expense to Landlord. If for any reason Tenant is unable to
obtain governmental approval of the exterior or garage signage (other than as a
result of Landlord default), this Lease will not be void or voidable, and
Landlord will not be liable to Tenant for any resultant loss or damage.
10.5 Termination/Indemnity. Upon termination of the Lease for any reason,
at Landlord's election, Tenant shall, at Tenant's expense promptly remove all
Tenant signage in the garage, on the exterior of the Building and in the Lobby
and restore the Building and the Garage to their prior condition, reasonable
wear and tear excepted. Tenant hereby agrees to indemnify Landlord against any
damage caused to the Building including any damage to other tenants in the
Building or to the Common Area which result from Tenant's installation or
removal of signage. This provision shall survive termination of the Lease.
ARTICLE 11
CARE OF THE PREMISES BY TENANT
Tenant agrees not to commit or allow any waste to be committed on any
portion of the Premises, and at the termination of this Lease agrees to deliver
up the Premises to Landlord in as good condition as at the Commencement Date of
this Lease, ordinary wear and tear excepted.
ARTICLE 12
REPAIRS AND ALTERATIONS BY TENANT
12.1 No Alteration, Additions, or Improvements Without Landlord's
Consent. Tenant shall make no alterations, additions, or improvements to the
Premises or any part thereof after completion of the original Tenant
improvement, without obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing to the
contrary, Tenant shall not be obligated to obtain Landlord's prior consent (but
shall continue to provide notice as required below) in the event the Alterations
(i) do not affect the structural components or equipment systems of the
Building, (ii) do not require a building permit to perform, (iii) do not
increase the load on the Building systems or structural components, (iv) are
completed in accordance with all applicable laws, and (v) do not cost in excess
of $20,000 in the aggregate to complete. Tenant shall submit any such request to
Landlord at least thirty (30) days prior to the proposed commencement date of
such work. Landlord may impose, as a condition to such consent, and at Tenant's
sole cost, such requirements as Landlord may deem necessary in its judgment,
including without limitation, the manner in which the work is done, a right of
approval of the contractor by whom the work is to be performed and the times
during which the work is to be accomplished, approval of all plans and
specifications and the procurement of all licenses and permits and the payment
by Tenant of a fee to Landlord equal to Landlord's costs of the same not to
exceed five percent (5%) of the total cost of such work to reimburse Landlord
for its review, approval and supervision of such work. Landlord shall be
entitled to post notices on and about the premises with respect to Landlord's
non-responsibility for mechanics' liens and Tenant shall not permit such notices
to be defaced or removed, or in the event such work does not require Landlord
approval, Tenant must post such notices. Tenant further agrees not to connect
any apparatus, machinery or device to the Building systems, including electric
wires, water pipes, fire safety, heating and mechanical systems, without the
prior written consent of Landlord.
12.2 Completion of Lease Term. All alterations, improvements and
additions to the Premises, including, by way of illustration but not by
limitation, all counters, screens, grilles, special cabinetry work, partitions,
paneling, carpeting, drapes or other window coverings and light fixtures, shall
be deemed a part of the real estate and the property of Landlord and shall
remain upon and be surrendered with the Premises as a part thereof without
molestation, disturbance or injury at the end of the Lease Term, whether by
lapse of time or otherwise, unless the items in question were provided by Tenant
and can be removed with little or no damage to the Premises (and if any damage
is caused it is immediately
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repaired), or Landlord, by notice given to Tenant no later than fifteen (15)
days prior to the end of the Lease Term, shall elect to have Tenant remove all
or any of such alterations, improvements, or additions (excluding non-movable
office walls), and in such event, Tenant shall promptly remove, as its sole cost
and expense, such alterations, improvements, and additions and restore the
Premises to the condition in which the Premises were prior to the making of the
same, reasonable wear and tear excepted. Any such removal, whether required or
permitted by Landlord, shall be at Tenant's sole cost and expense, and Tenant
shall restore the Premises to the condition in which the Premises were prior to
the making of the same, reasonable wear and tear excepted. All movable
partitions, machines, and equipment which are installed in the Premises by or
for Tenant, without expense to Landlord, and can be removed without structural
damage to or defacement of the Building or the Premises, and all furniture,
furnishings and other articles of personal property owned by Tenant and located
in the Premises (all of which are herein called "Tenant's Property") shall be
and remain the property of Tenant and may be removed by it at any time during
the Lease Term. However, if any of Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Building or the Premises
resulting from such removal. All additions or improvements which are to be
surrendered with the Premises shall be surrendered with the Premises, as a part
thereof, at the end of the Lease Term or the earlier termination of this Lease.
12.3 Parties Performing Alteration, Repair, and Modification Work. If
Landlord permits persons requested by Tenant to perform any alterations, repairs
modifications, or additions to the Premises, then prior to the commencement of
any such work, Tenant shall deliver to Landlord certificates issued by insurance
companies qualified to do business in the state where the Premises are located
evidencing that workmen's compensation, public liability insurance, and property
damage insurance, all in amounts, with companies, and on forms satisfactory to
Landlord, are in force and maintained by all such contractors and subcontractors
engaged by Tenant to perform such work. All such policies shall name Landlord as
an additional insured and shall provide that the same may not be canceled or
modified without thirty (30) days' prior notice to Landlord.
12.4 Performance of Alteration, Repair, and Modification Work. Tenant, at
its sole cost and expense, shall cause any permitted alterations, decorations,
installations, additions, or improvements in or about the Premises to be
performed in compliance with all applicable requirements of insurance bodies
having jurisdiction, and in such manner as not to interfere with, delay, or
impose any additional expense upon Landlord in the construction, maintenance, or
operation of the Building, and so as to maintain harmonious labor relations in
the Building.
ARTICLE 13
USE OF ELECTRICAL SERVICES BY TENANT
Tenant's use of electrical services furnished by Landlord shall be subject
to the following:
a. Landlord agrees to furnish to the Premises, at no extra cost to
Tenant but as an Operating Expense, seven and one-half (7.5) watts of electric
current, connected load, per square foot of Usable Area during Normal Business
Hours within the Premises on an annualized basis for normal lighting, normal
fractional horsepower office machines, and HVAC as required in Landlord's
judgment for the use and occupation of the Premises.
b. In the event that Tenant requires or uses more electric power than
specified in this Lease or than Landlord reasonably determines to be standard in
the Building, Landlord may, at Landlord's option, require Tenant to pay the cost
as reasonably determined by Landlord of such extraordinary usage as Additional
Rent. In addition, Landlord may install checkmeters in or for the Premises, at
Tenant's sole cost and expense, and Tenant shall thereafter pay all charges of
the utility company providing electric service and Landlord shall make an
appropriate adjustment to Tenant's obligation to pay a proportionate share of
the Operating Expenses to account for the fact that Tenant is directly paying
such metered charges.
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c. If Tenant requires HVAC service beyond Normal Business Hours
(hereafter "After Hours Usage"), such service must be requested from the
Building manager at least twenty-four (24) hours prior thereto. After Hours
Usage shall only be supplied in full floor increments of the Building, for a
minimum of four (4) hour periods, with increments of one half (1/2) hour
thereafter. Tenant shall reimburse Landlord, as Additional Rent, for all costs
and expenses for After Hours Usage at the rate of $45 per hour per floor for
each hour (provided, however, Landlord may adjust the following from time to
time to provide for any increase in cost of services). Tenant shall only be
responsible for After Hours Usage it requests, and in no event will Tenant be
charged for After Hour Usage requested by any other tenant on the same floor.
Notwithstanding the foregoing, if in Landlord's determination Tenant's demand
for After Hours Usage is or becomes excessive or sufficiently frequent as to
warrant the same, Landlord may install, at Tenant's expense, separate meters to
monitor or control Tenant's After Hours Usage, with all costs for the
installation, maintenance and repair of such meter to be paid by Tenant.
ARTICLE 14
LAWS AND REGULATIONS
14.1 General. At its sole cost and expense, Tenant will promptly comply
with all laws, statutes, ordinances, and governmental rules, regulations, or
requirements now in force or in force after the Commencement Date, with the
requirements of any board of fire underwriters or other similar body constituted
now or after the date, with any direction or occupancy certificate issued
pursuant to any law by any public officer or officers, as well as with the
provisions of all recorded documents affecting the Premises, insofar as they
relate to the condition, use, or occupancy of the Premises.
14.2 Hazardous Materials.
a. For purposes of this Lease, "Hazardous Materials" means any
explosives, radioactive materials, hazardous wastes, or hazardous substances,
including without limitation substances defined as "hazardous substances" in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Sections 9601-9657; the Hazardous Materials Transportation
Act of 1975, 49 U.S.C. Sections 1801-1812; the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Sections 6901-6987; or any other federal,
state, or local statute, law, ordinance, code, rule, regulation, order, or
decree regulating, relating to, or imposing liability or standards of conduct
concerning hazardous materials, waste, or substances now or at any time
hereafter in effect (collectively, "Hazardous Materials Laws").
b. Tenant will not cause or permit the storage, use, generation, or
disposition of any Hazardous Materials in, on, or about the Premises or the
project by Tenant, its agents, employees, or contractors; provided, however,
that the consent of Landlord shall not be required for the use at the Premises
by Tenant of standard cleaning supplies, toner for photocopying machines and
other similar materials, in containers and quantities reasonably necessary for
and consistent with normal and ordinary use by Tenant in the routine operation
or maintenance of Tenant's office equipment or in the routine janitorial
service, cleaning and maintenance of the Premises, provided that any and all
such Hazardous Materials are kept and maintained in strict compliance with all
Hazardous Materials Laws. Tenant will not permit the Premises to be used or
operated in a manner that may cause the Premises or the project to be
contaminated by any Hazardous Materials in violation of any Hazardous Materials
Laws. Tenant will immediately advise Landlord in writing of (1) any and all
enforcement, cleanup, remedial, removal, or other governmental or regulatory
actions instituted, completed, or threatened pursuant to any Hazardous Materials
Laws relating to any Hazardous Materials affecting the Premises; and (2) all
claims made or threatened by any third party against Tenant, Landlord, or the
Premises relating to damage, contribution, cost recovery, compensation, loss, or
injury resulting from any Hazardous Materials on or about the Premises. Without
Landlord's prior written consent, Tenant will not take any remedial action or
enter into any agreements or settlements in response to the presence of any
Hazardous Materials in, on, or about the Premises.
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c. Tenant will be solely responsible for and will defend, indemnify and
hold Landlord, its agents, and employees harmless from and against all claims,
costs, and liabilities, including attorney fees and costs, arising out of or in
connection with Tenant's breach of its obligations in this Article 14. Tenant
will be solely responsible for and will defend, indemnify, and hold Landlord,
its agents, and employees harmless from and against any and all claims, costs,
and liabilities, including attorney fees and costs, arising out of or in
connection with the removal, cleanup, and restoration work and materials
necessary to return the Premises and any other property of whatever nature
located in, on, or about the Building, to their condition existing prior to the
introduction of Hazardous Materials by Tenant, its agents, employees or
contractors. Tenant's obligations under this Article 14 will survive the
expiration or other termination of this Lease.
d. Landlord represents and warrants to Tenant that Landlord has not
disposed of or released any Hazardous Materials in the Building. Further,
Landlord has received no notice from any governmental authority having
jurisdiction over the Building, that the Building is in violation of any
Hazardous Materials Laws. Landlord shall indemnify, defend and hold Tenant
harmless from any and all liability, loss or expense, including attorney's fees,
which may arise (a) due to Landlord's violation of its representations and
warranties hereunder, or (b) related to the storage, disposal or release of
Hazardous Materials in, on or about the Building by Landlord, its agents,
employees or contractors.
14.3 Certain Insurance Risks. Tenant will not do or permit to be done any
act or thing upon the Premises or the Building which would (i) jeopardize or be
in conflict with fire insurance policies covering the Building or covering any
fixtures and property in the Building; (ii) increase the rate of fire insurance
applicable to the Building to an amount higher than it otherwise would be for
general office use of the Building; or (iii) subject Landlord to any liability
or responsibility for injury to any person or persons or to property by reason
of any business or operation being carried on upon the Premises.
ARTICLE 15
BUILDING RULES
Tenant will comply with the rules of the Building adopted and altered by
Landlord from time to time and will cause all of its agents, employees, invitees
and visitors to do so; all changes to such rules will be sent by Landlord to
Tenant in writing. The current Building Rules and Regulations, which may be
modified from time to time by the Landlord in its sole discretion, are attached
hereto as Exhibit "E."
ARTICLE 16
ENTRY BY LANDLORD
Tenant agrees to permit Landlord or its agents or representatives to enter
into and upon any part of the Premises at all reasonable hours (and in
emergencies at all times) to inspect the same, or to show the Premises to
prospective purchasers, Mortgagees, tenants or insurers, to clean or make
repairs, alterations or additions thereto, and Tenant shall not be entitled to
any abatement or reduction of rent by reason thereof.
ARTICLE 17
ASSIGNMENT AND SUBLETTING
17.1 Prohibition. Tenant shall not assign, sublease, transfer or encumber
this Lease or any interest therein, without the consent of Landlord first being
obtained, which consent will not be unreasonably withheld or delayed if: (1)
Tenant provides written notice to Landlord at least 30 days prior to such
assignment or subletting setting forth the details of the proposed assignment or
sublease; (2) Landlord declines to exercise its rights under Section 17.2; (3)
the Transferee is engaged in a business and the portion of the Premises will be
used for the Use permitted under this Lease and in a manner which is in keeping
with the then standards of the Building and does not conflict with any exclusive
use rights granted to any other tenant of the Building, and such use will not,
in Landlord's reasonable opinion materially increase parking or occupancy loads;
(4) the Transferee has reasonable financial worth in light
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of the responsibilities involved; (5) Tenant is not in default at the time it
makes its request; (6) the Transferee is not a tenant or currently negotiating a
lease with Landlord in the Building; and (7) the rent to be paid by the
Transferee is not less than the Rent paid by Tenant for such space and is not
less than 85% of the rental rate then being offered by Landlord for similar
space in the Building. Any attempted assignment or sublease by Tenant in
violation of the terms and covenants of this Article 17 shall be void.
Notwithstanding anything in this Lease to the contrary, Tenant shall have the
right to assign its interest in this Lease or to sublet all or a part of the
Premises without Landlord's prior consent to a Permitted Transferee, as
hereinafter defined, provided (a) the Permitted Transferee is engaged in a
business (and the portion of the Premises will be used for) the use permitted
hereunder, and (b) Tenant is not in default at the time it makes any such
sublease. In the event of an assignment or sublet to a Permitted Transferee,
Tenant shall remain liable for all of its obligations hereunder. For purposes of
this Lease, a "Permitted Transferee" means, (i) any person or entity which
directly or indirectly controls, is controlled by or is under common control
with Tenant, (ii) any entity resulting from a merger or consolidation with
Tenant, (iii) any person or entity which acquires all or substantially all of
the assets or stock ownership of Tenant as a going concern of the business that
is being conducted on the Premises, or (iv) any person acquiring any stock
ownership in the stock ownership of Tenant as a going concern of the business
that is being conducted on the Premises. In order for any assignment to a
Permitted Transferee to be effective, Tenant shall provide ten (10) days' prior
written notice of the assignment to Landlord which notice shall set forth the
facts supporting designation of the assignee as a Permitted Transferee. No such
notice shall be required for transfers of stock only, and no transfer of stock
shall be considered an assignment hereunder. Rather, notice of an assignment to
a Permitted Transferee (and consent to an assignment to a non-Permitted
Transferee) is only required where an actual "assignment" to such a transferee
is taking place. Nothing stated anywhere in this Lease shall be construed as
requiring any notice to the Landlord of transfers of Tenant's stock or
ownership, nor shall any transfer of any or all of the stock or ownership of the
Tenant, without more, be deemed an "assignment" of this Lease requiring notice
to or consent of the Landlord. Only in cases of an actual "assignment" of this
Lease shall the 10 day notice provisions (in the case of assignment to a
Permitted Transferee) or the 30 day notice and consent provisions (in the case
of assignment to a non-Permitted Transferee) of this paragraph be deemed
applicable. Notwithstanding the forgoing to the contrary, all signage rights
granted hereunder are granted to Tenant only based on tenant's reputation and
character and the aesthetic presentation of the signage and such signage may not
be changed by Tenant or any assignee without the consent of Landlord.
17.2 Recapture. If Tenant desires to assign this Lease or sublet of all
or part of the Premises to any party other than a Permitted Transferee, Tenant
shall, prior to requesting Landlord's consent for any specific subtenant or
sublessee, notify Landlord of such intention and Landlord shall have the option
(without limiting Landlord's other rights hereunder) of terminating this Lease
upon thirty (30) days' notice. Landlord may then, at Landlord's option elect to
terminate this Lease with respect to the applicable portion of the Premises. If
Landlord should fail to notify Tenant in writing of its decision within a thirty
(30) day period after Landlord is notified in writing of the Tenant's desire to
assign or sublease, Landlord shall be deemed to have elected to keep this Lease
in full force and effect. Further, in the event Landlord elects to terminate
this Lease, Tenant shall have a period of 30 days within which to rescind its
assignment or sublet request in which event this Lease shall remain in full
force and effect and Tenant will not be permitted to sublet or assign the
Premises to any party (other than a Permitted Transferee) unless and until it
has complied with the provisions of this Section 17.2 and Landlord has elected
not to terminate the Lease.
17.3 Proceeds of Assignment, Sale of Sublease. Except for assignments to
Permitted Transferees, one half of all cash or other proceeds of any assignment,
sale or sublease of Tenant's interest in this Lease, whether consented to by
Landlord or not, shall be paid to Landlord to the extent that such proceeds
exceed the Rent called for hereunder, and Tenant hereby assigns all rights it
might have or ever acquire in any such proceeds to Landlord. This covenant and
assignment shall run with the land and shall bind Tenant and Tenant's heirs,
executors, administrators, personal representatives, successors and assigns. Any
assignee, sublessee or purchaser of Tenant's interest in this Lease (all such
assignees, sublessees and purchasers being hereinafter referred to as
"Successors"), by assuming Tenant's obligations hereunder, shall assume
liability to Landlord for all amounts paid to persons other
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than Landlord by such Successor in consideration of any such sale, assignment or
subletting, in violation of the provisions hereof.
17.4 Tenant Remains Liable. No assignment, sublease or other transfer
consented to by Landlord, shall release Tenant or change Tenant's primary
liability to pay the rent and to perform all other obligations of Tenant under
this Lease. Upon the occurrence of any default under this Lease, Landlord may
proceed directly against Tenant without the necessity of exhausting any remedies
against any subtenant or assignee. Upon termination of this Lease, any permitted
subtenant shall, at Landlord's option, attorn to Landlord and shall pay all Rent
directly to Landlord. Landlord's acceptance of Rent from any other person shall
not constitute a waiver of any provision of this Article 17. Consent to one
transfer shall not constitute consent to any subsequent transfer. Landlord may
consent to subsequent assignments or modifications of this Lease by Tenant's
transferee, without notifying Tenant or obtaining its consent. Such action shall
not relieve Tenant of its liability under this Lease.
ARTICLE 18
LIENS
Tenant will not permit any mechanic's lien(s) or other liens to be placed
upon the Premises or the Building and nothing in this Lease shall be deemed or
construed in any way as constituting the consent or request of Landlord, express
or implied, by inference or otherwise, to any person for the performance of any
labor or the furnishing of any materials to the Premises, or any part thereof,
nor as giving Tenant any right, power, or authority to contract for or permit
the rendering of any services or the furnishing of any materials that would give
rise to any mechanics' or other liens against the Premises. In the event any
such lien is attached to the Premises, then, in addition to any other right or
remedy of Landlord, Landlord may, but shall not be obligated to, discharge the
same. Any amount paid by Landlord for any of the aforesaid purposes and any
expenses incurred by Landlord in connection with any such lien shall be paid by
Tenant to Landlord on demand as Additional Rent.
ARTICLE 19
INSURANCE
19.1 Property Insurance. Landlord shall maintain property coverage
insurance on the Building Shell and appurtenant structures in the Common Areas
in an amount equal to full replacement value thereof. Such insurance shall be
maintained at the expense of Landlord (as a part of Operating Expenses), and
payments for losses thereunder shall be made solely to Landlord or the
Mortgagees as their respective interests shall appear. Tenant shall obtain and
keep in force at all times during the Lease Term, a policy or policies of
insurance covering loss or damage to all of the improvements, betterments,
income and business contents located within the Premises other than the Building
Shell (including all improvements constructed pursuant to Exhibit "D") in the
amount of the full replacement value thereof as ascertained by the Tenant's
insurance carrier, as the same may exist from time to time, against all perils
normally covered in an "all risk" policy (including the perils of flood and
surface waters), as such term is used in the insurance industry; provided,
however, that Tenant shall have no obligation to insure against earthquake.
19.2 Liability Insurance. Landlord shall maintain a policy of Commercial
General Liability insurance insuring against liability arising out of the
ownership, use, occupancy or maintenance of the Building in an amount of not
less than One Million Dollars ($1,000,000) per occurrence or such greater amount
from time to time as Landlord or any Mortgagees may reasonably deem necessary or
appropriate. Such insurance shall be maintained at the expense of Landlord (as a
part of Operating Expenses), and payments for losses thereunder shall be made
solely to Landlord. Tenant shall, at Tenant's expense, maintain a policy of
Commercial General Liability insurance insuring Landlord and Tenant against
liability arising out of the ownership, use, occupancy or maintenance of the
Premises. Such insurance shall be on an occurrence basis providing single-limit
coverage in an amount not less than One Million Dollars ($1,000,000) per
occurrence. The initial amount of such insurance shall be subject to periodic
increase upon reasonable demand by Landlord based upon inflation, increased
liability
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awards, recommendation of professional insurance advisers, and other relevant
factors. However, the limits of such insurance shall not limit Tenant's
liability nor relieve Tenant of any obligation hereunder. Landlord shall be
named as an additional insured on said policies and the policies shall contain
the following provision: "Such insurance as afforded by this policy for the
benefit of Landlord shall be primary as respects any claims, losses or
liabilities arising out of the use of Premises by the Tenant or by Tenant's
operation and any insurance carried by Landlord shall be excess and
non-contributing." The policy shall insure Tenant's performance of the indemnity
provisions of Articles 14 and 20.
19.3 Requirements for Insurance Policies. Insurance required to be
maintained by Tenant hereunder shall be in companies holding a "General
Policyholders' Rating" of A or better and a "financial rating" of X (ten) or
better, as set forth in the most current issue of "Best's Insurance Guide."
Tenant shall promptly deliver to Landlord, within thirty (30) days of the
Commencement Date, original certificates evidencing the existence and amounts of
such insurance. No such policy shall be cancelable or subject to reduction of
coverage except after sixty (60) days prior written notice to Landlord. Tenant
shall, within thirty (30) days prior to the expiration, cancellation or
reduction of such policies, furnish Landlord with renewals or binders" thereof.
Tenant shall not do or permit to be done anything which shall invalidate the
insurance policies required under this Lease.
19.4 Waiver of Subrogation Rights. Tenant and Landlord shall obtain from
the issuer of the insurance policies referred to in Section 19.1 a waiver of
subrogation provision in said policies and Tenant and Landlord hereby release,
relieve and waive any and all rights of recovery against Landlord or Tenant, or
against the employees, officers, agents and representatives of Landlord or
Tenant, for loss or damage arising out of or incident to the perils insured
against under Section 19.1 which perils occur in, on or about the Premises or
the Building, whether due to the negligence of Landlord or Tenant or their
agents, employees, contractors or invitees. The extent of the waiver described
in the immediately preceding sentence is limited to the extent of insurance
carried by Landlord and Tenant pursuant to Section 19.1 of this Lease.
ARTICLE 20
INDEMNITY
20.1 Indemnity by Tenant. Tenant shall indemnify and hold harmless
Landlord and all agents, servants and employees of Landlord from and against all
claims, losses, damages, liabilities, expenses (including reasonable attorney
fees), penalties and charges arising from or in connection with (i) Tenant's use
of the Premises during the Lease Term, or (ii) the conduct of Tenant's business,
or (iii) any activity, work or things done, permitted or suffered by Tenant in
or about the Premises during the Lease Term. Tenant shall further indemnify and
hold harmless Landlord from and against any and all claims, loss, damage,
liability, expense (including reasonable attorney fees), penalty or charge
arising from any default in the performance of any obligation on Tenant's part
to be performed under the terms of this Lease, or arising from any negligence of
Tenant, or any of Tenant's agents, contractors, or employees, and from and
against all costs, attorney fees, expenses and liabilities incurred in the
defense of any such claim or any action or proceeding brought thereon. If any
action or proceeding is brought against Landlord by reason of any such claim,
Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by
legal counsel reasonably satisfactory to Landlord. Tenant, as a material part of
its consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons in or upon the Premises arising from any cause and Tenant
hereby waives all claims in respect thereof against Landlord. Notwithstanding
the foregoing, Tenant shall not be required to defend, save harmless or
indemnify Landlord from any liability for injury, loss, accident or damage to
any person or property resulting from Landlord's negligence or willful acts or
omissions, or those of Landlord's officers, agents, contractors or employees.
Tenant's indemnity is not intended to nor shall it relieve any insurance carrier
of its obligations under policies required to be carried by Tenant pursuant to
the provisions of this Lease to the extent that such policies cover the results
of grossly negligent acts or omissions of Landlord, its officers, agents,
contractors or employees, or the failure of Landlord to perform any of its
obligations under this Lease.
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20.2. Indemnity by Landlord. Landlord shall indemnify and hold harmless
Tenant and all agents, servants and employees of Tenant from and against all
claims, losses, damages, liabilities, expenses (including reasonable attorney
fees), penalties and charges arising from or in connection with any or damage to
any person or property resulting solely from the gross negligence or intentional
acts of Landlord, and from and against all costs, reasonable attorney fees,
expenses and liabilities incurred in the defense of any such claim or any action
or proceeding brought thereon. If any action or proceeding is brought against
Tenant by reason of any such claim, Landlord, upon notice from Tenant, shall
defend the same at Landlord's expense by legal counsel reasonably satisfactory
to Tenant. Notwithstanding the foregoing, Landlord shall not be required to
defend, save harmless or indemnify Tenant from any liability for injury, loss,
accident or damage to any person or property resulting from Tenant's negligence
or willful acts or omissions, or those of Tenant's officers, agents, contractors
or employees.
ARTICLE 21
DAMAGE OR DESTRUCTION TO BUILDING
21.1 Partial Destruction. In the event that the Premises or the Building
are damaged by fire or other insured casualty and the insurance proceeds have
been made available therefor by the holder or holders of any mortgages or deeds
of trust covering the Building, the damage shall be repaired by and at the
expense of Landlord to the extent of such insurance proceeds available therefor,
provided such repairs and restoration can, in Landlord's reasonable opinion, be
made within two hundred ten (210) days after the occurrence of such damage
without the payment of overtime or other premiums, and until such repairs and
restoration are completed, the Base Rent shall be abated in proportion to the
part of the Premises which is unusable by Tenant in the conduct of its business,
as may be reasonably determined by Landlord (but there shall be no abatement of
Base Rent by reason of any portion of the Premises being unusable for a period
equal to ten days or less). Landlord agrees to notify Tenant within sixty (60)
days after such casualty if it estimates that it will be unable to repair and
restore the Premises within said two hundred ten (210) day period. Such notice
shall set forth the approximate length of time Landlord estimates will be
required to complete such repairs and restoration. Notwithstanding anything to
the contrary contained herein, if Landlord cannot or estimates it cannot make
such repairs and restoration within said two hundred ten (210) day period, then
Tenant may, by written notice to Landlord, cancel this Lease, provided such
notice is given to Landlord within fifteen (15) days after Landlord notifies
Tenant of the estimated time for completion of such repairs and restoration.
Notwithstanding the preceding sentence, Tenant may not cancel this Lease as
hereinabove stated if the damage to the Premises or the Building is in whole or
in material part the result of the act, omission, fault, or negligence of
Tenant, its agents, contractors, employees, licensees, or invitees. Except as
provided in this Article 21, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with Tenant's
business or property arising from the making of any such repairs, alterations,
or improvements in or to the Building, Premises, or fixtures, appurtenances, and
equipment. Tenant understands that Landlord will not carry insurance of any kind
on Tenant's property, including furniture and furnishings, or on any fixtures or
equipment removable by Tenant under the provisions of this Lease, or any
improvement installed in the Premises by or on behalf of Tenant, and that
Landlord shall not be obligated to repair any damage thereto or replace the
same.
21.2 Total Destruction. In case the Building throughout shall be so
injured or damaged, whether by fire or otherwise (though the Premises may not be
affected, or if affected, can be repaired within said 210 days) that Landlord,
within sixty (60) days after the happening of such injury, shall decide not to
reconstruct or rebuild the Building, then notwithstanding anything contained
herein to the contrary, upon notice in writing to that effect given by Landlord
to Tenant within said sixty (60) days, Tenant shall pay the rent, properly
apportioned up to date of such casualty, this Lease shall terminate from the
date of delivery of said written notice, and both parties hereto shall be
released and discharged from all further obligations hereunder (except those
obligations which expressly survive termination of the Lease term). A total
destruction of the Building shall automatically terminate this Lease.
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ARTICLE 22
CONDEMNATION
If the whole or substantially the whole of the Building or the Premises
shall be taken for any public or quasi-public use, by right of eminent domain or
otherwise or shall be sold in lieu of condemnation, then this Lease shall
terminate as of the date when physical possession of the Building or the
Premises is taken by the condemning authority. If less than the whole or
substantially the whole of the Building or the Premises is thus taken or sold,
Landlord (whether or not the Premises are affected thereby) may terminate this
Lease by giving written notice thereof to Tenant, in which event this Lease
shall terminate as of the date when physical possession of such portion of the
Building or Premises is taken by the condemning authority. If the Lease is not
so terminated upon any such taking or sale, the Base Rent payable hereunder
shall be diminished by an equitable amount, and Landlord shall, to the extent
Landlord deems feasible, restore the Building and the Premises to substantially
their former condition, but such work shall not exceed the scope of the work
done by Landlord in originally constructing the Building and installing Building
Standard Improvements in the Premises, nor shall Landlord in any event be
required to spend for such work an amount in excess of the amount received by
Landlord as compensation for such taking. All amounts awarded upon a taking of
any part or all of the Building or the Premises shall belong to Landlord, and
Tenant shall not be entitled to and expressly waives all claims to any such
compensation. Notwithstanding anything contained herein Tenant may bring
separate action against the condemning authority to recover relocation expenses,
lost value of leasehold and reimbursement of tenant improvement costs incurred
by Tenant in excess of the Allowance.
ARTICLE 23
DAMAGES FROM CERTAIN CAUSES
Landlord shall not be liable to Tenant for any loss or damage to any
property or person occasioned by theft, fire, earthquake, any other act of God,
public enemy, injunction, riot, strike, insurrection, war, court order,
requisition, or order of governmental body or authority or by any other cause
beyond the control of Landlord. In addition, Landlord shall not be liable for
any damage or inconvenience which may arise through repair or alteration of any
part of the Building or Premises.
ARTICLE 24
EVENTS OF DEFAULT
The following events ("Events of Default") shall constitute a default by
Tenant hereunder:
a. If Tenant shall fail to pay when due any installment of Base Rent,
Additional Rent, or any other amounts payable hereunder, unless such failure is
cured within 7 business days after notice from Landlord; however, Tenant is not
entitled to more than two notices of delinquent payments during any calendar
year and, if thereafter during such calendar year any Rent is not paid when due,
an Event of Default shall automatically occur;
b. If this Lease or the estate of Tenant hereunder shall be transferred
to or shall pass to or devolve upon any other person or party in violation of
the provisions of this Lease, except to Permitted Transferees or as otherwise
permitted herein;
c. If this Lease or the Premises or any part thereof shall be taken
upon execution or by other process of law directed against Tenant, or shall be
taken upon or subject to any attachment at the instance of any creditor or
claimant against Tenant, and said attachment shall not be discharged or disposed
of within fifteen (15) days after the levy thereof;
d. If Tenant shall file a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States or
under any insolvency act of any state, or shall voluntarily take advantage of
any such law or act by answer or otherwise, or shall be dissolved or shall make
an assignment for the benefit of creditors;
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e. If involuntary proceedings under any such bankruptcy law or
insolvency act or for the dissolution of Tenant shall be instituted against
Tenant, or a receiver or trustee shall be appointed of all or substantially all
of the property of Tenant, and such proceedings shall not be dismissed or such
receivership or trusteeship vacated within thirty (30) days after such
institution or appointment;
f. If Tenant shall fail to take possession of the Premises within
thirty (30) days of the Commencement Date;
g. If Tenant shall abandon the Premises or shall vacate the Premises
for thirty (30) consecutive days;
h. If Tenant shall fail to perform any of the other agreements, terms,
covenants, or conditions hereof on Tenant's part to be performed (other than the
obligation to pay rent or any other charges payable hereunder), and such
nonperformance shall continue for a period of fifteen (15) days after notice
thereof by Landlord to Tenant; provided, however, that if Tenant cannot
reasonably cure such nonperformance within fifteen (15) days, Tenant shall not
be in default if it commences cure within said fifteen (15) days and diligently
pursues the same to completion, with completion occurring in all instances
within sixty (60) days;
i. If Tenant shall, for reasons other than those specifically permitted
in this Lease, cease to conduct continually its normal business operations in
the Premises, or fail to, from the Commencement Date through the term of this
Lease and any renewals hereof, do any of the following: (i) keep the phone lines
in the Premises hooked up with adequate personnel to operate the same; or (ii)
operate its normal business activities as an active and ongoing entity
consistent with generally accepted standards in the industry;
j. If Tenant shall fail to obtain a release of any mechanic's lien, as
required herein;
k. If a guarantor of this Lease, if any, or a general partner of Tenant
(if Tenant is a general or limited partnership), becomes a debtor under any
state or federal bankruptcy proceedings, or becomes subject to receivership or
trusteeship proceedings, whether voluntary or involuntary; except in the case of
a guarantor, Tenant shall not be in default if a substitute guarantor, with
creditworthiness and financial abilities acceptable to Landlord in light of the
responsibilities of Tenant hereunder, and otherwise acceptable to Landlord, is
provided to Landlord within fifteen (15) days;
l. If all or any part of the personal property of Tenant is seized,
subject to levy or attachment, or similarly repossessed or removed from the
Premises;
m. Tenant shall fail to deliver an Estoppel Certificate or
Subordination Agreement within the time periods set forth in this Lease.
ARTICLE 25
LANDLORD'S REMEDIES
25.1 Landlord's Election upon Events of Default. Upon the occurrence of
an Event of Default, Landlord shall have the right, at its election, then or at
any time thereafter and while any such Event of Default shall continue, either:
(i) to give Tenant written notice of Landlord's intention to
terminate this Lease on the date such notice is given or on any later date
specified therein, whereupon, on the date specified in such notice, Tenant's
right to possession of the Premises shall cease and this Lease shall thereupon
be terminated; provided, however, that all of Tenant's obligations, including,
but not limited to, payment of the amount of Base Rent and other obligations
reserved in this Lease for the balance of the Lease Term,
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shall immediately be accelerated and due and payable in accordance with the
provisions of Section 25.3 hereof; or
(ii) to re-enter and take possession of the Premises or any part
thereof and repossess the same as Landlord's former estate and expel Tenant and
those claiming through or under Tenant, and remove the effects of both or
either, using such force for such purposes as may be reasonably necessary,
without being liable for prosecution thereof, without being deemed guilty of any
manner of trespass, and without prejudice to any remedies for arrears of rent or
preceding breach of covenants or conditions. Should Landlord elect to re-enter
the Premises as provided in this Article 25 or should Landlord take possession
pursuant to legal proceedings or pursuant to any notice provided for by law,
Landlord may, from time to time, without terminating this Lease, relet the
Premises or any part thereof in Landlord's or Tenant's name, but for the account
of Tenant, for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the term of this Lease)
and on such conditions and upon such other terms (which may include concessions
of free rent and alteration and repair of the Premises) as Landlord, in its
discretion, may determine, and Landlord may collect and receive the rents
therefor. Landlord shall take actions as are required by law to mitigate
tenant's damages, provided that Landlord shall in no way be responsible or
liable for any failure to relet the Premises or any part thereof or for any
failure to collect any rent due upon such reletting. No such re-entry or taking
possession of the Premises by Landlord shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such
intention be given to Tenant. No notice from Landlord hereunder or under a
forcible entry and detainer statute or similar law shall constitute an election
by Landlord to terminate this Lease unless such notice specifically so stated.
Landlord reserves the right following any such re-entry and/or reletting, to
exercise its right to terminate this Lease by giving Tenant such written notice,
in which event, this Lease will terminate as specified in said notice.
25.2 Effects of Landlord's Election to Take Possession of Premises. In
the event that Landlord does not elect to terminate this Lease as permitted in
Section 25.1(i) hereof, but on the contrary, elects to take possession as
provided in Section 25.1(ii). Tenant shall pay to Landlord (i) the rent and
other sums as herein provided, which would be payable hereunder if such
repossession had not occurred, less (ii) the net proceeds, if any, of any
reletting of the Premises after deducting all Landlord's expenses in connection
with such reletting, including, without limitation, all repossession costs,
brokerage commissions, legal expenses, attorney fees, expenses of employees,
alteration and repair costs, and expense of preparation for such reletting. If,
in connection with any reletting, the new lease term extends beyond the existing
Lease Term, or the premises covered thereby include other premises not part of
the Premises, a fair apportionment of the rent received from such reletting and
the expenses incurred in connection therewith as provided aforesaid will be made
in determining the net proceeds from such reletting. Tenant shall pay such rent
and other sums to Landlord monthly on the days on which the rent would have been
payable hereunder if possession had not be taken.
25.3 Effect of Landlord's Election to Terminate the Lease. In the event
this Lease is terminated, Landlord shall be entitled to recover forthwith
against Tenant, as damages for loss of the bargain and not as a penalty, an
aggregate sum which, at the time of such termination of this Lease, represents
the excess, if any, of the aggregate of the rent and all other sums payable by
Tenant hereunder that would have accrued for the balance of the Lease Term over
the aggregate rental value of the Premises (such rental value to be computed on
the basis of a tenant paying not only a rent to Landlord for the use and
occupation of the Premises, but also such other charges as are required to be
paid by Tenant under the terms of this Lease) for the balance of such Lease
Term, both discounted to present worth at the rate of eight percent (8%) per
annum. Alternatively, at Landlord's option, Tenant shall remain liable to
Landlord for damages in an amount equal to the rent and other sums arising under
the Lease for the balance of the Lease Term had the Lease not been terminated,
less the net proceeds, if any, from any subsequent reletting, after deducting
all expenses associated therewith and as enumerated above. Landlord shall be
entitled to receipt of such amounts from Tenant monthly on the days on which
such sums would have otherwise been payable. Nothing contained herein shall
relieve Landlord from its common law obligation to mitigate its damages in the
event of a Tenant default.
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25.4 Suits for Recovery by Landlord. Suit or suits for the recovery of
the amounts and damages set forth above may be brought by Landlord, from time to
time, at Landlord's election, and nothing herein shall be deemed to require
Landlord to await the date whereon this Lease or the Lease Term would have
expired had there been no such default by Tenant or no such termination, as the
case may be.
25.5 Rents, Issues, and Profits from Subleases. After an Event of Default
by Tenant, Landlord may sue for or otherwise collect all rents, issues, and
profits payable under all subleases on the Premises, including those past due
and unpaid.
25.6 Landlord's Entry Upon the Premises and Other Remedies. After an
Event of Default by Tenant, Landlord may, without terminating this Lease, enter
upon the Premises, with force if necessary, without being liable for prosecution
of any claim for damages, without being deemed guilty of any manner of trespass,
and without prejudice to any other remedies, and do whatever Tenant is obligated
to do under the terms of this Lease. Tenant agrees to reimburse Landlord on
demand for any expenses which Landlord may incur in effecting compliance with
the Tenant's obligations under this Lease; further, Tenant agrees that Landlord
shall not be liable for any damages resulting to Tenant from effecting
compliance with Tenant's obligations under this subparagraph caused by the
negligence of Landlord or otherwise.
25.7 No Waivers Unless Express. No failure by Landlord to insist upon the
strict performance of any agreement, term, covenant, or condition hereof or to
exercise any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach of such agreement, term, covenant, or
condition. No agreement, term, covenant, or condition hereof to be performed or
complied with by Tenant, and no breach thereof, shall be waived, altered, or
modified except by written instrument executed by Landlord. No waiver of any
breach shall affect or alter this Lease, but each and every agreement, term,
covenant, and condition hereof shall continue in full force and effect with
respect to any other then existing or subsequent breach thereof. Notwithstanding
any unilateral termination of this Lease, this Lease shall continue in full
force and effect as to any provisions hereof which require observance or
performance of Landlord or Tenant subsequent to termination.
25.8 Lease Not a Limitation of Remedies. Nothing contained in this
Section shall limit or prejudice the right of Landlord to prove and obtain as
liquidated damages in any bankruptcy, insolvency, receivership, reorganization,
or dissolution proceeding, an amount equal to the maximum allowed by any statute
or rule of law governing such proceeding and in effect at the time when such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amounts recoverable, either as damages or rent, referred to in any
of the provisions of this Section.
25.9 Default Interest Rate, Administrative Charge, and Other Matters. Any
rents or other amounts owing to Landlord hereunder which are not paid within
five (5) days of the date they are due, shall thereafter bear interest from the
due date at the "Default Interest Rate" until paid. Similarly, any amounts which
Landlord pays on behalf of Tenant which are owed by Tenant in accordance with
the terms hereof, which are not reimbursed by Tenant to Landlord within five (5)
days of demand by Landlord, thereafter bear interest from the date paid by
Landlord at the Default Interest Rate until paid. In addition to the foregoing,
Tenant shall pay to Landlord an administrative charge (and not a penalty) to
compensate Landlord for the costs and expenses associated with handling a
delinquent account equal to ten percent (10%) of the amount due whenever any
Base Rent, Additional Rent, or any other sums due hereunder remain unpaid after
the due date thereof unless such failure is cured within 7 business days after
notice from Landlord; however, Tenant is not entitled to more than two notices
of delinquent payments during any calendar year and, if thereafter during such
calendar year any Rent is not paid when due, the administrative charge shall
automatically apply. Further, upon an Event of Default by Tenant, in addition to
all other rights and remedies, Landlord shall be entitled to receive from Tenant
all sums, the payment of which may previously have been waived or abated by
Landlord, or which may have been paid by Landlord pursuant to any agreement to
grant Tenant a monetary inducement or concession, including, but not limited to,
any tenant finish allowance or moving allowance, together with interest thereon
from the
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date or dates such amounts were paid by Landlord or would have been due from
Tenant but for the abatement, at the Default Interest Rate, until paid; it being
understood and agreed that such concession or abatement was made on the
condition and basis that Tenant fully perform all obligations and covenants
under the Lease for the entire term.
25.10 Remedies Cumulative, Costs of Collection; Waiver of Jury Trial. Each
right and remedy provided for in this Lease shall be cumulative and shall be in
addition to every other right or remedy provided for in this Lease nor or
hereafter existing at law or in equity or by statute or otherwise, including,
but not limited to, suits for injunctive or declaratory relief and specific
performance. The exercise or commencement of the exercise by Landlord of any one
or more of the rights or remedies provided for in this Lease now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the
simultaneous or subsequent exercise by Landlord of any or all other rights or
remedies provided for in this Lease, or now or hereafter existing at law or in
equity or by statute or otherwise. All costs incurred by Landlord in connection
with collecting any amounts and damages owing by Tenant pursuant to the
provisions of this Lease or to enforce any provision of this Lease, including,
by way of example, but not limitation, reasonable attorney fees from the date
any such matter is turned over to an attorney, shall also be recoverable by
Landlord from Tenant. Landlord and Tenant agree that any action or proceeding
arising out of this Lease shall be heard by a court sitting without a jury and
thus hereby waive all rights to a trial by jury.
ARTICLE 26
LANDLORD'S DEFAULT
Landlord shall be in default hereunder in the event Landlord has not begun
and pursued with reasonable diligence the cure of any failure of Landlord to
meet its obligations hereunder within thirty (30) days' of receipt by Landlord
of written notice from Tenant of the alleged failure to perform. Such notice
shall be ineffective unless a copy is simultaneously also delivered in the
manner required in this Lease to any holder of a mortgage and/or deed of trust
affecting all or any portion of the Building Complex (collectively,
"Mortgagee"), provided that prior to such notice Tenant has been notified (by
way of notice of Assignment of Rents and Leases, or otherwise), of the address
of a Mortgagee. If Landlord fails to cure such default within the time provided,
then Mortgagee shall have an additional 30 days following a second notice from
Tenant or, if such default cannot be cured within that time, such additional
time as may be necessary provided within such 30 days, Mortgagee commences and
diligently pursues a cure (including commencement of foreclosure proceedings if
necessary to effect such cure).). Tenant's sole remedy will be equitable relief
or actual damages but in no event is Landlord or any Mortgagee responsible for
consequential damages or lost profit incurred by Tenant as a result of any
default by Landlord. In no event shall Tenant have the right to terminate or
rescind this Lease as a result of Landlord's default as to any covenant or
agreement contained in this Lease or as a result of the breach of any promise or
inducement hereof, whether in the Lease or elsewhere. In addition, Tenant hereby
covenants that, prior to the exercise of any such remedies, it will give any
Mortgagee notice and a reasonable time to cure any default by Landlord. If
Landlord fails to perform its maintenance, repair or replacement obligations
under this Lease and such failure results in material interference with Tenant's
business operations or threatens damage to Tenant's property, then following
twenty (20) days' prior written notice to Landlord (except in the event of an
emergency in which event no notice shall be required), Tenant may perform such
repair, replacement or maintenance. In the event Landlord was obligated to
perform such action, Landlord shall reimburse Tenant for all out-of pocket third
party costs incurred by Tenant to complete such maintenance, repair or
replacement, within 30 days after receipt of an itemized invoice therefor from
Tenant. In the event Landlord does not reimburse Tenant for such costs Tenant
shall not have any right to off-set rent unless and until it has received a
judgment from a court of competent jurisdiction which determines that Landlord
was obligated to perform such maintenance, repair or replacement, and Landlord
does not, within thirty days after the issuance of the Court's order (the
"Landlord Cure Period") either (i) post the required bond for appeal, or (ii)
within 30 days after issuance of such judgment, pay the total damages awarded by
the Court (or otherwise remedy the default if applicable); provided that if
Landlord fails to satisfy such requirements, Tenant shall have the right to an
abatement of Base Rent only to the extent necessary to satisfy such judgment.
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ARTICLE 27
PEACEFUL ENJOYMENT
Tenant shall, and may peacefully have, hold, and enjoy the Premises,
subject to the other terms hereof (excluding article 7), provided that Tenant
pays the Rent and other sums herein recited to be paid by Tenant and performs
all of Tenant's covenants and agreements herein contained. This covenant and any
and all other covenants of Landlord shall be binding upon Landlord and its
successors only with respect to breaches occurring during its or their
respective periods of ownership of Landlord's interest hereunder.
ARTICLE 27A
RELOCATION RIGHT
Not applicable.
ARTICLE 28
HOLDING OVER
In the event of holding over by Tenant after the expiration or other
termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Article 25 above, Tenant shall, throughout the entire holdover period, pay rent
equal to 150% the Base Rent and 100% of the Additional Rent which would have
been applicable had the term of this Lease continued through the period of such
holding over by Tenant. If Tenant remains in possession of all or any part of
the Premises after the expiration of the Lease Term, with the express written
consent of Landlord: (i) such tenancy will be deemed to be a periodic tenancy
from month-to-month only; (ii) such tenancy will not constitute a renewal or
extension of this Lease for any further term; and (iii) such tenancy may be
terminated by Landlord upon the earlier of thirty (30) days' prior written
notice or the earliest date permitted by law. Such month-to-month tenancy will
be subject to every other term, condition, and covenant contained in this Lease
including the Base Rent and Additional Rent provisions. Nothing contained in
this Article 28 shall be construed as consent by Landlord to any holding over of
the Premises by Tenant, and Landlord expressly reserves the right to require
Tenant to surrender possession of the Premises to Landlord upon the expiration
or earlier termination of this Lease. If Tenant fails to surrender the Premises
upon the expiration or earlier termination of this Lease despite demand to do so
by Landlord, Tenant shall indemnify and hold Landlord harmless from all loss or
liability, including, without limitation, any claim made by any succeeding
tenant founded on or resulting from such failure to surrender.
ARTICLE 29
SUBORDINATION TO MORTGAGE
Tenant accepts this Lease subject and subordinate to any mortgage, deed of
trust or other lien presently existing or hereafter arising upon the Premises,
upon the Building as a whole, and to any renewals, refinancing and extensions
thereof, but Tenant agrees that any such Mortgagee shall have the right at any
time to subordinate such mortgage, deed of trust or other lien to this Lease on
such terms and subject to such conditions as such Mortgagee may reasonably deem
appropriate in its discretion. Tenant agrees within 10 days after request
therefore to execute a subordination and non-disturbance agreement in the form
of agreement attached hereto as Exhibit I or such similar agreement as Landlord
may reasonably request. In the event that any mortgage or deed of trust is
foreclosed or conveyance in lieu of foreclosure is made for any reason, Tenant
shall, if requested by the Mortgagee, attorn to and become the Tenant of the
successor-in-interest to Landlord and in such event Tenant hereby waives its
right under any current or future law which gives or purports to give Tenant any
right to terminate or otherwise adversely affect this Lease and the obligations
of Tenant hereunder. If in connection with obtaining construction, interim or
permanent financing for the Building, the lender shall request modifications to
this Lease as a condition to such financing, Tenant will not withhold or delay
its consent thereto, provided that
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such modifications do not increase the obligations of Tenant hereunder and do
not otherwise materially adversely affect Tenant's rights hereunder. In the
event that Tenant should fail to execute any instrument described in this
Article 29 promptly as requested, Tenant hereby irrevocably constitutes Landlord
as its attorney-in-fact to execute such instrument in Tenant's name, place and
stead, it being agreed that such power is one coupled with an interest.
ARTICLE 30
RESERVED
ARTICLE 31
BANKRUPTCY OR INSOLVENCY
31.1 Deemed Rejection of Lease. If the Tenant becomes a debtor under
Chapter 7 of the United States Bankruptcy Code (the "Bankruptcy Code"), or in
the event that a petition for reorganization or adjustment of debts is filed
concerning the Tenant under Chapter 11 or Chapter 13 of the Bankruptcy Code, or
a proceeding filed under Chapter 7 is transferred to Chapter 11 or 13, the
"Trustee" or the Tenant, as "Debtor-in-Possession," shall be deemed to have
rejected this Lease. No election by the Trustee or Debtor-in-Possession to
assume this Lease shall be effective unless each of the following conditions,
which Landlord and Tenant hereby acknowledge to be commercially reasonable in
the context of a bankruptcy proceeding, has been satisfied, and the Landlord has
so acknowledge in writing: (i) the Trustee or Debtor-in-Possession has cured, or
has provided the Landlord "adequate assurance" (as hereinafter defined) that
from the date of such assumption the Trustee or Debtor-in-Possession will
promptly cure, all monetary and non-monetary defaults under the Lease; (ii) the
Trustee or Debtor-in-Possession has compensated, or has provided to the
Landlord adequate assurance that within ten (10) days of the date of assumption
the Landlord will be compensated, for any pecuniary loss incurred by the
Landlord arising from default of the Tenant, the Trustee, or the
Debtor-in-Possession as recited in the Landlord's written statement of pecuniary
loss sent to the Trustee or Debtor-in-Possession; and (iii) the Trustee or
Debtor-in-Possession has provided the Landlord with adequate assurance of future
performance of each of the Tenant's, the Trustee's, or the
Debtor-in-Possession's obligations under this Lease; provided, however, that:
(x) the Trustee or Debtor-in-Possession shall also deposit with the Landlord, as
security for the timely payment of rent and other sums due hereunder, an amount
equal to three months Base Rent, Additional Rent, and other monetary charges
accruing under this Lease; and (y) the obligations imposed upon the Trustee or
Debtor-in-Possession shall continue with respect to the Tenant or any assignee
of this Lease after the completion of the bankruptcy proceedings.
31.2 Adequate Assurance. For purposes of this Section, Landlord and
Tenant acknowledge that, in the context of the bankruptcy proceedings of the
Tenant, at a minimum, "adequate assurance" shall mean: (i) the Trustee or
Debtor-in-Possession will continue to have sufficient unencumbered assets after
the payment of all secured obligations and administrative expenses to assure the
Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to
fulfill all of the obligations of Tenant under this Lease; or (ii) the
Bankruptcy Court, shall have entered an order segregating sufficient cash
payable to the Landlord, and the Trustee or Debtor-in-Possession shall have
granted to the Landlord a valid and perfected first lien and security interest
or mortgage in property of the Tenant, the Trustee, or the Debtor-
in-Possession, acceptable as to value and kind to the Landlord, in order to
secure to the Landlord the obligation of the Tenant, Trustee, or
Debtor-in-Possession to cure the monetary or non-monetary defaults under the
Lease within the time period set forth above.
31.3 Lease Assignments in Bankruptcy Proceedings. The following
conditions shall apply to any assignments of this Lease in bankruptcy
proceedings if the Trustee or Debtor-in-Possession has assumed this Lease and
elects to assign the Lease to any other person, such interest or estate of
Tenant in this Lease may be so assigned only if the Landlord has acknowledged in
writing that the intended assignee can provide to the Landlord "adequate
assurance of future performance" (as herein defined) of all of the terms,
covenants and conditions of this Lease to be performed by the Tenant. For the
purposes
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of this provision, Landlord and Tenant acknowledge that, in the context of a
bankruptcy proceeding, at a minimum, "adequate assurance of future performance"
shall mean that each of the following conditions has been satisfied, and the
Landlord has so acknowledged in writing: (i) the proposed assignee has submitted
a current financial statement audited by a Certified Public Accountant which
shows the net worth and working capital and amounts determined by Landlord to be
sufficient to assure the future performance by such assignee of all of Tenant's
obligations under this Lease; (ii) the proposed assignee, if requested by the
Landlord, has obtained guarantees in form and substance satisfactory to the
Landlord from one or more persons who satisfy the Landlord's standards of
creditworthiness; and (iii) the Landlord has obtained all consents or waivers
from any third party required under any lease, mortgage, financing arrangement,
or other agreement by which the Landlord is bound, in order to permit the
Landlord to consent to such assignment.
ARTICLE 32
AMERICANS WITH DISABILITIES ACT
32.1 Alterations to Common Areas. Landlord shall, subject to
reimbursement as part of the Building's Operating Expenses, be responsible for
any alterations, modifications or improvements to the Common Areas which are
required under any applicable portion of the Americans With Disabilities Act
("ADA").
32.2 Alterations to Premises. Tenant shall, at Tenant's sole cost and
expense, be responsible for any alterations, modifications or improvements to
the Premises, and the acquisitions of any auxiliary aids, required under the
ADA, including all alterations, modifications, or improvements required: (i) as
a result of Tenant (or any subtenant, assignee, or concessionaire) being a
"Public Accommodation" (as defined in the ADA); (ii) as a result of the Premises
being a "Commercial Facility" (as defined in the ADA); (iii) as a result of any
leasehold improvements made to the Premises by, or on behalf of, Tenant or any
subtenant, assignee, or concessionaire (whether or not Landlord's consent to
such leasehold improvements was obtained); or (iv) as a result of the employment
by Tenant (or any subtenant, assignee, or concessionaire) of any individual with
a disability. Nothing stated in this paragraph shall diminish the Landlord's
responsibility to comply with the ADA with respect to any and all common areas
or other portions of the Building in accordance with Section 32.1 hereof, unless
such modification results from Tenant's use of the Premises in which event any
modifications to the Common Areas or Building will be the sole cost and expense
of the Tenant.
32.3 "Use Clause" Implications. With respect to the use restrictions set
forth in Article 4 of this Lease, and the restrictions on assignments and
subletting set forth in Article 4 of this Lease, it is hereby specifically
understood and agreed that Landlord shall have no obligation to consent to, or
permit, a use of the Premises, or an assignment of the Lease, or a sublease of
the Premises (collectively herein a "Use Change") if such Use Change would
require the making of any alterations, modifications, or improvements to the
Premises or the Common Areas, or the acquisition of any auxiliary aids, required
under the ADA, unless Tenant performs all such acts and satisfies Landlord's
requirements for financial responsibility for the costs of such compliance
(which may include, by way of example, posting of a completion bond), Tenant
shall be responsible for compliance with ADA in the design and layout of the
Leasehold Improvements and Landlord shall have no responsibility therefor.
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ARTICLE 33
ATTORNEY FEES
In the event either party commences an action for the enforcement of, or
arising out of, a breach of the terms of this Lease, then the prevailing party
shall be awarded an amount to be fixed by the court for court costs and
reasonable attorney's fees.
ARTICLE 34
NO IMPLIED WAIVER
The failure of Landlord to insist at any time upon the strict performance
of any covenant or agreement herein, or to exercise any option, right, power or
remedy contained in this Lease, shall not be construed as a waiver or a
relinquishment thereof for the future. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly installment of Rent due under this
Lease shall be deemed to be other than on account of the earliest Rent due
hereunder, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or pursue any other remedy in this
Lease provided.
ARTICLE 35
LIMITATION OF LANDLORD LIABILITY
The liability of Landlord to Tenant for any default by Landlord under the
terms of this Lease shall be limited to the interest of Landlord in the Building
and Tenant agrees to look solely to such amount for recovery of any judgment
from Landlord, it being intended that Landlord shall not be personally liable
for any judgment or deficiency.
ARTICLE 36
SECURITY DEPOSIT
The Security Deposit shall be paid by Tenant to Landlord concurrently with
the execution hereof. The Security Deposit shall be held by Landlord without
liability for interest and as security for the performance by Tenant of Tenant's
covenants and obligations under this Lease, it being expressly understood that
the Security Deposit shall not be considered an advance payment of rental or a
measure of damages caused by Tenant in case of default by Tenant. Landlord may
commingle the Security Deposit with Landlord's other funds. Landlord may, from
time to time, without prejudice to any other remedy, use the Security Deposit to
the extent necessary to make good any arrearage of rent or to satisfy any other
covenant or obligation of Tenant hereunder. Following any such application of
the Security Deposit, Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount.
Provided no uncured Event of Default then exists, 24 months following the
Commencement Date, the balance of the Security Deposit (remaining after any
prior application thereof under this article) shall be returned by Landlord to
Tenant. If Landlord transfers its interest in the Premises during the term of
this Lease, Landlord may assign the Security Deposit to the transferee and
thereafter shall have no further liability for the return of such Security
Deposit to Tenant.
ARTICLE 37
NOTICE
Any notice in this Lease provided for must, unless otherwise expressly
provided herein, be in writing, and may, unless otherwise in this Lease
expressly provided, be given or be served by depositing the same in the United
States mail, postage paid and certified and addressed to the party to be
notified, with return receipt requested, or by delivering the same in person to
an officer of such party, or by prepaid telegram, when appropriate, addressed to
the party to be notified at the address stated below or such other address,
notice of which has been given to the other party. Notice deposited in the mail
in the
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manner hereinabove described shall be effective from and after the expiration of
three (3) calendar days after it is so deposited.
Notices to Landlord: Intown Office, LLC
400 S. Fourth Street
Suite 107
Las Vegas, Nevada 89101
With a copy to: J. Kevin Ray, Esq.
Campbell Bohn Killin Brittan & Ray, LLC
270 St Paul, Suite 200
Denver, Colorado 80206
Notices to Tenant: Community Bank of Nevada
400 S. Fourth Street
Suite (at the Premises)
Las Vegas, Nevada 89101
ARTICLE 38
SEVERABILITY
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If any term or provision of this Lease, or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and enforced to the fullest extent permitted by law
notwithstanding the invalidity of any other term or provision hereof.
ARTICLE 39
RECORDATION
Tenant agrees not to record this Lease or any memorandum hereof.
ARTICLE 40
GOVERNING LAW
This Lease and the rights and obligations of the parties hereto shall be
interpreted, construed, and enforced in accordance with the laws of the State of
Nevada, without regard to its principles of conflict of laws.
ARTICLE 41
FORCE MAJEURE
Whenever a period of time is herein prescribed for the taking of any
action by Landlord, Landlord shall not be liable or responsible for, and there
shall be excluded from the computation of such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war, governmental
laws, regulations or restrictions, or any other cause whatsoever beyond the
control of Landlord.
ARTICLE 42
TIME OF PERFORMANCE
Except as expressly otherwise herein provided, with respect to all
required acts of Tenant, time is of the essence of this Lease.
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ARTICLE 43
TRANSFERS BY LANDLORD
Landlord shall have the right to transfer and assign, in whole or in part,
all its rights and obligations hereunder and in the Building and property
referred to herein, and in such event and upon such transfer Landlord shall be
released from any further obligations hereunder, and Tenant agrees to look
solely to such successor in interest of Landlord for the performance of such
obligations.
ARTICLE 44
COMMISSIONS
Landlord and Tenant hereby indemnify and hold each other harmless against
any loss, claim, expense or liability with respect to any commissions or
brokerage fees claimed on account of the execution and/or renewal of this Lease
due to any action of the indemnifying party. Landlord and Tenant each represent
and warrant to each other that no broker has been used in connection with this
Lease except for the broker(s) set forth on the Lease Summary hereof, which
broker(s) shall be compensated by Landlord absent an agreement to the contrary.
ARTICLE 45
EFFECT OF DELIVERY OF THIS LEASE
Landlord has delivered a copy of this Lease to Tenant for Tenant's review
only, and the delivery hereof does not constitute an offer to Tenant or option.
This Lease shall not be effective until a copy executed by both Landlord and
Tenant is delivered to and accepted by Landlord.
ARTICLE 46
CORPORATE AUTHORITY; PARTNERSHIP AUTHORITY
If Tenant is a corporation, each person signing this Lease on behalf of
Tenant represents and warrants that he or she has full authority to do so and
that this Lease binds the corporation. Within thirty (30) days after this Lease
is signed, Tenant shall deliver to Landlord a certified copy of a resolution of
Tenant's Board of Directors authorizing the execution of this Lease or other
evidence of such authority reasonably acceptable to Landlord. If Tenant is a
partnership or limited-liability company, each person signing this Lease for
Tenant represents and warrants that he or she is a general partner of the
partnership or manager of the limited-liability company, as the case may be,
that he or she has full authority to sign for the partnership or the
limited-liability company, as the case may be, and that this Lease binds the
partnership and all general partners of the partnership. Tenant shall give
written notice to Landlord of any general partner's or manager's withdrawal or
addition. Within thirty (30) days after this Lease is signed, Tenant shall
deliver to Landlord a copy of Tenant's recorded statement of partnership or
certificate of limited partnership or certificate of limited-liability company,
as the case may be.
ARTICLE 47
JOINT AND SEVERAL LIABILITY
All parties signing this Lease as Tenant shall be jointly and severally
liable for all obligations of Tenant.
ARTICLE 48
INTERPRETATION
The captions of the Articles of this Lease, and each specific Section or
paragraph within the respective Articles, are to assist the parties in reading
this Lease and are not a part of the terms or provisions of this Lease. Whenever
required by the context of this Lease, the singular shall include the plural and
the plural shall include the singular. The masculine, feminine and neuter
genders shall each include the other. In any provision relating to the conduct,
acts or omissions of Tenant, the term "Tenant"
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shall include Tenant's agents, employees, contractors, invitees, successors or
others using the Premises with Tenant's expressed or implied permission.
ARTICLE 49
INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS
This Lease is the only agreement between the parties pertaining to the
lease of the Premises and no other agreements are effective. All amendments to
this Lease shall be in writing and signed by all parties. Any other attempted
amendment shall be void.
ARTICLE 50
WAIVER OF JURY TRIAL
Landlord and Tenant by this Article 50 waive trial by jury in any action,
proceeding, or counterclaim brought by either of the parties to this Lease
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, or any other claims (except claims for personal
injury or property damage), and any emergency statutory or any other statutory
remedy.
ARTICLE 51
ESTOPPEL CERTIFICATES
Within ten (10) days after written request from Landlord, Tenant shall
execute and deliver to Landlord or Landlord's designee, a written certificate in
the form of Exhibit H, attached hereto and incorporated herein by this reference
or such other certificate that certifies that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as so modified), states the dates to which rent and other
charges payable under the Lease have been paid, states that Landlord is not in
default hereunder (or if Tenant alleges a default stating the nature of such
alleged default) and further states such other matters as Landlord shall
reasonably require. Tenant acknowledges that any such statement may be relied
upon by any Mortgagee, prospective Mortgagee, purchaser or prospective purchaser
of the Building or any interest therein. Tenant's failure to execute and deliver
any certificate or agreement hereunder within the time required shall be
Tenant's consent that all information contained therein is true and correct and
at Landlord's election be a default under this Lease. Any certificate,
instrument, and/or agreement referred to in this Article 51 may at Landlord's
election be in recordable form and may at Landlord's election be duly recorded.
ARTICLE 52
NO MERGER
The voluntary or other surrender of this Lease by Tenant or the
cancellation of this Lease by mutual agreement of Tenant and Landlord or the
termination of this Lease on account of Tenant's default will not work a merger,
and will, at Landlord's option, (i) terminate all or any subleases and
subtenancies or (ii) operate as an assignment to Landlord of all or any
subleases or subtenancies. Landlord's option under this Article 52 will be
exercised by written notice to Tenant and all known sublessees or subtenants in
the Premises or any part of the Premises.
ARTICLE 53
COUNTERPARTS
This Lease may be executed in counterparts, and, when all counterpart
documents are executed, the counterparts shall constitute a single binding
instrument.
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ARTICLE 54
EXHIBITS
All Exhibits as listed on the "List of Agreements" preceding or attached
hereto, are incorporated herein and made a part of this Lease for all purposes.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease (which
may be in multiple original counterparts) as of the day and year first above
written.
LANDLORD: TENANT:
INTOWN OFFICE, LLC, Community Bank of Nevada
a Nevada limited liability company
By: Clark NV Realty, LLC, a Delaware By: /s/ Edward M. Jamison
limited liability company, Member -----------------------------
By: Orange County Equities, Limited, Print Name: Edward M. Jamison
Member Print Title: President/CEO
By: /s/ B. Bradford Barrett
------------------------------
B. Bradford Barrett, President
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By: Pauls Equities, LLC, a Colorado
limited liability company, Member
By: /s/ Paul Powers
------------------------------
Paul Powers, President
|
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EXHIBIT "A"
CITY CENTRE PLACE
LEGAL DESCRIPTION
ALL THAT REAL PROPERTY SITUATED IN THE COUNTY OF CLARK, STATE OF NEVADA, BOUNDED
AND DESCRIBED AS FOLLOWS:
That portion of the North Half (N 1/2) of the Southwest Quarter (SW 1/4) of
Section 34, Township 20 South, Range 61 East, M.D.B. & M., described as follows:
Lots One (1) and Two (2) as shown by map thereof in File 97 of Parcel Maps, Page
78, in the Office of the County Recorder, Clark County, Nevada.
LANDLORD, FROM TIME TO TIME, SHALL HAVE THE RIGHT TO AMEND THIS LEGAL
DESCRIPTION TO ACCURATELY REFLECT THE LEGAL PARCEL IF AND WHEN IT BECOMES
NECESSARY TO ADJUST THE LEGAL DESCRIPTION TO ACCOMMODATE THE DEVELOPMENT OF
OTHER ADJACENT BUILDINGS.
A-1
EXHIBIT "B"
CITY CENTRE PLACE
FLOOR PLAN OF PREMISES
[To be prepared by Landlord and Tenant and
inserted upon execution and delivery of Lease.]
B-1
EXHIBIT "D"
CITY CENTRE PLACE
WORK LETTER
This Work Letter supplements the Lease Agreement (the "Lease") dated
concurrently herewith, by and between INTOWN OFFICE, LLC, a Nevada limited
liability company, as Landlord, and COMMUNITY BANK OF NEVADA, as Tenant,
covering the Premises. All terms not defined herein shall have the same meaning
as set forth in the Lease.
1. Construction of Building.
1.1 Base Building Improvements. Landlord has constructed, or shall
construct, through its contractor, at Landlord's sole cost, a building shell,
including the following ("Base Building Improvements"):
a. outside walls (not including drywall), core walls which
are unfinished on tenant's side, elevator lobby and corridor which connect exit
stairwells on multi-tenant floors (but not an elevator lobby or corridor on
floors with a single tenant);
b. unfinished concrete floors throughout the Premises,
broom clean;
c. building standard 110-volt service power and 277-volt
and/or 110-volt florescent lighting power at the core;
d. men's and women's restroom facilities with
building-standard finishes located on each floor on which the Premises are
located;
e. building standard fire alarms and smoke detectors in
public areas in accordance with applicable building code on an unoccupied basis
and provided only at the core of the Building;
f. plumbing systems stubbed at the core of the Building;
g. primary fire and life safety in a general pattern
sprinkler loop throughout the Premises ready for expansion and adjustment when
the ceiling for the Premises is installed; and
h. unless modified by Landlord in its sole discretion,
primary heating ventilating and air conditioners loop (but not including branch
distribution controls and mixing boxes).
1.2 Tenant Improvements Descriptions. Without limiting the
generality of the foregoing description of Base Building Improvements, tenant
improvements ("Tenant Improvements") shall include the following items:
a. ceiling and lighting in the Premises;
b. floor finishes in the Premises (except elevator lobby,
common corridor and toilet rooms on multi-tenant floors);
c. interior finishes of any kind within the Premises
(except elevator lobby, toilet rooms and common corridors on multi-tenant
floors);
d. interior partitions, demising walls, doors and hardware
within the Premises;
D-3
e. terminal boxes and reheat coils or other heating,
ventilating and air conditioning or air distribution devices, including
distribution duct work and controls or supplemental systems;
f. cooling zone Variable Air Volume boxes (VAV) at a
maximum of 1 per approximately 1,000 s.f.
g. distribution of electrical services, plumbing services
and sprinklers from the core (except primary sprinkler loop as specified in base
building description);
h. fire and life safety systems throughout the Premises,
including without limitation exit signs, horn/strobe or intercoms and
extinguishers (except as provided in Base Building Improvements);
i. window coverings;
j. architectural and engineering preparation of plans and
specifications for the Tenant Improvements to conform to building standards;
k. permits and fees to local jurisdictions; and
l. such other costs as are described in Section 3.2
hereinbelow.
2. Plans and Specifications for Tenant Improvements.
2.1 Landlord has caused its architect to furnish to Tenant for
Tenant's approval space plans sufficient to convey the architectural design of
the Premises, including, without limitation, the location of doors, partitions,
electrical and telephone outlets, plumbing fixtures, heavy floor loads and other
special requirements, together with reflective ceiling plans (the "Schematic
Space Plans"). Tenant has approved the Schematic Space Plans.
2.2 Upon mutual execution of the Lease, Landlord shall cause its
architect to prepare from the Schematic Space Plans complete architectural
plans, drawings and specifications and, utilizing Landlord's mechanical,
electrical and structural engineers, complete engineered and cross coordinated
mechanical, electrical and structural working drawings for all of the Premises,
showing the subdivision, layout, finish and decoration work (including carpeting
and other floor coverings), all in such form and in such detail as may be
reasonably required by Landlord. Such complete plans, drawings and
specifications are referred to herein as the "Final Plans". Landlord shall cause
the Final Plans to (i) be compatible with the Base Building Improvements, (ii)
comply with all applicable laws and ordinances, and the rules and regulations of
all governmental authorities having jurisdiction, and (iii) comply with all
applicable insurance regulations for a fire resistive Class A Building. Landlord
shall submit the Final Plans for the approval of Tenant. If Tenant shall
disapprove of any portion of the Final Plans, then within 5 business days after
receiving the Final Plans from Landlord, Tenant shall advise Landlord of any and
all specific revisions, and reasons therefor, as are reasonably required by
Tenant for the purpose of obtaining approval. Landlord shall then submit to
Tenant, for Tenant's approval, a redesign of the Final Plans, incorporating the
revisions required by Tenant and such modifications thereof as are suggested by
Landlord.
2.3 Tenant acknowledges that, unless specifically shown as
Landlord's responsibility on the Final Plans, the Tenant Improvements shall not
include, nor shall Landlord be responsible for the design, construction or
installation of, various nonstructural items which Tenant may find desirable for
the Premises including, without limitation, furniture, trade fixtures, office
equipment, telephone and communication systems and equipment, plantscaping,
artwork or cabling required in connection with any of these items.
Notwithstanding the fact that Landlord's architect has prepared the Schematic
Space Plans and Final Plans, Tenant shall be solely responsible for the function
of such plans. A list of standard improvements for space within the Building
("Building Standards") is available to Tenant upon request. All Tenant
Improvements shall be of equal or greater quality than the Building Standards;
provided that
D-4
Tenant shall be required to utilize Building Standard window blinds, ceiling
systems and light fixtures (and not to utilize any different albeit greater
quality).
2.4 Tenant shall cooperate with Landlord in obtaining approval of
the Final Plans by all governmental agencies having jurisdiction.
2.5 Landlord shall cause its architect to provide documentation
for all changes to the Final Plans at the time each change is authorized for
construction.
3. Allowance for Work and Work Cost.
3.1 Tenant shall receive from Landlord the Allowance as specified in the
Lease, which Allowance shall be used solely for "Work Costs" (as that term is
defined in Section 3.2 below). On or before the 5th day of each calendar month,
or as otherwise mutually agreed between Landlord and Tenant, during the
construction of the Tenant Improvements, Tenant shall deliver to Landlord: (i) a
request for payment of the Tenant's general contractor ("Contractor") approved
by Tenant, in a form to be provided by Landlord, showing the schedule, by trade,
of percentage of completion of the Tenant Improvements in the Premises,
detailing the portion of the Tenant Improvements completed and the portion not
completed; (ii) invoices from the Contractor and any applicable subcontractors
or material suppliers (collectively, "Tenant's Agents") for labor rendered and
materials delivered to the Premises; (iii) executed mechanic's lien releases
from all of Tenant's Agents in acceptable form; and (iv) all other information
reasonably requested by Landlord. Thereafter, Landlord shall deliver a check to
Contractor and/or Tenant's Agents (as applicable) in payment of the lesser of:
(A) the amounts so requested by Tenant less a ten percent (10%) retention (the
aggregate amount of such retentions to be known as the "Final Retention"), and
(B) the balance of any remaining available portion of the Allowance (not
including the Final Retention), provided that Landlord does not dispute any
request for payment based on non-compliance of any Tenant Improvements with the
Final Plans or due to any substandard work.
Subject to the provisions hereof, a check for the Final Retention payable
to Contractor and/or Tenant's Agents (as applicable) shall be delivered by
Landlord to Tenant following the substantial completion of construction of the
Tenant Improvements, provided that (i) Tenant delivers to Landlord properly
executed mechanics lien releases, (ii) Landlord has determined that no
substandard Tenant Improvements exist which adversely affects the mechanical,
electrical, plumbing, heating, ventilating, and air conditioning, life-safety or
other systems of the Building, (iii) Landlord's architect delivers to Landlord a
certificate, certifying that the construction of the Tenant Improvements in the
Premises has been substantially completed and the City of Las Vegas has issued a
certificate of occupancy or its equivalent, and (iv) Tenant has commenced
business operations in the Premises.
All Tenant Improvements (unless otherwise agreed to in writing by the
Parties), whether or not the cost thereof is covered by the Allowance, shall
become the property of Landlord upon expiration or earlier termination of the
Lease and shall remain on the Premises at all times during the Lease Term.
Tenant shall be entitled to no other payment or rent reduction for any part of
the Allowance not utilized by Tenant.
3.2 As used herein, "Work Costs" mean (i) all fees and expenses incurred
by Landlord and Tenant in connection with the design and construction of the
Tenant Improvements, including, without limitation, engineering fees for the
review of the Schematic Space Plans and Final Plans; (ii) the actual contractor
costs and charges for material and labor, contractor's profit, overhead and
general conditions incurred by Landlord or Tenant in having the Tenant
Improvements constructed in accordance with the Final Plans; (iii) governmental
agency plan check, permit and other fees and sales and use taxes; (iv) testing
and inspection costs; (v) any paint touch-up or repair work necessary due to
Tenant's move into the Premises; (vi) all other costs expended or to be expended
by Landlord or Tenant in the construction of the Tenant Improvements mini-blinds
within the Premises, fluorescent light fixtures, air balancing, and other
pre-stocked materials; and (vii) a fee to be paid to Landlord equal to three
percent (3%) of all Work Costs for coordination and supervision by Landlord of
construction of the Tenant Improvements.
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3.3 The parties acknowledge that Landlord has "pre-stocked" certain
Building Standards improvement items for use in the Building, which items must
be used by Tenant for construction of the Tenant Improvements.
3.4 If the Final Plans or any amendment thereof or supplement thereto
shall require changes in the Base Building Improvements, the increased cost of
the Base Building Improvements caused by such changes shall be charged as a Work
Cost. The cost thereof shall include all direct architectural and/or engineering
fees and expenses in connection therewith.
3.5 In the event that the cost to construct the Tenant Improvements
exceeds the Allowance, Tenant shall pay one hundred percent (100%) of such
excess.
3.6 Any changes to the approved Final Plans ("Changes") which are
requested by Tenant or required by any governmental agency shall be forwarded to
Landlord for approval which shall not be unreasonably withheld or delayed.
4. Construction.
4.1 At any time after Landlord has approved the Final Plans and receipt
by Landlord and Tenant of all relevant governmental agency approvals and permits
for the Tenant Improvements, Tenant shall cause its general contractor ("General
Contractor") to commence the construction of the Tenant Improvements, which
General Contractor shall be subject to Landlord's reasonable approval. The
General Contractor shall have the right to cause all or any portion of such work
to be performed by one or more subcontractors.
4.2 In connection with the construction of the Tenant Improvements, each
party shall be entitled to rely upon the other party's construction
representative who shall be as follows: Landlord's construction representatives
("Landlord's Construction Representative"): Bill Renken, through completion of
the Final Plans and thereafter Jeff Eloi, Tenant's construction representative
("Tenant's Construction Representative"): ________________[TO BE DESIGNATED
PRIOR TO EXECUTION]. Each respective construction representative shall have the
authority to make binding commitments relative to the Tenant Improvements on
behalf of the party appointing such construction representative. All inquiries
of Tenant pertaining to construction of the Tenant Improvements shall be
directed in writing to Landlord's Construction Representative. A party may
designate a substitute construction representative by giving written notice to
the other party at any time. Any representatives of Tenant who desires to visit
the Premises during construction of the Tenant Improvements must obtain the
prior consent of Landlord and the General Contractor.
4.3 Prior to the commencement of the Tenant Improvements, Tenant shall
deliver to Landlord certificates issued by insurance companies qualified to do
business in Nevada evidencing that workmen's compensation, public liability
insurance, and property damage insurance and property damage insurance, all in
amounts, with companies, and on forms which comply with the insurance
requirements set forth in the Lease, are in force and maintained by the General
Contractor. All such policies shall name Landlord as an additional insured and
shall provide that the same may not be canceled or modified without thirty (30)
days' prior notice to Landlord.
4.4 Tenant, at its sole cost and expense, except for Landlord's
obligation to pay the Allowance, shall cause the Tenant Improvements to be
performed in material compliance with all applicable requirements of insurance
bodies having jurisdiction, and in such manner as not to unreasonably interfere
with any other tenants of the Building or unreasonably interfere with, delay, or
impose any additional expense upon Landlord in the construction, maintenance, or
operation of the Building, and so as to maintain harmonious labor relations in
the Building; provided, however, that Tenant shall in no event be required to
utilize union labor to construct any Tenant Improvements.
4.5 Tenant and the General Contractor (and, its authorized agents,
employees and sub-contractors) shall have the right to enter and access the
Premises prior to the Commencement Date, for the sole purpose of constructing
the Tenant Improvements. Any entry by or on behalf of Tenant shall
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be subject to the Rules and Regulations and any such other reasonable rules,
regulations, standards and conditions as Landlord may impose.
4.6 Tenant agrees to indemnify, hold harmless and defend Landlord and
the Building from any liability or damages and Landlord from any claim,
liability, loss, damage, cost or expense, including reasonable attorneys' fees
which Landlord may incur in connection with the construction of the Tenant
Improvements in excess of the any unpaid portion of the Allowance. Tenant agrees
not to permit or suffer and, to the extent so permitted or suffered, to cause to
be removed (which removal may be accomplished by posting a bond) and released
within thirty (30) days after Tenant's receipt of notice of the filing thereof,
any mechanic's, materialman's or other lien on account of supplies, machinery,
tools, equipment, labor or materials furnished or used in connection with the
construction of the Tenant Improvements in excess of any unpaid portion of the
Allowance.
4.7 Tenant shall cause the General Contractor to keep the Premises and
the Building free from accumulations of waste materials, rubbish, and other
debris resulting from the work, and at the completion of the work the Tenant
shall cause the General Contractor to remove all waste materials, rubbish and
debris from and about the Building as well as all tools, construction equipment
and machinery, and surplus materials, and will leave the Building clean. Tenant
shall, at its sole cost and expense, restore, to their original condition, those
portions of the Building not designated for alteration by the contract
documents.
4.8 Tenant shall cause the General Contractor to use only new materials,
or used fixtures and equipment which are in good operating condition and
complete all work with good quality workmanship free from faults or defects.
5. Miscellaneous. Any default by Tenant under the terms of this Work Letter
shall constitute a default under the Lease and shall entitle Landlord to
exercise all remedies set forth therein. Both Landlord and Tenant agree to use
reasonable diligence in performing all of their respective obligations and
duties under this Work Letter and in proceeding with the construction and
completion of the Building and all Tenant Improvements in the Premises.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Work Letter
Agreement (which may be in multiple original counterparts) as of the day and
year first above written.
LANDLORD: TENANT:
INTOWN OFFICE, LLC, Community Bank of Nevada
a Nevada limited liability company
By: Clark NV Realty, LLC, a Delaware
limited liability company, Member By: /s/ Edward M. Jamison
By: Orange County Equities, Limited, --------------------------
Member Print Name: EDWARD M. JAMISON
Print Title: PRES/CEO
By: /s/ B. Bradford Barrett
------------------------------
B. Bradford Barrett, President
|
By: Pauls Equities, LLC, a Colorado
limited liability company, Member
By: /s/ Paul Powers
------------------------------
Paul Powers, President
|
D-7
EXHIBIT "E"
CITY CENTRE PLACE
BUILDING RULES AND REGULATIONS
1. Tenant, or its officers, agents, employees, contractors or vendors, shall
not obstruct sidewalks, doorways, vestibules, halls, corridors, stairways,
lobbies and other common areas (the "Public Areas") with refuse, furniture,
boxes, or other items. The Public Areas shall not be used for any purpose other
than ingress and egress to and from the Premises, or for going from one part of
the Building to another part of the Building. Tenant's doors to the Premises
shall not be blocked open and shall remain closed at all times unless first
approved in writing by Landlord in its sole discretion.
2. Plumbing, fixtures and appliances shall be used only for the purposes for
which constructed, and no unsuitable material shall be placed therein.
3. Except for those specific sign rights granted by Article 10 of the Lease,
no signs, directories, posters, advertisements, or notices shall be painted on
or affixed to any portion of the Building or Premises or other parts of the
Building or within Tenant's Premises which are visible from any Public Areas or
the Building exterior, except in such color, size, and style, and in such
places, as shall be first approved in writing by Landlord in its sole
discretion. The Premises shall be identified by a standard suite sign which
Landlord shall order at Tenant's expense. Landlord shall have the right to
remove all unapproved signs without notice to Tenant, at Tenant's expense.
Landlord shall include one listing (or more at Landlord's sole discretion) for
Tenant on its directory of Tenants.
4. Tenant shall not do, or permit anything to be done in or about the
Building, or bring or keep anything therein, that will in any way increase the
possibility of fire or other hazard or increase rate of fire or other insurance
on the Building. Tenant shall not use or keep in the Building any inflammable or
explosive fluid or substance or any illuminating materials. No space heaters or
portable fans shall be operated in the Building. Tenant must submit to Landlord
a certificate of Fire Retardancy for any fresh evergreens (i.e. Christmas tree,
wreaths) to be brought onto the Premises.
5. Tenant shall notify Landlord when safes or other heavy equipment are to be
taken in or out of the Building, and such moving shall only be done after
written permission is obtained from Landlord on such conditions as Landlord may
require in its sole discretion. Landlord shall have the power to prescribe the
weight and position of heavy equipment or other objects which may overstress any
portion of the Building. All damage done to the Building by such heavy items
will be repaired at the sole expense of the responsible Tenant.
6. During normal business hours, Tenant may receive routine deliveries at the
Premises (i.e. office supplies, bottled water, mail couriers and parcel
shipments). All such deliveries must be made via the Building's designated
service access route and under no circumstances through the front lobby door.
Tenant's initial move-in, move-out and all other non-routine deliveries (i.e.
furnishings, large equipment) must occur after normal business hours and only
after written permission is obtained from Landlord, on such conditions as
Landlord may require in its sole discretion. During all non-business hours
(i.e., evenings, weekends, and holidays) when the Premises are not in use,
Tenant shall maintain all window blinds in a down position.
7. Tenant shall cooperate with Landlord in keeping the Premises neat and
clean.
8. Tenant shall not cause or permit any improper noises in the Building, or
allow any unpleasant odors to emanate from the Premises, or otherwise interfere,
injure or annoy in any way other tenants in the Building, or persons having
business with them.
9. No animals shall be brought into or kept in or about the Building, with
the exception of seeing eye dogs.
E-1
10. When conditions are such that Tenant must dispose of small shipping crates
or boxes, it will be the responsibility of Tenant to break down and dispose of
same in the refuse container designated by Landlord. The disposal of large
shipping crates or boxes (or other large objects or quantities), which in
Landlord's sole determination could overload the designated refuse container,
must be accommodated through Tenant's mover or vendor or may otherwise be
prearranged through Landlord at an additional charge to Tenant's account.
11. No machinery of any kind, other than ordinary office machines such as
typewriters, calculators, facsimile equipment and personal computer equipment
shall be operated on the Premises unless first approved in writing by Landlord
in its sole discretion.
12. No bicycles, motorcycles or similar vehicles will be allowed in the
Building.
13. No nails, hooks, or screws shall be driven into or inserted in any part of
the Building unless first approved in writing by Landlord in its sole
discretion.
14. After normal business hours, Landlord reserves the right to exclude from
the Building any person who does not possess an authorized means of access such
as a key, card key, or a prearranged written authorization and who is otherwise
not an employee or guest of Tenant. Tenant and its officers, agents or employees
shall utilize card keys only as instructed by Landlord and in no event shall
Tenant allow access to anyone, other than its officers, agents, employees,
guests or vendors.
15. Canvassing, soliciting and peddling in Public Areas, or otherwise within
the Building, are strictly prohibited. Unless otherwise approved by Landlord in
writing, Tenant shall not use the Premises for the sale of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to
other tenants in the Building or the general public. Tenant shall not use the
Premises for any business or activity other than that specifically provided for
in Tenant's lease. Tenant shall not make door-to-door solicitation of business
from other tenants in the Building.
16. Tenant shall initially be given two (2) keys to the Premises by Landlord.
No duplicates of such keys shall be made by Tenant. Additional keys shall be
obtained only from Landlord, at a reasonable fee to be determined by Landlord
and that the fee will in no event exceed Landlord's cost thereof by more than
$10 per key copy. No additional locks shall be placed upon any doors
unless first approved by Landlord in writing. Upon termination of Tenant's
lease, Tenant shall surrender all keys to the Premises (and, if applicable, card
keys) to Landlord and shall otherwise give Landlord the combination of all locks
on the Premises.
17. Tenant will not locate furnishings or cabinets adjacent to mechanical or
electrical access panels or over air conditioning outlets so as to prevent
operating personnel from servicing such units as routine or emergency access may
require. Cost of moving such furnishings for Landlord's access will be billed to
Tenant. The lighting and air conditioning equipment of the Building is the
exclusive charge of Landlord and its employees.
18. Tenant shall comply with all parking rules and regulations as posted and
distributed by Landlord from time to time.
19. No portion of the Building shall be used for the purpose of lodging rooms.
20. Tenant shall not waste electricity, water or other utilities. Tenant will
comply with any governmental energy-saving rules, laws or regulations of which
Tenant has received notice. Tenant agrees to cooperate fully with Landlord to
assure the effective operation of the Building's heating and air conditioning
and to refrain from adjusting thermostat controls.
21. Vending machines or dispensing machines of any kind shall not be placed in
the Premises by Tenant, unless first approved in writing by Landlord in its sole
discretion.
22. Landlord's written approval, which shall be at Landlord's sole discretion,
must be obtained prior to changing from the standard blinds. Landlord will
control all blinds and internal lighting that may be visible
E-2
from the exterior or Public Areas of the Building and shall have the right to
change any unapproved blinds and lighting at Tenant's expense.
23. Tenant shall not make any changes or alterations to any portion of the
Building without Landlord's prior written approval, which may be given on such
conditions as Landlord may require in its sole discretion. All such work shall
be done by Landlord or by Landlord's contractors and/or workers approved by
Landlord, who must work under Landlord's supervision and within Landlord's
standards and guidelines.
24. Tenant shall not use the name of the Building in connection with or in
promoting or advertising the business of Tenant except as Tenant's address
including its address on stationery, brochures and advertising materials,
without Landlord's prior written approval, which may be given on such conditions
as Landlord may require in its sole discretion.
25. Tenant shall comply with all safety, fire protection, and evacuation
procedures and regulations established by Landlord or any governmental agency.
Landlord has the right to evacuate the Building in the event of an emergency or
catastrophe. Landlord reserves the right to prevent access to the Building in
cases of invasion, mob, riot, bomb threat, public excitement or other commotion
by closing the doors or by taking other appropriate action.
26. Tenant assumes any and all responsibility for protecting the Premises from
theft, robbery and pilferage, which includes keeping doors locked when the
Premises are not fully inhabited.
27. Smoking shall not be permitted in Common Areas throughout the Building,
including lobbies, hallways, restrooms and stairwells. Smoking is permitted
outside the Building; however, smokers must utilize the ash urns which are
located outside the Building.
28. Landlord has the right to designate a property management company to,
among other things, monitor and enforce the Rules and Regulations.
29. Tenant is solely responsible for the cost to maintain and repair any and
all "Above Standard" items installed within their Premises (i.e., computer room
air conditioning unit, sinks, garbage disposals, dishwashers, custom locking
devices, specialty lighting, private restroom fixtures, etc.).
30. Landlord reserves the right to rescind any of these rules and regulations
and to make such other and further rules and regulations as in its sole judgment
shall from time to time be required for the successful and professional
operation of the Building, which rules shall be binding upon each tenant and its
officers, agents, employees, guests and vendors upon delivery to tenant.
E-3
EXHIBIT "F"
CITY CENTRE PLACE
COMMENCEMENT MEMORANDUM
Community Bank of Nevada
Re: COMMENCEMENT MEMORANDUM
Dear________________:
With reference to that certain lease (the "Lease"), dated _______________
______________, 20_______, between INTOWN OFFICE, LLC, a Nevada limited
liability company ("Landlord"), and Community Bank of Nevada, a
_____________________________ ("Tenant"), you are hereby notified of the
following. All capitalized terms not otherwise defined herein shall have the
same meaning as set forth in the Lease.
1. By execution hereof, you acknowledge and agree that all improvements or
other work required of us has been satisfactorily performed and you hereby
accept the Premises in full compliance with the terms and conditions of the
Lease.
2. The Commencement Date of the Lease was _______, and the Lease will expire
at midnight, 20_____, if not extended or renewed or terminated earlier pursuant
to the Lease.
3. The Premises consist of ______(________) square feet of Rentable Area and
________________(_______) square feet of Usable Area.
4. The prorated amount of Base Rent and Additional Rent for Operating
Expenses for the partial month of _________ is $______________ and $___________,
respectively.
5. The amount of Base Rent and Additional Rent for Operating Expenses for the
first full month is $ and $________, respectively.
6. On ______, 20__, you deposited with us a security deposit in the amount of
_______________ Dollars ($_________).
7. Pursuant to Exhibit "J" of the Lease, you have the right to renew the term
of the Lease for ____ (______) additional term of ______________ (______) years.
The Second Lease Term shall commence on _____, 20_____, provided Tenant gives
Landlord written notice on or before ____________, 20_____, in accordance with
the terms of the Lease.
8. Pursuant to Exhibit "K" of the Lease, you have under certain conditions a
restricted right to expand the Rentable Area of the Premises to ____________
thousand (_____) square feet of contiguous rentable area adjacent to the
Premises located on the _________(___th) floor of the Building.
///
///
///
Except as may be amended herein, all terms and conditions of the Lease
shall continue in full force and effect and are hereby republished, ratified,
and reaffirmed in their entirety. This Commencement Memorandum shall be binding
upon and may be relied upon by the parties hereto and their respective legal
representatives, successors, and assigns.
Very truly yours,
F-1
INTOWN OFFICE, LLC,
a Nevada limited liability company
By: Clark NV Realty, LLC, a Delaware
limited liability company, Member
By: Orange County Equities, Limited,
Member
By: _______________________________
B. Bradford Barrett, President
Acknowledged and agreed to By: Pauls Equities, LLC, a Colorado
this___ day of______, 20___, by limited liability company
Community Bank of Nevada
By: ___________________________
Paul Powers, President
By:______________________________
Print Name:______________________
Print Title:_____________________
|
F-2
EXHIBIT "G"
CITY CENTRE PLACE
GUARANTY OF LEASE
Not Applicable
G-1
EXHIBIT "H"
CITY CENTRE PLACE
ESTOPPEL CERTIFICATE
With reference to that certain lease (the "Lease"), dated_______________,
20____, between INTOWN OFFICE, LLC, a Nevada limited liability company
("Landlord") and_____________________________ Community Bank of Nevada,
a___________________("Tenant"), you are hereby notified of the following. All
capitalized terms not otherwise defined herein shall have the same meaning as
set forth in the Lease.
The undersigned Tenant certifies as follows to Landlord, its actual and
prospective assignees and lenders, and all actual and prospective purchasers of
the Building (each of whom is irrevocably entitled to rely on this Estoppel
Certificate):
1. A true, correct, and complete copy of the Lease (including all riders,
attachments, amendments, and/or exhibits thereto) is attached to this instrument
as Attachment 1 and represents the entire agreement between the Landlord and
Tenant relating to the Premises. There are no oral or other written agreements
between Landlord and Tenant relating to the Premises or the transaction
contemplated by the Lease.
2. Tenant has accepted possession of the Demised Premises under the Lease,
and the term of the Lease commenced on________, 20__ and will expire on_______,
__.
3. By the terms of the Lease, Tenant is presently obligated to pay, without
present right of defense or offset, monthly base rent of $__________________.
Additionally, Tenant is to reimburse Landlord for ______________________. Tenant
has no claim against Landlord for any rent paid more than thirty (30) days in
advance or any deposits or other sums other than_________.
4. Any improvements contemplated by the Lease have been completed in their
entirety in accordance with the terms of the Lease, except for _____.
5. The address for notice to Tenant under the Lease is correct as of the date
hereof.
6. Tenant has no right of first refusal, option, or other right to purchase
the Premises or any part thereof, including, without limitation, the Premises.
7. The execution of the Lease was duly authorized by Tenant, is in full force
and effect, and is valid, binding, and enforceable against Tenant in accordance
with its terms. There exists no default, nor state of facts which with notice,
the passage of time, or both, could mature into a default on the part of either
Tenant or Landlord.
8. There has not been filed by or against nor, to Tenant's best knowledge
and belief, is there threatened against or contemplated by Tenant, a petition in
bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors,
any petition seeking reorganization or arrangement under the bankruptcy laws of
the United States or any state thereof, or any other action brought under said
bankruptcy laws.
9. Tenant has obtained all necessary governmental licenses and permits
required to lawfully conduct its business at the Premises, including, but not
limited to, business, department of health, and safety licenses or permits.
10. Tenant has not assigned or otherwise transferred its interest in the Lease
to any party or sublet any portion of the Premises.
11. Pursuant to the Lease, Tenant has deposited with Landlord a security
deposit in the amount of Dollars ($____________).
H-1
12. By the terms of the Lease, Tenant has the option to renew the Lease for an
additional lease term beginning on the day next following the expiration date of
the Lease Term and continuing for five years thereafter. Further, Tenant has the
option to renew the Lease for a second additional lease term beginning on the
day next following the expiration date of the first extension term and
continuing for five years thereafter.
13. By the terms of the Lease, Tenant has under certain conditions a
restricted right of opportunity to expand the Rentable Area of the Premises to
thousand ( ) square feet of rentable area adjacent to the Premises located
on the first floor of the Building.
Except as may be amended herein, all terms and conditions of the Lease
shall continue in full force and effect and are hereby republished, ratified,
and reaffirmed in their entirety. This Certificate shall be binding upon and may
be relied upon by the parties hereto and their respective legal representatives,
successors, and assigns.
IN WITNESS WHEREOF, the parties have executed this Certificate as of the
day and year first above written.
LANDLORD: TENANT:
INTOWN OFFICE, LLC, Community Bank of Nevada
a Nevada limited liability company
By: Clark NV Realty, LLC, a Delaware
limited liability company, Member By:_________________________
By: Orange County Equities, Limited, Print Name:_________________
Member Print Title:________________
By:______________________________ ATTEST:
B. Bradford Barrett, President
By: Pauls Equities, LLC, a Colorado Title:______________________
limited liability company, Member
By:_______________________________________
Paul Powers, President
STATE OF____________________)
) ss.
COUNTY OF___________________)
|
This instrument was acknowledged before me on_____________, 20___by B.
BRADFORD BARRETT, President of Orange County Equities, Limited, Member of Clark
NV Realty, LLC, a Delaware limited liability company, Member of INTOWN OFFICE,
LLC, a Nevada limited liability company.
(Signature of Notarial Officer)
(Seal, if any) (My Commission Expires_____________)
STATE OF____________________)
H-2
) ss.
COUNTY OF___________________)
This instrument was acknowledged before me on ___________, 20___ by Paul
Powers, President of Pauls Equities, LLC, a Colorado limited liability company,
Member of INTOWN OFFICE, LLC, a Nevada limited liability company.
(Signature of Notarial Officer)
(Seal, if any) (My Commission Expires_____________________)
STATE OF____________________)
) ss.
COUNTY OF___________________)
This instrument was acknowledged before me on __________, 20___
by __________________________ as _________________ of __________________.
(Signature of Notarial Officer)
(Seal, if any) (My Commission Expires ________________)
H-3
ATTACHMENT 1
TO EXHIBIT "H"
CITY CENTRE PLACE
LEASE AGREEMENT
H-4
EXHIBIT"I"
CITY CENTRE PLACE
SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT (this
"Agreement") is made this________ day of _________________, 20______, by and
among _______________________(collectively with its assignee(s), "Lender"),
INTOWN OFFICE, LLC, a Nevada limited liability company ("Landlord"), and
COMMUNITY BANK OF NEVADA ("Tenant") with respect to (i) that certain Lease
Agreement dated__________________________(the "Lease," and the premises subject
thereto, the "Premises") made by and between Landlord and Tenant; and (ii) the
loan or proposed loan (the "Loan") made or to be made by Lender and secured or
to be secured by a deed of trust and/or other security instrument(s) (the "Deed
of Trust") upon the real property which the Premises is situated on (the "Real
Property").
NOW, THEREFORE, the parties agree as follows:
1. Subordination. The Lease, all renewals or modifications thereto, and all
of Tenant's rights thereunder, shall be subordinate to the rights of the Lender
under the Deed of Trust.
2. Attornment. Tenant shall attorn to and recognize any purchaser at a
foreclosure sale under the Deed of Trust, any transferee who acquired the Real
Property by deed in lieu of foreclosure, and the successors and assigns of such
purchaser, as its landlord for the unexpired balance (and any extensions, if
exercised) of the Lease, on the same terms and conditions as are set forth in
the Lease.
3. Non-Disturbance. If it becomes necessary to foreclose the Deed of Trust,
or if a purchaser or other transferee acquires the Real Property in accordance
with Paragraph 2, the Lease shall remain in full force and effect and neither
Lender nor such other transferee shall terminate the Lease, nor interfere with,
abridge, or limit Tenant's use, possession, or enjoyment of the Premises or any
of Tenant's rights and privileges under the Lease, nor join Tenant in summary or
foreclosure proceedings. The preceding sentence shall apply only so long as
Tenant is not in default under any of the terms, covenants, or conditions of the
Lease beyond any applicable grace or cure period.
4. Effects of Succession of Lender to Landlord's Interest in the Real
Property. If Lender succeeds to the interest of Landlord under the Lease, Lender
shall not be: (i) liable for any act or omission of any prior landlord
(including Landlord); (ii) liable for the return of any security deposit unless
such deposit has been delivered to Lender by Landlord or is in an escrow fund
available to Lender; (iii) subject to any offsets or defenses that Tenant might
have against any prior landlord (including Landlord); (iv) bound by any rent or
additional rent that Tenant might have paid for more than the current month to
any prior landlord (including Landlord); (v) bound by any amendment,
modification, or termination of the Lease made without Lender's consent; or (vi)
bound by any termination of the Lease given by Landlord to Tenant without
Lender's prior written consent, except for any option originally granted to
Tenant in the Lease to terminate all or any portion of the Lease.
5. Payments by Tenant Upon Landlord Default. Landlord has agreed under the
Deed of Trust and other documents pertaining to the Loan that rentals payable
under the Lease shall be paid directly by Tenant to Lender upon default by
Landlord under the Deed of Trust. After receipt of notice from Lender to Tenant
that rentals under the Lease shall be paid to Lender, Tenant shall pay to
Lender, or at the direction of Lender, all monies due or to become due to
Landlord under the Lease. Tenant shall have no responsibility to ascertain
whether such demand by Lender is permitted under the Deed of Trust, or to
inquire into the existence of a default. Landlord hereby waives any right,
claim, or demand it may now have or hereafter have against Tenant by reason of
such payment to Lender, and any such payment shall discharge the obligation of
Tenant to make such payment to Landlord, and Tenant shall make such payment
notwithstanding any claim from Landlord that no default by Landlord exists.
Lender shall defend, indemnify, and save Tenant harmless from any claims,
losses, expenses, or liabilities (including reasonable attorney fees and other
costs of defense) asserted by Landlord arising out of Tenant's complying with
Lender's instructions under this Paragraph.
I-1
STATE OF____________________)
) ss.
COUNTY OF___________________)
This instrument was acknowledged before me on _____________, 20________ by
B. BRADFORD BARRETT, President of Orange County Equities, Limited, Member of
Clark NV Realty, LLC, a Delaware limited liability company, Member of INTOWN
OFFICE, LLC, a Nevada limited liability company.
(Signature of Notarial Officer)
(Seal, if any) (My Commission Expires____________________)
STATE OF____________________)
) ss.
COUNTY OF___________________)
This instrument was acknowledged before me on _________, 20____ by Paul
Powers, President of Pauls Equities, LLC, a Colorado limited liability company,
Member of INTOWN OFFICE, LLC, a Nevada limited liability company.
(Signature of Notarial Officer)
(Seal, if any) (My Commission Expires____________________)
STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
|
This instrument was acknowledged before me on 4-3-02 by Edward M. Jamison
as President of Community Bank of Nevada.
/s/ Sharon M. Karr
------------------------------------------
(Signature of Notarial Officer)
(Seal, if any) (My Commission Expires Aug. 12, 2005)
|
NOTARY PUBLIC
STATE OF NEVADA
[SEAL] County of Clark
SHARON M. KARR
Appt. No. 97-3291-1
|
My Appt. Expires Aug. 12, 2005
I-3
EXHIBIT "J"
CITY CENTRE PLACE
OPTION AGREEMENT
THIS OPTION AGREEMENT TO LEASE is attached to the Lease between INTOWN
OFFICE, LLC, a Nevada limited liability company (the "Landlord") and COMMUNITY
BANK OF NEVADA (the "Tenant").
Tenant shall have the following option (the "Option") to renew this Lease:
1. Subject to Section 2 below, Tenant may, by notifying Landlord of its
election in writing ("Extension Notice") at least twelve (12) months prior to
the end of the Lease Term, renew this Lease for one (1) additional lease term
(the "Second Lease Term") beginning on the day next following the expiration
date of the Lease Term and continuing for five years. Further, subject to
Section 2 below, Tenant may, by notifying Landlord of its election in writing
("Extension Notice") at least twelve (12) months prior to the end of the Second
Lease Term, renew this Lease for another additional lease term (the "Third Lease
Term") beginning on the day next following the expiration date of the Second
Lease Term and continuing for five years. Such renewals shall be on all of the
terms and conditions of this Lease which are not inconsistent herewith, except
that the rentals payable during the Second Lease Term and the Third Lease Term
shall be at the existing fair market rental (the "Fair Market Rate") of
comparable space (with the first floor space compared to similarly situated
first floor highly visible retail space and the second floor space compared to
similarly situated office space) as of the date of renewal, but not less than
the Base Rent, including adjustments to Base Rent, payable with respect to the
final year of the Lease Term.
2. The Fair Market Rate for the Premises shall be the then going rate for
comparable space in the Building as determined by Landlord in good faith but in
its sole discretion. Landlord shall notify Tenant of Landlord's good faith
determination of the prevailing Fair Market Rate no later than ten (10) months
prior to the end of the Lease Term or Second Lease Term as applicable. No later
than one (1) month after Landlord notifies Tenant of the prevailing Fair Market
Rate, Tenant shall notify Landlord whether Tenant accepts Landlord's
determination. If Tenant fails to so notify Landlord, Tenant will be deemed
conclusively to have accepted Landlord's determination. If Tenant does not
accept Landlord's determination (and if Tenant is not deemed to have accepted
Landlord's determination), then Tenant's election to exercise the Option shall
be deemed to be rescinded, Tenant shall have no further rights under the Option,
and the Lease shall expire on the original date that the Lease Term was to
expire.
J-1
FIRST AMENDMENT TO
CITY CENTRE PLACE LEASE AGREEMENT
THIS FIRST AMENDMENT TO CITY CENTRE PLACE LEASE AGREEMENT (this
"Amendment") is entered into as of this 3rd day of October, 2002 ("EFFECTIVE
DATE"), by and between INTOWN OFFICE, LLC, a Nevada limited liability company
("Landlord") and COMMUNITY BANK OF NEVADA, ("Tenant").
WITNESSETH
WHEREAS, COMMUNITY BANK OF NEVADA and the Landlord entered into a Lease
Agreement, dated effective April 5, 2002 in the office building owned by
Landlord known as City Centre Place and located at 400 S. Fourth Street, Las
Vegas, Nevada ("Building") which Premises and Building are more particularly
described in the Lease;
WHEREAS, Tenant desires to lease ONE (1) additional parking space, and
Landlord and Tenant have agreed to amend the lease to reflect the addition of
the parking spaces, and otherwise amend the Lease in accordance with the terms
and conditions of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
Tenant and Landlord agree as follows:
1. TERMS. All capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease, unless otherwise defined herein or
the context hereof provides to the contrary.
2. PARKING AGREEMENT. The Parking Agreement attached to the Lease as
Exhibit C is hereby amended to provide that Tenant shall be entitled to use: 11
Unreserved Parking spaces; 6 spaces in the grade level Designated Guest Parking
spaces: and 8 Designated Executive Parking space. All such spaces shall be
subject to the remaining terms and conditions of the Parking Agreement,
including the obligation to pay the stated monthly rent for each of the spaces.
3. RATIFICATION OF LEASE. Except as expressly amended by this
Amendment, the Lease and the Parking Agreement is hereby ratified in its
entirety and shall remain in full force and effect. All references to "Lease" in
the Lease shall be deemed to refer to the Lease as amended by this Amendment,
and as the same may be further amended in writing from time to time. In the
event of a conflict between the terms and conditions of the Lease or the Parking
Agreement and the terms and conditions of this Amendment, this Amendment shall
prevail and be controlling.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Lease Agreement effective as of the date first set forth above.
1
LANDLORD: TENANT:
INTOWN OFFICE, LLC, COMMUNITY BANK OF NEVADA
a Nevada limited liability company
By: Clark NV Realty, LLC, a Delaware
limited liability company, Member By: /s/ Edward M. Jamison
By: Orange County Equities, Limited, ----------------------------
Member
Print Name:_____________________
Print Title:____________________
By: /s/ B. Bradford Barrett
------------------------------
B. Bradford Barrett, President
By: Pauls Equities, LLC, a Colorado
limited liability company, Member
By: /s/ Paul Powers
--------------------------------------
Paul Powers, President
|
2
SECOND AMENDMENT TO
CITY CENTRE PLACE LEASE AGREEMENT
THIS SECOND AMENDMENT TO CITY CENTRE PLACE LEASE AGREEMENT (this
"Amendment") is entered into as of this 1st day of February, 2004 ("EFFECTIVE
DATE"), by and between INTOWN OFFICE, LLC, a Nevada limited liability company
("Landlord") and COMMUNITY BANK OF NEVADA, ("Tenant").
WITNESSETH
WHEREAS, COMMUNITY BANK OF NEVADA and the Landlord entered into a Lease
Agreement, dated effective April 5, 2002 and First Amendment, dated effective
October 3, 2002, in the office building owned by Landlord known as City Centre
Place and located at 400 S. Fourth Street, Las Vegas, Nevada ("Building") which
Premises and Building are more particularly described in the Lease;
WHEREAS, Tenant desires to lease five (5) additional parking spaces and
change all of the Unreserved Parking Spaces to Executive Reserved Parking Space.
Landlord and Tenant have agreed to amend the lease to reflect the addition of
the parking spaces, and otherwise amend the Lease in accordance with the terms
and conditions of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
Tenant and Landlord agree as follows:
1. TERMS. All capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease, unless otherwise defined herein or
the context hereof provides to the contrary.
2. PARKING AGREEMENT. The Parking Agreement attached to the Lease as
Exhibit C is hereby amended to provide that Tenant shall be entitled to use: 0
Unreserved Parking spaces; 6 spaces in the grade level Designated Guest Parking
spaces: and 22 Designated Executive Parking space. Designated Guest Parking
Spaces are identified as numbers 9, 10, 11, 12, 13, and 14. Designated Executive
Parking Space are identified as numbers L31, L32, L33, L34, L35, L36, L37, L38,
L39, L40, L41, L42, L43, L44, L45, L48, L49, L50, L51, L52, L53, L54, L55, and
L56. All such spaces shall be subject to the remaining terms and conditions of
the Parking Agreement, including the obligation to pay Seventy Five Dollars and
No/100 ($75.50) per space per month for fourteen (14) spaces and One Hundred
Dollars and No/100 ($100.00) per space per month for the other fourteen (14)
spaces.
1
3. RATIFICATION OF LEASE. Except as expressly amended by this
Amendment, the Lease and the Parking Agreement is hereby ratified in its
entirety and shall remain in full force and effect. All references to "Lease" in
the Lease shall be deemed to refer to the Lease as amended by this Amendment,
and as the same may be further amended in writing from time to time. In the
event of a conflict between the terms and conditions of the Lease or the Parking
Agreement and the terms and conditions of this Amendment, this Amendment shall
prevail and be controlling.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Lease Agreement effective as of the date first set forth above.
LANDLORD: TENANT:
INTOWN OFFICE, LLC, COMMUNITY BANK OF NEVADA
a Nevada limited liability company
By: Clark NV Realty, LLC, a Delaware
limited liability company, Member By: /s/ Cathy Robinson
By: Orange County Equities, Limited, ----------------------------
Member
Print Name: Cathy Robinson
Print Title: CEO
By: /s/ B. Bradford Barrett
------------------------------
B. Bradford Barrett, President
By: Pauls Equities, LLC, a Colorado
limited liability company, Member
By: /s/ Paul Powers
----------------------------------
Paul Powers, President
|
2
THIRD AMENDMENT TO
CITY CENTRE PLACE LEASE AGREEMENT
THIS THIRD AMENDMENT TO CITY CENTRE PLACE LEASE AGREEMENT (this
"Amendment") is entered into as of this 1st day of April, 2004 ("EFFECTIVE
DATE"), by and between INTOWN OFFICE, LLC, a Nevada limited liability company
("Landlord") and COMMUNITY BANK OF NEVADA, ("Tenant").
WITNESSETH
WHEREAS, COMMUNITY BANK OF NEVADA and the Landlord entered into a Lease
Agreement, dated effective April 5, 2002, First Amendment, dated effective
October 3, 2002, and Second Amendment, dated effective February 1, 2004 in the
office building owned by Landlord known as City Centre Place and located at 400
S. Fourth Street, Las Vegas, Nevada ("Building") which Premises and Building are
more particularly described in the Lease;
WHEREAS, Tenant desires to lease three (3) Unreserved Parking Spaces.
Landlord and Tenant have agreed to amend the lease to reflect the addition of
the parking spaces, and otherwise amend the Lease in accordance with the terms
and conditions of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
Tenant and Landlord agree as follows:
1. TERMS. All capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease, unless otherwise defined herein or
the context hereof provides to the contrary.
2. PARKING AGREEMENT. The Parking Agreement attached to the Lease as
Exhibit C is hereby amended to provide that Tenant shall be entitled to use: 3
Unreserved Parking spaces; 6 spaces in the grade level Designated Guest Parking
spaces: and 24 Designated Executive Parking space. Designated Guest Parking
Spaces are identified as numbers 9, 10, 11, 12, 13, and 14. Designated Executive
Parking Space are identified as numbers L31, L32, L33, L34, L35, L36, L37, L38,
L39, L40, L41, L42, L43, L44, L45, L48, L49, L50, L51, L52, L53, L54, L55, and
L56. All such spaces shall be subject to the remaining terms and conditions of
the Parking Agreement, including the obligation to pay Seventy Five Dollars and
No/100 ($75.00) per space per month for nineteen (19) spaces and One Hundred
Dollars and No/100 ($100.00) per space per month for the other fourteen (14)
spaces.
1
3. RATIFICATION OF LEASE. Except as expressly amended by this
Amendment, the Lease and the Parking Agreement is hereby ratified in its
entirety and shall remain in full force and effect. All references to "Lease" in
the Lease shall be deemed to refer to the Lease as amended by this Amendment,
and as the same may be further amended in writing from time to time. In the
event of a conflict between the terms and conditions of the Lease or the Parking
Agreement and the terms and conditions of this Amendment, this Amendment shall
prevail and be controlling.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Lease Agreement effective as of the date first set forth above.
LANDLORD: TENANT:
INTOWN OFFICE, LLC, COMMUNITY BANK OF NEVADA
a Nevada limited liability company
By: Clark NV Realty, LLC, a Delaware
limited liability company, Member By: /s/ Cathy Robinson
By: Orange County Equities, Limited, ----------------------------
Member
Print Name: Cathy Robinson
Print Title: CEO
By: /s/ B. Bradford Barrett
------------------------------
B. Bradford Barrett, President
By: Pauls Equities, LLC, a Colorado
limited liability company, Member
By: /s/ Paul Powers
----------------------------------
Paul Powers, President
|
2
EXHIBIT 10.5
AGREEMENT FOR INFORMATION
TECHNOLOGY SERVICES
BETWEEN
COMMUNITY BANK OF NEVADA
AND
AURUM TECHNOLOGY INC.
AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES
THIS AGREEMENT ("Agreement") is between AURUM TECHNOLOGY INC. ("Aurum"), a
Delaware corporation with an address at 2701 West Plano Parkway, Suite 600,
Piano, Texas 75075, and COMMUNITY BANK OF NEVADA ("Customer"), a state chartered
bank with an address at 1400 South Rainbow Blvd., Las Vegas, NV 89102.
WHEREAS, Customer desires to purchase information technology services from
Aurum, and;
WHEREAS, Aurum is willing to provide such information technology services
to Customer all as set forth in this Agreement.
NOW, THEREFORE, Customer and Aurum hereby agree as follows:
ARTICLE I - DEFINITIONS
1.1 Definitions. In this Agreement:
(a) "Account Record" is an end-customer account (including, without
limitation, any open or closed DDA/checking account, savings
account, certificate of deposit account, or loan account) that is
maintained on the Aurum System during the applicable month.
(b) "Additional Services" are the Services described in Section 3.1(d).
(c) "Basic Services" are the Services listed in Schedule A.
(d) "Business Day" is each weekday, Monday through Friday, that is not a
holiday of Customer.
(e) "Conversion Services" are the Services described in Section 3.1(c).
(f) "Customer Systems" are the Systems listed in Schedule D to be
provided by Customer for use in conjunction with Aurum Systems.
(g) "Data Center" is the space at one or more locations where Aurum
performs Services, excluding Customer locations.
(h) "Aurum Systems" are all Systems, except for Systems provided by
Customer, used by Aurum to provide Services, including without
limitation any improvements, modifications, or enhancements made by
Aurum to any System and provided to Customer under this Agreement.
(i) "ECI" is the Employment Cost Index for Total Compensation (not
seasonally adjusted), Private Industry Workers, White Collar
Occupations Excluding Sales, June 1989 = 100 as published by
1
the Bureau of Labor Statistics of the U.S. Department of Labor. If
the Bureau of Labor Statistics stops publishing the ECI, the parties
will substitute another comparable measure published by a mutually
agreeable source. However, if such change is merely to redefine the
base period for the ECI from 1989 to some other period, the parties
will continue to use the ECI but will, if necessary, convert the two
ECI's being compared to the same basis by multiplying one of them by
the appropriate conversion factor.
(j) "Effective Date" is the date that this Agreement is executed by
Aurum pursuant to Section 9.10.
(k) "Equipment" is all telecommunications lines, modems, and other
equipment, including without limitation terminals, control units,
ports, logical units, and all related data transmission services
required by Aurum for Customer to access the Aurum Systems, transmit
data to Aurum, and receive reports and other output from Aurum.
(l) "Initial Term" is defined in Section 2.1.
(m) "Operational Date" is the later of (i) the Effective Date, or (ii)
the first day of the calendar month in which any Conversion Services
are completed and Customer has the capability to input transactions
or data for processing by Aurum.
(n) "Optional Services" are the Services listed in Schedule B.
(o) "PC Software" means, if applicable, the PC-based software
applications to be utilized by Customer in connection with the
Services, as such software applications are described in Schedule A.
(p) "Renewal Terms" is defined in Section 2.1.
(q) "Service" or "Services" are all of the services to be provided by
Aurum under this Agreement, which include the Basic Services,
Optional Services, Conversion Services, and Additional Services.
(r) "System" or "Systems" are (i) computer programs, including without
limitation software, firmware, application programs, operating
systems, files, and utilities; (ii) supporting documentation for
such computer programs, including without limitation input and
output formats, program listings, narrative descriptions, operating
instructions and procedures, user and training documentation,
special forms, and source code; and (iii) the tangible media upon
which such programs are recorded, including without limitation
chips, tapes, disks, and diskettes.
Other terms are defined elsewhere in this Agreement.
ARTICLE II - TERM
2.1 Term. This Agreement will begin on the Effective Date and, unless
terminated earlier under Section 7.2, 7.3, 7.4, or 9.5, will continue for
a period of five years from the Operational Date (the "Initial
2
Term"). Thereafter, this Agreement will automatically renew for successive
terms of five years each (the "Renewal Terms") unless either party gives
the other party written notice at least six months prior to the expiration
date of the Initial Term or the Renewal Term then in effect that the
Agreement will not be renewed beyond such term.
ARTICLE III - AURUM RESPONSIBILITIES
3.1 Services Provided. Aurum or its subcontractors will provide Customer with
the following Services:
(a) Basic Services. Customer's requirements for Basic Services.
(b) Optional Services. The Optional Services that Customer requests and
Aurum agrees to provide.
(c) Conversion Services. On a mutually agreeable schedule Aurum will
provide those services and instructions ("Conversion Services")
reasonably required for Customer to convert to and use the Aurum
Systems. Customer will cooperate in the conversion effort and timely
provide whatever information, data, clerical and office support,
management decisions, approvals, and signoffs that Aurum reasonably
requires. According to a plan to be developed by Customer and Aurum,
Aurum will train a mutually designated group of Customer's personnel
in the proper use of the Aurum Systems to enable such personnel to
train Customer's user personnel in the use of the Aurum Systems.
Customer will cooperate with Aurum in scheduling training in
conjunction with Customer's conversion to the Aurum Systems.
(d) Additional Services. If Customer requests Aurum to perform any
Service which is not a Basic Service, an Optional Service, or a
Conversion Service, then Aurum may provide such service as an
"Additional Service".
3.2 General Terms Relating to Services. Aurum will:
(a) Beginning on the Operational Date, operate the Aurum Systems at the
Data Center, and accept data and other input from Customer. Aurum
will make daily, monthly, and other reports and output, including
specially requested reports, available to Customer at the Data
Center for delivery or transmit them to Customer, subject to
Customer's timely delivery or transmission of data and other input
to the Data Center for processing. Aurum will provide the Services
in accordance with the schedule provided to Customer by Aurum upon
commencement of the Services, which may be updated by Aurum from
time to time. Aurum will not be responsible for the loss of any
input or output during transit.
(b) Provide all Equipment at Customer's expense, including related
shipping, installation, and maintenance charges, and advise Customer
on the compatibility of its Equipment with the Aurum Systems.
Customer may elect, with Aurum's approval, to provide such Equipment
at Customer's expense, subject to charges for Additional Services
required for Aurum Systems access or configuration.
3
(c) Provide for Customer's use one copy of Aurum's standard user
documentation and one copy of any revisions describing the
preparation of input for and use of output from the Aurum Systems.
Such documentation will address the reports provided under this
Agreement. Upon Customer's request, Aurum will provide additional
copies of such documentation at Aurum's then standard charges.
(d) Correct any errors in customer files that result in errors in
reports or other output where such errors (i) are due solely to
either malfunctions of Aurum's equipment or the Aurum Systems or
errors of Aurum's operators, programmers, or other personnel, and
(ii) are called to Aurum's attention within the time frames
specified in Section 4.3. Aurum will, to the extent reasonably
practicable, correct any other errors as an Additional Service.
(e) Provide standard Aurum forms for use at the Data Center.
(f) Establish, modify, or substitute from time to time any Equipment,
processing priorities, programs, or procedures used in the operation
of the Aurum Systems or the provision of the Services that Aurum
reasonably deems necessary, and notify Customer of any such changes
that will affect Customer's operations.
3.3 Audits. Aurum will provide auditors and inspectors that Customer
designates in writing with reasonable access to the Data Center for the
limited purpose of performing audits or inspections of Customer's
business. Aurum will provide to such auditors and inspectors reasonable
assistance, and Customer will compensate Aurum for any Additional Services
provided in connection with the audit or inspection. Aurum will not be
required to provide access to data of other Aurum customers.
3.4 Regulatory Compliance. Aurum will endeavor to maintain the Aurum Systems
so that they will not be disapproved by any federal or state regulatory
authority with jurisdiction over Customer's business. If Customer believes
that any modifications to the Aurum Systems are required under any laws,
rules, or regulations, Customer will promptly so inform Aurum. Aurum will
perform any modifications to the Aurum Systems or recommend changes to
operating procedures of Customer that Aurum determines are necessary or
desirable; provided, that if any such changes or modifications result in a
significant increase in Aurum's cost of providing Services, Aurum will be
entitled to increase the charges under this Agreement by an amount that
reflects a pro rata allocation of Aurum's increased cost among the
applicable Aurum customers. New or enhanced Aurum System features,
functions, reports, or other Services that may result from such
modifications or recommendations may be provided as an Additional Service.
Notwithstanding the foregoing, Customer acknowledges that the Aurum
Systems may, from time to time, consist in part of System(s) licensed by
Aurum from third-party vendor(s) and, therefore, Aurum shall have no duty
or responsibility to modify any such third-party System under this
Section, except to the extent that the vendor thereof has such a duty or
responsibility to modify such System pursuant to the applicable license
agreement between Aurum and such vendor.
3.5 Financial Statements and EDP Audit. Upon request, Aurum will provide at no
charge one copy of Aurum's most recent audited financial statements to
Customer. Upon request, Aurum will also provide to Customer one copy of
Aurum's most recent independent Data Center EDP audit at Aurum's then
standard charge for such copy.
4
3.6 PC Software. Aurum will either (i) license to Customer or (ii) arrange
with the appropriate third party vendor for a direct license, or a
sublicense through Aurum, to Customer of the PC Software. Customer will
execute any such license or sublicense that may be required by such vendor
and will be responsible for compliance with all terms and conditions
thereof. Such license or sublicense will provide for Customer to have the
use of the PC Software at all times during the term of this Agreement.
ARTICLE IV - CUSTOMER RESPONSIBILITIES
4.1 Maintenance of Equipment. Customer will maintain all Equipment owned or
leased by Customer in good working order in accordance with manufacturer's
specifications.
4.2 Provision of Customized Forms. Unless otherwise agreed in writing,
Customer will provide or pay for all customized forms required by
Customer. These forms will conform to Aurum's reasonable specifications.
Customer will also provide all forms produced or printed at Customer's
premises and required for the performance of Services, or will pay
mutually agreed charges to Aurum for such forms if provided by Aurum at
Customer's request.
4.3 Correction of Reports and Output. Customer will balance reports to verify
master file information and will inspect and review all reports and other
output (whether printed, microfiched or electronically transmitted)
created from data provided by Customer to Aurum. Customer will reject all
incorrect reports or output (i) within two Business Days after receipt of
daily reports or output, (ii) within five Business Days after receipt of
annual, quarterly, or monthly reports or output, and (iii) within three
Business Days after receipt of all other reports or output.
4.4 Provision of Data. Customer will be responsible for the quality and
accuracy of all data and other input provided to Aurum. Aurum may, at its
option, return to Customer for correction before processing any data
submitted by Customer which is incorrect, illegible, or not in proper
form. If Customer does not provide its data to Aurum in accordance with
Aurum's specified format and schedule, Aurum will use reasonable efforts
to reschedule and process the data as promptly as possible. Related
expenses incurred by Aurum will be charged to Customer.
4.5 Use of System, Procedures, etc. Customer will comply with all operating
instructions for the Aurum Systems which are issued by Aurum from time to
time. Except as otherwise provided in this Agreement, Customer will be
responsible for the supervision, management, and control of its use of the
Aurum Systems, including without limitation (i) implementing sufficient
procedures to satisfy its requirements for the security and accuracy of
the data and other input Customer provides, (ii) implementing reasonable
procedures to verify reports and other output from Aurum within the time
frames specified in Section 4.3, and (iii) specifying the methods of
accrual calculation to be used by Aurum in providing the Services from the
options available in the Aurum Systems.
4.6 Customer Systems. Customer will provide, at Customer's expense, the
Customer Systems. Customer will be responsible for any license or
maintenance fees related to providing the Customer Systems for use by
Aurum in connection with the Services. Customer will, at Customer's
expense, ensure that the
5
Customer Systems are at all times compatible with the Aurum Systems and
Aurum will have no liability hereunder for any delay or failure to perform
Services which arises as a result of the failure of Customer to maintain
any Customer System so that it is compatible with the Aurum Systems.
4.7 PC Software.
(a) Notwithstanding Section 3.2(b), Customer will, at Customer's
expense, provide and be responsible for all Equipment required for
Customer to use the PC Software ("PC Software Equipment").
(b) Without Aurum's prior written consent, Customer will not (i) install
any System other than the PC Software on the applicable PC Software
Equipment; (ii) sell, assign, lease, transfer, or disclose to any
third party the PC Software, (iii) use the PC Software for the
commercial benefit of any third party; (iv) copy or reproduce the PC
Software; or (v) reverse assemble, reverse compile, or otherwise
recreate the PC Software. Customer may transfer its use of the PC
Software to a backup or replacement system to the PC Software
Equipment on a temporary or permanent basis provided Customer gives
prior written notice to Aurum and discontinues use of the PC
Software on the applicable PC Software Equipment.
ARTICLE V - PAYMENTS TO AURUM
5.1 Service Charges. Customer will pay Aurum for the Services as follows:
(a) For Basic Services, the monthly charges listed in Section 1 of
Schedule C.
(b) For Conversion Services, the applicable conversion charge listed in
Section 3 of Schedule C.
(c) For Optional Services, the monthly charges listed in Section 2 of
Schedule C.
(d) For Additional Services, Aurum's then standard charges for such
Services, or, if Aurum then has no standard charges for such
Services, upon whatever other basis that the parties agree.
5.2 Additional Charges. Customer will also pay Aurum the following, if
applicable:
(a) All costs incurred by Aurum (i) in mailing reports or other output
to Customer, its customers, or third parties, and (ii) in
transporting, shipping, or delivering reports, output, or input
between the Data Center and Customer's locations.
(b) All actual, out-of-pocket costs and expenses, including, without
limitation, travel and travel-related expenses, which are incurred
by Aurum in providing Services when incurred at Customer's request.
(c) Any other charges expressly provided in this Agreement.
6
(d) All taxes, however designated or levied, based upon any charges
under this Agreement, or upon this Agreement or the Systems,
Services, or materials provided hereunder, or their use, including
without limitation state and local privilege or excise taxes based
on gross revenue, sales and use taxes, and any taxes or amounts in
lieu thereof paid or payable by Aurum in respect of the foregoing,
exclusive, however, of franchise taxes and taxes based on the net
income of Aurum.
5.3 Time of Payment. All charges under this Agreement will be due and payable
within ten days of invoice date. Any charges not paid within thirty days
of invoice date will bear interest until paid at a rate equal to the
lesser of 1.5% per month or the maximum interest rate allowed by
applicable law. Customer authorizes Aurum to collect charges for Services
through applicable clearing house procedures.
5.4 Annual Adjustment to Charges. No more than once in any twelve month
period, Aurum may, at its option and by giving Customer written notice,
increase the charges for Services by a percentage not to exceed the
percentage by which the ECI as of that time is higher than the ECI as of
(i) for the first adjustment, the earlier of the Effective Date or the
date of the last adjustment previously made pursuant to any immediately
prior agreement, if any, under which Aurum provided the same or similar
Services to Customer, and (ii) thereafter, the previous time that Aurum
adjusted its charges to Customer pursuant to this Section. These increased
charges will remain in effect until Aurum adjusts them again pursuant to
this Section.
ARTICLE VI - SYSTEMS, DATA, AND
CONFIDENTIALITY
6.1 Aurum Systems. All Aurum Systems are and will remain the exclusive
property of Aurum or licensors of such Aurum Systems, as applicable, and,
except as expressly provided in this Agreement, Customer shall have no
ownership interest or other rights in any Aurum System. Customer
acknowledges that the Aurum Systems include Aurum proprietary information
and agrees to keep the Aurum Systems confidential at all times. Upon the
expiration or termination of this Agreement, Customer will return all
copies of all items relating to the Aurum Systems which are in the
possession of Customer and certify to Aurum in writing that Customer has
retained no material relating to the Aurum Systems.
6.2 Customer's Information. Information relating to Customer or its customers
contained in Customer's data files is the exclusive property of Customer
and Aurum will only be the custodian of that information. Aurum agrees to
hold in confidence all proprietary information of Customer and its
customers provided to Aurum in accordance with Section 6.3. However, upon
the request of any appropriate federal or state regulatory authority with
jurisdiction over Customer's business and after Aurum has, when reasonably
possible, notified Customer of such request, Aurum will allow such
authority access to all records and other information of Customer and its
customers in the possession of Aurum and provide as an Additional Service
any related assistance that is required. Promptly after the termination or
expiration of this Agreement and the payment to Aurum of all sums due and
owing, including without limitation any amounts due under Sections 7.6 or
7.7, Aurum will, at Customer's
7
request and expense, return to Customer all of Customer's information,
data, and files in Aurum's then standard machine-readable format and
media.
6.3 Confidentiality. Except as otherwise provided in this Agreement, Aurum and
Customer each agree that all information communicated to one by the other
or the other's affiliates, whether before or after the Effective Date,
will be received in strict confidence, will be used only for purposes of
this Agreement, and except for the requirements of Section 6.2 will not be
disclosed by the recipient party, its agents, subcontractors, or employees
without the prior written consent of the other party. Each party agrees to
take all reasonable precautions to prevent the disclosure to outside
parties of such information, including, without limitation, the terms of
this Agreement, except as required by legal, accounting, or regulatory
requirements beyond the reasonable control of the recipient party. If
Customer is required to disclose any proprietary information of Aurum in
accordance with any such legal, accounting, or regulatory requirements,
then Customer will promptly notify Aurum of such requirement and will
cooperate with Aurum (at Aurum's expense) in Aurum's efforts, if any, to
avoid or limit such disclosure (including, without limitation, obtaining
an injunction or an appropriate redaction of the proprietary information
in question). The provisions of this Section will survive the expiration
or termination of this Agreement for any reason.
6.4 Safeguarding Data Integrity. Aurum will maintain internal computer data
integrity safeguards (such as access codes and passwords) to protect
against the accidental or unauthorized deletion or alteration of
Customer's data in the possession of Aurum. Aurum will provide additional
internal computer data integrity safeguards that Customer reasonably
requests as an Additional Service. Aurum will also employ and maintain
controlled access systems in the Data Center.
6.5 Contingency Planning. The parties' will perform the following regarding
contingency planning:
(a) Aurum will develop, maintain and, as necessary in the event of a
disaster, execute a disaster recovery plan (the "Aurum Plan") for
the Data Center and will provide to Customer and its auditors and
inspectors such access to the Aurum Plan as Customer may reasonably
request from time to time. Aurum will not be required to provide
access to information of other Aurum customers.
(b) Customer will develop, maintain and, as necessary in the event of a
disaster, execute a business resumption plan (the "Customer Plan")
for all Customer locations and the telecommunications links between
the Customer locations and the Data Center and will provide to Aurum
such access to the Customer Plan as Aurum may reasonably request
from time to time.
(c) Aurum will provide to Customer such information as may be reasonably
required for Customer to assure that the Customer Plan is compatible
with the Aurum Plan.
(d) Each party will be responsible for the training of its own personnel
as required in connection with all applicable contingency planning
activities.
(e) Each party's contingency planning activities will comply, as
appropriate, with such of the following regulatory policies as may
be applicable to Customer's business, as the same may be amended or
replaced from time to time: (i) Federal Deposit Insurance
Corporation Bank Letter
8
BL-22-89 dated July 14, 1989; (ii) Federal Reserve System
Supervision and Regulation Number SR-89-16 dated August 1, 1989; and
(iii) Office of the Comptroller of the Currency Banking Circular
Number BC177 dated July 12, 1989. If compliance with any amendments
or replacements of the policies listed above would significantly
increase Aurum's cost of providing Services, Aurum will be entitled
to increase the charges under this Agreement by an amount that
reflects a pro rata allocation of Aurum's increased cost among the
applicable Aurum customers.
ARTICLE VII - TERMINATION AND
RELATED MATTERS
7.1 Arbitration. Any dispute, controversy, or claim arising out of, connected
with, or relating to this Agreement, or the breach, termination, validity,
or enforceability of any provision of this Agreement, will be resolved by
final and binding arbitration by a panel of three arbitrators in
accordance with and subject to the Commercial Arbitration Rules of the
American Arbitration Association ("AAA") then in effect. Following notice
of a party's election to require arbitration, each party will within
thirty days select one arbitrator, and those two arbitrators will within
thirty days thereafter select a third arbitrator. If the two arbitrators
are unable to agree on a third arbitrator within thirty days, the AAA will
within thirty days thereafter select such third arbitrator. Discovery as
permitted by the Federal Rules of Civil Procedure then in effect will be
allowed in connection with arbitration to the extent consistent with the
purpose of the arbitration and as allowed by the arbitrators. Judgment
upon the award rendered in any arbitration may be entered in any court of
competent jurisdiction, or application may be made to such court for a
judicial acceptance of the award and an enforcement, as the law of the
state having jurisdiction may require or allow. During any arbitration
proceedings, Aurum will continue to provide Services, and Customer will
continue to make payments to Aurum in accordance with this Agreement. The
fact that arbitration is or may be allowed will not impair the exercise of
any termination rights under this Agreement.
7.2 Termination Due to Acquisition. If fifty percent or more of the stock or
assets of Customer are acquired by another person or entity, whether by
merger, reorganization, sale, transfer, or other similar transaction, then
Aurum and Customer will negotiate in good faith the terms and conditions
upon which this Agreement may be modified to accommodate such transaction.
If the parties are unable to agree upon such modification, either party
upon written notice to the other may terminate this Agreement upon the
consummation of such acquisition or on a mutually agreeable date
thereafter.
7.3 Termination for Non-Payment. If Customer defaults in the payment of any
charges or other amounts due under this Agreement and fails to cure such
default within ten days after receiving written notice specifying such
default, then Aurum may, by giving Customer at least thirty days prior
written notice thereof, terminate this Agreement as of a date specified in
such notice.
7.4 Termination for Cause. If either party materially defaults in its
performance under this Agreement, except for non-payment of amounts due to
Aurum, and fails to either substantially cure such default within ninety
days after receiving written notice specifying the default or, for those
defaults which cannot reasonably be cured within ninety days, promptly
commence curing such default and thereafter proceed with all due diligence
to substantially cure the default, then the party not in default may, by
9
giving the defaulting party at least thirty days prior written notice
thereof, terminate this Agreement as of a date specified in such notice.
7.5 Termination for Insolvency. If either party becomes or is declared
insolvent or bankrupt, is the subject of any proceedings relating to its
liquidation or insolvency or for the appointment of a receiver,
conservator, or similar officer, or makes an assignment for the benefit of
all or substantially all of its creditors or enters into any agreement for
the composition, extension, or readjustment of all or substantially all of
its obligations, then the other party may, by giving prior written notice
thereof to the non-terminating party, terminate this Agreement as of a
date specified in such notice.
7.6 Payment Upon Termination. The parties acknowledge that upon termination of
this Agreement for any reason, including under Section 7.2, 7.3, 7.4, or
7.5 (but excluding by election by either party not to renew pursuant to
Section 2.1 or termination by Customer pursuant to Section 7.4 or 9.5),
Aurum will incur damages resulting from such termination that will be
difficult or impossible to ascertain. Therefore, prior to such termination
and in addition to all other amounts then due and owing to Aurum, Customer
will pay to Aurum as reasonable liquidated damages an amount equal to the
sum of subsections (a) and (b):
(a) All costs reasonably incurred by Aurum in connection with such
termination, including without limitation telecommunication line
disengagement expenses and costs of terminating leases on or
shipping or storing any Equipment provided to Customer by or through
Aurum under this Agreement, plus a twenty-five percent management
fee on such costs, plus Aurum's charges for any Additional Services
reasonably requested by Customer for deconversion assistance and
Aurum's then standard charges for the resources utilized to prepare
any test or conversion tapes (together, the "Termination Costs").
Aurum may, at its option, invoice Customer for the lesser of (i)
Aurum's good faith estimate of the Termination Costs, or (ii) the
aggregate of the charges payable to Aurum pursuant to Article V for
the two calendar months preceding the month in which notice of
termination is given. If the actual Termination Costs are greater or
less than the amount of Aurum's invoice that is paid by Customer
under the immediately preceding sentence, then Customer will pay
Aurum, or Aurum will refund to Customer, as the case may be, the
difference between the actual Termination Costs and the amount paid.
(b) Fifty percent of the total compensation which would have been paid
or reimbursed to Aurum under this Agreement during the remainder of
its term. The amount of total compensation will be computed by
multiplying the total number of months remaining in the Initial Term
or the Renewal Term then in effect from the effective date of the
termination by the average monthly charge to Customer for Services
under this Agreement during the twelve calendar months immediately
preceding the calendar month in which notice of termination was
given, and multiplying that number by fifty percent. This is
expressed mathematically as follows:
(Number of months remaining in term) x (average monthly charge for
Services during the twelve months preceding notice of termination) x
0.50
If this Agreement has been in effect less than twelve calendar
months prior to the giving of the notice of termination, then the
parties will compute the amount due under this subsection (b) using
the average monthly charge for Services made during such lesser
number of calendar
10
months. If termination of this Agreement occurs prior to the
Operational Date, then the parties will compute the amount due under
this subsection (b) assuming that the Operational Date had occurred
when scheduled by Aurum and using the average monthly charges
reasonably estimated to be paid by Customer.
All amounts payable under this Section 7.6 will be invoiced and paid prior
to the effective date of such termination and prior to the release of any
test tapes or other data of Customer.
7.7 Payment Upon Nonrenewal. If Customer gives or receives notice not to renew
this Agreement pursuant to Section 2.1, or Customer terminates this
Agreement under Section 9.5, Customer will pay to Aurum an amount equal to
all amounts then due and payable to Aurum, plus (a) Aurum's charges for
any Additional Services reasonably requested by Customer for deconversion
assistance, (b) Aurum's then standard charges for the resources utilized
to prepare any test or conversion tapes, and (c) all other costs
reasonably incurred by Aurum in connection with such election not to renew
or termination that are described in Section 7.6(a) and that relate to
obligations that Customer approved, which extend beyond the then current
term of this Agreement or earlier termination date under Section 9.5. All
amounts payable under this Section 7.7 will be invoiced and paid prior to
the expiration date and prior to the release of any test tapes or other
data of Customer.
ARTICLE VIII - LIABILITY AND INDEMNITY
8.1 Limitation of Liability. Section 3.2(d) sets forth Customer's exclusive
remedies for errors in reports or other output provided by Aurum under
this Agreement. If Aurum becomes liable to the Customer under this
Agreement for any other reason, whether arising by negligence, willful
misconduct or otherwise, then (a) the damages recoverable against Aurum
for all events, acts, delays, or omissions will not exceed in the
aggregate the compensation payable to Aurum pursuant to Section 5.1 of
this Agreement for the lesser of the months that have elapsed since the
Operational Date or the three months ending with the latest month in which
occurred the events, acts, delays, or omissions for which damages are
claimed, and (b) the measure of damages will not include any amounts for
indirect, consequential, or punitive damages of any party, including third
parties, or damages which could have been avoided had the output provided
by Aurum been verified before use. Customer may not assert any cause of
action against Aurum of which the Customer knew or should have known more
than two years prior to such assertion. In connection with the conduct of
any litigation with third parties relating to any liability of Aurum to
Customer or to such third parties, Aurum will have all rights which are
appropriate to its potential responsibilities or liabilities. Aurum will
have the right to participate in all such litigation and to settle or
compromise its liability to third parties.
8.2 Warranty. Aurum will provide the Services in a professional and
workmanlike manner. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8.2,
AURUM DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY
OPERATION OF LAW OR OTHERWISE, CONTAINED IN OR DERIVED FROM THIS
AGREEMENT, ANY OF THE SCHEDULES ATTACHED HERETO, ANY OTHER DOCUMENTS
REFERENCED HEREIN, OR IN ANY OTHER MATERIALS, PRESENTATIONS OR OTHER
DOCUMENTS OR COMMUNICATIONS WHETHER ORAL OR WRITTEN, INCLUDING
11
WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
8.3 Force Majeure. Each party will be excused from performance under this
Agreement, except for any payment obligations, for any period and to the
extent that it is prevented from performing, in whole or in part, as a
result of delays caused by the other party or any act of God, war, civil
disturbance, court order, labor dispute, third party nonperformance, or
other cause beyond its reasonable control, including failures,
fluctuations or nonavailability of electrical power, heat, light, air
conditioning, or telecommunications equipment. Such nonperformance will
not be a default or a ground for termination as long as reasonable means
are taken to expeditiously remedy the problem causing such nonperformance.
8.4 Cross Indemnity. Aurum and Customer each will indemnify, defend, and hold
harmless the other from any and all claims, actions, damages, liabilities,
costs, and expenses, including without limitation reasonable attorney's
fees and expenses, arising out of (a) the death or bodily injury of any
agent, employee, customer, or business invitee of the indemnitor, and (b)
the damage, loss, or destruction of any property of the indemnitor.
8.5 Reliance on Instructions. Aurum is entitled to rely upon and act in
accordance with any instructions, guidelines or information provided to
Aurum by Customer, which are given by persons having actual or apparent
authority to provide such instructions, guidelines, or information, and
will incur no liability in doing so. Customer will indemnify, defend, and
hold harmless Aurum from any and all claims, actions, damages,
liabilities, costs, and expenses, including without limitation reasonable
attorneys' fees and expenses, arising out of or resulting from Aurum
acting in accordance with this Agreement.
ARTICLE IX - MISCELLANEOUS
9.1 Binding Nature and Assignment. This Agreement will be binding on the
parties and their respective successors and assigns. Neither party may
assign this Agreement unless it obtains the prior written consent of the
other party (except that Aurum will have the right to perform the Services
itself and through various of its indirect, wholly-owned, United
States-based subsidiaries and to subcontract to unaffiliated third parties
portions of the Services, so long as Aurum remains responsible for the
obligations performed by any of its subsidiaries and subcontractors to the
same extent as if such obligations were performed by Aurum employees),
which consent will not be unreasonably withheld. The following
transactions relating to either party will not require approval of the
other party under this Section: any merger (including without limitation a
reincorporation merger), consolidation, reorganization, stock exchange,
sale of stock or substantially all of the assets, or other similar or
related transaction in which such party is the surviving entity or, if
such party is not the surviving entity, the surviving entity continues to
conduct the business conducted by such party prior to consummation of the
transaction.
9.2 Hiring of Employees. During the term of this Agreement and for a period of
twelve months thereafter, neither party will, without the prior written
consent of the other, offer employment to or
12
employ any person employed then or within the preceding twelve months by
the other party, if the person was involved in providing or receiving
Services.
9.3 Notices. Any notice under this Agreement will be deemed to be given when
(i) delivered by hand or when mailed by registered United States mail,
return receipt requested, and (ii) addressed to the recipient party at its
address set forth in the first paragraph of this Agreement and to the
attention of its President, in the case of Customer, or to the attention
of President of Premier Group, in the case of Aurum. Either party may from
time to time change its address for notification purposes, by giving the
other prior written notice of the new address and the date upon which it
will become effective.
9.4 Relationship of Parties. Aurum, in providing Services, is acting as an
independent contractor and does not undertake by this Agreement or
otherwise to perform any regulatory or contractual obligation of the
Customer. Aurum has the sole right and obligation to supervise, manage,
contract, direct, procure, perform, or cause to be performed all work to
be performed by Aurum under this Agreement.
9.5 Modification. Aurum may from time to time modify any of the provisions of
this Agreement to be effective at any time on or after the expiration of
the Initial Term by giving Customer at least six months prior written
notice describing the modification and the date upon which it will be
effective (the "Modification Date"). If Aurum gives Customer notice of a
modification pursuant to this Section, Customer may, by giving Aurum
written notice at least three months prior to the Modification Date,
terminate this Agreement as of such Modification Date or at a specified
later date. Unless Customer provides such notice, the modification will be
effective for any period after the Modification Date.
9.6 Waiver. A waiver by either of the parties of any of the covenants,
conditions, or agreements to be performed by the other or any breach
thereof will not be construed to be a waiver of any succeeding breach or
of any other covenant, condition, or agreement contained in this
Agreement.
9.7 Media Releases. All media releases, public announcements, and public
disclosures by Customer or Customer's employees or agents relating to this
Agreement or the subject matter of this Agreement, including without
limitation promotional or marketing material, but excluding any
announcement intended solely for internal distribution by Customer or any
disclosure required by legal, accounting, or regulatory requirements
beyond the reasonable control of Customer, will be coordinated with and
approved by Aurum prior to release.
9.8 Entire Agreement. This Agreement and all attached Schedules constitute the
entire agreement between Aurum and Customer with respect to the subject
matter of this Agreement. There are no understandings or agreements
relative to this Agreement which are not fully expressed herein and no
change, waiver, or discharge of this Agreement will be valid unless in
writing and executed by the party against whom such change, waiver, or
discharge is sought to be enforced. This Agreement may be amended only by
an amendment in writing, signed by the parties.
9.9 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas.
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9.10 Execution of Agreement. Three original copies of this Agreement will be
executed and submitted to Aurum by Customer. This Agreement will become
effective when Aurum executes this Agreement. Aurum will return one of the
executed copies to Customer. By executing this Agreement, Customer
represents and warrants that (a) this Agreement has been duly authorized;
(b) such execution does not, and will not, cause a breach by Customer of
any other contract, agreement, or understanding to which Customer is a
party; and (c) this Agreement constitutes a valid, fully enforceable, and
legally binding obligation of Customer. Customer will maintain this
Agreement as an official record of Customer continuously from the time of
its execution.
IN WITNESS WHEREOF, Customer and Aurum have caused this Agreement to
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be signed and delivered by its duly authorized representative.
COMMUNITY BANK OF NEVADA AURUM TECHNOLOGY INC.
By: /s/ Cathy Robinson By: /s/ Brian Van Dyk
------------------------------- -----------------------------
Printed Printed
Name: Cathy Robinson Name: Brian Van Dyk
Title: Executive Vice President Title: President, Premier Division
Date: 11/9/01 Date: 11/15/2001
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14
SCHEDULE A
BASIC SERVICES
I. Data Processing Services
Effective on the Operational Date (as determined in accordance with the
Agreement), Aurum shall provide the following Basic Services for Customer
in a service bureau environment:
(a) Base System
Effective on the Operational Date, the following host-based
application processing modules (the "Base System") will be on-line
and available for Customer access from Customer's terminals as set
forth in this Section I. (a) and Section II. 2 of this Schedule A.
Product Product
Product Name Vendor Code Number
------------ ------- ------- -------
Central Information File ITI CIS 101-000
Demand Deposit Accounting System ITI DDA 102-000
Savings Accounting System ITI SAV 103-000
Certificate of Deposit Accounting System ITI COD 104-000
Loan Accounting System ITI LAS 105-000
General Ledger Accounting System ITI FMS 151-000
Item Entry System ITI IES 106-000
Express Exception Item System ITI EIM 102-103
ATM File Transfer Module ITI AFT 220-000
Data Communications File Transfer Module ITI DFT 221-000
Online Teller Terminal Module ITI TTM 107-000
TTM Interface to EZ Teller ITI TTMZ 107-136
Paperless Item Module (ACH) ITI PIM 380-000
Platform Transfer Module ITI PTM 101-100
PTM Interactive Deposit Interface - Harland* ITI PMCD 101-105
PTM Batch Loan Interface - Rembrandt* ITI PMCB 101-101
Fixed Assets System ITI FAS 400-000
Accounts Payable System ITI APS 702-000
Automated Credit Reporting Module ITI CRM 105-101
Retirement Account Reporting System ITI RRM 103-101
Check Reconciliation System ITI CRS 350-000
TeleBanc - Telephone Banking Module ITI TBM 370-000
Bulk Filing Module ITI BFM 108-101
Security Control Module ITI SCM 500-104
Signature Management Module ITI SSM 107-116
Delinquent Child Support Module - All Accounts ITI DCSA 101-5xx
Federal Call Reporting Module ITI FCR 391-001
Holding Company Module ITI HCM 151-101
Stockholder Accounting Module ITI SHS 310-000
Asset Liability Management System ITI ALM 152-101
Premier II Graphical User Interface ITI
Output Management System Aurum
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*See Schedule D for full description
(b) On-Line Host Availability
On-line Systems will be available for use from 7:00 a.m. until 6:30
p.m. (Pacific Time), each Monday through Friday that is a Business
Day. The Aurum System will be updated each Business Day.
(c) Extended Host Availability
The Aurum System will also be available for use from 9:00 a.m. until
2:00 p.m. (Pacific Time) each Saturday that is not a holiday. The
Aurum System will not be updated on non-Business Days. Aurum may,
with not less than two weeks prior written notice to Customer,
conduct System maintenance, hardware
A-1
SCHEDULE A
BASIC SERVICES
and/or software upgrades, and/or other System functions that may
require that the Aurum System not be available to Customer during
the period of Extended Host Availability.
(d) Holiday Schedule
Aurum's Data Center will observe all Federal Reserve Bank holidays:
New Year's Day, President's Day, Martin Luther King Jr. Birthday,
Memorial Day, Independence Day, Labor Day, Veteran's Day,
Thanksgiving Day, and Christmas Day as holidays. On-line service and
System updates will not be available to Customer on those days,
except as mutually agreed upon in advance and for a fee to be agreed
upon in advance.
(e) Reports and Report Distribution
Daily on-line reports available via OMS downloads at 8:00 a.m.
(Pacific Time) on Business Days. Monthly and Quarterly on-line
reports available via OMS downloads on the first business day
following the first weekend after the end of the month.
Annual on-line reports available via OMS downloads will be provided
in the Aurum end of year package.
(f) Customer Service Telephone Support
Monday - Friday Business Days 7:00a.m. - 5:00p.m.(Pacific Time)
(g) Relationship Manager Support
An Aurum Relationship Manager will be available on-site at
Customer's location upon Customer initiated request for scheduled
meetings at a frequency of once every month. Additional Relationship
Manager visits other than once every month may be provided as an
Additional Service. All travel and out of pocket costs are to be
rebilled and where applicable, will be equally divided on a pro-rata
basis between the other Las Vegas based financial institutions
visited on that respective trip.
(h) Third Party Review
One copy per year at no charge
(i) Forms Printing
Audit Confirmations
Year-end Notices
(j) Data Communications Support
Monitor data communication line between Customer and Aurum
(k) Data Transmission
Magnetic Tapes - receipt and origination
Transmissions - receipt and origination
(l) PC Software
Product Name Vendor
------------ ------
PC-based portion of Output Management Aurum
System (OMS)
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(m) SMART Reports/Downloads
Basic Services include 20 SMART reports/downloads a month. One SMART
report/download is defined as an individual ad-hoc report or
download that is defined on-line by Customer on the Aurum System
from Customer's terminal. Said report/download will be processed
during the nightly update, or following the nightly update, and be
distributed to Customer with Customer's other reports or downloads.
Each time said report/download is created for Customer's use shall
constitute one (1) such report.
A-2
SCHEDULE A
BASIC SERVICES
II. Item Processing Services
All Item Processing Services shall be performed pursuant to Customer's
reasonable specifications, subject to the capabilities of Aurum's hardware
and software utilized to deliver said Item Processing Services.
1. Definitions
The following definitions apply to the Basic Services described in this
Schedule A and are provided as a supplement to definitions included in the
Agreement:
(a) "Account" or "Account Record" is an end-customer account
(including, without limitation, any open or closed
DDA/checking account, savings account, certificate of deposit
account, or loan account) that is maintained on the Aurum
System during the applicable month.
(b) "Change Disposition" shall mean changes to instructions
regarding disposition of any Item by Customer after the 14:00
Return Item deadline and prior to 16:00 on any Business Day.
Aurum will pay or return said Item in accordance with
Customer's instructions.
(c) "Crippled Statement" shall mean an end-customer statement
whose number of Items to be enclosed is greater than or less
than the enclosure count for that statement.
(d) "Customer's Data Processing Services Provider" is the customer
itself or vendor appointed by Customer to perform Customer's
core data processing services.
(e) "Exception Item" shall mean an Item, the automated processing
of which is interrupted because of a condition defined by
Customer, such definitions which may be changed from time to
time.
(f) "Exception Item File" shall mean the file of Exception Items
that Customer's Data Processing Services Provider or
Customer's end customer creates and transmits to Aurum.
(g) "Full Field Encoding Item" shall mean any Item that requires a
field or fields to be MICR encoded other than the amount
field.
(h) "Inclearing Item" shall mean a Customer Item that Aurum
receives from the Federal Reserve Bank or other financial
institution with an incoming cash letter for the purpose of
performing Item Processing Services.
(i) "Item Image" is a digitized black and white image of the front
and back of each Item.
(j) "Item Posting File" shall mean a file that Aurum creates from
captured Items for transmission to Customer's Data Processing
Services Provider.
(k) "Item Processing Services" are the Services described in
Schedule A and are also referred to herein as "Basic
Services".
(l) "MICR" is the magnetic ink character recognition information
that is encoded on Items for processing.
(m) "MICR Rejects" shall mean Items captured during prime pass
that are rejected due to the inability to properly interpret
the MICR encoding. The inability to interpret the MICR
encoding may be caused by a variety of reasons, including but
not limited to: (a) poor MICR encoding; (b) missing MICR
encoding; (c) physical document damage. Aurum will
electronically repair the MICR Rejects.
A-3
SCHEDULE A
BASIC SERVICES
(n) "On-Us Item" shall mean an Item that is drawn on the Customer
or Customer's end-customer.
(o) "Original Item Retrieval" shall mean occasionally removing
Items from the check vault upon Customer's request.
(p) "Over-the-Counter" shall mean Items submitted by Customer
branch offices, departments, or Customer's end-customers for
the purpose of performing Item Processing Services.
(q) "Posting Reversals" shall mean the monetary reversal of posted
Items.
(r) "Pre-encoded Item" shall mean an Item received by Aurum that
has required MICR line fields encoded, which Aurum will
capture.
(s) "Return Item" shall mean an Item that Customer instructs Aurum
to return. Customer will provide Aurum with a reason for the
return of Return Items.
(t) "Serial Fine Sort" shall mean the sorting of check Items into
account and check number order.
(u) "Special Programming" shall mean the provision of programming
resources to support Customer's request for new or modified
products or services.
(v) "Statement Cycle Change" shall mean a change to the numerical
value of the statement cycle assigned to each Account within
the Customer's Deposit System.
(w) "Statement Cycle Date" shall mean the ending cycle date
printed on end-customer's Account statement.
(x) "Statement Rendering" shall mean the insertion of an
end-customer statement and required Items and inserts into an
envelope, sealing the envelope and affixing the appropriate
postage in preparation for mailing to the end-customer.
(y) "Transit Item" is an encoded or unencoded Item drawn on
another financial institution that Aurum will capture for the
purpose of creating an outgoing cash letter.
(z) "Unencoded Item" shall mean a document received by Aurum where
the dollar amount is not encoded.
2. Item Processing Services
Aurum shall provide the following Basic Services to Customer:
(a) INCLEARING SERVICES
(i) Inclearing Item Capture
Aurum will receive Customer's Inclearing cash letter from the
Federal Reserve Bank or other financial institution and
balance the Items to the cash letter amount. Aurum will
digitize and capture black and white images of the front and
back of each Item, endorse each item and assign a sequential
trace number, which becomes a part of the Inclearing
transaction. Items rejected from the capture will be corrected
and re-entered. When all Inclearing Items are captured and
balanced an Item Posting File containing all Inclearing Items
will be created for transmission and memo posting to
Customer's Data Processing Services Provider. When required,
Aurum will capture and outsort Inclearing Items creating cash
letters for financial institutions who are end-customers of
Customer or end-customers who utilize payable through draft
processing.
A-4
SCHEDULE A
BASIC SERVICES
(ii) Inclearing Item Posting File Transmission
Aurum will complete the transmission of an Item Posting File
containing all Inclearing Items to Customer's Data Processing
Services Provider no later than 17:30 on Monday and 18:00 on
Tuesday through Friday. Memo posting of Inclearings Item
Posting File will be completed 2 hours after receipt of
Inclearings Item Posting File from the Federal Reserve Bank.
(iii) Incoming Cash Letter Balancing
The daily incoming cash letter will be reconciled to the
dollar amount charged by the Federal Reserve Bank or other
financial institution. All cash letter differences, missing
items, extra items, etc., will be reconciled and the proper
balancing reports and/or entries will be prepared.
Aurum will prepare Customer provided adjustment entries for
all differences greater than $2.00. The adjusting entry will
be image captured and inserted into the entry run.
For differences of $2.00 or less the adjusting debit or credit
entry will be processed to the Customer's designated general
ledger account. A Customer provided adjustment entry will not
be prepared for this difference. In such instances, Aurum will
provide source of receipt to Customer.
All errors detected during the incoming cash letter process
are to be adjusted the same Business Day. Aurum will notify
Customer of all same day settlement adjustments prior to 14:00
on the Business Day of presentment. Aurum will provide
Customer with copies of all adjusting entries that are
prepared and the supporting documentation substantiating the
adjustment. This documentation will be packaged and made
available for pickup by Customer or Customer's courier prior
to 15:00 the Business Day of presentment.
(b) EXCEPTION ITEM PROCESSING
(i) Exception Item File Transmission
By 04:30 the morning of each Tuesday, 03:30 the morning of
each Wednesday through Friday, 06:30 on Saturday and 05:30 on
Business Days following Customer holidays, the transmission of
Customer's complete Account Exception Item File from
Customer's Data Processing Services Provider to Aurum will be
completed.
(ii) Cycle Sort/Exception Item Pull
Aurum will make images of Exception Items available for
Customer review and extraction by 07:00 each day Monday
through Saturday and Exception Items available for pickup by
Customer or Customer's courier by 07:30 on Monday and
Wednesday through Friday, 09:30 on Tuesday and 10:30 the
Business Day following a holiday.
A-5
SCHEDULE A
BASIC SERVICES
(iii) Outgoing Return Item Processing
Items designated by the Customer as Return Items will be
returned by Aurum to the Federal Reserve Bank the same
Business Day; provided Customer has met the applicable Aurum
Return Item deadline. Items to be returned by Aurum will be
marked in accordance with Federal Reserve regulations.
After Customer has reviewed its exception item reports and
made the necessary pay/no-pay decisions, Customer's Data
Processing Services Provider will complete transmission of a
file in a format mutually agreed to by the parties containing
all Return Item requests with reason for return by 14:00 each
Business Day for Items captured the previous Business Day.
Aurum will out sort, balance to Customer provided control
total and properly stamp each Item to be returned with the
Customer's designated reason, and prepare the Return Item cash
letter to be picked up by the Customer or Customer's courier
for delivery to the Federal Reserve Bank by 22:00 each
Business Day. Such Items to be returned will be contained in a
file transmitted by Customer's Data Processing Service
Provider. One cash letter copy is to be retained by Aurum and
one copy will be forwarded to Customer.
Aurum will qualify each Return Item in accordance with
Regulation "CC" specifications; provided that the applicable
Return Item deadline has been met by Customer.
(iv) Large Item Notification
Upon at least ten (10) days prior written notice from
Customer, Aurum will begin to notify the financial institution
of first deposit of all dishonored checks for $2,500.00 or
more, or other amount to remain in compliance with Regulation
CC and any other applicable federal laws and regulations. By
23:59 of each Business Day, Aurum will have completed
transmission of large item notifications for those items
requiring them that were presented the previous Business Day.
By 08:00 of the Business Day following dispatch of the return
item cash letter and transmission of the large item
notification, Aurum will make a report of all large item
notices processed on the previous Business Day available for
pickup by Customer or Customer's courier.
(v) Change Disposition
Aurum will pay or return Change Disposition Items in
accordance with Customer's instructions.
(c) OVER-THE-COUNTER ITEM PROCESSING
(i) Over-the-Counter Item Processing
Aurum will receive unencoded and pre-encoded proof work
processed at Customer's and Customer's end customer locations
in accordance with mutually agreed upon delivery time. Aurum
will proof each transaction and encode the dollar amount of
each unencoded Transit Item and Customer defined on-us Items.
Proof corrections detected by Aurum will be available for
pickup by Customer or Customer's courier by 07:00 the Business
Day following the day of presentment.
Teller balancing tapes and tapes accompanying deposits will be
included in the daily work sent to Aurum by Customer, and
Aurum will make said balancing tapes and item processing
Exception Items such as debits or credit Items without offsets
or Items from unbalanced transactions remaining at the end of
each Business Day's processing available for pickup by
Customer or Customer's courier by 07:00 the Business Day
following the day of presentment.
All Unencoded Items delivered to Aurum by the required
delivery deadline will be processed to meet Customer's
outgoing correspondent cash letter deadline; provided,
however, that Aurum shall have at least three (3) hours to
process unencoded work and three (3) hours to process
pre-encoded work. Aurum will make best reasonable efforts to
handle Customer's work received after the required deadline.
A-6
SCHEDULE A
BASIC SERVICES
(ii) Proof Corrections
Aurum will prepare proof corrections to Customer's end-customer on
electronic forms for reasons including but not limited to:
a) Error(s) found in addition or subtraction
b) Check Item was listed for the wrong amount
c) Tape total was listed incorrectly
d) Check Item listed was not enclosed
e) Check item enclosed, not listed
f) Cash not included in deposit total
g) Tape total not listed in deposit
h) Collections not included in deposit
i) Non-Negotiable Item in deposit
j) Items drawn on foreign institutions
Aurum will prepare proof corrections to Customer's designated
general ledger account on electronic forms for reasons including but
not limited to:
a) Cash ticket missing
b) Cash ticket for wrong amount
c) Wrong cash ticket used
d) Currency included in work
e) Cashed check Item missing
f) Cashed check Item enclosed was not listed
g) Cashed check Item for wrong amount
h) Other miscellaneous correction
i) Items drawn on foreign institutions
Any debit or credit deposit adjustment of $2.00 or less (said dollar
amount may reasonably be adjusted over time, based on Customer
requirements) will be charged to a sundry general ledger account, to
be identified by Customer using a system generated electronic entry.
Any debit or credit deposit adjustment of more than $2.00 (said
dollar amount may reasonably be adjusted over time, based on current
industry standard practices) will be charged to Customer's
end-customer or Customer's designated general ledger account using
electronic forms. All errors detected during the Over-the-Counter
process are to be adjusted the same day.
Copies of adjustments will be distributed as follows:
- Original will be processed with the proof transactions; and
- Offsetting side of the entry will be sent to the Customer
for processing.
(iii) Aurum Amount Recognition
Aurum will electronically pass all captured Unencoded Items through
Aurum amount recognition (AAR) software for the purpose of
interpreting the courtesy amount.
(iv) Image Base Key Entry
Aurum will complete the electronic dollar amount information record
from the MICR line for those items not recognize by AAR software.
(v) Power Encode
Aurum will process items through a transport that automatically
encodes MICR data onto a percentage of the items without an operator
keying each item.
A-7
SCHEDULE A
BASIC SERVICES
(vi) Over-the-Counter Capture
Aurum will digitize and capture the black and white images of the
front and back of each Over-the-Counter Item, endorse each Item and
assign a batch and sequence number to each Item.
(vii) Pre-encoded Item Capture
Aurum will digitize and capture the black and white images of the
front and back of each Pre-encoded Item, endorse each Item and
assign a batch and sequence number to each Item.
(viii) Image Reject Re-entry
Aurum will complete or correct the electronic information record
from the MICR line.
(ix) Over-the-Counter Item Posting File Transmission
Aurum will complete the transmission of an Item Posting File
containing all Over-the-Counter Items to Customer's Data Processing
Services Provider no later than 23:00 on Monday through Thursday,
24:00 on Friday and 24:00 on Business Days following Customer
holidays.
(x) Cash Letters
Outgoing cash letters will be prepared in accordance with Customer's
cash letter requirements, which may change from time to time. As an
Additional Service, Items for cash letter endpoints greater than
twelve (12) will be re-passed and prepared in accordance with
Customer's cash letter requirements, which may change from time to
time.
(d) ITEM STORAGE, ARCHIVE AND ACCESS
(i) Warehousing and Bulk File
Aurum will store Items by cycle and date according to Customer's
statement cycle definitions in a secure environment.
(ii) Conventional Statement Fine Sort
At cycle time the cycled Items scheduled for return to Customer's
end-customer will be fine sorted by account number in preparation
for statement rendition. Rejects from the fine sort process will be
manually filed.
(iii) Daily Item Fine Sort
On a daily basis Aurum will fine sort internal Customer documents,
including but not limited to: loan Items, general ledger Items and
savings Items into amount or Account number order. Daily fine sorted
Items from the will be available for pickup by Customer or
Customer's courier by 08:30 the Business Day following the day of
presentment.
(iv) Original Item Storage
Aurum will retain in a secure environment the Items not returned in
Customer's end-customer statements in their original media for one
(1) calendar month and then return the Items to the Customer or make
the Items available for pickup by the Customer or a Customer
designated agent.
A-8
SCHEDULE A
BASIC SERVICES
(v) Image Item Storage and Archive
Aurum will retain the Item Images on redundant arrays of independent
disk (RAID) storage for ninety (90) Calendar Days. Prior to the
expiration of the ninety (90) day RAID storage period, Aurum will
transfer the Item Images to optical disk, DVD-ROMs, CD-ROM(s) or
comparable storage media for near-line storage in a jukebox provided
by Customer as per Aurum specifications that will be maintained by
Customer at Customer's expense for retention at Customer's
location(s). Aurum will also create a duplicate copy of each optical
disk, DVD-ROM, CD-ROM or comparable media for Customer's off-site
storage.
(vi) Image Workstation Access and Retrieval
Aurum will grant a license to Customer to use the applicable
computer software, under which license Customer may use such
applicable computer software to retrieve Item Images by utilizing
Customer's equipment and telecommunications circuitry to access the
RAID V located at the Aurum Data Center and optical disk, DVD-ROMs,
CD-ROMs or comparable storage media located at Customer's
location(s). Included in the Basic Services, Aurum will provide
access to Item Images for five (5) concurrent Customer sessions with
access software, which may be installed on up to twenty-five (25)
Customer workstations.
(e) STATEMENT PRINTING, RENDITION AND MAILING
(i) Conventional Statement Printing
Aurum will receive one or more conventional statement print files in
a format mutually agreed to by the parties from Customer's Data
Processing Service Provider by 04:00 on the first Business Day
following the Statement Cycle Date. Customer's Data Processing
Service Provider will provide Aurum with one or more segregated
print files for end-customer statements in a format mutually agreed
to by the parties targeting the following segregation categories:
(a) with Item enclosures less than fifty-four (54), (b) with Item
enclosures fifty-four (54) or greater; (c) zero Item enclosure; and
(d) special request statements. Aurum will print end-customer
statements in simplex or duplex mode as is mutually agreed to by
Customer and Aurum. The print quality will be consistent with that
required by automated ZIP code sorting equipment and acceptable to
Customer, Aurum and Customer's ZIP code sort vendor.
(ii) Conventional Statement Rendering - Automated Handling
Aurum will match the boxes of sorted checks with the printed
statements. Each box of checks is inspected to ensure that the first
check's account number matches the first statement's account number
and that the last check's account number matches the last
statement's account number. For statements with less than fifty-four
(54) Item enclosures, Aurum will use an insertion machine to read
the intelligent insertion marks or bar code imprinted on the
statement and match this count against the number of Items and
printed pages presented. If the counts match, the machine inserts
the Items, statement and any inserts into a Customer provided
standard window envelope that is of a quality consistent with that
required by automated Statement Rendering equipment and acceptable
to Customer and Aurum, seals the envelope and applies the proper
pre-sort first class postage so that the envelope can be released to
the ZIP code sort vendor.
Statements fifty-four (54) or more Items are non-machineable and are
rendered manually by Aurum. Aurum will review fine sort reject Items
and where possible resolve Item count discrepancies prior to
categorizing a statement as a Crippled Statement. If any Item count
discrepancy cannot be resolved, Aurum will follow Customer's written
instructions for statement handling; such instructions to be
mutually agreed to in advance for statement handling.
A-9
SCHEDULE A
BASIC SERVICES
(iii) Conventional Statement Rendering - Manual Handling
Aurum will manually render conventional statements that do not
qualify for automated rendering due to excessive physical page count
(greater than nine (9)) or excessive Item count (fifty-four (54) or
more)) will count all Items and match this count against the number
of enclosures indicated on the statement. If the count matches,
Aurum will insert the statement, Items and any inserts into a
Customer provided envelope that is acceptable to Customer and Aurum,
seal the envelope, and release the envelope to the ZIP code sort
vendor.
Aurum will review fine sort reject Items and where possible resolve
Item count discrepancies prior to categorizing a statement as a
Crippled Statement. If any Item count discrepancy cannot be
resolved, Aurum will follow Customer's written instructions for
statement handling; such instructions to be mutually agreed to in
advance for statement handling. Aurum will process as exceptions any
statements that are not to be mailed to the end-customer via
pre-sort first class mail. These exception statements will be
identified by unique intelligent insertion marks or bar code, which
will be mutually agreed upon by Aurum and Customer. From information
printed on the statement or provided separately by Customer, Aurum
will forward the statement to the appropriate location as
designated.
(iv) Conventional Account Statement Rendering - Crippled
Aurum will process as exceptions and make available for pickup by
Customer or Customer's courier by 07:00 of the Business Day
following determination of the Crippled Statement condition all
Crippled Statements.
(v) Conventional Account Statement Rendering - No Item Enclosures
Aurum will use an insertion machine to read the intelligent
insertion marks or bar code imprinted on the statement, fold the
correct number of pages, insert the statement and inserts into a
Customer provided standard window envelope that is of a quality
consistent with that required by automated Statement Rendering
equipment and acceptable to Customer and Aurum, seal the envelope,
and the envelopes are released to the ZIP code sort vendor.
(vi) Conventional Serial Fine Sort
Aurum will Serial Fine Sort Items for accounts designated by
Customer. Accounts requiring Serial Fine Sort will be maintained in
a separate statement cycle on the Customer's core data processing
system or designated as Serial Fine Sort accounts in a manner that
is acceptable to Customer and Aurum.
(vii) Image Archive Statement Merge
By 06:00 on the second Business Day following the Statement Cycle
Date when Aurum receives an image statement print file from
Customer's Data Processing Services Provider, Aurum will also
receive an image match file in a format mutually agreed to by the
parties. This file will facilitate merging Item Images with image
statement text in preparation for image statement printing and image
statement rendering.
A-10
SCHEDULE A
BASIC SERVICES
(viii) Image Statement Printing
Aurum will receive an image statement print file in a format
mutually agreed to by the parties from Customer's Data Processing
Service Provider by 06:00 on the second Business Day following the
Statement Cycle Date. After the image archive statement merge
process, Aurum will print image statement text and Item images in
simplex or duplex mode, as is mutually agreed to by Customer and
Aurum, in preparation for image statement rendering. The print
quality will be consistent with that required by automated ZIP code
sorting equipment and acceptable to Customer, Aurum and Customer's
ZIP code sort vendor.
(ix) End-Customer CD-ROM Statement
Aurum will retrieve check images from the Aurum-controlled online
archive; merging those check images with the corresponding periodic
statement text; and write that data, along with end-customer
licensed viewing software, to a CD-ROM for delivery to and use by
the end-customer.
(x) Image Statement Rendering - Automated Handling
Aurum will use an insertion machine to read the intelligent
insertion marks or bar code imprinted on the statement, fold the
correct number of pages, insert the statement and inserts into a
Customer provided standard window envelope that is of a quality
consistent with that required by automated Statement Rendering
equipment and acceptable to Customer and Aurum, seal the envelope
and the envelopes are released to the ZIP code sort vendor.
(xi) Image Statement Rendering - Manual Handling
Aurum will manually render image statements that do not qualify for
automated rendering due to excessive physical page count (greater
than nine (9)). Aurum will insert the statement and any inserts into
a Customer provided envelope that is acceptable to Customer and
Aurum, seal the envelope and release the envelope to the ZIP code
sort vendor.
Aurum will process as exceptions any statements that are not to be
mailed to the end-customer via pre-sort first class mail. These
exception statements will be identified by unique intelligent
insertion marks or bar code, which will be mutually agreed upon by
Aurum and Customer. From information printed on the statement or
provided separately by Customer, Aurum will forward the statement to
the appropriate location as designated.
(xii) Image Statement CD-ROM Rendering - Manual Handling
Aurum will manually render image statement CD-ROM's. Aurum will
insert the CDD-ROM and any inserts into a Customer provided envelope
that is acceptable to Customer and Aurum, seal the envelope, and
release the envelope to the ZIP code sort vendor.
Aurum will process as exceptions any statement CD-ROM's that are not
to be mailed to the end-customer via pre-sort first class mail.
These exception statement CD-ROM's will be identified in a manner
that is mutually agreed upon by Aurum and Customer. From information
provided by Customer, Aurum will forward the statement to the
appropriate location as designated.
A-11
SCHEDULE A
BASIC SERVICES
(xiii) Statement Inserts
Aurum will insert up to four (4) statement inserts into Customer
statements. The statement inserts will be of a size, format and
quality that is consistent with that required by automated Statement
Rendering equipment and acceptable to Customer and Aurum. The
proposed statement inserts will be submitted to Aurum at least ten
(10) Business Days in advance of the Statement Cycle Date.
(f) OTHER SERVICES
(i) Research
Aurum will provide Customer with assistance to resolve
out-of-balance conditions particular to inbound or outbound
check processing operations.
(ii) Original Item Retrieval
At Customer's request, Aurum will retrieve Items from the
check vault.
(iii) Item Posting File Transmission Contingency
In the event that Aurum is unable to successfully transmit any
Item Posting File to Customer Aurum will burn a CD-ROM or DVD
containing the data and make it available for pickup by
Customer or Customer's courier, or, arrange for courier
delivery to Customer's Data Processing Services Provider.
(iv) Image Processing System Reports
Aurum will write image system daily reports to an electronic
file in an ASCII format each Business Day and make the file
available for pickup by Customer using an TCP/IP transfer
utility prior to 07:30 the following Business Day.
(g) MISCELLANEOUS
(i) Programming Support
Aurum will provide Special Programming at Customer's request for new
or modified products or services at the rate quoted in Schedule C of
this Agreement.
(ii) On-site Consulting
Aurum will provide item processing consulting services at Customer's
request for new or modified products or services at the rate quoted
in Schedule C of this Agreement.
(iii) Courier Services
Aurum will manage the courier that is responsible for transportation
of Inclearing Items from the Federal Reserve Bank to the Aurum
Image Operations Center and the courier that is responsible for
transportation of Transit Items to the Federal Reserve Bank or other
upstream correspondent banks. Customer will be responsible for the
selection of the courier services provider and all courier and
transportation related expenses.
A-12
SCHEDULE B
OPTIONAL SERVICES
I. Description of Optional Services
If desired, effective no sooner than ninety (90) days after the
Operational Date, the following host-based application processing modules
or services ("Optional Services") will be available for an additional
charge, for on-line customer access from Customer terminals. Optional
Services charges are listed in Schedule C, Section II. It is the
Customer's responsibility to review the ITI documentation, utilize outside
resources such as consultants, input module specifications and train
end-users for Optional Services. The Conversion Services listed in
Schedule C, Section III are not intended to include these Optional
Services.
Product Product
Optional Systems/Modules Vendor Code
------------------------ ------- -------
Director ITI PDSH
Invision RTI INVSN
Prime ITI PRI
Premier eCom ITI PBM
Premier eCorp ITI PEC
Telebanc - Telephone Banking Module ITI TBM
Bill Payment Module ITI BPM
Optional Services/Miscellaneous:
ACH Origination
Annual Account Audit Review Report
ATM Services
Audit Confirmation Generation
Clerical Time/Research
Cumulative FMS Reporting
Custom Reports, SMART Reports
Host LAN Connect/TCP/IP
IRS Reporting
Parameter/Specification Changes
Programming Changes
Year-end Reporting
|
B-1
SCHEDULE C
SERVICE CHARGES
I. Basic Services.
(a) Data Processing Services
(i) Base Systems. The monthly service fee for Basic Services
provided using the Systems listed in Section I (a) of Schedule
A ("Base Systems") is based on the number of Account Records,
open or closed, maintained on the System at the end of each
month. An "Account Record" is an end-customer account
(including without limitation any open or closed DDA/checking
account, savings account, certificate of deposit account or
loan account) that is maintained on the AURUM System during
the applicable month. For Basic Services provided using Base
Systems, Customer will pay AURUM based on the following
incremental tier:
Account Volume Service Fee
-------------- -----------
0 - 5,000 Accounts $0.8000 per open or closed customer account
5,001 - 10,000 Accounts $0.7500 per open or closed customer account
10,001 and over Accounts $0.7000 per open or closed customer account
|
For example, when Customer reaches 7,000 total Account Records, the monthly
service fee will be $5,500; this is expressed mathematically as follows: (5,000
x $0.80) + (2,000 x $0.75) = $5,500.00.
(ii) Other Services. The monthly fees for other Basic Services
identified in Schedule A are as follows:
Description Service Fee
----------- -----------
ATM Transmission Norwest $200.00 per month
Netzee ACH Origination $200.00 per month
Smart Reports/Downloads $27.67 per report (no charge for first 20
reports)
VISA Debit Card Transmission $200.00 per month
Cumulative FMS Reporting Waived
Third Party Review One at no charge
Terminals Waived
Audit Confirmations At current AURUM rate
1098/1099 Notice Printing At current AURUM rate
Year end Processing At AURUM current rate
OMS monthly maintenance $250.00 per month
Data communications
Monthly Circuit Charge Rebill actual charges
Monthly Port Maintenance $200.00
|
(iii) Third Party Charges. Third party charges, including but not
limited to, postage, processing supplies and courier will be
billed directly to Customer from the respective third party.
(iv) Man-time. The following rates apply:
Description Service Fee
----------- -----------
Systems Consultant $125.00 per hour or AURUM current rate
Project Manager $125.00 per hour or AURUM current rate
Training Specialist $125.00 per hour or AURUM current rate
|
(v) Minimum Monthly Charge. If the number of Account Records
processed hereunder in any calendar month is less than 8,334,
then AURUM will be deemed to have processed 8,334 Account
Records.
C-1
SCHEDULE C
SERVICE CHARGES
(b) Item Processing Services
(i) Basic Services. The monthly service fee for Basic Services
listed in Section II of Schedule A, is based on volumes of
described service multiplied by the unit cost for that
service. Customer will pay AURUM such charges on a monthly
basis.
Description of Service Unit Cost
---------------------- ---------
Bulk File/Warehouse $0.0020 per item
Image Based Courtesy Amount Recognition $0.0066 per item
Image Based key Entry $0.0220 per field
Power Encode $0.0165 per field
Exception Pull/Cycle Sort $0.0044 per item
Fine Sort of Daily Items $0.0159 per item
Serial Fine Sort (minimum per account $10.00) $0.0159 per item
Inbound Return Items $2.4200 per item
Inclearings Image Capture $0.0250 per item
Large Item Notification $3.2200 per item
Image Rejects $0.1600 per item
Outbound Return Items $1.5000 per item
Proof of Deposit Encoding $0.0300 per field
POD Image Capture $0.0250 per item
Proof Corrections - not documented $0.7000 per item
Proof Correction - documented $3.5000 per item
Check Printing $0.2500 per item
Fax Copies $1.4300 per item
Photo/Subpoena Copies $1.0800 per item
Research $24.000 per hour
Signature Review $0.5500 per item
CD-ROM for Bank $27.50 per CD
Customer Statement CD-ROM $20.00 per CD-ROM
DVD for Bank Archive $37.50 per DVD
DVD per Item Burn for Archive $0.0010 per item
Jukebox Charge $850.00 per month
Online Image Archive Access
0-10,000 (flat fee) $250.00 per month
Online Image Archive Access
10,001 and over $0.0700 per item
Notice Printing $0.1000 per item
Statement Inserts - Auto $0.0102 per statement
Statement Inserts - Manual $0.0330 per statement
Statement Fine Sort $0.0159 per item
Statement Print $0.0510 per page
DDA Statement Rendition Automated w/zero enc $0.2000 per statement
DDA Statement Rendition Automated w/enclosures $0.4400 per statement
DDA Statement Rendition Manual w/enclosures $0.8000 per statement
DDA Statement Rendition Special Handling $0.8000 per statement
Postage Prepaid via monthly invoice
Courier Bank responsibility
Supplies Aurum current rate
|
C-2
SCHEDULE C
SERVICE CHARGES
(ii) Minimum Monthly Charge. If the aggregate charges for Item
Processing Services are less than $12,500.00 per calendar
month, AURUM may, at its option, bill the actual amount or
$12,500.00.
II. Optional Services. For Optional Services, Customer will pay the following
fees in addition to the charges listed in Section I of Schedule C:
Optional Systems/Modules: Charge
------------------------- ------
Invision $ 625.00 per month
TeleBanc 1 - 2,000 (flat fee) $ 200.00 per month
TeleBanc 2,001 and over $ 0.16 per log on
800 VRU Service $ 0.04 per minute
Director Not to exceed $5,000 set up fee
Not to exceed $500 monthly fee
Prime Set up fee approximately $2,500
(excludes Impromptu and Cubes). $300
monthly. Available 3/31/02
Premier eCom Set up fee $2,500
Monthly fee of $1,000 (includes 1,000
clients $0.85 per client thereafter)
Premier eCorp Set up fee $2,500 (includes
Monthly fee $300 (includes 400 clients
$5 per client thereafter)
Bill Payment Module (Host Interface) Set up fee $2,500
Monthly fee $380
Princeton ECom Set up fee waived
(up to $2500)
Other bill pay options to be
considered.
Fraud Detection System Not to exceed $800 per month
Available 6/30/02
|
Optional Services/Miscellaneous:
--------------------------------
ACH Origination $25.00 per outgoing file
ACH Transmissions (Outgoing) $18.00 per transmission
Audit Confirmation Generation Aurum Current Rate
Custom Reports, SMART Reports $95.00 per hour
IRS Reporting Aurum Current Rate
Parameter/Specification Changes $95.00 per hour
Programming Changes $95.00 per hour
Year-end Reporting Aurum Current Rate
|
C-3
SCHEDULE C
SERVICE CHARGES
III. Conversion Services
AFS Implementation Fees - One time
----------------------------------
Initial Image Setup Waived
Archive Access for Bank :
Microsoft NT/SQL Server License (25) $3,550.00
ImageDepot Archive Software (5) Concurrent $8,800.00
Archive Access for End Customers TBD in conjunction with Internet
provider
Image View Software for each Bank End Client
1 License $250.00
5 Licenses ($200 each) $1,000.00
10 Licenses ($150 each) $1,500.00
|
Additional Modules Implementation - One time
--------------------------------------------
Federal Call Reporter Not to exceed $7,500(one-time costs) for all
Holding Company Module Modules with concurrent installations.
Stockholder Accounting System Training Included
Asset Liability Management System Travel Expenses are additional
|
C-4
SCHEDULE D
CUSTOMER SYSTEMS
"Customer Systems" are the Systems to be provided by Customer for use in
conjunction with Aurum Systems. Customer Systems include, but are not limited to
the following:
System Vendor
------ ------
Data Communications Equipment Various
Loan Platform Bankers System - Rembrandt
Deposit Platform Harland Financial Solutions
Teller Equipment EZ Teller
Teller Automation Software EZ Teller
Platform Automation Software Harland Financial Solutions
InfoConnect ITI
InfoConnect Intercom Attachmate
InfoConnect FileXpress Attachmate
Netware Novell
NT Microsoft
Office Microsoft
Windows Microsoft
|
D-1
SCHEDULE F
PROCESSING TIMES
1. Customer Delivery Requirements
BUSINESS DAYS - MON - FRI
Inclearing Items 100% of SDS/Direct Send by 9:00
100% by 13:00
BUSINESS DAYS - MON - THURS
Over-the-Counter Item 100% by 21:30
BUSINESS DAYS - FRIDAYS
Over-the-Counter Items 100% by 21:30
|
2. Aurum File Transmission Requirements (Initiation of file transfer)
BUSINESS DAYS - MONDAY - FRIDAY
Inclearing 18:00
POD/Transit Over-the-Counter 24:00
3. Exception Item File transmission completed 03:30 NCD on Wednesday - Friday
04:30 NCD on Tuesday
06:30 NCD on Saturday
4. Image archive available 07:00 NCD
5. Exception Items available for pickup 07:00 NBD
(Large dollar items only)
NBD = Next Business Day
NCD = Next Calendar Day
|
F-1
SCHEDULE G
CUSTOMER RESPONSIBILITIES
I. Customer Responsibilities
In connection with the Basic, Optional, Additional and Conversion
Services and in addition to Customer's other obligations under this
Agreement, Customer will:
(a) Ensure that its personnel maintain a working knowledge of the Aurum
System and Item Processing Services and that new Customer personnel
are properly trained to utilize the Aurum System and Item Processing
Services.
(b) Appoint Aurum as its agent for purposes of receiving Items from and
returning Items to clearing organizations. Customer will notify all
appropriate third parties of such appointment and pay or reimburse
Aurum for any charges payable to such clearing organizations for, or
required as a condition to, so receiving or returning Items.
(c) Provide to Aurum and keep current, by mutually agreeable means, such
information concerning the DDA/Checking Accounts as Aurum may
reasonably require.
(d) Ensure that all Items, magnetic tapes, and other documents or media
which Aurum may require to process hereunder are in a format
acceptable to Aurum and contain, in machine readable form, the data
and information required by Aurum.
(e) Forward directly to Aurum any On-Us Items or other Items that are
posted by or on behalf of Customer without being entered into the
clearing process.
(f) Cooperate with Aurum in the performance of Basic Services and
provide to Aurum such data and information, management decisions,
regulatory interpretations and policy guidelines as Aurum reasonably
requires.
(g) Select, and be responsible for (financially and otherwise), the
courier service to be utilized in conjunction with the Basic
Services provided herein. The parties agree that such courier
service may be either an existing courier service shared by other
Aurum customers or, if Customer in its sole discretion determines
that it is not feasible or desirable to utilize such existing
courier service, such other courier service as is designated by
Customer.
(h) Be responsible for the timely delivery of proof of deposit Items
from Customer locations to the Aurum Data Center. Aurum will
consider receipt of Items upon delivery and time stamp of courier
receipts at the Aurum Data Center receiving window.
(i) Deliver to Aurum all Items, in a form acceptable to Aurum, to be
processed by Aurum. Customer assumes full responsibility for the
accuracy, completeness, and authenticity of all Items furnished to
Aurum, and Aurum shall be entitled to rely thereon and shall have no
obligation or responsibility to audit, check, or verify the Items.
Without limiting the generality of the foregoing, Customer shall
have sole responsibility for (a) verifying dates, signatures,
amounts, authorizations, endorsements, payment notices, collection
times, fees and charges imposed by Customer on its customers and
other similar matters on all Items delivered to Aurum; (b) placing
stop payments and holds on accounts; and (c) determining the
correctness of all magnetic ink inscribed or appearing on Items,
regardless of by whom or when inscribed. If any Items submitted to
Aurum are incorrect, incomplete, or not in the form required by
Aurum, then Aurum may, in its sole discretion, either (i) require
Customer to resubmit completed and corrected Items, or (ii) correct
and complete the Items itself and Customer will pay Aurum the
charges for any Additional Services provided by Aurum to correct or
complete such Items or otherwise prepare such Items for processing.
(j) Modems provided by Customer must be approved by Aurum to insure
compatibility with the Aurum System.
(k) Provide adequate space for the Equipment and a power source
according to the manufacturer's specification requirements for all
Equipment necessary for the complete System utilization.
(l) Provide adequate space for the installation of telephone drop(s)
necessary to connect Customer's terminals with the telephone lines
which communicate with the Aurum Systems. Aurum agrees to schedule
with the telephone
G-1
SCHEDULE G
CUSTOMER RESPONSIBILITIES
company the technical aspects of said installation of the data
communications telephone lines. Charges made by the telephone
company for the initial installation and ongoing costs of the data
communications telephone lines along with any additional drops or
changes to the drop locations in the future will be the
responsibility of Customer.
(m) Provide to Aurum and keep current, by mutually agreeable means,
information reasonably required by Aurum concerning the accounts
offered by Customer to its customers and internal Customer general
ledger accounts.
(n) Promptly inspect and review all reports and data files provided to
Customer by Aurum and, unless a shorter period of time is required
for any specific report or data file, notify Aurum of any incorrect
report or data file within one Business Day after receipt thereof.
Failure to so notify Aurum of any such report or data file will
constitute acceptance thereof.
(o) Establish cycle dates for the monthly statements for accounts in a
manner acceptable to Aurum so that approximately the same number of
such monthly statements are to be prepared on each of the no more
than twenty (20) Business Days during each month which are
designated by mutual agreement as statement days. Such monthly
statements will be printed in a format acceptable to Aurum, which
format will include bar coding indicating the number of enclosures
to be mailed with each statement.
(p) Cooperate with Aurum in the performance of Item Processing Services
and provide to Aurum such data and information, management
decisions, regulatory interpretations and policy guidelines as Aurum
reasonably requires.
G-2
ADDENDUM ONE
COMMUNITY BANK OF NEVADA
THIS ADDENDUM ("Addendum") to that certain Agreement for Information Technology
Services ("Agreement") between AURUM TECHNOLOGY INC (Aurum) and COMMUNITY BANK
OF NEVADA ("Customer"), dated of even date herewith, is made and entered into by
and between Customer and Aurum.
The parties agree to amend the Agreement as follows:
1. Section 1.1(c) of the Agreement is amended to read as follows:
"Basic Services" are the Services listed in Schedule A, including
the Item Processing Services.
2. Section 1.1(d) of the Agreement is amended to read as follows:
"Business Day" is each weekday, Monday through Friday, during which
Customer conducts its business operations and which is not a holiday
of the federal reserve banks.
3. New Sections 1.1(s) and 1.1(t) are added to the Agreement to read as
follows:
(r) "Item" is a document or other segment of media on which is
recorded information evidencing a debit or credit.
(s) "Item Processing Services" are the Services described in
Schedule A.
4. Section 3.1(c) of the Agreement is amended to read as follows:
On a mutually agreeable schedule Aurum will provide those services
and instructions ("Conversion Services") reasonably required for
Customer to convert to and use the Aurum Systems and the Item
Processing Services. Customer will cooperate in the conversion
effort and timely provide whatever information, data, clerical and
office support, management decisions, approvals and signoffs that
Aurum reasonably requires. According to a plan to be developed by
Customer and Aurum, Aurum will train a mutually designated group of
Customer's personnel in the proper use of the Aurum Systems (other
than the Aurum Systems used to provide Item Processing Services) to
enable such personnel to train Customer's user personnel in the use
of such Aurum Systems. Customer will cooperate with Aurum in
scheduling training in conjunction with Customer's conversion to the
Aurum Systems.
5. Sections 3.2(a) through 3.2(e) of the Agreement do not apply to Item
Processing Services provided by Aurum.
6. Section 3.4 of the Agreement does not apply to Aurum Systems used to
provide Item Processing Services.
1
7. A new Section 3.7 is added to the Agreement to read as follows:
General Terms Relating to Item Processing Services.
(a) With respect to Item Processing Services, Aurum will be
responsible for the Items from the time that such Items are
received by Aurum at the Data Center until the Items are
released for pickup at the Data Center to couriers; provided
that Aurum's liability for the destruction or disappearance
of Items will be limited to cases where the destruction or
disappearance is due entirely to the negligence or willful
misconduct of Aurum and, if so, Aurum sole obligation is to
reconstruct the Items from microfilm created by Customer.
(b) All times indicated in this Agreement refer to the time zone
in which the Item Processing Center is located.
8. A new Section 3.8 is added to the Agreement to read as follows:
Regulatory Compliance Related to Item Processing Services. If either
Aurum or Customer becomes aware of any changes or proposed changes
to any statutes, regulations or rules applicable to the Item
Processing Services, that party will promptly notify the other of
the change or proposed change, and the parties will cooperate in
analyzing the impact, if any, that the change or proposed change
will have on the obligations of the parties under this Agreement. If
any such change requires Aurum to modify any Item Processing
Services, Aurum will comply with such change and Customer will
reimburse Aurum for (a) any additional costs thereby incurred by
Aurum that are specific to Customer (such as the cost of retaining
Customer's data for a longer period of time), and (b) Customer's pro
rata share (based on such method of proration as Aurum in good faith
determines to be appropriate) of any additional costs thereby
incurred by Aurum that are not specific to Customer (such as the
cost of modifications to the Aurum Systems that apply to Customer
and to other Aurum customers for item processing services) and that
are in excess of the costs that Aurum would customarily absorb as
part of its normal services to its customers for item processing
services, as reasonably determined by Aurum.
9. A new Section 4.8 is added to the Agreement to read as follows:
Customer Responsibilities Related to Item Processing Services. In
order that Aurum may perform its obligations to provide Services,
including Item Processing Services, Customer shall perform the
actions provided in Schedule F.
10. Section 5.1(a) of the Agreement is amended to read as follows:
(a) For Basic Services, including Item Processing Services, the
monthly charges listed in Schedule C.
11. Section 5.2(a) of the Agreement is amended to read as follows:
2
All costs incurred by Aurum (i) in mailing reports or other output
to Customer, its customers, or third parties, and (ii) in
transporting, shipping, or delivering Items, reports, output, or
input to and from the Data Center, including without limitation
couriers, telecommunications and data communications charges.
12. The first sentence of Section 8.1 of the Agreement is amended to read as
follows:
Section 3.2(d) sets forth Customer's exclusive remedies for errors
in reports or other output provided by Aurum under this Agreement
and Section 3.7(a) sets forth Customer's exclusive remedies for the
destruction or disappearance of Items that occur while such Items
are being held at the Data Center.
13. New sixth and seventh sentences are added to Section 8.1 to read as
follows:
Customer expressly waives and releases any claim that it may
otherwise have against Aurum in excess of such amounts provided for
pursuant to this Section. By releasing and discharging Aurum from
such claims both known and unknown, Customer expressly waives any
rights it may have had under California Civil Code Section 1542
which provides as follows: "A general release does not extend to
claims which the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if known by him
must have materially affected his settlement with the debtor."
14. Schedule F, attached, is added to the Agreement.
15. Except as amended by this Addendum, the Agreement will be and remain in
full force and effect in accordance with its terms. Capitalized terms used
in this Addendum will be as defined in the Agreement unless otherwise
expressly defined in this Addendum.
16. Four (4) original copies of this Addendum will be executed and submitted
to Aurum by Customer. This Addendum will become effective when Aurum
executes this Addendum. Aurum will return one of the executed copies to
Customer.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date set
forth above.
AURUM TECHNOLOGY INC COMMUNITY BANK OF NEVADA
By: /s/ Brian Van Dyk By: /s/ Cathy Robinson
----------------- ------------------
Printed Printed
Name: Brian Van Dyk Name: Cathy Robinson
Title: President, Premier Division Title: Executive Vice President
Date: 11/15/2001 Date: 11/9/01
|
3
AMENDMENT NUMBER TWO
COMMUNITY BANK OF NEVADA
THIS AMENDMENT ("Amendment") to the AGREEMENT FOR INFORMATION TECHNOLOGY
SERVICES between Aurum Technology Inc. ("Aurum") and Community Bank of Nevada
("Customer"), dated of even date herewith, as amended or modified (the
"Agreement"), is between Customer and Aurum.
The parties agree to amend the Agreement as follows:
1. The recital of the Agreement is amended in its entirety to read as
follows:
"WHEREAS, Customer desires to purchase certain Data and Item Processing
Services from Aurum, a provider of such services, pursuant to the terms
and conditions set forth herein."
2. The first sentence of Section 2.1 of the Agreement is amended in its
entirety to read as follows:
"This Agreement will begin on the Effective Date and, unless terminated
earlier under Section 7.2, 7.3 or 7.4, will continue for a period of five
(5) years from the Implementation Date (the "Initial Term")." Thereafter,
this Agreement will automatically renew for successive terms of one year
each (the "Renewal Terms") unless either party gives the other party
written notice at least six months prior to the expiration date of the
Initial Term or the Renewal Term then in effect that the Agreement will
not be renewed beyond such term.
3. Section 5.2 (b) of the Agreement is amended in its entirety to read as
follows:5.2
"All actual, out-of-pocket costs and expenses, including, without
limitation, travel and travel-related expenses, which are incurred by
Aurum and pre-approved by customer when in excess of $500.00 in providing
Services when incurred at Customer's request."
4. Section 5.4 of the Agreement is amended to read as follows:
"Cost of Living Adjustment. No more than once in any twelve (12) month
period, Aurum may, at its option and by giving Customer written notice,
increase the charges for the Services by a percentage not to exceed the
percentage by which the ECI as of that time is higher than the ECI as of
(i) for the first adjustment, the earlier of the Effective Date or the
date of the last adjustment previously made pursuant to any immediately
prior agreement, if any, under which Aurum provided the same or similar
Services to Customer, and (ii) thereafter, the previous time that Aurum
adjusted its charges to Customer pursuant to this Section. In no event
will any such adjustment exceed three percent (3%). These increased
charges will remain in effect until Aurum adjusts them again pursuant to
this Section."
5. Section 7.4 of the Agreement is amended in its entirety to read as
follows:
Page 1 of 3
"Termination for Cause. If either party materially defaults in its
performance under this Agreement, except for non-payment of amounts due to
Aurum, and (i) fails to promptly commence curing such default with all due
diligence after receiving written notice specifying the default and (ii)
fails to either substantially cure such default within sixty (60) days
after receiving written notice specifying the default or, for those
defaults which cannot reasonably be cured within sixty (60) days, promptly
commence curing such default and thereafter proceed with all due diligence
to substantially cure the default, then the party not in default may, by
giving the defaulting party at least thirty (30) days prior written notice
thereof, terminate this Agreement as of a date specified in such notice. A
party shall give notice of its election to terminate this Agreement for
cause within a reasonable time following its discovery of the material
default, including any course of conduct constituting a material default."
6. Section 7.6(a) of the Agreement is amended in its entirety to read as
follows:
"All costs reasonably incurred by Aurum in connection with such
termination, including without limitation telecommunication line
disengagement expenses and costs of terminating leases on or shipping or
storing any equipment provided to Customer by or through Aurum under this
Agreement, plus a fifteen percent (15%) management fee not to exceed ten
thousand dollar ($10,000), plus Aurum's charges for any Additional
Services reasonably requested by Customer for de-conversion assistance
(together, the "Termination Costs").
7. Section 7.6 (b) of the Agreement is amended in its entirety to read as
follows:
"All references to fifty percent (50%) in this Section 7.7(b) are amended
to read as twenty five percent (25%)."
8. Section 7.7 of the Agreement is amended in its entirety to read as
follows:
"Payment Upon Non-renewal. If Customer gives or receives notice not to
renew this Agreement pursuant to Section 2.1, or Customer terminates this
Agreement under Section 9.5, Customer will pay to Aurum an amount equal to
all amounts then due and payable to Aurum. Aurum will provide
de-conversion assistance to Customer at a cost not to exceed $10,000,
provided that Aurum's only obligation to Customer for such de-conversion
assistance shall be to provide to Customer one copy of any test tapes and
one copy of any conversion tapes. Any additional de-conversion assistance
will be provided to Customer as an Additional Services as reasonably
requested by Customer."
9. Section 9.9 of the Agreement is amended in its entirety to read as
follows:
"Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Nevada, without giving effect to
any choice-of-law rules.
Page 2 of 3
10. Service Level Performance Standards. The parties agree to negotiate in
good faith to establish in writing any reasonable modifications to the
Service Level Performance Standards set forth in Schedule E to the
Agreement reasonably necessary to conform such standards to the Image Item
Processing Services. Such modifications, if any, will not make the
standards more burdensome on Aurum than the original standards; will not
lower the standards from the standards which exist as of the Addendum
Effective Date, shall be finalized as a written amendment to the Agreement
signed by both parties; and both parties agree to use best efforts to
finalize such modifications within sixty (60) days after Image Item
Processing Conversion Date. Such standards will be governed in accordance
with all applicable terms and conditions of the Agreement and any
additional terms and conditions contained in the amendment.
11. Except as amended by this Amendment, the Agreement will be and remain in
full force and effect in accordance with its terms. Capitalized terms used
in this Amendment will be as defined in the Agreement unless otherwise
expressly defined in this Amendment.
12. Three (3) original copies of this Amendment will be executed and submitted
to Aurum by Customer. This Amendment will become effective as of the date
set forth below when Aurum executes this Amendment. Aurum will return one
of the executed copies to Customer.
In WITNESS WHEREOF, the parties have executed this Amendment as of 11/15/2001.
COMMUNITY BANK OF NEVADA AURUM TECHNOLOGY INC.
By: /s/ Cathy Robinson By: /s/ Brian Van Dyk
------------------ -----------------
Printed Printed
Name: Cathy Robinson Name: Brian Van Dyk
Title: Executive Vice President Title: President, Premier Division
Date: 11/9/01 Date: 11/15/2001
|
Page 3 of 3
ADDENDUM NUMBER THREE
ADDITIONAL SERVICES
This ADDENDUM ("Addendum") to the Agreement for Information Technology Services
("Agreement") between Aurum Technology Inc. ("AURUM") and Community Bank of
Nevada ("Customer"), dated as of November 15, 2001, as amended or modified, is
effective from the date it is executed by AURUM and shall remain in effect for
the term of the Agreement. Capitalized terms used in this Addendum will be as
defined in the Agreement unless otherwise defined in this Addendum.
WHEREAS, Customer desires that AURUM provide certain Additional Services to
Customer as set forth in this Addendum;
WHEREAS, AURUM is willing to provide such Additional Services to Customer;
NOW, THEREFORE, AURUM and Customer hereby agree to amend the Agreement to
provide for such Additional Services as follows:
1. Additional Services. AURUM will provide to Customer, as Additional
Services, the SCM2100 User Interface Program, including: SCM2100 server
and workstation software and software upgrades as scheduled or required,
and assistance with installation of the Customer's SCM2100 server
("SCM2100 Server"). AURUM will provide such Additional Services in
accordance with this Addendum and the Agreement and such services will be
deemed Additional Services under the Agreement for all purposes.
2. Payments to AURUM. In consideration for the provision by AURUM of the
Additional Services set forth above, Customer will pay AURUM the amounts
set forth in Exhibit A attached hereto. Charges for such services will be
due and payable in accordance with the terms of the Agreement and of this
Addendum as follows: (i) Installation or set-up charges will be invoiced
in conjunction with signing of this Addendum; (ii) Monthly charges will
commence upon completion of the installation, but no later than 120 days
from commencement of the installation project (unless delays to
installation completion are attributable solely to Aurum).
3. Customer Responsibilities. Customer will (i) provide and maintain all
SCM2100 server hardware/software and host connectivity necessary to meet
ITI minimum requirements for the SCM2100 User Interface; (ii) will assist
Aurum with the installation of the SCM2100 server (iii) will perform
installation of all SCM2100 workstations for Customer's employees; (iv)
provide training to their employees on the use of SCM2100; and (v) will
upgrade all SCM2100 software as scheduled or required by Aurum.
4. Confirmation of Agreement. Except as amended by this Addendum, the
Agreement will be and remain in full force and effect in accordance with
its terms.
5. Execution of Addendum. Four (4) original copies of this Addendum will be
executed and submitted to AURUM by Customer. This Addendum will become
effective as of the date set forth below when AURUM executes this
Addendum. AURUM will return one of the executed copies to Customer.
AURUM TECHNOLOGY INC COMMUNITY BANK OF NEVADA
By: /s/ Gary Farnam By: /s/ Cathy Robinson
--------------- ------------------
Printed Printed
Name: Gary Farnam Name: Cathy Robinson
Title: Senior Vice President Title: Executive Vice President
Date: 8-21-02 Date: 8/5/02
Amend#3 SCM2100
|
1
EXHIBIT A
SCM2100 SERVER
SERVICE CHARGES
The monthly service fee for SCM21000 Server Services is based on the number of
SCM2100 Servers maintained by the Customer during each month. Monthly service
fees will not be prorated for a partial month.
One Time Charges
Set Up SCM2100 Host User Interface and Server
(Invoiced in conjunction with signing of the Addendum)
Initial Server Set Up Fee $ 1,750
Additional SCM2100 Installations or Assistance $ 150 per hour
Monthly Charges
SCM2100 Server Fee_ $ 40
|
ADDENDUM NUMBER FOUR
ADDITIONAL SERVICES
COMBINED BPM AND PRINCETON ECOM INTERFACE
This ADDENDUM ("Addendum") to the Agreement for Information Technology Services
between Aurum Technology Inc. ("AURUM") and Community Bank of Nevada
("Customer"), dated as of November 15, 2001, as amended or modified, is
effective from the date it is executed by AURUM and shall remain in effect for
the term of the Agreement. Capitalized terms used in this Addendum will be as
defined in the Agreement unless otherwise defined in this Addendum.
WHEREAS, Customer desires that AURUM provide certain Additional Services to
Customer as set forth in this Addendum;
WHEREAS, AURUM is willing to provide such Additional Services to Customer,
NOW, THEREFORE, AURUM and Customer hereby agree to amend the Agreement to
provide for such Additional Services as follows:
1. Additional Services. In connection with AURUM's provision of the
Additional Service to Customer AURUM will install at the AURUM Data Center
the Information Technology, Inc, (ITI) Bill Payment Module and the
Princeton eCom Interface ("Combined BPM and Princeton") including (i) all
related programs, reports and notices; and (ii) transfer of bill payment
files to Princeton eCom. AURUM will provide such Additional Services in
accordance with this Addendum and the Agreement and such services will be
deemed Additional Services under the Agreement for all purposes.
2. Payments to AURUM. In consideration for the provision by AURUM of the
Additional Services set forth above, Customer will pay AURUM the amounts
set forth in Exhibit A attached hereto. Charges for such services will be
due and payable in accordance with the terms of the Agreement and of this
Addendum as follows: (i) Installation or set-up charges will be invoiced
in conjunction with signing of this Addendum; (ii) Monthly charges will
commence upon completion of the installation, but no later than 120 days
from commencement of the installation project (except to the extent delays
to installation completion are attributable to Aurum)
3. Customer Responsibilities. Customer will be responsible for (i) all
Customer's customer (a) set up and maintenance (b) instructions and
training, (c) communications and marketing materials, (d) support and
problem resolution, relating to its bill payment through Princeton eCom;
(ii) review of all related reports; and (iii) assisting with all security
specifications necessary for the implementation and testing of Combined
BPM and Princeton.
4. Disclaimer. Customer has agreed to contract with Aurum for Princeton eCom
bill payment services. Customer understands and agrees that in no event
shall AURUM be liable for or as a result of any late files, late
transfers, or late payments nor for any interest, late fees, or other such
fees assessed as a result thereof, except to the extent such are
attributable to the gross negligence or willful misconduct of Aurum.
5. Confirmation of Agreement. Except as amended by this Addendum, the
Agreement will be and remain in full force and effect in accordance with
its terms.
6. Execution of Addendum. Four (4) original copies of this Addendum will be
executed and submitted to AURUM by Customer. This Addendum will become
effective as of the date set forth below when AURUM executes this
Addendum. AURUM will return one of the executed copies to Customer.
Community Bank of Nevada
Date: 09/13/02
Page 1 of 3
AURUM TECHNOLOGY INC COMMUNITY BANK OF NEVADA
By: /s/ Brian Van Dyk By: /s/ Cathy Robinson
----------------- ------------------
Printed Printed
Name: Brian Van Dyk Name: Cathy Robinson
Title: President, Premier Division Title: Executive Vice President
Date: 11/26/2002 Date: 11/14/02
Community Bank of Nevada
Date: 09/13/02
|
Page 2 of 3
EXHIBIT A
COMBINED BPM AND PRINCETON ECOM
SERVICE CHARGES
The monthly service fees for the Combined BPM and Princeton eCom are based on
the number of Account Records maintained on the System during each month.
Monthly service fees will not be prorated for a partial month. An "Account
Record" is defined as an end-customer account type including without limitation,
any open or closed DDA/Checking account, Savings account, Certificate of Deposit
account or Loan account, that are maintained on the System during the applicable
month.
One Time Charges
Set Up and Installation Charge of host modules $2,500*
(Invoiced in conjunction with signing of the Addendum)
Monthly Charges - Based on Account Volume
0 - 15,000 $ 380*
greater than 15,000 Request Quote
|
*per schedule C in current contract
Community Bank of Nevada
Date: 09/13/02
Page 3 of 3
ADDENDUM NUMBER FIVE
ADDITIONAL SERVICES
PRINCETON ECOM BILL PAY SERVICES
This ADDENDUM ("Addendum") to the Agreement for Information Technology Services
between Aurum Technology Inc. ("AURUM") and Community Bank of Nevada
("Customer"), dated as of November 15, 2001, as amended or modified, is
effective from the date it is executed by AURUM and shall remain in effect for
the term of the Agreement. Capitalized terms used in this Addendum will be as
defined in the Agreement unless otherwise defined in this Addendum.
WHEREAS, Customer desires that Aurum provide certain Additional Services to
Customer as set forth in this Addendum;
WHEREAS, Aurum is willing to provide such Additional Services to Customer;
NOW, THEREFORE, Aurum and Customer hereby agree to amend the Agreement to
provide for such Additional Services as follows::
1. Additional Services. Aurum will provide the Additional Services in
accordance with the terms and conditions set forth in Schedule A
(including all Schedules and Exhibits attached thereto) attached to this
Addendum.
2. Rules of Contract Construction and Interpretation.
(a) Each of the provisions of the Agreement is incorporated by reference
into this Addendum. Except as expressly amended by this Addendum,
the Agreement is ratified, confirmed and remains unchanged in all
respects and will be and remain in full force and effect in
accordance with its terms.
(b) This Addendum supersedes and replaces any prior agreement (written
or oral) as to its subject matter. If there is any conflict between
the terms and conditions of this Addendum and other terms and
conditions of the Agreement or any prior addendum to this Agreement,
the terms and conditions of this Addendum shall prevail with respect
to the Addendum.
(c) The term "Addendum" means, includes and incorporates this Addendum
and all Schedules and Exhibits attached to this Addendum.
3. Execution of Addendum. Four (4) original copies of this Addendum will be
executed and submitted to Aurum by Customer. This Addendum will become
effective as of the date set forth below when Aurum executes this
Addendum. Aurum will return one of the executed copies to Customer.
AURUM TECHNOLOGY INC. COMMUNITY BANK OF NEVADA
By: /s/ Brian Van Dyk By: /s/ Cathy Robinson
-------------------------------- ------------------------------
Printed Printed
Name: Brian Van Dyk Name: Cathy Robinson
Title: President Title: Executive Vice President
Date: 11/26/2002 Date: 11/14/02
|
1
SCHEDULE A
BILL PAYMENT SERVICES
PROCESSING AGENT IS PRINCETON eCOM CORPORATION
ARTICLE I - SERVICES
1.1 Bill Payment Services. Aurum will provide the bill payment services listed
herein ("Bill Payment Services") through the third party processing agent
("Processing Agent") subject to the terms and conditions of the agreement
between Aurum and Processing Agent for the provision of Bill Payment
Services. The Processing Agent selected by Customer is Princeton eCom
Corporation. During the Schedule Term, Aurum agrees to provide to
Customer, and Customer agrees to accept from Aurum, the Bill Payment
Services, subject to the terms and conditions set forth herein. Customer
agrees that Aurum shall be the sole and exclusive provider of the Bill
Payment Services for the Customer. For purposes of the foregoing, the term
"Customer" shall include Customer's affiliates.
1.2 Terms of Bill Payment Services. Aurum will provide Bill Payment Services
to End User Customers upon the following conditions:
(a) Eligibility. Only the following End User Customers shall be eligible
to receive Bill Payment Services: (i) consumer demand deposit account
holders ("Consumer Account Holders"), or (ii) business demand deposit
account holders ("Business Account Holders").
(b) Transaction Cap. Customer must select "Good Funds" Bill Payment
Services model. The "Good Funds" model requires that the Processing Agent
must receive good funds from the Customer before it will make payment on
any End User Customer transactions. There is no monetary amount limitation
(transaction cap) on End User Customer transactions in "Good Funds" model
of Bill Payment Services.
(c) Credit Risk.
(i) Customer bears the credit risk associated with potential Non
Sufficient Funds ("NSF") or return items for all Consumer Account
Holders.
(ii) Customer bears the credit risk associated with NSF or return items
for Business Account Holders.
(d) Risk Reduction Measures. Aurum or the Processing Agent may, from
time to time, institute certain operating procedures to reduce credit risk
and exposure ("Procedures"). Customer and all eligible End User Customers
are subject to, and shall conform to, all such Procedures. Aurum shall use
commercially reasonable efforts to inform Customer in advance of the
implementation of such Procedures and Aurum will use commercially
reasonable efforts to inform Customer within five (5) business days of
Aurum's receipt of notice from the Processing Agent of the implementation
of such Procedures.
1.3 Bill Payment Services Payment Processing.
(a) Accurate payment data provided by Customer on behalf of End User
Customers in files supplied to the Processing Agent, will be taken through
an interface from Aurum each business day. As between Aurum and Customer,
Customer assumes responsibility for the accuracy and completeness of the
payment data.
(b) Processing Agent will handle the transfer of funds in accordance
with End User Customer payment instructions activated in accordance with
sub-paragraph (a) above. Processing Agent will supply and transmit to
Customer payment information for debit against the appropriate Customer
settlement account. The Processing Agent will initiate ACH debits and
credits. Credits may be sent via check, electronic transmissions, or ACH
to payees.
(c) End User Customer inquiries regarding payments made on behalf of End
User Customer to payees will be handled by the Customer.
(d) From time to time, Processing Agent may make changes to the
above-described Procedures. Aurum will use commercially reasonable efforts
to notify Customer thirty (30) days in advance of any changes.
1.4 Late Fees. End User Customers are eligible for reimbursement of late fees
attributable to payment errors by the Processing Agent under the current
reimbursement policies of the Processing Agent.
1.5 Contract between Customer and Processing Agent. Aurum will assist Customer
and Processing Agent in obtaining an executed agreement ("Service
Agreement"), attached as Exhibit A-3 with the Customer concerning
settlement of funds and support services. Aurum and Processing Agent shall
not be required to process payments for the Customer if it does not
execute a Service Agreement. Processing Agent shall have no obligation to
enter into a Service Agreement with the Customer. The decision to enter
into any Service Agreement shall be in Processing Agent's sole discretion
and judgment. This Addendum shall be expressly conditioned on the
execution of a Service Agreement between Customer and Processing Agent.
1.6 Aurum Premier eBanking Services and Core Processing. Aurum can not provide
Bill Payment Services to the Customer unless Customer is receiving Aurum
Premier eBanking Services and Aurum core processing. Therefore, during the
Schedule Term, Customer is required to purchase Aurum Premier eBanking
Services and to maintain Aurum as its core data processing vendor or to
utilize Aurum provided systems for its core data processing. This Addendum
is expressly conditioned on Customer purchasing such services and/or
systems.
1.7 Regulatory Compliance for Bill Payment Services. Customer shall be
responsible for (i) compliance with all state and federal laws and
regulations governing banks and other financial institutions; (ii) any
disclosure to its End User Customers with respect to the Bill Payment
Services and each Customer product or service made available through the
Aurum System ("Customer Product/Service"); (iii) the terms and conditions
of any Customer Product/Service; (iv) the terms, conditions, and any
limitations on which any Customer Product/Service may be accessed,
utilized or transactions originated by any End User Customer; (v)
determining the authority of any person accessing a Customer
Product/Service; and (vi) preparing, maintaining, and monitoring
compliance with verifiable documentation with respect to the foregoing.
Customer acknowledges and agrees that Customer shall not rely upon Aurum
for advice regarding compliance with governmental regulations. Customer
must independently verify its compliance with such regulations through its
own legal counsel. Aurum shall use commercially reasonable efforts, during
the Schedule Term, to be in substantive compliance with federal rules and
regulations as they relate to vendors of Bill Payment Services. In the
event that there is a significant change in the manner by which the Bill
Payment Services can be furnished hereunder, as a result of a regulatory
compliance requirement, Aurum and Customer shall negotiate in good faith
to resolve the compliance issue. If Aurum determines that compliance is
cost prohibitive, Aurum may elect to terminate the Addendum without
penalty, by furnishing Customer with thirty (30) days prior written
notice. Regulatory disclosure requirements are the responsibility of
Customer.
If Customer believes that any modifications to the Aurum System are
required under any laws, rules, or regulations, Customer will promptly so
inform Aurum. Aurum will perform any modifications to the Aurum System or
recommend changes to operating procedures of Customer that Aurum
determines are necessary or desirable; provided, that if any such changes
or modifications result in a significant increase in Aurum's cost of
providing Bill Payment Services, Aurum will be entitled to increase the
charges under this Addendum by an amount that reflects a pro rata
allocation of Aurum's increased cost among the applicable Aurum customers.
New or enhanced Aurum System features, functions, reports, or other
services that may result from such modifications or recommendations may be
provided as an Additional Service. Notwithstanding the foregoing, Customer
acknowledges that the Aurum System may, from time to time, consist in part
of System(s) licensed by Aurum from third-party vendor(s) and, therefore,
Aurum shall have no duty or responsibility to modify any such third-party
System under this Section, except to the extent that the vendor thereof
has such a duty or responsibility to modify such System pursuant to the
applicable license agreement between Aurum and such vendor.
1.8 Aurum System Changes. Aurum shall have the right to modify the Aurum
System including, without limitation, to (i) make changes in the method of
access to or delivery of the Aurum System including, without limitation,
interface procedures ("Interface Changes"), (ii) make modifications to the
Aurum System which are provided to Customer at no additional cost ("Aurum
System Enhancements"). The identification in this Addendum of specific
brands or names of third-party providers is for reference only. Customer
acknowledges and agrees that it will not rely on such brand names
third-party providers is for reference only. Customer acknowledges and
agrees that it will not rely on such brand names or third-party providers
as a promise by Aurum to use any particular brand or third-party provider.
Aurum reserves the right to substitute any brand or third-party provider
of the Bill Payment Services, at its sole discretion, at any time with or
without notice, provided that the quality of the Authorized Services is
not materially diminished by such substitution.
1.9 Correction of Errors. Aurum will correct any errors in customer files that
result in errors in reports or other output where such errors (i) are due
solely to either malfunctions of Aurum's equipment or the Aurum Systems or
errors of Aurum's operators, programmers, or other personnel, and (ii) are
called to Aurum's attention within the time frames specified below. Aurum
will, to the extent reasonably practicable, correct any other errors as an
Additional Service. Customer will balance reports to verify master file
information and will inspect and review all reports and other output
(whether printed or electronically transmitted) created from data provided
by Customer to Aurum. Customer will reject all incorrect reports or output
(i) within two Business Days after receipt of daily reports or output,
(ii) within five Business Days after receipt of annual, quarterly, or
monthly reports or output, and (iii) within three Business Days after
receipt of all other reports or output. This Section 1.9 sets forth
Customer's exclusive remedies for errors in reports or other output
provided by Aurum under this Addendum.
ARTICLE II - TERM
2.1 Schedule Term. This Addendum will begin on the Addendum Effective Date
and, unless terminated earlier pursuant to the terms of the Agreement,
will continue for a period of 54 months from the Addendum Effective Date
(the "Initial Schedule Term"). Thereafter, this Addendum will
automatically renew for successive terms of five (5) years each (the
"Renewal Schedule Terms") unless either party gives the other party
written notice at least six (6) months prior to the expiration date of the
Initial Schedule Term or the Renewal Schedule Term then in effect that the
Addendum will not be renewed beyond such Initial Schedule Term or Renewal
Schedule Term.
ARTICLE III - PAYMENTS TO AURUM
3.1 Fees and Expenses. Customer shall pay the Bill Payment Services Fees
listed in Exhibits A-1 and A-2 ("Bill Payment Services Fees"). Aurum shall
invoice Customer monthly for all Bill Payment Services Fees, and Customer
shall pay such fees, in accordance with the terms of the Agreement. At any
time, Aurum may increase its fees in order to take into account any
increase fees or assessments imposed by the Processing Agent.
ARTICLE IV - INDEMNITY
4.1. Indemnification by Customer.
(a) Customer shall indemnify, defend and hold harmless Aurum, its
officers, directors, shareholders, employees, agents and affiliates
from and against any claims, losses, damages, liabilities or
expenses (including, without limitation, reasonable attorneys' fees
and expenses) (collectively, "Aurum Indemnified Claims") resulting
from or arising out of (i) the use of (A) the Aurum System or any
part thereof, and (B) the Bill Payment Services by Customer,
Customer's agents or any End User Customer, including, without
limitation, any misrepresentations made by Customer with respect to
the Aurum System or the Bill Payment Services; (ii) Customer's
noncompliance or alleged noncompliance with the provisions of
applicable law or regulation, or (iii) Customer's violation of any
provision of any agreement between Customer and any third party.
(b) Aurum shall promptly notify Customer in writing and in reasonable
detail of any Aurum Indemnified Claim. Customer shall have the
authority to control the defense and settlement of such Aurum
Indemnified Claim, and Aurum shall give reasonable assistance to
Customer to enable Customer to defend the Aurum Indemnified Claim.
Aurum shall have the right, but not the obligation, to participate,
at its own expense, with respect to any such Indemnified Claim. No
such Aurum Indemnified Claim shall be settled or compromised by
Customer without the prior written consent of Aurum if such
settlement or compromise in any manner indicates that Aurum
contributed to or was responsible for the cause of any such Aurum
Indemnified Claim, or if such settlement or compromise imposes any
obligations upon Aurum or requires Aurum to take any action.
(c) Customer shall not be liable for any Aurum Indemnified Claim under
this Section 4.1 to the extent that such Aurum Indemnified Claim (i)
is found in a final and binding arbitration award or a final
non-appealable
judgment by a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of Aurum or (ii) is for
any misrepresentations made by Customer with respect to the Aurum
System or the Bill Payment Services, where such misrepresentation
resulted from misrepresentations made to Customer by Aurum or
Processing Agent with respect to the Aurum System or the Bill
Payment.
4.2. Use of the System by Third Parties. The parties acknowledge that
Customer is solely responsible for the use of the Bill Payment
Services and/or Aurum System (and any resulting damages) by End User
Customers and other third parties including, without limitation, any
improper or unauthorized transfers of funds from accounts via the
Bill Payment Services and/or Aurum System, any failure or delay in
transmitting a message back from the Processing Agent or the use for
any purpose of any financial calculators contained in the Aurum
System.
ARTICLE V - DEFINITIONS
5.1 Definitions. In addition to all other terms defined in the Addendum and
Schedules, the following terms as used in this Addendum and Schedule shall
have the following meanings:
(a) "Agreement" means that certain Agreement for Information Technology
Services ("Agreement") between Aurum and Customer, together with all
Schedules and amendments attached hereto or hereafter attached by
mutual consent of the parties (all of which are incorporated herein
by reference).
(b) "Bill Payment Services" means the services provided for in this
Addendum.
(c) "Aurum System" shall mean Systems, Software or applications provided
by Aurum or Aurum's third party vendors, together with all Aurum
System Enhancements and modifications made available to Customer
under this Addendum.
(d) "End User Customer" means a customer, client or member of Customer
who uses the Bill Payment Services.
(e) "Software" means that portion of the Aurum System that is comprised
of Aurum's computer programs installed on Aurum's equipment.
(f) "System" or "Systems" are (i) computer programs, including without
limitation software, firmware, application programs, operating
systems, files, and utilities; (ii) supporting documentation for
such computer programs, including without limitation input and
output formats, program listings, narrative descriptions, operating
instructions and procedures, user and training documentation,
special forms, and source code; and (iii) the tangible media upon
which such programs are recorded, including without limitation
chips, tapes, disks, and diskettes.
(g) "Schedule Term" means the Initial Schedule Term and all Renewal
Schedule Terms.
(h) "Premier eBanking Services" shall mean the Additional Services
offered by Aurum as either Premierecom Internet Banking or
Premierecorp Cash Management.
EXHIBIT A-1
BILL PAYMENT SERVICES FEES
(PROCESSING AGENT IS PRINCETON eCOM)
ONE-TIME AND RECURRING CHARGES
SERVICE DESCRIPTION PRICE UNIT
-------------------------- ------------------------------------------------- --------------- -----------------
RECURRING CHARGES
BILL PAYMENT MONTHLY Minimum Fee required to be paid if total Bill See Exhibit A-2 Per Customer
MINIMUM Payment Transaction charges for the month are
less than the monthly minimum fee set forth
on Exhibit A-2.
BILL PAYMENT TRANSACTIONS* Transaction triggered by End User Customer See Exhibit A-2 Per Transaction
request to debit a checking account and generate
a payment to a payee
STOP PAYMENT Transaction triggered by Customer request to $25.00 Per Transaction
issue a Stop Payment on a Bill Payment
transaction
MANUAL RE-ISSUED CHECK Transaction triggered by End User Customer $20.00 Per Transaction
request for a Manual Re-Issued Check on a
Bill Payment transaction
PHOTO COPIES Transaction triggered by Customer request for a $10.00 Per Transaction
photo copy of a bill payment transaction
EXPRESS MAIL Transaction triggered by Customer request for a $25.00 Per Transaction
bill payment transaction to be mailed with
priority delivery
DELETE PAYMENT Transaction triggered by Customer request to $10.00 Per Transaction
delete an in-process bill payment transaction
RE-CREDIT Transaction triggered by Customer request to $2.00 Per Transaction
re-credit funds to bill payment funding account
FED WIRE FEE Transaction triggered by Customer request to $25.00 Per Transaction
process bill payment transaction via Fed Wire
REPORTING PACKAGE Bill Payment Monthly Activity Report $125.00 Per Customer/Per
Month
CONFIRMATION REPORT Bill Payment transaction confirmation report $0.00 Per Customer/Per
Month
CUSTOMER SERVICE INTERFACE Customer ID for access to End User Customer Bill $35.00 Per ID/Per Month
(MINIMUM ONE REQUIRED) Payment transaction detail
|
SERVICE DESCRIPTION PRICE UNIT
-------------------------- ------------------------------------------------- --------------- -----------------
ONE TIME CHARGES
INITIAL SETUP - BILL PAYMENT Includes setup and implementation of Bill Payment See Exhibit A-2 Per Customer
processing capability utilizing Processing Agent
to perform back-office bill payment fulfillment
ON-SITE TRAINING / SUPPORT Customer requested on-site training or support $1,400.00 plus Per day
expenses
IMPLEMENTATION/TECHNICAL All technical support $175.00 Per hour
SERVICES
AD HOC REPORTS One time report requests Quote Per request
SYSTEM CUSTOMIZATION Aurum can provide customization services in Quote Per request
support of Customer's needs or special
programming requests
CUSTOMER DEACTIVATION FEE Fee to Deactivate Customer Quote Per request
|
EXHIBIT A-2
Per Schedule C of current customer contract, up to $2,500 of the Princeton ecom
set up fee will be waived.
54 MONTHS 4 YEARS 3 YEARS
------------------------ ------------------------ ------------------------
MONTHLY MONTHLY MONTHLY
INITIAL SETUP MINIMUM INITIAL SETUP MINIMUM INITIAL SETUP MINIMUM
------------- ------- ------------- ------- ------------- -------
< 15,000 ACCOUNTS $2,750 $ 350 $4,000 $ 350 $5,500 $ 350
PER TRANSACTION $ 0.50 $0.55 $0.60
|
EXHIBIT A-3
CONTRACT BETWEEN CUSTOMER AND PROCESSING AGENT
PRINCETON eCOM CORPORATION
650 COLLEGE ROAD EAST
PRINCETON, NEW JERSEY 08540
The undersigned ("Financial Institution"), as a customer of Aurum
Technology Inc. ("Aurum") and Princeton eCom Corporation ("eCom") hereby agree
and acknowledge as follows:
eCom and Aurum have entered into an agreement whereas eCom will provide
processing services for Financial Institution's customers initiated electronic
payments by and through Aurum. eCom will obtain from Aurum, as frequently and
procedurally as established during the Implementation Phase, the Payment Data.
Upon receipt of Payment Data, eCom will debit funds in an amount equal to the
Payment Data from the Designated Account of the Financial Institution ("Payment
Amount"). eCom has developed a portal based Customer Service Interface ("CSI")
which will allow Financial Institutions twenty - four hour (24) access to review
payment status and related functionality.
Debiting Designated Account. Financial Institution authorizes eCom to initiate
the ACH debit or wire draw down for the Payment Amount and agrees that the
corresponding funds in the Financial Institution's Designated Account are good
and available. Financial Institution acknowledges and understands that eCom is
relying on the information contained in the Payment Data and will be initiating
payments to various payees based on that information. Should there be
insufficient funds in the Financial Institution's Designated Account at the time
that eCom initiates the ACH debit, or for some other reason eCom is prevented
from receiving or collecting the Payment Amount, Financial Institution will
immediately fund the Designated Account and indemnify, reimburse and hold eCom
harmless from any and all losses or damages resulting therefrom.
Ownership of funds. All funds associated with the eCom Services provided
hereunder will be the property of Financial Institution. The Financial
Institution will be responsible to provide eCom the necessary instructions and
authorizations for eCom to initiate a Fed Wire or ACH debit from Financial
Institution of such amounts as are necessary to process the Payment Data and pay
for outstanding remittances. On each Business Day, the collected customer funds
will be held in a concentrated account by eCom for the benefit of certain third
parties ("Concentration Account"). eCom acknowledges and agrees that Financial
Institution has an undivided beneficial interest in the principal of all funds
in the Concentration Account, which undivided beneficial interest shall, on any
date, be equal to that percentage which (x) the principal payments from its
customers which have been deposited in the Concentration Account and have not
been disbursed from the Concentration Account as of that date relative to (y)
the aggregate principal of all funds in the Concentration Account at that date.
eCom agrees to maintain, and make available to Financial Institution detailed
records relating to credits received into, and disbursements made from, the
Concentration Account. eCom shall not commingle any of its own funds with such
funds but shall be permitted to commingle funds remitted by other eCom customers
held by eCom for their benefit for payment to designated payees with such funds.
Financial Institution and eCom agree that all interest and other earnings
accrued on the principal amount of Financial Institution funds deposited into
the Concentration Account shall be deemed adequate compensation to eCom for
administering, protecting, preserving, and reconciling all such deposits.
Customer Service Support. eCom will provide access to the Customer Service
Interface ("CSI") for the Financial Institution with support that will include
payment research, stop payment, reissue of check payments, and printed copies of
cleared checks. Financial Institution shall access various levels of customer
service through eCom's Customer Service Interface ("CSI") according to the terms
and conditions set forth by eCom, which may change from time to time upon
reasonable notice to Financial Institution.
Financial Institutions responsibilities with respect to CSI. The CSI will enable
Financial Institution to perform queries to find detailed information, perform
stop & reissues and stop & refunds on payments being processed by eCom, and view
digital check images. Financial Institution will have the responsibility to
create logins and assign access. Financial Institution will be given a password
and identifying login to enable access to the CSI ("ID"). Financial Institution
authorizes eCom to rely on this ID to identify Financial Institution, and to
follow the instructions of any person who has the correct ID. Financial
Institution's ID and instructions will have the same effect as Financial
Institution's signature, authorizing eCom to take the requested action.
Financial Institution must comply with all time requirements in order that its
instructions are carried out in a timely fashion.
9
Financial Institution agrees to take proper precautions to safeguard its ID and
maintain security regarding ownership, access and use of the ID. Financial
Institution is fully responsible for transactions made by any person to whom
Financial Institution gives the ID. Financial Institution shall change or delete
the ID upon an employee leaving the employment of the Financial Institution and
if the employee who maintains the main ID leaves the employment of the Financial
Institution, Financial Institution must advise eCom of said change within five
(5) Business Days. All CSI training materials received by Financial Institution
are considered proprietary and cannot be redistributed without written consent
from eCom. Financial Institution will be fully liable for the maintenance of
logins, assignment of originators and confidential information.
Counterparts/Facsimile. This agreement may be executed in counterparts and
facsimile signatures shall be effective as if original.
Financial Institutions address and contact person is as follows:
Address: 1400 Rainbow Blvd
Las Vegas, Nevada 89146
Contact Person: Rich Elsmore
This Financial Institution Agreement may not be amended except in writing signed
by an authorized officer or representative of each of the parties.
COMMUNITY BANK OF NEVADA
BY: /s/ Cathy Robinson
--------------------------
NAME CATHY ROBINSON
TITLE: EXECUTIVE VICE PRESIDENT
DATE: 11/14/02
|
PRINCETON eCOM CORPORATION
By: /s/ Teresa Couney for Princeton
--------------------------
NAME Teresa Couney
TITLE: Vice President
DATE: 12/15/02
|
10
ADDENDUM NUMBER SIX
ADDITIONAL SERVICES - OFAC REPORTING MODULE
This ADDENDUM ("Addendum") to the Agreement for Information Technology Services
("Agreement") between Aurum Technology Inc. ("AURUM") and Community Bank of
Nevada ("Customer"), dated as of November 15, 2001, as amended or modified, is
entered into between Aurum and Customer and is effective from the date it is
executed by AURUM and shall remain in effect for the term of the Agreement.
Capitalized terms used in this Addendum will be as defined in the Agreement
unless otherwise defined in this Addendum.
WHEREAS, Customer desires that AURUM provide certain Additional Services to
Customer as set forth in this Addendum;
WHEREAS, AURUM is willing to provide such Additional Services to Customer,
NOW, THEREFORE, AURUM and Customer hereby agree to amend the Agreement to
provide for such Additional Services as follows:
1. Additional Services. In connection with AURUM's provision of the
Additional Service to Customer, AURUM will install at the AURUM Data
Center the Information Technology, Inc, (ITI) Office of Foreign Assets
Control (OFAC) Reporting Module ("ORM") including all related extract and
comparison programs and reports. AURUM will compare Customer's records to
the most current OFAC list as directed by Customer and scheduled
semi-annually by AURUM. AURUM will provide such Additional Services in
accordance with this Addendum and the Agreement and such services will be
deemed Additional Services under the Agreement for all purposes.
2. Payments to AURUM. In consideration for the provision by AURUM of the
Additional Services set forth above, Customer will pay AURUM the amounts
set forth in Exhibit A attached hereto. Charges for such services will be
due and payable in accordance with the terms of the Agreement and of this
Addendum as follows: (i) Installation or set-up charges will be invoiced
in conjunction with signing of this Addendum; (ii) Monthly charges will
commence the month following completion of the installation and initial
extract, but no later than 120 days from commencement of the installation
project (unless delays to installation completion are attributable solely
to Aurum).
3. Customer Responsibilities. Customer will be responsible for (i) reviewing
ORM Reports and taking appropriate action to verify accuracy of suspects
reported; (ii) receiving and formatting extract file (if requested) and,
(iii) performing maintenance to CIS records in order to be excluded from
future reporting if deemed necessary.
4. Confirmation of Agreement. Except as amended by this Addendum, the
Agreement will be and remain in full force and effect in accordance with
its terms.
5. Execution of Addendum. Four (4) original copies of this Addendum will be
executed and submitted to AURUM by Customer. This Addendum will become
effective as of the date set forth below when AURUM executes this
Addendum. AURUM will return one of the executed copies to Customer.
AURUM TECHNOLOGY INC. COMMUNITY BANK OF NEVADA
By: /s/ G.L. Farnam By: /s/ Cathy Robinson
-------------------------- ------------------------------
Printed Printed
Name: G.L. Farnam Name: Cathy Robinson
Title: SVP Title: Executive Vice President
Date: 11-14-02 Date: 9/30/02
Amend#6 OFAC
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1
EXHIBIT A
OFAC REPORTING MODULE
SERVICE CHARGES
The monthly service fees for ORM are based on the number of Account Records
maintained on the System during each month and the Run Frequency as instructed
by the Customer. Monthly service fees will not be prorated for a partial month.
All Run Frequency fees will be annualized and billed monthly. An "Account
Record" is defined as an end-customer account type including without limitation,
any open or closed DDA/Checking account, Savings account, Certificate of Deposit
account or Loan account, that are maintained on the System during the applicable
month.
Description Service Fee
----------- -----------
One Time Charges
Installation (Invoiced in conjuction with signing of the Addendum
(includes installation of host module and initial extract)
0 - 15,000 $1,650
Monthly Service Fees
(billed monthly beginning month following initial extract)
Based on Account Volume
0 - 7,500 $ 25
0 - 15,000 $ 50
0 - 24,000 $ 85
greater than 24,000 Request Quote
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Per Run Frequency
(billed monthly beginning month following initial extract)
Monthly Quarterly Semi/Ann Annual On Request
------- --------- -------- ------ ----------
0 - 15,000 $ 50 $ 25 $ 12.50 $ 6.25 $150
15,001 - 36,000 $ 100 $ 50 $ 25.00 $ 12.50 $250
greater than 36,000 Request Quote
Per Fixed or Delimited File $ 25
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ADDENDUM NUMBER SEVEN
ADDITIONAL SERVICES
ADDITIONAL INSTITUTION
This ADDENDUM ("Addendum") to the Agreement for Information Technology Services
between Aurum Technology Inc. ("AURUM") and Community Bank of Nevada
("Customer"), dated as of November 15, 2001, as amended or modified, is
effective from the date it is executed by AURUM and shall remain in effect for
the term of the Agreement. Capitalized terms used in this Addendum will be as
defined in the Agreement unless otherwise defined in this Addendum.
WHEREAS, Customer desires that AURUM provide certain Additional Services to
Customer as set forth in this Addendum;
WHEREAS, AURUM is willing to provide such Additional Services to Customer;
NOW, THEREFORE, AURUM and Customer hereby agree to amend the Agreement to
provide for such Additional Services as follows:
1. Additional Services. In connection with AURUM's provision of the
Additional Service to Customer, AURUM will establish a new institution -
Bank Subsidiary for processing Stockholder, General Ledger and Loans
Accounting Transactions. AURUM will provide such Additional Service in
accordance with this Addendum and the Agreement and such service will be
deemed an Additional Service under the Agreement for all purposes.
2. Payments to AURUM. In consideration for the provision by AURUM of the
Additional Services set forth above, Customer will pay AURUM the amounts
set forth in Exhibit A attached hereto. Charges for such services will be
due and payable in accordance with the terms of the Agreement and of this
Addendum as follows: (i) Installation or set-up charges will be invoiced
in conjunction with signing of this Addendum; (ii) Monthly charges will
commence upon completion of the installation,but no later than 120 days
from commencement of the installation project (except to the extent delays
to installation completion are attributable to Aurum)
3. Customer Responsibilities. Customer will (i) assist with the development
and entry of necessary ITI module specifications; (ii) assist with all
testing and validation of during implementation; (iii) input and maintain
all account information etc. required by the applications; (iv) print
notices and reports via OMS/Director.
4. Confirmation of Agreement. Except as amended by this Addendum, the
Agreement will be and remain in full force and effect in accordance with
its terms.
5. Execution of Addendum. Four (4) original copies of this Addendum will be
executed and submitted to AURUM by Customer. This Addendum will become
effective as of the date set forth below when AURUM executes this
Addendum. AURUM will return one of the executed copies to Customer.
AURUM TECHNOLOGY INC COMMUNITY BANK OF NEVADA
By: /s/ Brian Van Dyk By: /s/ Cathy Robinson
---------------------- ------------------------
Printed Printed
Name: Brian Van Dyk Name: Cathy Robinson
Title: President, Premier Division Title: Executive Vice President
Date: 11/26/2002 Date: 11/14/02
Community Bank of Nevada
Date: 11/01/02
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Page 1 of 2
EXHIBIT A
ADDITIONAL INSTITUTION
SERVICE CHARGES
The monthly service fee for the Additional Institution is based on the number
of Account Records maintained on the System during each month. Monthly service
fees will not be prorated for a partial month. An "Account Record" is defined as
an end-customer account type including without limitation, any open or closed
DDA/Checking account, Savings account, Certificate of Deposit account or Loan
account, that are maintained on the System during the applicable month.
As an Additional Service under the Agreement, Aurum will provide Customer with
the Access to an additional institution to be used for Bank Holding Company. The
accesses provided in this service are to LAS, CIS, SCM, EIM, HCM, SHS, IES and
FMS. The charges for this Service are as follow:
Installation Charge $2500.00
Monthly Base Charge $ 500.00
Monthly Delivery fee Reports $ 150.00
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Plus standard per account costs.
Additional modules will be quoted upon request.
Community Bank of Nevada
Date: 11/01/02
Page 2 of 2
ADDENDUM NUMBER EIGHT
ADDITIONAL SERVICES
HOLDING COMPANY MODULE
This ADDENDUM ("Addendum") to the Agreement for Information Technology Services
between Aurum Technology Inc. ("AURUM") and Community Bank of Nevada
("Customer"), dated as of November 15, 2001, as amended or modified, is
effective from the date it is executed by AURUM and shall remain in effect for
the term of the Agreement. Capitalized terms used in this Addendum will be as
defined in the Agreement unless otherwise defined in this Addendum.
WHEREAS, Customer desires that Aurum Technology provide certain Additional
Services to Customer as set forth in this Addendum;
WHEREAS, Aurum Technology is willing to provide such Additional Services to
Customer;
NOW, THEREFORE, Aurum Technology and Customer hereby agree to amend the
Agreement to provide for such Additional Services as follows:
1. Additional Services. Aurum Technology will provide to Customer, as an
Additional Service, the Holding Company (HCM) module. Aurum Technology
will provide such Additional Service in accordance with this Addendum and
the Agreement and such service will be deemed an Additional Service under
the Agreement for all purposes.
2. Payments to Aurum Technology. In consideration for the provision by Aurum
Technology of the Additional Service set forth above, Customer will pay
Aurum Technology the amounts set forth in Exhibit A attached hereto.
Charges for such services will be due and payable in accordance with the
terms of the Agreement.
3. Customer Responsibilities. Customer will (i) assist with the development
and entry of necessary ITI Holding Company module specifications; (ii)
assist with all testing and validation of the Holding Company module
during implementation; (iii) input and maintain all account information
etc. required by the applications; (iv) print notices and reports via
OMS/Director.
4. Confirmation of Agreement. Except as amended by this Addendum, the
Agreement will be and remain in full force and effect in accordance with
its terms.
5. Execution of Addendum. Four (4) original copies of this Addendum will be
executed and submitted to Aurum Technology by Customer. This Addendum will
become effective as of the date set forth below when Aurum Technology
executes this Addendum. Aurum Technology will return one of the executed
copies to Customer.
AURUM TECHNOLOGY INC COMMUNITY BANK OF NEVADA
By: /s/ Brian Van Dyk By: /s/ Cathy Robinson
---------------------- -----------------------
Printed Printed
Name: Brian Van Dyk Name: Cathy Robinson
Title: President, Premier Division Title: Executive Vice President
Date: 11/26/2002 Date: 11/14/02
Community Bank of Nevada
Date: 11/01/02
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Page 1 of 2
EXHIBIT A
HOLDING COMPANY MODULE
SERVICE CHARGES
The monthly service fees for the Holding Company module are based on the number
of Account Records maintained on the System during each month. An "Account
Record" is defined as an end-customer account type including without limitation,
any open or closed DDA/Checking account, DDL account, Savings account,
Certificate of Deposit account, Loan account or Investor loan, that are
maintained on the System during the applicable month.
Description Service Fee
One Time Installation - invoiced in conjunction with signing of the
Addendum
Start Up Fee $1,250 plus out of pocket expenses*
*to be billed in conjunction with installation of additional modules
(Schedule C, III)
Monthly - Based on Account Volume - begins with completion of the
installation
No monthly charge - basic service in Schedule A
Monthly per Institution charge of $200 each and standard per account
charges.
Community Bank of Nevada
Date: 11/01/02
Page 2 of 2
ADDENDUM #9
ADDITIONAL SERVICES
PRIME-SERVICE BUREAU
This ADDENDUM ("Addendum") to the Agreement for Information Technology Services
between Aurum Technology Inc. ("AURUM") and Community Bank of Nevada
("Customer"), dated as of November 15, 2001, as amended or modified, is
effective from the date it is executed by AURUM and shall remain in effect for
the term of the Agreement. Capitalized terms used in this Addendum will be as
defined in the Agreement unless otherwise defined in this Addendum
WHEREAS, Customer desires that AURUM provide certain Additional Services to
Customer as set forth in this Addendum;
WHEREAS, AURUM is willing to provide such Additional Services to Customer;
NOW, THEREFORE, AURUM and Customer hereby agree to amend the Agreement to
provide for such Additional Services as follows:
1. Additional Services. AURUM will provide to Customer, as Additional
Services, the Information Technology, Inc. (ITI) Prime Data Warehouse and
Ad Hoc Reporting Module ("Prime"), including: Prime Service Bureau Server
Access; Application Extracts (templates) as requested and scheduled
(Exhibit B); installation of one (1) Prime Impromptu Administrator
workstation; retention of one version of the most current extracts; and
initial Prime report writing training. AURUM will provide such Additional
Services in accordance with this Addendum and the Agreement and such
services will be deemed Additional Services under the Agreement for all
purposes. AURUM agrees to make extract files available to Customer at the
earliest feasible time. Notwithstanding the foregoing, Customer
acknowledges that availability of the latest extract file is subject to
unforeseen delays due to high processing volumes or production problems,
and agrees that AURUM shall not be liable to Customer for such delays.
2. Payments to AURUM. In consideration for the provision by AURUM of the
Additional Services set forth above, Customer will pay AURUM the amounts
set forth in Exhibit A attached hereto. Charges for such services will be
due and payable in accordance with the terms of the Agreement and of this
Addendum as follows: (i) Installation or set-up charges will be invoiced
in conjunction with signing of this Addendum; (ii) Monthly charges will
commence upon completion of the installation, but no later than 120 days
from commencement of the installation project (unless delays to
installation completion are attributable solely to Aurum). Customer may
expand the Additional Services provided hereunder, such as adding
additional users or licenses, upon request. Such expanded Additional
Services shall be subject to the pricing current as of the date of such
request.
3. Customer Responsibilities. Customer will (i) provide all hardware/software
necessary to meet ITI minimum requirements for Prime workstations and for
host connectivity, (ii) identify Customer personnel to be trained for
Prime who are thoroughly familiar with Microsoft Windows features and the
ITI applications; (iii) license Impromptu Administrator software; (iv)
assist with all security specifications necessary for the implementation
and testing of Prime; and (v) within sixty (60) days of completion of the
installation, convert existing Selective Management Access Reports (SMART)
to Prime and discontinue use of SMART scheduled for the same extract
frequency as Prime.
4. Confirmation of Agreement. Except as amended by this Addendum, the
Agreement will be and remain in full force and effect in accordance with
its terms.
5. Execution of Addendum. Four (4) original copies of this Addendum will be
executed and submitted to AURUM by Customer. This Addendum will become
effective as of the date set forth below when AURUM executes this
Addendum. AURUM will return one of the executed copies to Customer.
Community Bank of Nevada
Date: 11/01/02
Page 1 of 7
AURUM TECHNOLOGY INC COMMUNITY BANK OF NEVADA
By: /s/ Gary Farnam By: /s/ Cathy Robinson
------------------- --------------------------
Printed Printed
Name: Gary Farnam Name: Cathy Robinson
Title: Senior Vice President, Premier Division Title: Executive Vice President
Date: 11-21-02 Date: 11/14/02
Community Bank of Nevada
Date: 11/01/02
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Page 2 of 7
EXHIBIT A
PRIME SERVICE BUREAU
SERVICE CHARGES
The monthly service fee for Prime is based on the maximum number of Account
Records maintained on the System during each month. Monthly service fees will
not be prorated for a partial month An "Account Record" is defined as an
end-customer account type including without limitation, any open or closed
DDA/Checking account, DDL account, Savings account, Certificate of Deposit
account or Loan account, that are maintained on the System during the applicable
month. For purposes of this Additional Service, the Standard Frequency is
designated as: a Weekly extract after the Friday update and available on Monday
morning, and a Month End extract completed the first weekend following month end
and available on the following Monday morning. A Premium, Frequency designates a
Prime extract at any other time.
One Time Charges
Prime Set Up Fees and Installation/Training Charge -Invoiced in
conjunction with signing of the Addendum (Includes host module & standard
extract templates, 1 Administrator Workstation and up to 2 User
Workstations, 1 day of Training)
Server Access Set Up Fee $ 2,500
Prime Report Writing Training (1 day) $ + related travel expenses
Additional Training $ 960 per day
Additional Workstations $ 100 each
Additional Templates $ 50 each
Impromptu Administrator License*
Administrator & Advance Maintenance $ 1,194
Sequel User - required per User $ obtain quote
Impromptu User License*
User & Advance Maintenance $ 954
Sequel User-required per User $ obtain quote
Monthly Prime Server Charge - Based on Account Volume
0 - 15,000 $ 300
0 - Request Quote
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* indicates charges that will be billed to you by ITI
Amend#9 PrimeSB
A-1
EXHIBIT A
PRIME SERVICE BUREAU
SERVICE CHARGES
Monthly STANDARD Extract Charge: Weekly (after Friday's update) - Month End (not
next day delivery)
Weekly Month End
------ ---------
0 - 15,000 included included
over 15,000 Request Quote
Monthly Database Retention - in addition to current version
Daily Extracts $ 10
Monthly $25.00
Additional Application Extracts
Per Application - Per Month $50.00
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Amend#9 PrimeSB
A-2
EXHIBIT B
PRIME EXTRACT
STANDARD DAILY PRIME FILES
6 APPLICATIONS - 25 FILES
Central Information System
CIS Master File
CIS Addenda File
Flex Data
Demand Deposit Account
DDA Master File
DDA Transaction Overflow
DDA Loan Master File
DDA Addenda File
DDA Tran Description File
DDA Analysis History File
Financial Management System
FMS Account Master File
FMS Transaction File
FMS Transaction Description File
Savings Accounting System
SAV Master File
SAV Transaction Overflow
SAV Addenda File
SAV Tran Description File
Certificate of Deposit System
COD Master File
COD Transaction Overflow
COD Addenda File
COD Tran Description File
Loan Accounting System
LAS Line Master File
LAS Note Master File
LAS Addenda File
LAS Note Transaction File
Student Loan Master File
Amend#9 PrimeSB
B-1
EXHIBIT B
PRIME EXTRACT
STANDARD WEEKLY PRIME FILES
10 APPLICATIONS - 37 FILES
Central Information System Bill Payment Module
CIS Master File BPM Master File
CIS Addenda File BPM Transaction File
Flex Data BPM Checkfree Customer File
Demand Deposit Account Accounts Payable System
DDA Master File APS Invoice Master File
DDA Transaction Overflow APS Vendor File
DDA Loan Master File APS Invoice Expense File
DDA Addenda File APS History File
DDA Tran Description File
DDA Analysis History File Check Reconciliation System
CRS Client Master File
Financial Management System CRS Check Master File
FMS Account Master File
FMS Transaction File Retirement Reporting Module
FMS Transaction Description File RRM Customer File
RRM Plan File
Savings Accounting System RRM Account File
SAV Master File
SAV Transaction Overflow
SAV Addenda File
SAV Tran Description File
Certificate of Deposit System
COD Master File
COD Transaction Overflow
COD Addenda File
COD Tran Description File
Loan Accounting System
LAS Line Master File
LAS Note Master File
LAS Addenda File
LAS Note Transaction File
Student Loan Master File
Amend#9 PrimeSB
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B-2
EXHIBIT B
PRIME EXTRACT
MONTH END PRIME FILES
20 APPLICATIONS - 56 FILES
Central Information System On-Line Loan Collection
CIS Master File OLC Collector File
CIS Addenda File OLC Master File
Flex Data OLC Transaction Addenda File
OLC Description Addenda File
Demand Deposit Account
DDA Master File Bill Payment Module
DDA Transaction Overflow BPM Master File
DDA Loan Master File BPM Transaction File
DDA Addenda File BPM Checkfree Customer File
DDA Tran Description File
DDA Analysis History File Financial Management System
FMS Account Master File
Savings Accounting System FMS Transaction File
SAV Master File FMS Transaction Description File
SAV Transaction Overflow
SAV Addenda File Accounts Payable System
SAV Tran Description File APS Invoice Master File
APS Vendor File
Certificate of Deposit System APS Invoice Expense File
COD Master File APS History File
COD Transaction Overflow
COD Addenda File Bond Accounting System
COD Tran Description File BAS Account Master File
BAS Source File
Loan Accounting System BAS Transaction File
LAS Line Master File
LAS Note Master File Check Reconciliation System
LAS Addenda File CRS Client Master File
LAS Note Transaction File CRS Check Master File
Student Loan Master File
Connect3 Electronic Banking
Debit Card Module Connect3 Transaction History File
Debit Card Master File Connect3 Caller Record
Safe Deposit Box System Fixed Asset System
SDB Master File FAS Master File
Retirement Reporting Module Stockholder Accounting System
RRM Customer File SHS Master File
RRM Plan File SHS Certificate Overflow File
RRM Account File SHS Plan Overflow File
ATM Processing System Teller Terminal Processing System
ATM Customer Summary File TTM History File
ATM Transaction Summary File
Stop Payments
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Item Entry System
Amend#9 PrimeSB
B-3
AURUM TECHNOLOGY INC.
COMPLIANCE ADDENDUM (#10)
THIS COMPLIANCE ADDENDUM by and between Aurum Technology Inc., a Delaware
corporation with its principal place of business located in Plano, Texas
("Aurum"), and Customer, as identified below, (each of Aurum and Customer, a
"party," and collectively, the "parties") is made as of the later of the dates
on which the parties sign below and is intended by the parties to be an
amendment to each and every agreement between the parties relating to Aurum's
providing Customer information technology services.
DATA OWNERSHIP & PRIVACY
1. All information of Customer (including that of its customers) provided to
Aurum by Customer and contained in Aurum's data files, is the exclusive property
of Customer, and Aurum is only the custodian of that information. Except as may
be otherwise provided in an agreement (regardless of whether it is called a
schedule, addendum, contract, agreement or otherwise), both Aurum and Customer
(and, as to both parties, their employees, agents and independent contractors)
will receive and hold all information communicated to one by the other or the
other's affiliates, whether before or after the date of an agreement, in strict
confidence, will use such information only for purposes of an agreement and will
not disclose such information without the prior written consent of the other
party. Each party will take all commercially reasonable precautions to prevent
the disclosure to outside parties of such information including, but not limited
to, the terms of an agreement, except as required by legal, accounting or
regulatory requirements (including requirements of a Federal or state regulatory
authority with jurisdiction over Customer or Customer's business). If a party is
required to disclose any information of the other party in accordance with any
such legal, accounting or regulatory requirements, then such party will, unless
otherwise prohibited by law, promptly notify the other party of such requirement
and will cooperate with such other party (at their expense) in their efforts, if
any, to avoid or limit such disclosure (including, without limitation, obtaining
an injunction or an appropriate redaction of the information in question). The
provisions of this section will survive the expiration or termination of any or
all agreement(s).
2. Promptly after the termination or expiration of the term applicable to an
agreement and the payment to Aurum of all fees and charges due under such
agreement, Aurum will, at Customer's request and expense, return to Customer all
of Customer's information with respect to such terminated or expired agreement
in Aurum's then standard machine-readable format and media. The provisions of
this section will survive the expiration or termination of any or all
agreement(s).
3. Aurum will use commercially reasonable efforts to (a) ensure the security
and confidentiality of Customer information (including that of its customers),
(b) protect against any anticipated threats or hazards to the security or
integrity of such information and (c) protect against unauthorized access to or
use of such information that could result in substantial harm or inconvenience
to any Customer. Aurum will employ and maintain controlled access to systems in
its data centers and other facilities where such information is located.
4. Customer will inform Aurum prior to creating any connection to the
Internet or to any third-party computer network if such connection is made from
any point on Customer's computer network that is connected to Aurum's network.
Customer will, prior to making such a connection, first obtain (and Aurum will,
at Customer's request, provide a copy of) the firewall and Internet security
policy of Aurum and will abide by the rules contained in it as the same may be
amended from time to time to keep current with technology. Customer will be
solely responsible for complying with the most current requirements of such
policy.
BUSINESS CONTINUITY
5. Aurum will maintain for its own protection, with carriers that it deems in
its sole discretion appropriate and in amounts that it determines in its sole
discretion to be adequate, errors and omissions and employee dishonesty coverage
for its personnel and insurance coverage for loss from fire, disaster or other
causes contributing to interruption of normal services, reconstruction of data
file media and related processing costs, additional expenses incurred to
continue operations and business interruption to reimburse Aurum for losses
resulting from suspension of services due to physical loss of equipment.
6. Each party will develop, maintain and, as necessary in the event of
business interruption, execute a business resumption plan and will provide to
the other party, its auditors and regulators access to the plan and to plan test
results as such other party may reasonably request from time to time, including
such information that may be reasonably required to ensure that the plans are
compatible. Aurum will not provide access to information of other Aurum
customers.
7. Each party will be responsible for training its own personnel as required
in connection with all applicable contingency planning activities.
8. Each party's contingency planning activities will comply with such of the
following regulatory policies as may be applicable to Customer's business, as
the same may be amended or replaced from time to time: (a) Federal Deposit
Insurance Corporation, Financial Institution Letter FIL-68-97, dated July 14,
1997; (b) Federal Reserve System Supervision and Regulation, Number SR 97-15,
dated May 2, 1997; (c) Office of the Comptroller of the Currency, OCC 97-23,
dated May 16, 1997; (d) Office of Thrift Supervision, CEO Ltr 72, dated July 23,
1997; and (e) National Credit Union Administration, Letter to Credit Unions No.
97-CU-3, dated April 7, 1997. If compliance with any amendments or replacements
of these policies would significantly increase Aurum's cost of providing
products or services, Aurum will be entitled to increase the fees and charges
under an agreement by an amount that reflects a pro rata allocation of Aurum's
increased cost among the Aurum customers affected by the change.
EXAMINATIONS & AUDITS
9. Aurum will provide auditors and inspectors that Customer designates in
writing with reasonable access to its facilities during business hours for the
limited purpose of performing audits or inspections of Customer's business.
Aurum will provide the assistance to such auditors and inspectors as Aurum deems
reasonable. Customer will bear all expenses associated with such audit or
inspection and will also compensate Aurum for any services provided in
connection with the audit or inspection. Customer will insure that any audit or
inspection requested by Customer will be conducted without undue disruption to
Aurum's business or operations. Aurum will not (a) provide access to information
of other Aurum customers or (b) permit access to its facilities during such
times as Aurum deems that such access would be likely to create undue disruption
to its operations.
10. Each year during the term of an agreement, Aurum will provide to Customer,
at Customer's request and at no additional charge, one copy of Aurum's most
recent audited financial statements.
11. Aurum will provide to Customer, at Customer's request and at Aurum's then
standard charge, one copy of Aurum's most recent service auditor's report,
performed pursuant to nationally recognized auditing standards for service
organizations, applicable to the services provided by Aurum to Customer.
THE AUTHORIZED OFFICER OR REPRESENTATIVE OF EACH PARTY has signed this
COMPLIANCE ADDENDUM as a legally binding obligation of such party.
COMMUNITY BANK OF NEVADA AURUM TECHNOLOGY INC.
("CUSTOMER")
By: /s/ Cathy Robinson By: /s/ Gary L. Farnam
------------------ ----------------------
Name: Cathy Robinson Name: Gary L. Farnam
Title: EVP/CFO Title: SVP
Date: 1/3/03 Date: 12-5-02
|
ADDENDUM NUMBER ELEVEN
ADDITIONAL SERVICES
COMMUNITY BANK OF NEVADA
|
THIS ADDENDUM ("Addendum") to the Agreement for Information Technology Services
("Agreement") between Aurum Technology Inc.("AURUM") and Community Bank of
Nevada ("Customer"), dated as of September 10, 1996, as amended or modified, is
between Customer and AURUM. Capitalized terms used in this Addendum will be as
defined in the Agreement unless otherwise defined in this Addendum.
WHEREAS, Customer desires that AURUM provide certain Additional Services to
Customer as set forth in this Addendum;
WHEREAS, AURUM is willing to provide such Additional Services to Customer;
NOW, THEREFORE, AURUM and Customer hereby agree to amend the Agreement to
provide for such Additional Services as follows:
1. Additional Service.
(a) In connection with AURUM'S provision of the Additional Service to
Customer, AURUM will install at the AURUM Data Center the ITI Delinquent
Child Support for All accounts module ("DCSA") for AURUM's use in
generating the Quarterly All Accounts File (as defined in subsection (b)
below).
(b) As directed by Customer, AURUM will provide to (i) Customer, (ii)
Customer's designated third party provider or (iii) the applicable
government agency (the "Reporting Agency"), a quarterly file of all open
Accounts Records (the "Quarterly All Accounts File") for purposes of
participating in the Child Support Performance and Incentive Act of 1998
and/or the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996, as applicable (collectively, the "Financial Institution Data
Match Program").
(c) The Quarterly All Accounts File will contain such information about
Customer account holders as specified by the Financial Institution Data
Match Program.
(d) For purposes of this Addendum, an "Account Record" is defined as an
end-customer account type (including without limitation, any open or
closed DDA/checking account, savings account, certificate of deposit
account, loan account or Investor loan) plus general ledger accounts, that
are maintained on the AURUM Systems during the applicable month.
(e) AURUM will provide such Additional Service in accordance with this
Addendum and the Agreement and such service will be deemed an Additional
Service under the Agreement for all purposes. The term of this Addendum
shall be co-terminous with the Agreement
2. Payments to AURUM. In consideration for the provision by AURUM of the
Additional Service set forth above, Customer will pay AURUM the amounts
set forth in Exhibit A attached hereto. Charges for such services will be
due and payable in accordance with the terms of the Agreement.
DCS All February 28, 2001
1
3. Customer Responsibilities. Customer will (i) notify their respective
Reporting Agency that AURUM will be the transmitter of the Quarterly All
Accounts File, if applicable, and (ii) assist with establishing the ITI
DCSA module specifications as required by the Financial Institution Data
Match Program.
4. Privacy Laws. The parties acknowledge and agree that Customer will be and
remain the controller of information relating to Customer or its customers
("Customer Data") for purposes of all applicable laws relating to data
privacy, transborder data flow and data protection (collectively, the
"Privacy Laws"), and nothing in the Agreement or this Addendum will
restrict or limit in any way Customer's rights or obligations as owner
and/or controller of the Customer Data for such purposes. Customer will
indemnify, defend, and hold harmless AURUM from any and all actions,
damages, liabilities, costs, and expenses, including without limitation
reasonable attorney's fees and expenses, arising out of any claim, action
or cause of action made by any third party against AURUM relating to or
arising out of this Addendum or the Additional Service, except to the
extent such claim arose as a result of AURUM's gross negligence or willful
misconduct.
5. Confirmation of Agreement. Except as amended by this Addendum, the
Agreement will be and remain in full force and effect in accordance with
its terms.
6. Execution of Addendum. Four (4) original copies of this Addendum will be
executed and submitted to AURUM by Customer. This Addendum will become
effective as of the date set forth below when AURUM executes this
Addendum. AURUM will return one of the executed copies to Customer.
IN WITNESS WHEREOF, the parties have executed this Addendum as of May 7, 2001.
AURUM TECHNOLOGY INC. COMMUNITY BANK OF NEVADA
By: _________________________________ By: /s/ Cathy Robinson
---------------------
Printed Printed
Name:________________________________ Name: Cathy Robinson
Title:_______________________________ Title: C.F.O.
Date:________________________________ Date: 5/7/01
DCS All February 28, 2001
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2
EXHIBIT A
FINANCIAL INFORMATION DATA MATCH
SERVICE CHARGES - ALL ACCOUNTS FILE
The monthly service fees for the Additional Service are based on the number of
Account Records maintained on the AURUM Systems at the end of each month.
Description
One Time Installation of the ITI Module Service Fee
--------------------------------------- -----------
Installation/Testing $750.00
Monthly
Number of Account Records
1 - 15,000 $ 92.00
1 - 36,000 $131.00
1 - 48,000 $164.00
1 - 64,000 $208.00
1 - 88,000 $267.00
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Quote available for accounts over maximum listed
February 28, 2001
A-1
ADDENDUM NUMBER TWELVE
AURUM TECHNOLOGY INC.
ADDENDUM TO COMMUNITY BANK OF NEVADA
FOR ADDITIONAL SERVICES - eVision
THIS ADDENDUM (this "Addendum") by and between Aurum Technology Inc., a Delaware
corporation with its principal place of business located in Plano, Texas
("Aurum"), and Customer, as identified below, (each of Aurum and Customer, a
"party," and collectively, the "parties") is effective as of the date specified
below , and is intended by the parties to be an amendment to the agreement
between the parties relating to Aurum's providing Customer item processing
services (the "Agreement") for Information Technology Services dated November
11, 2001.
Unless otherwise specifically provided for herein, all other terms and
conditions of the Agreement remain in force and effect and are applicable to
this Addendum.
WHEREAS, Customer desires that AURUM provide certain Additional Services to
Customer as set forth in this Amendment and AURUM is willing to provide such
Additional Services to Customer;
NOW, THEREFORE, AURUM and Customer hereby agree to amend the Agreement as
follows:
1. Additional Services
Intranet Image Archive Access
Aurum will grant the ability for Customer to use the applicable
computer Intranet software (thin client) to retrieve Item Images by
utilizing Customer's LAN equipment and telecommunications circuitry
to access the Item Image archive located at the Aurum Transaction
Center. Aurum will authorize access to Item Images for up to
twenty-five (25) user workstations and allow the Customer permission
to define user administration.
2. Payments to AURUM. In consideration for the provision by AURUM of the
Additional Service set forth above, Customer will pay AURUM the amounts
set forth below. Charges for such services will be due and payable in
accordance with the terms of the Agreement.
ADDITIONAL SERVICE UNIT COST UNIT MEASURE
------------------ --------- ------------
MONTHLY
Intranet Image Archive Access 65.00 Per Month
(not to exceed 25
workstations) waived
until 3/1/2005
ONE-TIME
Migration to Intranet Image Archive Access waived Per Customer
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There is a one-time charge of $900 that will be waived for the migration
to Intranet Image Archive Access application.
The one-time charge does not include supplies, forms, telecommunications
network design, telecommunications line installation and testing, data
communications equipment at Customer and Aurum Data Center locations, or
travel-related expenses. Additionally, the one-time charge does not
include Image Archive jukebox hardware, jukebox server hardware or jukebox
software which will be required at Customer's site and which will be paid
for by the Customer. The one time fee is payable on the Effective Date.
1
3. Except as expressly amended by this Addendum, the Agreement is ratified,
confirmed and remains unchanged in all respects and will be and remain in
full force and effect in accordance with its terms. Capitalized terms used
in this Addendum will be as defined in the Agreement unless otherwise
expressly defined in this Addendum.
4. This Addendum supersedes and replaces any prior agreement (written or
oral) as to its subject matter. If there is any conflict between the terms
and conditions of this Addendum and the terms and conditions of the
Agreement or any prior addendum to this Agreement, the terms and
conditions of this Addendum shall prevail.
5. Two (2) original copies of this Addendum will be executed and submitted to
Aurum by Customer. This Addendum will become effective when Aurum executes
this Addendum and, returns one of the executed copies to Customer.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date set
forth above.
AURUM TECHNOLOGY INC COMMUNITY BANK OF NEVADA
("CUSTOMER")
By: /s/ John Heus By: /s/ Cathy Robinson
------------------- ----------------------
Name: John Heus Name: Cathy Robinson
Title: President, Payment Services Title: Executive Vice President
Date: 03/22/04 Date: 2/3/04
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2
ADDENDUM NUMBER THIRTEEN
ADDITIONAL SERVICES - DIRECTOR (IN HOUSE)
This ADDENDUM ("Addendum") to the Agreement for Information Technology Services
("Agreement" between Aurum Technology Inc. ("AURUM") and Community Bank of
Nevada ("Customer"), dated as of November 15, 2001, as amended or modified, is
effective from the date it is executed by AURUM and shall remain in effect for
the term of the Agreement. Capitalized terms used in this Addendum will be as
defined in the Agreement unless otherwise defined in this Addendum.
WHEREAS, Customer desires that AURUM provide certain Additional Services to
Customer as set forth in this Addendum;
WHEREAS, AURUM is willing to provide such Additional Services to Customer;
NOW, THEREFORE, AURUM and Customer hereby agree to amend the Agreement to
provide for such Additional Services as follows:
1. Additional Services. In connection with AURUM's provision of the
Additional Service to Customer AURUM will: install at the AURUM Data
Center the Information Technology, Inc, (ITI) Premier Director Report
Archive ("Director COLD") including all related programs and reports and
file transfer software. AURUM will provide such Additional Services in
accordance with this Addendum and the Agreement and such services will be
deemed Additional Services under the Agreement for all purposes.
2. Payments to AURUM. In consideration for the provision by AURUM of the
Additional Services set forth above, Customer will pay AURUM the amounts
set forth in Exhibit A attached hereto. Charges for such services will be
due and payable in accordance with the terms of this Addendum and the
Agreement. Customer may expand the Additional Services provided hereunder,
such as adding additional users or licenses, upon request. Such expanded
Additional Services shall be subject to the pricing current as of the date
of such request.
3. Customer Responsibilities. Customer will be responsible for: (i)
contracting with ITI for purchase, configuration and installation of
required Premier Director server hardware and software, (ii) support of
all Premier Director server software and hardware and User software;
(iii); providing all necessary hardware required by Aurum for the delivery
of reports; (iv) assisting Aurum with the installation of the file
transfer software; (v) upgrading all Premier Director server and User
software as scheduled and instructed by Aurum; and, (vi) assisting with
all security specifications necessary for the implementation and testing
of Director COLD.
4. Confirmation of Agreement. Except as amended by this Addendum, the
Agreement will be and remain in full force and effect in accordance with
its terms.
5. Execution of Addendum. Four (4) original copies of this Addendum will be
executed and submitted to AURUM by Customer. This Addendum will become
effective as of the date set forth below when AURUM executes this
Addendum. AURUM will return one of the executed copies to Customer.
AURUM TECHNOLOGY INC COMMUNITY BANK OF NEVADA
By: /s/ Mike Hill By: /s/ Cathy Robinson
-------------------- ---------------------
Printed Printed
Name: Mike Hill Name: Cathy Robinson
Title: SVP Title: Executive Vice President
Date: 11/29/03 Date: 11/29/03
Community Bank of Nevada
Date: 01/09/2004
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Page 1 of 2
EXHIBIT A
PREMIER DIRECTOR COLD
SERVICE CHARGES
The monthly service fees for the Director COLD are based on the number of
Account Records maintained on the System during each month. Monthly service fees
will not be prorated for a partial month. An "Account Record" is defined as an
end-customer account type including without limitation, any open or closed
DDA/Checking account, Savings account, Certificate of Deposit account or Loan
account, that are maintained on the System during the applicable month.
One Time Charges (Invoiced in conjunction with signing of the Addendum)
Set Up and Installation Charge $3,250
Monthly Charges - Based on Account Volume - begins with completion of the
installation
Base Fee
--------
0 - 15,000 $ 360
0 - 24,000 $ 575
0 - 36,000 Request Quote
Deliver Fee $ 250
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Community Bank of Nevada
Date: 01/09/2004
Page 2 of 2
EXHIBIT 10.6
SAVINGS PLAN
PRINCIPAL
FINANCIAL GROUP
PROTOTYPE FOR
SAVINGS PLANS
THIS PLAN IS A 401(K) PROFIT SHARING PLAN
ADOPTION AGREEMENT
[PRINCIPAL FINANCIAL GROUP LOGO] IRS SERIAL NO.: D247610B
PRINCIPAL LIFE ADOPTION AGREEMENT PLAN NO.: 002
INSURANCE COMPANY TO BE USED WITH BASIC PLAN NO.: 03
Des Moines, Iowa 50392-0001
APPROVED: OCTOBER 26, 1992
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203
TABLE OF CONTENTS
A. ADOPTION AGREEMENT...................................................... 1
B. EMPLOYER................................................................ 1
C. PLAN NAME............................................................... 1
D. EFFECTIVE DATE.......................................................... 1
E. YEARLY DATE............................................................. 2
F. FISCAL YEAR............................................................. 2
G. NAMED FIDUCIARY......................................................... 2
H. PLAN ADMINISTRATOR...................................................... 2
I. PREDECESSOR............................................................. 2
J. ELIGIBLE EMPLOYEE....................................................... 3
K. ENTRY REQUIREMENTS...................................................... 3
L. ENTRY DATE.............................................................. 4
M. PAY..................................................................... 4
N. ELECTIVE DEFERRAL CONTRIBUTIONS......................................... 5
O. MATCHING CONTRIBUTIONS.................................................. 6
P. OTHER EMPLOYER CONTRIBUTIONS............................................ 7
Q. NET PROFITS AND CONTRIBUTION REQUIREMENTS............................... 10
R. CONTRIBUTION MODIFICATIONS.............................................. 10
S. VOLUNTARY CONTRIBUTIONS................................................. 12
T. INVESTMENT.............................................................. 12
U. VESTING PERCENTAGE...................................................... 14
V. VESTING SERVICE......................................................... 15
W. WITHDRAWAL BENEFITS..................................................... 16
X. RETIREMENT.............................................................. 17
Y. ADOPTING EMPLOYERS...................................................... 21
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?
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
? PLAN DESCRIPTION: PROTOTYPE STANDARDIZED
PROFIT SHARING PLAN WITH CODA
? FN: 50207440003-002 CASE: 9200864
EIN: 42-0127290
? PD: 03 PLAN: 002 LETTER SERIAL NO: D247610B WASHINGTON, DC 20224
PERSON TO CONTACT: MS.WIGGINS
PRINCIPAL MUTUAL LIFE INSURANCE CO
TELEPHONE NUMBER: (202) 622-8380
711 HIGH STREET
REFER REPLY TO: E:EP:Q:8
DES MOINES, IA 50309
DATE: 10/26/92
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Dear Applicant:
In our opinion, the amendment to the form of the plan identified above does not
in and of itself adversely affect the plan's acceptability under section 401 of
the Internal Revenue Code. This opinion relates only to the amendment to the
form of the plan. It is not an opinion as to the acceptability of any other
amendment or of the form of the plan as a whole, or as to the effect of other
Federal or local statutes.
You must furnish a copy of this letter to each employer who adopts this plan.
You are also required to send a copy of the approved form of the plan, any
approved amendments and related documents to each Key District Director of
Internal Revenue Service in whose jurisdiction there are adopting employers.
Our opinion on the acceptability of the form of the plan is not a ruling or
determination as to whether an employer's plan qualifies under Code section
401(a). An employer who adopts this plan will be considered to have a plan
qualified under Code section 401(a) provided all the terms of the plan are
followed, and the eligibility requirements and contribution or benefit
provisions are not more favorable for highly compensated employees than for
other employees. Except as stated below, the key District Director will not
issue a determination letter with regard to this plan.
Our opinion does not apply to the form of the plan for purposes of Code section
401(a)(16) if: (1) an employer ever maintained another qualified plan for one or
more employees who are covered by this plan, other than a specified paired plan
within the meaning of section 7 of Rev. Proc. 89-9, 1989-1 C.B. 780; or (2)
after December 31, 1985, the employer maintains a welfare benefit fund defined
in Code section 419(e), which provides postretirement medical benefits allocated
to separate accounts for key employees as defined in Code section 419A(d)(3).
An employer that has adopted a standardized plan may not rely on this opinion
letter with respect to: (1) whether any amendment or series of amendments to the
plan satisfies the nondiscrimination requirements of section 1.401(a)(4)-5(a) of
the regulations, except with respect to plan amendments granting past service
that meet the safe harbor described in section 1.401(a)(4)-5(a)(5) and are not
part of a pattern of amendments that significantly discriminates in favor of
highly compensated employees; or (2) whether the plan satisfies the effective
availability requirement of section 1.401(a)(4)-4(c) of the regulations with
respect to any benefit, right or feature.
An employer that has adopted a standardized plan as an amendment to a plan other
than a standardized plan may not rely on this opinion letter with respect to
whether a benefit, right or other feature that is prospectively eliminated
satisfies the current availability requirements of section 1.401(a)-4 of the
regulations.
The employer may request a determination (1) as to whether the plan, considered
with all related qualified plans and, if appropriate, welfare benefit funds,
satisfies the requirements of Code section 401(a)(16) as to limitations on
benefits and contributions in Code section 415; (2) regarding the
nondiscriminatory effect of grants of past service; and (3) with respect to
whether a prospectively eliminated benefit, right or feature satisfies the
current availability requirements.
PRINCIPAL MUTUAL LIFE INSURANCE CO
FFN: 50207440003-002
Page 2
This letter with respect to the amendment to the form of the plan does not
affect the applicability to the plan of the continued, interim and extended
reliance provisions of sections 13 and 17.03 of Rev. Proc. 89-9, 1989-1 C.B.
780. The applicability of such provisions may be determined by reference to the
initial opinion letter issued with respect to the plan.
If you, the sponsoring organization, have any questions concerning the IRS
processing of this case, please call the above telepho | 
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