FOUNTAINGROVE CENTER
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▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
OFFICE LEASE AGREEMENT
BETWEEN
CA-FOUNTAINGROVE CENTER LIMITED PARTNERSHIP, a Delaware limited
partnership
("LANDLORD")
AND
SONOMA NATIONAL BANK
("TENANT")
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into
as of the _____ day of __________, 2003, by and between CA-
FOUNTAINGROVE CENTER LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord") and SONOMA NATIONAL BANK ("Tenant"). The
following exhibits and attachments are incorporated into and made a
part of the Lease: Exhibit A (Outline and Location of Premises),
Exhibit A-1 (Outline and Location of Offering Space), Exhibit B
(Expenses and Taxes), Exhibit C (Work Letter), Exhibit D (Commencement
Letter), Exhibit E (Building Rules and Regulations), Exhibit F
(Additional Provisions) and Exhibit G (Parking Agreement).
1. Basic Lease Information.
1.01 "Building" shall mean the building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, commonly known as ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇. "Rentable Square Footage of the
Building" is deemed to be 161,055 square feet based upon the
combined rentable area of the buildings described in
Section 1.04 below.
1.02 "Premises" shall mean the area shown on Exhibit A to this
Lease. The Premises is located on the 3rd floor and known as
▇▇▇▇▇ ▇▇. ▇▇▇. If the Premises include one or more floors in
their entirety, all corridors and restroom facilities located
on such full floor(s) shall be considered part of the
Premises. The "Rentable Square Footage of the Premises" is
deemed to be 17,061 square feet. Landlord and Tenant
stipulate and agree that the Rentable Square Footage of the
Building and the Rentable Square Footage of the Premises are
correct.
1.03 "Base Rent":
Months of Term Annual Rate Monthly
Per Square Foot Base Rent
1 - 27 $14.40 $20,473.20
28 - 51 $15.24 $21,667.47
52 - 75 $16.12 $22,918.61
76 - 99 $17.06 $24,255.06
100 - 123 $18.05 $25,662.59
Notwithstanding anything in this Section of the Lease to the
contrary, so long as Tenant is not in default under this
Lease, Tenant shall be entitled to an abatement of (i) Base
Rent in the amount of $20,473.20 per month for 3 consecutive
full calendar months of the Term, beginning with the 1st full
calendar month of the Term (the "Rent Abatement Period"), and
(ii) Tenant's Pro Rata Share of Expenses and Taxes in the
amount of $11,942.70 per month during the Rent Abatement
Period. The total amount of Base Rent abated during the Rent
Abatement Period shall equal $61,419.60 (the "Abated Base
Rent") and the total amount of Expenses and Taxes abated
during Rent Abatement Period shall equal $35,828.10 (the
"Abated Expenses and Taxes"). If Tenant defaults at any time
during the Term and fails to cure such default within any
applicable cure period under the Lease, all Abated Base Rent
and all Abated Expenses and Taxes shall immediately become
due and payable. The payment by Tenant of the Abated Base
Rent and the Abated Expenses and Taxes in the event of a
default shall not limit or affect any of Landlord's other
rights, pursuant to this Lease or at law or in equity.
During the Rent Abatement Period, only Base Rent and Tenant's
Pro Rata Share of Expenses and Taxes shall be abated, and all
other Additional Rent and other costs and charges specified
in this Lease shall remain as due and payable pursuant to the
provisions of this Lease.
1.04 "Tenant's Pro Rata Share": 10.5933%. For purposes of
determining Tenant's Pro Rata Share, and as used throughout
Exhibit B of this Lease, the "Building" shall mean,
collectively, the 3 buildings located at 3550 Round Barn
Boulevard, 3554 Round Barn Boulevard and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, all located in Santa Rosa, California, it being
understood and agreed that all of the foregoing buildings,
collectively, are treated as a single building for purposes
of obtaining or providing services or otherwise determining
Expenses and/or Taxes. In calculating Tenant's Pro Rata
Share of Expenses and/or Taxes with respect to the Premises,
the "Rentable Square Footage of the Building" described in
Section 1.01 above reflects the combined rentable area in the
foregoing buildings, collectively, and "Tenant's Pro Rata
Share" with respect to the Premises, as described above, is
based upon the foregoing Rentable Square Footage of the
Building. However, notwithstanding the foregoing, if one or
more buildings are removed from the group of buildings
comprising the Building, as described above in this Section,
whether as a result of a sale or demolition of the
building(s) or otherwise, or if one or more buildings owned
by Landlord are added to the group of buildings comprising
the Building, as described above in this Section, then the
definition of "Building" and the "Rentable Square Footage of
the Building", as described in this Section 1, and "Tenant's
Pro Rata Share" with respect to the Premises, shall be
appropriately modified or adjusted to reflect the deletion or
addition of such buildings, and, if Tenant's Pro Rata Share
of Expenses and/or Taxes with respect to the Premises is
based upon increases in Expenses and/or Taxes over a Base
Year, then Expenses and/or Taxes for the Base Year shall be
restated on a going forward basis effective as of the date
such buildings are deleted or added to the definition of
Building as described in this Section.
"Tenant's Monthly Expense and Tax Payment": $11,942.70,
which is Tenant's Pro Rata Share of the monthly estimated
Expenses and monthly estimated Taxes (as more fully described
in, and subject to adjustment as described in Exhibit B
attached hereto). The fourth monthly installment of Tenant's
Monthly Expense and Tax Payment shall be due and payable upon
execution and delivery of this Lease by Tenant.
1.05 "Base Year": Intentionally Omitted.
1.06 "Term": A period of 123 months. Subject to Section 3, the
Term shall commence on June 1, 2004 (the "Commencement Date")
and, unless terminated early in accordance with this Lease,
end on August 31, 2014 (the "Termination Date").
1.07 Allowance(s): An amount not to exceed $70,000.00 as more
fully described on Exhibit C attached to this Lease.
1.08 "Security Deposit": $40,500.00, as more fully described in
Section 6.
1.09 "Guarantor(s)": As of the date of this Lease, there are no
Guarantors. Concurrent with Tenant's execution and delivery
of this Lease, Tenant shall cause each Guarantor, if any, to
execute and deliver a guaranty in favor of Landlord on a form
reasonably approved by Landlord.
1.10 "Broker(s)": ▇▇▇▇▇▇ & ▇▇▇▇▇▇.
1.11 "Permitted Use": General office use; provided that in no
event shall the Premises, or any portion of the Premises, be
used as a restaurant or caf, conducting retail food
operations.
1.12 "Notice Address(es)":
Landlord: Tenant:
CA-Fountaingrove Center Limited ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
c/o Equity Office Management, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
L.L.C. Phone: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Property Manager
A copy of any notices to Landlord shall be sent to Equity
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attn: San Francisco Regional Counsel.
1.13 "Business Day(s)" are Monday through Friday of each week,
exclusive of New Year's Day, Presidents Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas
Day ("Holidays"). Landlord may designate additional Holidays
that are commonly recognized by other office buildings in the
area where the Building is located. "Building Service Hours"
are 8:00 a.m. to 6:00 p.m. on Business Days.
1.14 "Landlord Work" means the work, if any, that Landlord is
obligated to perform in the Premises pursuant to a separate
agreement (the "Work Letter"), if any, attached to this Lease
as Exhibit C.
1.15 "Property" means the Building and the parcel(s) of land on
which it is located and, at Landlord's discretion, the
parking facilities and other improvements, if any, serving
the Building and the parcel(s) of land on which they are
located.
2. Lease Grant.
The Premises are hereby leased to Tenant from Landlord, together
with the right to use any portions of the Property that are designated
by Landlord for the common use of tenants and others (the "Common
Areas").
3. Adjustment of Commencement Date; Possession.
3.01 If Landlord is required to perform Landlord Work prior to the
Commencement Date: (a) the date set forth in Section 1.06 as the
Commencement Date shall instead be defined as the "Target Commencement
Date"; (b) the actual Commencement Date shall be the date on which the
Landlord Work is Substantially Complete (defined below); and (c) the
Termination Date will be the last day of the Term as determined based
upon the actual Commencement Date. Landlord's failure to Substantially
Complete the Landlord Work by the Target Commencement Date shall not be
a default by Landlord or otherwise render Landlord liable for damages.
Promptly after the determination of the Commencement Date, Landlord and
Tenant shall enter into a commencement letter agreement in the form
attached as Exhibit D. If the Termination Date does not fall on the
last day of a calendar month, Landlord and Tenant may elect to adjust
the Termination Date to the last day of the calendar month in which
Termination Date occurs by the mutual execution of a commencement
letter agreement setting forth such adjusted date. The Landlord Work
shall be deemed to be "Substantially Complete" on the date that all
Landlord Work has been performed, other than any details of
construction, mechanical adjustment or any other similar matter, the
non-completion of which does not materially interfere with Tenant's use
of the Premises. If Landlord is delayed in the performance of the
Landlord Work as a result of the acts or omissions of Tenant, the
Tenant Related Parties (defined in Section 13) or their respective
contractors or vendors, including, without limitation, changes
requested by Tenant to approved plans, Tenant's failure to comply with
any of its obligations under this Lease, any delays attributable to the
installation of Tenant's rolling file systems and any accompanying
leasehold or building modifications installed in connection therewith,
or the specification of any materials or equipment with long lead times
(a "Tenant Delay"), the Landlord Work shall be deemed to be
Substantially Complete on the date that Landlord could reasonably have
been expected to Substantially Complete the Landlord Work absent any
Tenant Delay.
Notwithstanding the foregoing, if the Commencement Date has not
occurred on or before the Required Completion Date (defined below),
Tenant, as its sole remedy, may terminate this Lease by giving Landlord
written notice of termination on or before the earlier to occur of:
(i) 5 Business Days after the Required Completion Date; and (ii) the
Commencement Date. In such event, this Lease shall be deemed null and
void and of no further force and effect and Landlord shall promptly
refund any prepaid rent and Security Deposit previously advanced by
Tenant under this Lease and, so long as Tenant has not previously
defaulted under any of its obligations under the Work Letter, the
parties hereto shall have no further responsibilities or obligations to
each other with respect to this Lease. The "Required Completion Date"
shall mean the date which is 14 months after the later of the date this
Lease is properly executed and delivered by Tenant, the date all
prepaid rental, Security Deposits and Guaranties required under this
Lease are delivered to Landlord, the date the building permit for the
Landlord Work has been obtained, and, if applicable, the date all
contingencies, if any, specified in this Lease have been satisfied or
waived in writing by Landlord. Landlord and Tenant acknowledge and
agree that: (i) the determination of the Commencement Date shall take
into consideration the effect of any Tenant Delays; and (ii) the
Required Completion Date shall be postponed by the number of days the
Commencement Date is delayed due to events of Force Majeure.
Notwithstanding anything herein to the contrary, if Landlord determines
in good faith that it will be unable to cause the Commencement Date to
occur by the Required Completion Date, Landlord shall have the right to
immediately cease its performance of the Landlord Work and provide
Tenant with written notice (the "Completion Date Extension Notice") of
such inability, which Completion Date Extension Notice shall set forth
the date on which Landlord reasonably believes that the Commencement
Date will occur. Upon receipt of the Completion Date Extension Notice,
Tenant shall have the right to terminate this Lease by providing
written notice of termination to Landlord within 5 Business Days after
the date of the Completion Date Extension Notice. If Tenant does not
terminate this Lease within such 5 Business Day period, the Required
Completion Date automatically shall be amended to be the date set forth
in Landlord's Completion Date Extension Notice.
In addition, if the Commencement Date has not occurred on or before the
Outside Completion Date (defined below), Tenant shall be entitled to a
rent abatement following the Commencement Date of $661.59 for every day
in the period beginning on the Outside Completion Date and ending on
the Commencement Date. The "Outside Completion Date" shall mean July
15, 2004. Landlord and Tenant acknowledge and agree that: (i) the
determination of the Commencement Date shall take into consideration
the effect of any Tenant Delays by Tenant; and (ii) the Outside
Completion Date shall be postponed by the number of days the
Commencement Date is delayed due to events of Force Majeure.
3.02 Subject to Landlord's obligation, if any, to perform Landlord
Work, the Premises are accepted by Tenant in "as is" condition and
configuration without any representations or warranties by Landlord. By
taking possession of the Premises, Tenant agrees that the Premises are
in good order and satisfactory condition. Landlord shall not be liable
for a failure to deliver possession of the Premises or any other space
due to the holdover or unlawful possession of such space by another
party, however Landlord shall use reasonable efforts to obtain
possession of the space. The commencement date for the space, in such
event, shall be postponed until the date Landlord delivers possession
of the Premises to Tenant free from occupancy by any party. If Tenant
takes possession of the Premises before the Commencement Date, such
possession shall be subject to the terms and conditions of this Lease
and Tenant shall pay Rent (defined in Section 4.01) to Landlord for
each day of possession before the Commencement Date at a rate which is
50% of the initial Base Rent rate stated in Section 1.03 above.
4. Rent.
4.01 Tenant shall pay Landlord, without any setoff or deduction,
unless expressly set forth in this Lease, all Base Rent and Additional
Rent due for the Term (collectively referred to as "Rent"). "Additional
Rent" means all sums (exclusive of Base Rent) that Tenant is required
to pay Landlord under this Lease. Tenant shall pay and be liable for
all rental, sales and use taxes (but excluding income taxes), if any,
imposed upon or measured by Rent. Base Rent and recurring monthly
charges of Additional Rent shall be due and payable in advance on the
first day of each calendar month without notice or demand, provided
that the installment of Base Rent for the fourth full calendar month of
the Term, and the first monthly installment of Additional Rent for
Expenses and Taxes, shall be payable upon the execution of this Lease
by Tenant. All other items of Rent shall be due and payable by Tenant
on or before 30 days after billing by Landlord. Rent shall be made
payable to the entity, and sent to the address, Landlord designates and
shall be made by good and sufficient check or by other means acceptable
to Landlord. Tenant shall pay Landlord an administration fee equal to
5% of all past due Rent, provided that Tenant shall be entitled to a
grace period of 5 days for the first 2 late payments of Rent in a
calendar year. In addition, past due Rent shall accrue interest at 12%
per annum. Landlord's acceptance of less than the correct amount of
Rent shall be considered a payment on account of the earliest Rent due.
Rent for any partial month during the Term shall be prorated. No
endorsement or statement on a check or letter accompanying payment
shall be considered an accord and satisfaction. Tenant's covenant to
pay Rent is independent of every other covenant in this Lease.
4.02 Tenant shall pay Tenant's Pro Rata Share of Taxes and Expenses
in accordance with Exhibit B of this Lease.
5. Compliance with Laws; Use.
The Premises shall be used for the Permitted Use and for no other
use whatsoever. Notwithstanding the foregoing, one time during the Term
of this Lease, Tenant may submit to Landlord a request that a portion
of the Premises (not to exceed 2,000 square feet) be used as a retail
bank branch. Landlord shall not unreasonably withhold its consent to
such modification to the Permitted Use, but may condition its consent
on such requirements as Landlord may deem necessary to reflect such
modification to the Permitted Use and the impact it may have on the
Building and other tenants at the Property, including but not limited
to a requirement that Tenant provide extra security, install certain
additional leasehold improvements, and/or pay excess costs to reflect
added wear and tear due to increased foot traffic at the Building.
Without limitation, it is agreed that Landlord's consent shall not be
considered unreasonably withheld if (i) such modification to the
Permitted Use is not suitable for the Building considering the business
of the other tenants or would result in a violation of another tenant's
rights, (ii) Tenant is in default after the expiration of the notice
and cure periods in this Lease, or (iii) any portion of the Building or
Premises would likely become subject to additional or different Laws as
a consequence of such proposed modification to the Permitted Use. In
the event Landlord consents to such modification to the Permitted Use,
Landlord and Tenant shall enter into an amendment to this Lease
modifying the Permitted Use and addressing such other conditions as
Landlord may deem necessary. Tenant shall comply with all statutes,
codes, ordinances, orders, rules and regulations of any municipal or
governmental entity whether in effect now or later, including the
Americans with Disabilities Act ("Law(s)"), regarding the operation of
Tenant's business and the use, condition, configuration and occupancy
of the Premises. In addition, Tenant shall, at its sole cost and
expense, promptly comply with any Laws that relate to the "Base
Building" (defined below), but only to the extent such obligations are
triggered by Tenant's use of the Premises, other than for general
office use, or Alterations or improvements in the Premises performed or
requested by Tenant. "Base Building" shall include the structural
portions of the Building, the public restrooms and the Building
mechanical, electrical and plumbing systems and equipment located in
the internal core of the Building on the floor or floors on which the
Premises are located. Tenant shall promptly provide Landlord with
copies of any notices it receives regarding an alleged violation of
Law. Tenant shall comply with the rules and regulations of the
Building attached as Exhibit E and such other reasonable rules and
regulations adopted by Landlord from time to time, including rules and
regulations for the performance of Alterations (defined in Section 9).
6. Security Deposit.
The Security Deposit, if any, shall be delivered to Landlord upon
the execution of this Lease by Tenant and held by Landlord without
liability for interest (unless required by Law) as security for the
performance of Tenant's obligations. The Security Deposit is not an
advance payment of Rent or a measure of damages. Landlord may use all
or a portion of the Security Deposit to satisfy past due Rent or to
cure any Default (defined in Section 18) by Tenant. If Landlord uses
any portion of the Security Deposit, Tenant shall, within 5 days after
demand, restore the Security Deposit to its original amount. Landlord
shall return any unapplied portion of the Security Deposit to Tenant
within 45 days after the later to occur of: (a) determination of the
final Rent due from Tenant; or (b) the later to occur of the
Termination Date or the date Tenant surrenders the Premises to Landlord
in compliance with Section 25. Landlord may assign the Security Deposit
to a successor or transferee and, following the assignment, Landlord
shall have no further liability for the return of the Security Deposit.
Landlord shall not be required to keep the Security Deposit separate
from its other accounts. Tenant hereby waives the provisions of
Section 1950.7 of the California Civil Code, or any similar or
successor Laws now or hereinafter in effect.
7. Building Services.
7.01 Landlord shall furnish Tenant with the following services:
(a) water for use in the Base Building lavatories; (b) customary heat
and air conditioning in season during Building Service Hours. Tenant
shall have the right to receive HVAC service during hours other than
Building Service Hours by paying Landlord's then standard charge for
additional HVAC service and providing such prior notice as is
reasonably specified by Landlord. Notwithstanding the foregoing,
Tenant may use up to 65 hours of after hours HVAC service per quarter
at no additional charge to Tenant; (c) standard janitorial service on
Business Days; (d) Elevator service; (e) Electricity in accordance with
the terms and conditions in Section 7.02; and (f) such other services
as Landlord reasonably determines are necessary or appropriate for the
Property.
7.02 Electricity used by Tenant in the Premises shall, at
Landlord's option, be paid for by Tenant through inclusion in Expenses
(except as provided for excess usage). Without the consent of
Landlord, Tenant's use of electrical service shall not exceed, either
in voltage, rated capacity, use beyond Building Service Hours or
overall load, that which Landlord reasonably deems to be standard for
the Building. Landlord shall have the right to measure electrical usage
by commonly accepted methods. If it is determined that Tenant is using
excess electricity, Tenant shall pay Landlord for the cost of such
excess electrical usage as Additional Rent.
7.03 Landlord's failure to furnish, or any interruption,
diminishment or termination of services due to the application of Laws,
the failure of any equipment, the performance of repairs, improvements
or alterations, utility interruptions or the occurrence of an event of
Force Majeure (defined in Section 26.03) (collectively a "Service
Failure") shall not render Landlord liable to Tenant, constitute a
constructive eviction of Tenant, give rise to an abatement of Rent, nor
relieve Tenant from the obligation to fulfill any covenant or
agreement. However, if the Premises, or a material portion of the
Premises, are made untenantable for a period in excess of 3 consecutive
Business Days as a result of a Service Failure that is reasonably
within the control of Landlord to correct, then Tenant, as its sole
remedy, shall be entitled to receive an abatement of Rent payable
hereunder during the period beginning on the 4th consecutive Business
Day of the Service Failure and ending on the day the service has been
restored. If the entire Premises have not been rendered untenantable
by the Service Failure, the amount of abatement shall be equitably
prorated.
8. Leasehold Improvements.
All improvements in and to the Premises, including any Alterations
(collectively, "Leasehold Improvements") shall remain upon the Premises
at the end of the Term without compensation to Tenant. Landlord,
however, by written notice to Tenant at least 30 days prior to the
Termination Date, may require Tenant, at its expense, to remove (a) any
Cable (defined in Section 9.01) installed by or for the benefit of
Tenant, (b) any rolling file systems and accompanying leasehold
modifications and components of such systems (other than any structural
modifications to the Building made in connection with the installation
of such systems) installed in connection with the Landlord Work, and
(c) any Alterations that, in Landlord's reasonable judgment, are of a
nature that would require removal and repair costs that are materially
in excess of the removal and repair costs associated with standard
office improvements (collectively referred to as "Required
Removables"). Required Removables shall include, without limitation,
internal stairways, raised floors, personal baths and showers, vaults,
rolling file systems and structural alterations and modifications. The
designated Required Removables shall be removed by Tenant before the
Termination Date. Tenant shall repair damage caused by the installation
or removal of Required Removables. If Tenant fails to perform its
obligations in a timely manner, Landlord may perform such work at
Tenant's expense. Tenant, at the time it requests approval for a
proposed Alteration, may request in writing that Landlord advise Tenant
whether the Alteration or any portion of the Alteration is a Required
Removable. Within 10 days after receipt of Tenant's request, Landlord
shall advise Tenant in writing as to which portions of the Alteration
are Required Removables.
9. Repairs and Alterations.
9.01 Tenant shall periodically inspect the Premises to identify any
conditions that are dangerous or in need of maintenance or repair.
Tenant shall promptly provide Landlord with notice of any such
conditions. Tenant shall, at its sole cost and expense, perform all
maintenance and repairs to the Premises that are not Landlord's express
responsibility under this Lease, and keep the Premises in good
condition and repair, reasonable wear and tear excepted. Tenant's
repair and maintenance obligations include, without limitation, repairs
to: (a) floor covering; (b) interior partitions; (c) doors; (d) the
interior side of demising walls; (e) electronic, phone and data cabling
and related equipment that is installed by or for the exclusive benefit
of Tenant (collectively, "Cable"); (f) supplemental air conditioning
units, kitchens, including hot water heaters, plumbing, and similar
facilities exclusively serving Tenant; and (g) Alterations. To the
extent Landlord is not reimbursed by insurance proceeds, Tenant shall
reimburse Landlord for the cost of repairing damage to the Building
caused by the acts of Tenant, Tenant Related Parties and their
respective contractors and vendors. If Tenant fails to make any repairs
to the Premises for more than 15 days after notice from Landlord
(although notice shall not be required in an emergency), Landlord may
make the repairs, and Tenant shall pay the reasonable cost of the
repairs, together with an administrative charge in an amount equal to
5% of the cost of the repairs.
9.02 Landlord shall keep and maintain in good repair and working
order and perform maintenance upon the: (a) structural elements of the
Building; (b) mechanical (including HVAC), electrical, plumbing and
fire/life safety systems serving the Building in general; (c) Common
Areas; (d) roof of the Building; (e) exterior windows of the Building;
and (f) elevators serving the Building. Landlord shall promptly make
repairs for which Landlord is responsible. Tenant hereby waives any
and all rights under and benefits of subsection 1 of Section 1932, and
Sections 1941 and 1942 of the California Civil Code, or any similar or
successor Laws now or hereinafter in effect.
9.03 Tenant shall not make alterations, repairs, additions or
improvements or install any Cable (collectively referred to as
"Alterations") without first obtaining the written consent of Landlord
in each instance, which consent shall not be unreasonably withheld or
delayed. However, Landlord's consent shall not be required for any
Alteration that satisfies all of the following criteria (a "Cosmetic
Alteration"): (a) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (b) is not
visible from the exterior of the Premises or Building; (c) will not
affect the Base Building; and (d) does not require work to be performed
inside the walls or above the ceiling of the Premises. Cosmetic
Alterations shall be subject to all the other provisions of this
Section 9.03. Prior to starting work, Tenant shall furnish Landlord
with plans and specifications; names of contractors reasonably
acceptable to Landlord (provided that Landlord may designate specific
contractors with respect to Base Building); required permits and
approvals; evidence of contractor's and subcontractor's insurance in
amounts reasonably required by Landlord and naming Landlord as an
additional insured; and any security for performance in amounts
reasonably required by Landlord. Changes to the plans and
specifications must also be submitted to Landlord for its approval.
Alterations shall be constructed in a good and workmanlike manner using
materials of a quality reasonably approved by Landlord. Tenant shall
reimburse Landlord for any sums paid by Landlord for third party
examination of Tenant's plans for non-Cosmetic Alterations. In
addition, Tenant shall pay Landlord a fee for Landlord's oversight and
coordination of any non-Cosmetic Alterations equal to 5% of the cost of
the Alterations. Upon completion, Tenant shall furnish "as-built"
plans for non-Cosmetic Alterations, completion affidavits and full and
final waivers of lien. Landlord's approval of an Alteration shall not
be deemed a representation by Landlord that the Alteration complies
with Law.
10. Entry by Landlord.
Landlord may enter the Premises to inspect, show or clean the
Premises or to perform or facilitate the performance of repairs,
alterations or additions to the Premises or any portion of the
Building. Except in emergencies or to provide Building services,
Landlord shall provide Tenant with reasonable prior verbal notice of
entry and shall use reasonable efforts to minimize any interference
with Tenant's use of the Premises. If reasonably necessary, Landlord
may temporarily close all or a portion of the Premises to perform
repairs, alterations and additions. However, except in emergencies,
Landlord will not close the Premises if the work can reasonably be
completed on weekends and after Building Service Hours. Entry by
Landlord shall not constitute a constructive eviction or entitle Tenant
to an abatement or reduction of Rent.
11. Assignment and Subletting.
11.01 Except in connection with a Permitted Transfer (defined in
Section 11.04), Tenant shall not assign, sublease, transfer or encumber
any interest in this Lease or allow any third party to use any portion
of the Premises (collectively or individually, a "Transfer") without
the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed if Landlord does not
exercise its recapture rights under Section 11.02. If the entity which
controls the voting shares/rights of Tenant changes at any time, such
change of ownership or control shall constitute a Transfer unless
Tenant is an entity whose outstanding stock is listed on a recognized
securities exchange or if at least 80% of its voting stock is owned by
another entity, the voting stock of which is so listed. Tenant hereby
waives the provisions of Section 1995.310 of the California Civil Code,
or any similar or successor Laws, now or hereinafter in effect, and all
other remedies, including, without limitation, any right at law or
equity to terminate this Lease, on its own behalf and, to the extent
permitted under all applicable Laws, on behalf of the proposed
transferee. Any attempted Transfer in violation of this Section is
voidable by Landlord. In no event shall any Transfer, including a
Permitted Transfer, release or relieve Tenant from any obligation under
this Lease.
11.02 Tenant shall provide Landlord with financial statements for
the proposed transferee, a fully executed copy of the proposed
assignment, sublease or other Transfer documentation and such other
information as Landlord may reasonably request. Within 15 Business Days
after receipt of the required information and documentation, Landlord
shall either: (a) consent to the Transfer by execution of a consent
agreement in a form reasonably designated by Landlord; (b) reasonably
refuse to consent to the Transfer in writing; or (c) in the event of an
assignment of this Lease or subletting of more than 20% of the Rentable
Area of the Premises for more than 50% of the remaining Term (excluding
unexercised options), recapture the portion of the Premises that Tenant
is proposing to Transfer. If Landlord exercises its right to
recapture, this Lease shall automatically be amended (or terminated if
the entire Premises is being assigned or sublet) to delete the
applicable portion of the Premises effective on the proposed effective
date of the Transfer. Tenant shall pay Landlord a review fee of
$1,250.00 for Landlord's review of any Permitted Transfer or requested
Transfer.
11.03 Tenant shall pay Landlord 50% of all rent and other
consideration which Tenant receives as a result of a Transfer that is
in excess of the Rent payable to Landlord for the portion of the
Premises and Term covered by the Transfer. Tenant shall pay Landlord
for Landlord's share of the excess within 30 days after Tenant's
receipt of the excess. Tenant may deduct from the excess, on a
straight-line basis, all reasonable and customary expenses directly
incurred by Tenant attributable to the Transfer. If Tenant is in
Default, Landlord may require that all sublease payments be made
directly to Landlord, in which case Tenant shall receive a credit
against Rent in the amount of Tenant's share of payments received by
Landlord.
11.04 Tenant may assign this Lease to a successor to Tenant by
purchase, merger, consolidation or reorganization (an "Ownership
Change") or assign this Lease or sublet all or a portion of the
Premises to an Affiliate without the consent of Landlord, provided that
all of the following conditions are satisfied (a "Permitted Transfer"):
(a) Tenant is not in Default; (b) in the event of an Ownership Change,
Tenant's successor shall own substantially all of the assets of Tenant
and have a net worth which is at least equal to Tenant's net worth as
of the day prior to the proposed Ownership Change; (c) the Permitted
Use does not allow the Premises to be used for retail purposes; and
(d) Tenant shall give Landlord written notice at least 15 Business Days
prior to the effective date of the Permitted Transfer. Tenant's notice
to Landlord shall include information and documentation evidencing the
Permitted Transfer and showing that each of the above conditions has
been satisfied. If requested by Landlord, Tenant's successor shall
sign a commercially reasonable form of assumption agreement.
"Affiliate" shall mean an entity controlled by, controlling or under
common control with Tenant.
12. Liens.
Tenant shall not permit mechanics' or other liens to be placed upon
the Property, Premises or Tenant's leasehold interest in connection
with any work or service done or purportedly done by or for the benefit
of Tenant or its transferees. Tenant shall give Landlord notice at
least 15 days prior to the commencement of any work in the Premises to
afford Landlord the opportunity, where applicable, to post and record
notices of non-responsibility. Tenant, within 10 days of notice from
Landlord, shall fully discharge any lien by settlement, by bonding or
by insuring over the lien in the manner prescribed by the applicable
lien Law. If Tenant fails to do so, Landlord may bond, insure over or
otherwise discharge the lien. Tenant shall reimburse Landlord for any
amount paid by Landlord, including, without limitation, reasonable
attorneys' fees.
13. Indemnity and Waiver of Claims.
Tenant hereby waives all claims against and releases Landlord and
its trustees, members, principals, beneficiaries, partners, officers,
directors, employees, Mortgagees (defined in Section 23) and agents
(the "Landlord Related Parties") from all claims for any injury to or
death of persons, damage to property or business loss in any manner
related to (a) Force Majeure, (b) acts of third parties, (c) the
bursting or leaking of any tank, water closet, drain or other pipe,
(d) the inadequacy or failure of any security services, personnel or
equipment, or (e) any matter not within the reasonable control of
Landlord. Notwithstanding the foregoing, except as provided in Section
15 to the contrary, Tenant shall not be required to waive any claims
against Landlord (other than for loss or damage to Tenant's business)
where such loss or damage is due to the negligence or willful
misconduct of Landlord or any Landlord Related Parties. Nothing herein
shall be construed as to diminish the repair and maintenance
obligations of Landlord contained elsewhere in this Lease. Except to
the extent caused by the negligence or willful misconduct of Landlord
or any Landlord Related Parties, Tenant shall indemnify, defend and
hold Landlord and Landlord Related Parties harmless against and from
all liabilities, obligations, damages, penalties, claims, actions,
costs, charges and expenses, including, without limitation, reasonable
attorneys' fees and other professional fees (if and to the extent
permitted by Law) (collectively referred to as "Losses"), which may be
imposed upon, incurred by or asserted against Landlord or any of the
Landlord Related Parties by any third party and arising out of or in
connection with any damage or injury occurring in the Premises or any
acts or omissions (including violations of Law) of Tenant, the Tenant
Related Parties or any of Tenant's transferees, contractors or
licensees. Except to the extent caused by the negligence or willful
misconduct of Tenant or any Tenant Related Parties, Landlord shall
indemnify, defend and hold Tenant, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees and agents
("Tenant Related Parties") harmless against and from all Losses which
may be imposed upon, incurred by or asserted against Tenant or any of
the Tenant Related Parties by any third party and arising out of or in
connection with the acts or omissions (including violations of Law) of
Landlord or the Landlord Related Parties.
14. Insurance.
Tenant shall maintain the following insurance ("Tenant's
Insurance"): (a) Commercial General Liability Insurance applicable to
the Premises and its appurtenances providing, on an occurrence basis, a
minimum combined single limit of $2,000,000.00; (b) Property/Business
Interruption Insurance written on an All Risk or Special Perils form,
with coverage for broad form water damage including earthquake
sprinkler leakage, at replacement cost value and with a replacement
cost endorsement covering all of Tenant's business and trade fixtures,
equipment, movable partitions, furniture, merchandise and other
personal property within the Premises ("Tenant's Property") and any
Leasehold Improvements performed by or for the benefit of Tenant;
(c) Workers' Compensation Insurance in amounts required by Law; and
(d) Employers Liability Coverage of at least $1,000,000.00 per
occurrence. Any company writing Tenant's Insurance shall have an A.M.
Best rating of not less than A-VIII. All Commercial General Liability
Insurance policies shall name as additional insureds Landlord (or its
successors and assignees), the managing agent for the Building (or any
successor), EOP Operating Limited Partnership, Equity Office Properties
Trust and their respective members, principals, beneficiaries,
partners, officers, directors, employees, and agents, and other
designees of Landlord and its successors as the interest of such
designees shall appear. All policies of Tenant's Insurance shall
contain endorsements that the insurer(s) shall give Landlord and its
designees at least 30 days' advance written notice of any cancellation,
termination, material change or lapse of insurance. Tenant shall
provide Landlord with a certificate of insurance evidencing Tenant's
Insurance prior to the earlier to occur of the Commencement Date or the
date Tenant is provided with possession of the Premises, and thereafter
as necessary to assure that Landlord always has current certificates
evidencing Tenant's Insurance. So long as the same is available at
commercially reasonable rates, Landlord shall maintain so called All
Risk property insurance on the Building at replacement cost value as
reasonably estimated by Landlord.
15. Subrogation.
Landlord and Tenant hereby waive and shall cause their respective
insurance carriers to waive any and all rights of recovery, claims,
actions or causes of action against the other for any loss or damage
with respect to Tenant's Property, Leasehold Improvements, the
Building, the Premises, or any contents thereof, including rights,
claims, actions and causes of action based on negligence, which loss or
damage is (or would have been, had the insurance required by this Lease
been carried) covered by insurance.
16. Casualty Damage.
16.01 If all or any portion of the Premises becomes untenantable by
fire or other casualty to the Premises (collectively a "Casualty"),
Landlord, with reasonable promptness, shall cause a general contractor
selected by Landlord to provide Landlord and Tenant with a written
estimate of the amount of time required using standard working methods
to Substantially Complete the repair and restoration of the Premises
and any Common Areas necessary to provide access to the Premises
("Completion Estimate"). If the Completion Estimate indicates that the
Premises or any Common Areas necessary to provide access to the
Premises cannot be made tenantable within 180 days from the date the
repair is started, then either party shall have the right to terminate
this Lease upon written notice to the other within 10 days after
receipt of the Completion Estimate. Tenant, however, shall not have
the right to terminate this Lease if the Casualty was caused by the
negligence or intentional misconduct of Tenant or any Tenant Related
Parties. In addition, Landlord, by notice to Tenant within 90 days
after the date of the Casualty, shall have the right to terminate this
Lease if: (1) the Premises have been materially damaged and there is
less than 2 years of the Term remaining on the date of the Casualty;
(2) any Mortgagee requires that the insurance proceeds be applied to
the payment of the mortgage debt; or (3) a material uninsured loss to
the Building occurs, provided that any such uninsured loss is not the
result of Landlord's failure to maintain insurance that it is otherwise
required to maintain under the terms of this Lease.
16.02 If this Lease is not terminated, Landlord shall promptly and
diligently, subject to reasonable delays for insurance adjustment or
other matters beyond Landlord's reasonable control, restore the
Premises and Common Areas. Such restoration shall be to substantially
the same condition that existed prior to the Casualty, except for
modifications required by Law or any other modifications to the Common
Areas deemed desirable by Landlord. Upon notice from Landlord, Tenant
shall assign to Landlord (or to any party designated by Landlord) all
property insurance proceeds payable to Tenant under Tenant's Insurance
with respect to any Leasehold Improvements performed by or for the
benefit of Tenant; provided if the estimated cost to repair such
Leasehold Improvements exceeds the amount of insurance proceeds
received by Landlord from Tenant's insurance carrier, the excess cost
of such repairs shall be paid by Tenant to Landlord prior to Landlord's
commencement of repairs. Within 15 days of demand, Tenant shall also
pay Landlord for any additional excess costs that are determined during
the performance of the repairs. Landlord shall not be liable for any
inconvenience to Tenant, or injury to Tenant's business resulting in
any way from the Casualty or the repair thereof. Provided that Tenant
is not in Default, during any period of time that all or a material
portion of the Premises is rendered untenantable as a result of a
Casualty, the Rent shall ▇▇▇▇▇ for the portion of the Premises that is
untenantable and not used by Tenant.
16.03 The provisions of this Lease, including this Section 16,
constitute an express agreement between Landlord and Tenant with
respect to any and all damage to, or destruction of, all or any part of
the Premises or the Property, and any Laws, including, without
limitation, Sections 1932(2) and 1933(4) of the California Civil Code,
with respect to any rights or obligations concerning damage or
destruction in the absence of an express agreement between the parties,
and any similar or successor Laws now or hereinafter in effect, shall
have no application to this Lease or any damage or destruction to all
or any part of the Premises or the Property.
17. Condemnation.
Either party may terminate this Lease if any material part of the
Premises is taken or condemned for any public or quasi-public use under
Law, by eminent domain or private purchase in lieu thereof (a
"Taking"). Landlord shall also have the right to terminate this Lease
if there is a Taking of any portion of the Building or Property which
would have a material adverse effect on Landlord's ability to
profitably operate the remainder of the Building. The terminating
party shall provide written notice of termination to the other party
within 45 days after it first receives notice of the Taking. The
termination shall be effective on the date the physical taking occurs.
If this Lease is not terminated, Base Rent and Tenant's Pro Rata Share
shall be appropriately adjusted to account for any reduction in the
square footage of the Building or Premises. All compensation awarded
for a Taking shall be the property of Landlord. The right to receive
compensation or proceeds are expressly waived by Tenant, however,
Tenant may file a separate claim for Tenant's Property and Tenant's
reasonable relocation expenses, provided the filing of the claim does
not diminish the amount of Landlord's award. If only a part of the
Premises is subject to a Taking and this Lease is not terminated,
Landlord, with reasonable diligence, will restore the remaining portion
of the Premises as nearly as practicable to the condition immediately
prior to the Taking. Tenant hereby waives any and all rights it might
otherwise have pursuant to Section 1265.130 of the California Code of
Civil Procedure, or any similar or successor Laws.
18. Events of Default.
Each of the following occurrences shall be a "Default": (a) Tenant's
failure to pay any portion of Rent when due, if the failure continues
for 5 days after written notice to Tenant ("Monetary Default");
(b) Tenant's failure (other than a Monetary Default) to comply with any
term, provision, condition or covenant of this Lease, if the failure is
not cured within 10 days after written notice to Tenant provided,
however, if Tenant's failure to comply cannot reasonably be cured
within 10 days, Tenant shall be allowed additional time (not to exceed
90 days) as is reasonably necessary to cure the failure so long as
Tenant begins the cure within 10 days and diligently pursues the cure
to completion; (c) Tenant or any Guarantor becomes insolvent, makes a
transfer in fraud of creditors, makes an assignment for the benefit of
creditors, admits in writing its inability to pay its debts when due or
forfeits or loses its right to conduct business; (d) the leasehold
estate is taken by process or operation of Law; (e) in the case of any
ground floor or retail Tenant, Tenant does not take possession of or
abandons or vacates all or any portion of the Premises; or (f) Tenant
is in default beyond any notice and cure period under any other lease
or agreement with Landlord at the Building or Property. If Landlord
provides Tenant with notice of Tenant's failure to comply with any
particular non-Monetary term, provision or covenant of this Lease on 3
separate occasions during any 12 month period, then, during the
remainder of the Term, Landlord shall not be required to provide Tenant
with notice of any subsequent failure of Tenant to comply with that
particular term, provision or covenant of the Lease in order to declare
Tenant in default under such term, provision or covenant.
19. Remedies.
19.01 Upon the occurrence of any Default under this Lease, whether
enumerated in Section 18 or not, Landlord shall have the option to
pursue any one or more of the following remedies without any notice
(except as expressly prescribed herein) or demand whatsoever (and
without limiting the generality of the foregoing, Tenant hereby
specifically waives notice and demand for payment of Rent or other
obligations, except for those notices specifically required pursuant to
the terms of Section 18 or this Section 19, and waives any and all
other notices or demand requirements imposed by applicable law):
(a) Terminate this Lease and Tenant's right to possession of the
Premises and recover from Tenant an award of damages equal to
the sum of the following:
(i) The Worth at the Time of Award of the unpaid Rent which
had been earned at the time of termination;
(ii) The Worth at the Time of Award of the amount by which
the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount
of such Rent loss that Tenant affirmatively proves could
have been reasonably avoided;
(iii) The Worth at the Time of Award of the amount by
which the unpaid Rent for the balance of the Term after
the time of award exceeds the amount of such Rent loss
that Tenant affirmatively proves could be reasonably
avoided;
(iv) Any other amount necessary to compensate Landlord for
all the detriment either proximately caused by Tenant's
failure to perform Tenant's obligations under this Lease
or which in the ordinary course of things would be
likely to result therefrom; and
(v) All such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time under
applicable law.
The "Worth at the Time of Award" of the amounts referred to
in parts (i) and (ii) above, shall be computed by allowing
interest at the lesser of a per annum rate equal to: (A) the
greatest per annum rate of interest permitted from time to
time under applicable law, or (B) the Prime Rate plus 5%.
For purposes hereof, the "Prime Rate" shall be the per annum
interest rate publicly announced as its prime or base rate by
a federally insured bank selected by Landlord in the State of
California. The "Worth at the Time of Award" of the amount
referred to in part (iii), above, shall be computed by
discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus 1%;
(b) Employ the remedy described in California Civil Code 1951.4
(Landlord may continue this Lease in effect after Tenant's
breach and abandonment and recover Rent as it becomes due, if
Tenant has the right to sublet or assign, subject only to
reasonable limitations); or
(c) Notwithstanding Landlord's exercise of the remedy described
in California Civil Code 1951.4 in respect of an event or
events of default, at such time thereafter as Landlord may
elect in writing, to terminate this Lease and Tenant's right
to possession of the Premises and recover an award of damages
as provided above in Paragraph 19.01(a).
19.02 The subsequent acceptance of Rent hereunder by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant of any
term, covenant or condition of this Lease, other than the failure of
Tenant to pay the particular Rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such
Rent. No waiver by Landlord of any breach hereof shall be effective
unless such waiver is in writing and signed by Landlord.
19.03 TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY
SECTION 3275 OF THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (c)
AND 1179 OF THE CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL
OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE
LEASE TERM PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM,
REINSTATE OR RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF
TENANT'S BREACH. TENANT ALSO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY FORCIBLE ENTRY AND
DETAINER ACTION OR SIMILAR POSSESSORY PROCEEDING ARISING OUT OF OR
RELATING TO THIS LEASE.
19.04 No right or remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other right or remedy, and
each and every right and remedy shall be cumulative and in addition to
any other right or remedy given hereunder or now or hereafter existing
by agreement, applicable law or in equity. In addition to other
remedies provided in this Lease, Landlord shall be entitled, to the
extent permitted by applicable law, to injunctive relief, or to a
decree compelling performance of any of the covenants, agreements,
conditions or provisions of this Lease, or to any other remedy allowed
to Landlord at law or in equity. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of such
default.
19.05 If Tenant is in Default of any of its non-monetary
obligations under the Lease, Landlord shall have the right to perform
such obligations. Tenant shall reimburse Landlord for the cost of such
performance upon demand together with an administrative charge equal to
10% of the cost of the work performed by Landlord.
19.06 This Section 19 shall be enforceable to the maximum extent
such enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
20. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE,
THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) SHALL BE
LIMITED TO THE LESSER OF (A) THE INTEREST OF LANDLORD IN THE PROPERTY,
OR (B) THE EQUITY INTEREST LANDLORD WOULD HAVE IN THE PROPERTY IF THE
PROPERTY WERE ENCUMBERED BY THIRD PARTY DEBT IN AN AMOUNT EQUAL TO 70%
OF THE VALUE OF THE PROPERTY. TENANT SHALL LOOK SOLELY TO LANDLORD'S
INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD OR ANY LANDLORD RELATED PARTY. NEITHER LANDLORD NOR
ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT
OR DEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANY LANDLORD RELATED
PARTY BE LIABLE TO TENANT FOR ANY LOST PROFIT, DAMAGE TO OR LOSS OF
BUSINESS OR ANY FORM OF SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE.
BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL
GIVE LANDLORD AND THE MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD
MORTGAGES (DEFINED IN SECTION 23 BELOW), NOTICE AND REASONABLE TIME TO
CURE THE ALLEGED DEFAULT.
21. Intentionally Omitted.
22. Holding Over.
If Tenant fails to surrender all or any part of the Premises at the
termination of this Lease, occupancy of the Premises after termination
shall be that of a tenancy at sufferance. Tenant's occupancy shall be
subject to all the terms and provisions of this Lease, and Tenant shall
pay an amount (on a per month basis without reduction for partial
months during the holdover) equal to 150% of the sum of the Base Rent
and Additional Rent due for the period immediately preceding the
holdover. No holdover by Tenant or payment by Tenant after the
termination of this Lease shall be construed to extend the Term or
prevent Landlord from immediate recovery of possession of the Premises
by summary proceedings or otherwise. If Landlord is unable to deliver
possession of the Premises to a new tenant or to perform improvements
for a new tenant as a result of Tenant's holdover and Tenant fails to
vacate the Premises within 15 days after notice from Landlord, Tenant
shall be liable for all damages that Landlord suffers from the
holdover.
23. Subordination to Mortgages; Estoppel Certificate.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently
arising upon the Premises, the Building or the Property, and to
renewals, modifications, refinancings and extensions thereof
(collectively referred to as a "Mortgage"). The party having the
benefit of a Mortgage shall be referred to as a "Mortgagee". This
clause shall be self-operative, but upon request from a Mortgagee,
Tenant shall execute a commercially reasonable subordination agreement
in favor of the Mortgagee. As an alternative, a Mortgagee shall have
the right at any time to subordinate its Mortgage to this Lease. Upon
request, Tenant, without charge, shall attorn to any successor to
Landlord's interest in this Lease. Landlord and Tenant shall each,
within 10 days after receipt of a written request from the other,
execute and deliver a commercially reasonable estoppel certificate to
those parties as are reasonably requested by the other (including a
Mortgagee or prospective purchaser). Without limitation, such estoppel
certificate may include a certification as to the status of this Lease,
the existence of any defaults and the amount of Rent that is due and
payable. Notwithstanding the foregoing in this Section to the contrary,
as a condition precedent to the future subordination of this Lease to a
future Mortgage, Landlord shall be required to provide Tenant with a
non-disturbance, subordination, and attornment agreement in favor of
Tenant from any Mortgagee who comes into existence after the
Commencement Date. Such non-disturbance, subordination, and attornment
agreement in favor of Tenant shall provide that, so long as Tenant is
paying the Rent due under the Lease and is not otherwise in default
under the Lease beyond any applicable cure period, its right to
possession and the other terms of the Lease shall remain in full force
and effect. Such non-disturbance, subordination, and attornment
agreement may include other commercially reasonable provisions in favor
of the Mortgagee, including, without limitation, additional time on
behalf of the Mortgagee to cure defaults of the Landlord and provide
that (a) neither Mortgagee nor any successor-in-interest shall be bound
by (i) any payment of the Base Rent, Additional Rent, or other sum due
under this Lease for more than 1 month in advance or (ii) any amendment
or modification of the Lease made without the express written consent
of Mortgagee or any successor-in-interest; (b) neither Mortgagee nor
any successor-in-interest will be liable for (i) any act or omission or
warranties of any prior landlord (including Landlord), (ii) the breach
of any warranties or obligations relating to construction of
improvements on the Property or any tenant finish work performed or to
have been performed by any prior landlord (including Landlord), or
(iii) the return of any security deposit, except to the extent such
deposits have been received by Mortgagee; and (c) neither Mortgagee nor
any successor-in-interest shall be subject to any offsets or defenses
which Tenant might have against any prior landlord (including
Landlord).
24. Notice.
All demands, approvals, consents or notices (collectively referred
to as a "notice") shall be in writing and delivered by hand or sent by
registered or certified mail with return receipt requested or sent by
overnight or same day courier service at the party's respective Notice
Address(es) set forth in Section 1. Each notice shall be deemed to
have been received on the earlier to occur of actual delivery or the
date on which delivery is refused, or, if Tenant has vacated the
Premises or any other Notice Address of Tenant without providing a new
Notice Address, 3 days after notice is deposited in the U.S. mail or
with a courier service in the manner described above. Either party
may, at any time, change its Notice Address (other than to a post
office box address) by giving the other party written notice of the new
address.
25. Surrender of Premises.
At the termination of this Lease or Tenant's right of possession,
Tenant shall remove Tenant's Property from the Premises, and quit and
surrender the Premises to Landlord, broom clean, and in good order,
condition and repair, ordinary wear and tear and damage which Landlord
is obligated to repair hereunder excepted. If Tenant fails to remove
any of Tenant's Property within 2 days after termination of this Lease
or Tenant's right to possession, Landlord, at Tenant's sole cost and
expense, shall be entitled (but not obligated) to remove and store
Tenant's Property. Landlord shall not be responsible for the value,
preservation or safekeeping of Tenant's Property. Tenant shall pay
Landlord, upon demand, the expenses and storage charges incurred. If
Tenant fails to remove Tenant's Property from the Premises or storage,
within 30 days after notice, Landlord may deem all or any part of
Tenant's Property to be abandoned and title to Tenant's Property shall
vest in Landlord.
26. Miscellaneous.
26.01 This Lease shall be interpreted and enforced in accordance
with the Laws of the State of California and Landlord and Tenant hereby
irrevocably consent to the jurisdiction and proper venue of such state
or commonwealth. If any term or provision of this Lease shall to any
extent be void or unenforceable, the remainder of this Lease shall not
be affected. If there is more than one Tenant or if Tenant is comprised
of more than one party or entity, the obligations imposed upon Tenant
shall be joint and several obligations of all the parties and entities,
and requests or demands from any one person or entity comprising Tenant
shall be deemed to have been made by all such persons or entities.
Notices to any one person or entity shall be deemed to have been given
to all persons and entities. Tenant represents and warrants to Landlord
that each individual executing this Lease on behalf of Tenant is
authorized to do so on behalf of Tenant and that Tenant is not, and the
entities or individuals constituting Tenant or which may own or control
Tenant or which may be owned or controlled by Tenant are not, among the
individuals or entities identified on any list compiled pursuant to
Executive Order 13224 for the purpose of identifying suspected
terrorists.
26.02 If either party institutes a suit against the other for
violation of or to enforce any covenant, term or condition of this
Lease, the prevailing party shall be entitled to all of its costs and
expenses, including, without limitation, reasonable attorneys' fees.
Landlord and Tenant hereby waive any right to a trial by jury in any
eviction or forcible entry and detainer action or similar possessory
proceeding based upon, or related to, this Lease. Either party's
failure to declare a default immediately upon its occurrence, or delay
in taking action for a default, shall not constitute a waiver of the
default, nor shall it constitute an estoppel.
26.03 Whenever a period of time is prescribed for the taking of an
action by Landlord or Tenant (other than the payment of the Security
Deposit or Rent), the period of time for the performance of such action
shall be extended by the number of days that the performance is
actually delayed due to strikes, acts of God, shortages of labor or
materials, war, terrorist acts, civil disturbances and other causes
beyond the reasonable control of the performing party ("Force
Majeure").
26.04 Landlord shall have the right to transfer and assign, in
whole or in part, all of its rights and obligations under this Lease
and in the Building and Property. Upon transfer Landlord shall be
released from any further obligations hereunder and Tenant agrees to
look solely to the successor in interest of Landlord for the
performance of such obligations, provided that, any successor pursuant
to a voluntary, third party transfer (but not as part of an involuntary
transfer resulting from a foreclosure or deed in lieu thereof) shall
have assumed Landlord's obligations under this Lease.
26.05 Landlord has delivered a copy of this Lease to Tenant for
Tenant's review only and the delivery of it does not constitute an
offer to Tenant or an option. Tenant represents that it has dealt
directly with and only with the Broker as a broker in connection with
this Lease. Tenant shall indemnify and hold Landlord and the Landlord
Related Parties harmless from all claims of any other brokers claiming
to have represented Tenant in connection with this Lease. Landlord
shall indemnify and hold Tenant and the Tenant Related Parties harmless
from all claims of any brokers claiming to have represented Landlord in
connection with this Lease. Equity Office Properties Management Corp.
("EOPMC") is an affiliate of Landlord and represents only the Landlord
in this transaction. Any assistance rendered by any agent or employee
of EOPMC in connection with this Lease or any subsequent amendment or
modification hereto has been or will be made as an accommodation to
Tenant solely in furtherance of consummating the transaction on behalf
of Landlord, and not as agent for Tenant.
26.06 Time is of the essence with respect to Tenant's exercise of
any expansion, renewal or extension rights granted to Tenant. The
expiration of the Term, whether by lapse of time, termination or
otherwise, shall not relieve either party of any obligations which
accrued prior to or which may continue to accrue after the expiration
or termination of this Lease.
26.07 Tenant may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and
fully performs all of its covenants and agreements. This covenant
shall be binding upon Landlord and its successors only during its or
their respective periods of ownership of the Building.
26.08 This Lease does not grant any rights to light or air over or
about the Building. Landlord excepts and reserves exclusively to
itself any and all rights not specifically granted to Tenant under this
Lease. This Lease constitutes the entire agreement between the parties
and supersedes all prior agreements and understandings related to the
Premises, including all lease proposals, letters of intent and other
documents. Neither party is relying upon any warranty, statement or
representation not contained in this Lease. This Lease may be modified
only by a written agreement signed by an authorized representative of
Landlord and Tenant.
Landlord and Tenant have executed this Lease as of the day and
year first above written.
LANDLORD:
CA-FOUNTAINGROVE CENTER LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: EOM GP, L.L.C., a Delaware limited
liability company, its general
partner
By: Equity Office Management,
L.L.C., a Delaware limited
liability company, its non-
member manager
By: ________________________
Name:
________________________
Title:
________________________
TENANT:
SONOMA NATIONAL BANK
By: _____________________________
Name: _____________________________
Title: _____________________________
By: _____________________________
Name: _____________________________
Title: _____________________________
____________________________________
Tenant's Tax ID Number (SSN or FEIN)
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
EXHIBIT A-1
OUTLINE AND LOCATION OF OFFERING SPACE
EXHIBIT B
EXPENSES AND TAXES
This Exhibit is attached to and made a part of the Lease by and between
CA-FOUNTAINGROVE CENTER LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord") and SONOMA NATIONAL BANK ("Tenant") for space
in the Building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇.
1. Payments.
1.01 Tenant shall pay Tenant's Pro Rata Share of the total amount
of Expenses and Taxes for each calendar year during the Term. Landlord
shall provide Tenant with a good faith estimate of the total amount of
Expenses and Taxes for each calendar year during the Term. On or
before the first day of each month, Tenant shall pay to Landlord a
monthly installment equal to one-twelfth of Tenant's Pro Rata Share of
Landlord's estimate of the total amount of Expenses and Taxes. If
Landlord determines that its good faith estimate was incorrect by a
material amount, Landlord may provide Tenant with a revised estimate.
After its receipt of the revised estimate, Tenant's monthly payments
shall be based upon the revised estimate. If Landlord does not provide
Tenant with an estimate of the total amount of Expenses and Taxes by
January 1 of a calendar year, Tenant shall continue to pay monthly
installments based on the previous year's estimate until Landlord
provides Tenant with the new estimate. Upon delivery of the new
estimate, an adjustment shall be made for any month for which Tenant
paid monthly installments based on the previous year's estimate.
Tenant shall pay Landlord the amount of any underpayment within 30 days
after receipt of the new estimate. Any overpayment shall be refunded
to Tenant within 30 days or credited against the next due future
installment(s) of Additional Rent.
1.02 As soon as is practical following the end of each calendar
year, Landlord shall furnish Tenant with a statement of the actual
amount and Tenant's Pro Rata Share of Expenses and Taxes for the prior
calendar year. If the estimated amount of Expenses and Taxes for the
prior calendar year is more than the actual amount of Expenses and
Taxes for the prior calendar year, Landlord shall apply any overpayment
by Tenant against Additional Rent due or next becoming due, provided if
the Term expires before the determination of the overpayment, Landlord
shall refund any overpayment to Tenant after first deducting the amount
of Rent due. If the estimated amount of Expenses and Taxes for the
prior calendar year is less than the actual amount of Expenses and
Taxes for such prior year, Tenant shall pay Landlord, within 30 days
after its receipt of the statement of Expenses and Taxes, any
underpayment for the prior calendar year.
1.03 Notwithstanding anything contained in this Lease to the
contrary, Landlord and Tenant acknowledge and agree that for the period
commencing with the Commencement Date and continuing through December
31, 2004, for purposes of determining Tenant's Pro Rata Share of
Expenses and Taxes for such period, Expenses and Taxes for the Building
and the Property shall be capped at an amount equal to $0.70 per square
foot per month.
2. Expenses.
2.01 "Expenses" means all costs and expenses incurred in each
calendar year in connection with operating, maintaining, repairing, and
managing the Building and the Property. Expenses include, without
limitation: (a) all labor and labor related costs, including wages,
salaries, bonuses, taxes, insurance, uniforms, training, retirement
plans, pension plans and other employee benefits for personnel at or
below the level of general manager; (b) management fees, provided that
in no event shall the management fees for the Building (expressed as a
percentage of gross receipts for the Building) exceed the prevailing
market management fees (expressed as a percentage of gross receipts),
plus 1% of such fees, for comparable third party management companies
offering comparable management services in office buildings similar to
the Building in class, size, age and location; (c) the reasonable cost
of equipping, staffing and operating an on-site and/or off-site
management office for the Building taking into consideration the class
and the quality of the Building, provided if the management office
services one or more other buildings or properties, the shared costs
and expenses of equipping, staffing and operating such management
office(s) shall be equitably prorated and apportioned between the
Building and the other buildings or properties; (d) accounting costs;
(e) the cost of services; (f) rental and purchase cost of parts,
supplies, tools and equipment; (g) insurance premiums and deductibles;
(h) electricity, gas and other utility costs; and (i) the amortized
cost of capital improvements (as distinguished from replacement parts
or components installed in the ordinary course of business) which are:
(1) performed primarily to reduce current or future operating expense
costs, upgrade Building security or otherwise improve the operating
efficiency of the Property; or (2) required to comply with any Laws
that are enacted, or first interpreted to apply to the Property, after
the date of this Lease. The cost of capital improvements shall be
amortized by Landlord over the lesser of the Payback Period (defined
below) or the useful life of the capital improvement as reasonably
determined by Landlord. The amortized cost of capital improvements
may, at Landlord's option, include actual or imputed interest at the
rate that Landlord would reasonably be required to pay to finance the
cost of the capital improvement. "Payback Period" means the reasonably
estimated period of time that it takes for the cost savings resulting
from a capital improvement to equal the total cost of the capital
improvement. Landlord, by itself or through an affiliate, shall have
the right to directly perform, provide and be compensated for any
services under this Lease. If Landlord incurs Expenses for the Building
or Property together with one or more other buildings or properties,
whether pursuant to a reciprocal easement agreement, common area
agreement or otherwise, the shared costs and expenses shall be
equitably prorated and apportioned between the Building and Property
and the other buildings or properties.
2.02 Expenses shall not include: the cost of capital improvements
(except as set forth above); depreciation; principal payments of
mortgage and other non-operating debts of Landlord; the cost of repairs
or other work to the extent Landlord is reimbursed by insurance or
condemnation proceeds; costs in connection with leasing space in the
Building, including brokerage commissions; lease concessions, rental
abatements and construction allowances granted to specific tenants;
costs incurred in connection with the sale, financing or refinancing of
the Building; costs incurred by Landlord in connection with the
correction of defects in design and original construction of the
Building or Property; fines, interest and penalties incurred due to the
late payment of Taxes or Expenses; organizational expenses associated
with the creation and operation of the entity which constitutes
Landlord; or any penalties or damages that Landlord pays to Tenant
under this Lease or to other tenants in the Building under their
respective leases.
2.03 If the Building is not at least 95% occupied during any
calendar year or if Landlord is not supplying services to at least 95%
of the total Rentable Square Footage of the Building at any time during
a calendar year, Expenses shall, at Landlord's option, be determined as
if the Building had been 95% occupied and Landlord had been supplying
services to 95% of the Rentable Square Footage of the Building during
that calendar year. Notwithstanding the foregoing, Landlord may
calculate the extrapolation of Expenses under this Section based on
100% occupancy and service so long as such percentage is used
consistently for each year of the Term. The extrapolation of Expenses
under this Section shall be performed in accordance with the
methodology specified by the Building Owners and Managers Association.
3. "Taxes" shall mean: (a) all real property taxes and other
assessments on the Building and/or Property, including, but not limited
to, gross receipts taxes, assessments for special improvement districts
and building improvement districts, governmental charges, fees and
assessments for police, fire, traffic mitigation or other governmental
service of purported benefit to the Property, taxes and assessments
levied in substitution or supplementation in whole or in part of any
such taxes and assessments and the Property's share of any real estate
taxes and assessments under any reciprocal easement agreement, common
area agreement or similar agreement as to the Property; (b) all
personal property taxes for property that is owned by Landlord and used
in connection with the operation, maintenance and repair of the
Property; and (c) all costs and fees incurred in connection with
seeking reductions in any tax liabilities described in (a) and (b),
including, without limitation, any costs incurred by Landlord for
compliance, review and appeal of tax liabilities. Without limitation,
Taxes shall not include any income, capital levy, transfer, capital
stock, gift, estate or inheritance tax. If a change in Taxes is
obtained for any year of the Term during which Tenant paid Tenant's Pro
Rata Share of any Taxes, then Taxes for that year will be retroactively
adjusted and Landlord shall provide Tenant with a credit, if any, based
on the adjustment. Tenant shall pay Landlord the amount of Tenant's Pro
Rata Share of any such increase in Taxes within 30 days after Tenant's
receipt of a statement from Landlord.
4. Audit Rights. Tenant, within 365 days after receiving Landlord's
statement of Expenses, may give Landlord written notice ("Review
Notice") that Tenant intends to review Landlord's records of the
Expenses for that calendar year to which the statement applies. Within
a reasonable time after receipt of the Review Notice, Landlord shall
make all pertinent records available for inspection that are reasonably
necessary for Tenant to conduct its review. If any records are
maintained at a location other than the management office for the
Building, Tenant may either inspect the records at such other location
or pay for the reasonable cost of copying and shipping the records. If
Tenant retains an agent to review Landlord's records, the agent must be
with a CPA firm licensed to do business in the state or commonwealth
where the Property is located. Tenant shall be solely responsible for
all costs, expenses and fees incurred for the audit. However,
notwithstanding the foregoing, if Landlord and Tenant determine that
Expenses for the Building for the year in question were less than
stated by more than 5%, Landlord, within 30 days after its receipt of
paid invoices therefor from Tenant, shall reimburse Tenant for the
reasonable amounts paid by Tenant to third parties in connection with
such review by Tenant. Within 90 days after the records are made
available to Tenant, Tenant shall have the right to give Landlord
written notice (an "Objection Notice") stating in reasonable detail any
objection to Landlord's statement of Expenses for that year. If Tenant
fails to give Landlord an Objection Notice within the 90 day period or
fails to provide Landlord with a Review Notice within the 365 day
period described above, Tenant shall be deemed to have approved
Landlord's statement of Expenses and shall be barred from raising any
claims regarding the Expenses for that year. The records obtained by
Tenant shall be treated as confidential. In no event shall Tenant be
permitted to examine Landlord's records or to dispute any statement of
Expenses unless Tenant has paid and continues to pay all Rent when due.
EXHIBIT C
WORK LETTER
This Exhibit is attached to and made a part of the Lease by and
between CA-FOUNTAINGROVE CENTER LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord") and SONOMA NATIONAL BANK ("Tenant") for space
in the Building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇.
As used in this Work Letter, the "Premises" shall be deemed to mean the
Premises, as initially defined in the attached Lease
1. Landlord shall perform improvements to the Premises in accordance
with the space plans prepared by Wix Architecture and identified
as "Scheme D" (the "Space Plans"). Landlord shall engage
Landlord's architect to prepare at Landlord's cost, the final
architectural, electrical and mechanical construction drawings,
plans and specifications (the "Construction Documents") necessary
to construct the improvements contemplated by the Space Plans,
which Construction Documents shall be subject to approval by
Landlord and Tenant. The improvements to be performed by Landlord
in accordance with the Space Plans and the Construction Documents
are hereinafter referred to as the "Landlord Work". Tenant
covenants and agrees to devote such time as may be necessary in
consultation with said architect and engineers to enable them to
complete and submit the Construction Documents in a timely manner.
Tenant shall respond to any requests for information or approval
within 3 Business Days. If the completion of the Construction
Documents is delayed because of any acts or omissions of Tenant,
Tenant shall be responsible for one day of Tenant Delay (as
defined in the Lease) for each day during which the completion of
the Construction Documents is delayed. (The word "architect" as
used in this Exhibit shall include an interior designer or space
planner.) It is agreed that construction of the Landlord Work
will be completed at Landlord's sole cost and expense (subject to
the terms of Section 3 below) using Building Standard methods,
materials and finishes. Landlord shall enter into a direct
contract for the Landlord Work with a general contractor selected
by Landlord. In addition, Landlord shall have the right to select
and/or approve of any subcontractors used in connection with the
Landlord Work. Landlord's supervision or performance of any work
for or on behalf of Tenant shall not be deemed a representation by
Landlord that the Space Plans, the Construction Documents or the
revisions thereto comply with applicable insurance requirements,
building codes, ordinances, laws or regulations, or that the
improvements constructed in accordance with the Space Plans or the
Construction Documents and any revisions thereto will be adequate
for Tenant's use, it being agreed that Tenant shall be responsible
for all elements of the design of the Space Plans and the
Construction Documents (including, without limitation, compliance
with law, functionality of design, the structural integrity of the
design, the configuration of the premises and the placement of
Tenant's furniture, appliances and equipment). However, Landlord
shall obtain from the appropriate governmental authorities, with
respect to the Landlord Work performed by Landlord or its
contractors in the Premises, all permits and approvals necessary
for the occupancy of the Premises.
2. If Tenant shall request any revisions to the Space Plans or the
Construction Documents, Landlord shall have such revisions
prepared at Tenant's sole cost and expense and Tenant shall
reimburse Landlord for the cost of preparing any such revisions to
the Space Plans or the Construction Documents (as applicable),
plus any applicable state sales or use tax thereon, upon demand.
Promptly upon completion of the revisions, Landlord shall notify
Tenant in writing of the increased cost in the Landlord Work, if
any, resulting from such revisions to the Space Plans and/or the
Construction Documents. Tenant, within one Business Day, shall
notify Landlord in writing whether it desires to proceed with such
revisions. In the absence of such written authorization, Landlord
shall have the option to continue work on the Premises
disregarding the requested revision. Tenant shall be responsible
for any Tenant Delay in completion of the Premises resulting from
any revision to the Space Plans or the Construction Documents. If
such revisions result in an increase in the cost of Landlord Work,
such increased costs, plus any applicable state sales or use tax
thereon, shall be payable by Tenant upon demand. Notwithstanding
anything herein to the contrary, all revisions to the Space Plans
and the Construction Documents shall be subject to the approval of
Landlord.
3. In addition, Landlord, provided Tenant is not in default, agrees
to provide Tenant with an allowance in an amount not to exceed
(i) $50,000.00 (the "Above Standard Allowance") to be applied
toward the cost of above standard real property improvements
within the Premises (the "Above Standard Improvements") which are
not a part of the Landlord Work; and (ii) $20,000.00 (the "File
System Allowance") to be applied only toward the cost of
structural upgrades for Tenant's file system within the Premise
(the "File System Upgrades") which are not a part of the Landlord
Work (provided that the aforesaid allowances in subsections (i)
and (ii) may hereinafter be referred to collectively as the
"Allowance"). Notwithstanding any of the foregoing to the
contrary, Tenant may apply up to 50% of the Above Standard
Allowance (i.e. up to $25,000.00) toward the cost of the File
System Upgrades. Landlord shall enter into a direct contract to
construct the Above Standard Improvements and the File System
Upgrades with a general contractor selected by Landlord. If the
Above Standard Allowance shall not be sufficient to complete the
Above Standard Improvements or if the File System Allowance and
any applicable portion of the Above Standard Allowance (up to 50%
of the Above Standard Allowance) shall not be sufficient to
complete the File System Upgrades, Tenant shall pay the Excess
Costs (hereinafter defined), plus any applicable state sales or
use tax thereon. Any portion of the Allowance which exceeds the
cost of the Above Standard Improvements or the File System
Upgrades, as the case may be, or is otherwise remaining after
December 31, 2004, shall accrue to the sole benefit of Landlord,
it being agreed that Tenant shall not be entitled to any credit,
offset, abatement or payment with respect thereto. For purposes
herein, if Landlord's estimate and/or the actual cost of
construction of the Above Standard Improvements shall exceed the
Above Standard Allowance or if the estimate and/or the actual cost
of construction of the File System Upgrades shall exceed the File
System Allowance, if any (such amounts exceeding either Allowance
being herein referred to as the "Excess Costs"), Tenant shall pay
to Landlord such Excess Costs, plus any applicable state sales or
use tax thereon, upon demand. The statements of costs submitted
to Landlord by Landlord's contractors shall be conclusive for
purposes of determining the actual cost of the items described
therein. The amounts payable by Tenant hereunder constitute Rent
payable pursuant to the Lease, and the failure to timely pay same
constitutes an event of default under the Lease.
4. This Exhibit shall not be deemed applicable to any additional
space added to the Premises at any time or from time to time,
whether by any options under the Lease or otherwise, or to any
portion of the original Premises or any additions to the Premises
in the event of a renewal or extension of the original Term of the
Lease, whether by any options under the Lease or otherwise, unless
expressly so provided in the Lease or any amendment or supplement
to the Lease.
EXHIBIT D
COMMENCEMENT LETTER
(EXAMPLE)
Date ______________________
Tenant ______________________
Address ______________________
______________________
______________________
Re: Commencement Letter with respect to that certain Lease dated as of
the _____ day of __________, _____, by and between CA-
FOUNTAINGROVE CENTER LIMITED PARTNERSHIP, a Delaware limited
partnership, as Landlord, and SONOMA NATIONAL BANK, as Tenant, for
________ rentable square feet on the ________ floor of the
Building located at _____________________________________.
Dear __________________:
In accordance with the terms and conditions of the above
referenced Lease, Tenant accepts possession of the Premises and agrees:
1. The Commencement Date of the Lease is
________________________;
2. The Termination Date of the Lease is
____________________________.
Please acknowledge your acceptance of possession and agreement to
the terms set forth above by signing all 3 counterparts of this
Commencement Letter in the space provided and returning 2 fully
executed counterparts to my attention.
Sincerely,
___________________________________
Authorized Signatory
Agreed and Accepted:
Tenant: SONOMA NATIONAL BANK
By: ______________________
Name: ______________________
Title: ______________________
Date: ______________________
EXHIBIT E
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable,
to the Premises, the Building, the parking facilities (if any), the
Property and the appurtenances. In the event of a conflict between the
following rules and regulations and the remainder of the terms of the
Lease, the remainder of the terms of the Lease shall control.
Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other
similar areas shall not be obstructed by Tenant or used by Tenant
for any purpose other than ingress and egress to and from the
Premises. No rubbish, litter, trash, or material shall be placed,
emptied, or thrown in those areas. At no time shall Tenant permit
Tenant's employees to loiter in Common Areas or elsewhere about
the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the
purposes for which designed and no sweepings, rubbish, rags or
other unsuitable material shall be thrown or placed in the
fixtures or appliances. Damage resulting to fixtures or
appliances by Tenant, its agents, employees or invitees shall be
paid for by Tenant and Landlord shall not be responsible for the
damage.
3. No signs, advertisements or notices shall be painted or affixed to
windows, doors or other parts of the Building, except those of
such color, size, style and in such places as are first approved
in writing by Landlord. All tenant identification and suite
numbers at the entrance to the Premises shall be installed by
Landlord, at Tenant's cost and expense, using the standard
graphics for the Building. Except in connection with the hanging
of lightweight pictures and wall decorations, no nails, hooks or
screws shall be inserted into any part of the Premises or Building
except by the Building maintenance personnel without Landlord's
prior approval, which approval shall not be unreasonably withheld.
4. Landlord may provide and maintain in the first floor (main lobby)
of the Building an alphabetical directory board or other directory
device listing tenants and no other directory shall be permitted
unless previously consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or
Building without Landlord's prior written consent, which consent
shall not be unreasonably withheld, and Landlord shall have the
right at all times to retain and use keys or other access codes or
devices to all locks within and into the Premises. A reasonable
number of keys to the locks on the entry doors in the Premises
shall be furnished by Landlord to Tenant at Tenant's cost and
Tenant shall not make any duplicate keys. All keys shall be
returned to Landlord at the expiration or early termination of the
Lease.
6. All contractors, contractor's representatives and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval, which approval shall not be
unreasonably withheld, and shall be required to comply with
Landlord's standard rules, regulations, policies and procedures,
which may be revised from time to time.
7. Movement in or out of the Building of furniture or office
equipment, or dispatch or receipt by Tenant of merchandise or
materials requiring the use of elevators, stairways, lobby areas
or loading dock areas, shall be restricted to hours reasonably
designated by Landlord. Tenant shall obtain Landlord's prior
approval by providing a detailed listing of the activity, which
approval shall not be unreasonably withheld. If approved by
Landlord, the activity shall be under the supervision of Landlord
and performed in the manner required by Landlord. Tenant shall
assume all risk for damage to articles moved and injury to any
persons resulting from the activity. If equipment, property, or
personnel of Landlord or of any other party is damaged or injured
as a result of or in connection with the activity, Tenant shall be
solely liable for any resulting damage, loss or injury.
8. Landlord shall have the right to approve the weight, size, or
location of heavy equipment or articles in and about the Premises,
which approval shall not be unreasonably withheld. Damage to the
Building by the installation, maintenance, operation, existence or
removal of Tenant's Property shall be repaired at Tenant's sole
expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable
or unpleasant noises or odors in the Building, or otherwise
interfere in any way with other tenants or persons having business
with them; (2) solicit business or distribute or cause to be
distributed, in any portion of the Building, handbills,
promotional materials or other advertising; or (3) conduct or
permit other activities in the Building that might, in Landlord's
sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be
brought into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall
be used or kept by Tenant in the Premises, Building or about the
Property, except for those substances as are typically found in
similar premises used for general office purposes and are being
used by Tenant in a safe manner and in accordance with all
applicable Laws. Tenant shall not, without Landlord's prior
written consent, use, store, install, spill, remove, release or
dispose of, within or about the Premises or any other portion of
the Property, any asbestos-containing materials or any solid,
liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq.
or any other applicable environmental Law which may now or later
be in effect. Tenant shall comply with all Laws pertaining to and
governing the use of these materials by Tenant and shall remain
solely liable for the costs of abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for
any purpose which might injure the reputation or impair the
present or future value of the Premises or the Building. Tenant
shall not use, or permit any part of the Premises to be used for
lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's
labor contracts or which would cause a work stoppage, picketing,
labor disruption or dispute or interfere with Landlord's or any
other tenant's or occupant's business or with the rights and
privileges of any person lawfully in the Building ("Labor
Disruption"). Tenant shall take the actions necessary to resolve
the Labor Disruption, and shall have pickets removed and, at the
request of Landlord, immediately terminate any work in the
Premises that gave rise to the Labor Disruption, until Landlord
gives its written consent for the work to resume. Tenant shall
have no claim for damages against Landlord or any of the Landlord
Related Parties nor shall the Commencement Date of the Term be
extended as a result of the above actions.
15. Tenant shall not install, operate or maintain in the Premises or
in any other area of the Building, electrical equipment that would
overload the electrical system beyond its capacity for proper,
efficient and safe operation as determined solely by Landlord.
Tenant shall not furnish cooling or heating to the Premises,
including, without limitation, the use of electric or gas heating
devices, without Landlord's prior written consent. Tenant shall
not use more than its proportionate share of telephone lines and
other telecommunication facilities available to service the
Building.
16. Tenant shall not operate or permit to be operated a coin or token
operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement
devices and machines for sale of beverages, foods, candy,
cigarettes and other goods), except for machines for the exclusive
use of Tenant's employees and invitees.
17. Bicycles and other vehicles are not permitted inside the Building
or on the walkways outside the Building, except in areas
designated by Landlord.
18. Landlord may from time to time adopt systems and procedures for
the security and safety of the Building and the Property, its
occupants, entry, use and contents. Tenant, its agents,
employees, contractors, guests and invitees shall comply with
Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of
the Building or any other publicity by Tenant that in Landlord's
sole opinion may impair the reputation of the Building or its
desirability. Upon written notice from Landlord, Tenant shall
refrain from and discontinue such publicity immediately.
20. Neither Tenant nor its agents, employees, contractors, guests or
invitees shall smoke or permit smoking in the Common Areas, unless
a portion of the Common Areas have been declared a designated
smoking area by Landlord, nor shall the above parties allow smoke
from the Premises to emanate into the Common Areas or any other
part of the Building. Landlord shall have the right to designate
the Building (including the Premises) as a non-smoking building.
21. Landlord shall have the right to designate and approve standard
window coverings for the Premises and to establish rules to assure
that the Building presents a uniform exterior appearance. Tenant
shall ensure, to the extent reasonably practicable, that window
coverings are closed on windows in the Premises while they are
exposed to the direct rays of the sun.
22. Deliveries to and from the Premises shall be made only at the
times in the areas and through the entrances and exits reasonably
designated by Landlord. Tenant shall not make deliveries to or
from the Premises in a manner that might interfere with the use by
any other tenant of its premises or of the Common Areas, any
pedestrian use, or any use which is inconsistent with good
business practice.
23. The work of cleaning personnel shall not be hindered by Tenant
after 5:30 p.m., and cleaning work may be done at any time when
the offices are vacant. Windows, doors and fixtures may be cleaned
at any time. Tenant shall provide adequate waste and rubbish
receptacles to prevent unreasonable hardship to the cleaning
service.
EXHIBIT F
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease by and
between CA-FOUNTAINGROVE CENTER LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord") and SONOMA NATIONAL BANK ("Tenant") for space
in the Building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇.
1. RIGHT OF FIRST OFFER.
▇. ▇▇▇▇▇ of Option; Conditions. Tenant shall have the one time
right of first offer (the "Right of First Offer") with
respect to the remaining space in the Building (i.e. the
building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) not part of
the Premises as shown on the demising plan attached hereto as
Exhibit A-1 (collectively, the "Offering Space"). Tenant's
Right of First Offer shall be exercised as follows: at any
time after Landlord has determined that the existing tenant
in a portion of the Offering Space will not extend or renew
the term of its lease for such Offering Space (but prior to
leasing such Offering Space to a party other than the
existing tenant), Landlord shall advise Tenant (the "Advice")
of the terms under which Landlord is prepared to lease such
portion of the Offering Space to Tenant for the remainder of
the Term, which terms shall reflect the Prevailing Market
(hereinafter defined) rate for such portion of the Offering
Space as reasonably determined by Landlord. Tenant may lease
such portion of the Offering Space in its entirety only,
under such terms, by delivering written notice of exercise to
Landlord (the "Notice of Exercise") within 10 days after the
date of the Advice, except that Tenant shall have no such
Right of First Offer and Landlord need not provide Tenant
with an Advice, if:
1. Tenant is in default under the Lease beyond any
applicable cure periods at the time that Landlord would
otherwise deliver the Advice; or
2. the Premises, or any portion thereof, is sublet (other
than pursuant to a Permitted Transfer, as defined in
Section 11 of the Lease) at the time Landlord would
otherwise deliver the Advice; or
3. the Lease has been assigned (other than pursuant to a
Permitted Transfer, as defined in Section 11 of the
Lease) prior to the date Landlord would otherwise
deliver the Advice; or
4. Tenant is not occupying the Premises on the date
Landlord would otherwise deliver the Advice; or
5. the applicable portion of the Offering Space is not
intended for the exclusive use of Tenant during the
Term; or
6. the existing tenant in the applicable portion of the
Offering Space is interested in extending or renewing
its lease for such portion of the Offering Space or
entering into a new lease for such portion of the
Offering Space.
B. Terms for Offering Space.
1. The term for the applicable portion of the Offering
Space shall commence upon the commencement date stated
in the Advice and thereupon such portion of the Offering
Space shall be considered a part of the Premises,
provided that all of the terms stated in the Advice
shall govern Tenant's leasing of such portion of the
Offering Space and only to the extent that they do not
conflict with the Advice, the terms and conditions of
this Lease shall apply to such portion of the Offering
Space.
2. Tenant shall pay Base Rent and Additional Rent for such
portion of the Offering Space in accordance with the
terms and conditions of the Advice, which terms and
conditions shall reflect the Prevailing Market rate for
the applicable portion of the Offering Space as
determined in Landlord's reasonable judgment.
3. The applicable portion of the Offering Space (including
improvements and personalty, if any) shall be accepted
by Tenant in its condition and as-built configuration
existing on the earlier of the date Tenant takes
possession of such portion of the Offering Space or as
of the date the term for such portion of the Offering
Space commences, unless the Advice specifies any work to
be performed by Landlord in such portion of the Offering
Space, in which case Landlord shall perform such work in
such portion of the Offering Space. If Landlord is
delayed delivering possession of such portion of the
Offering Space due to the holdover or unlawful
possession of such space by any party, Landlord shall
use reasonable efforts to obtain possession of the
space, and the commencement of the term for such portion
of the Offering Space shall be postponed until the date
Landlord delivers possession of the applicable portion
of the Offering Space to Tenant free from occupancy by
any party.
C. Termination of Right of First Offer. The rights of Tenant
hereunder with respect to each applicable portion of the
Offering Space shall terminate on the earlier to occur of:
(i) Tenant's failure to exercise its Right of First Offer
within the 10 day period provided in Section A above; and
(ii) the date Landlord would have provided Tenant an Advice
if Tenant had not been in violation of one or more of the
conditions set forth in Section A above.
D. Offering Amendment. If Tenant exercises its Right of First
Offer, Landlord shall prepare an amendment (the "Offering
Amendment") adding the applicable portion of the Offering
Space to the Premises on the terms set forth in the Advice
and reflecting the changes in the Base Rent, Rentable Square
Footage of the Premises, Tenant's Pro Rata Share and other
appropriate terms. A copy of the Offering Amendment shall be
sent to Tenant within a reasonable time after Landlord's
receipt of the Notice of Exercise executed by Tenant, and
Tenant shall execute and return the Offering Amendment to
Landlord within 15 days thereafter, but an otherwise valid
exercise of the Right of First Offer shall be fully effective
whether or not the Offering Amendment is executed.
E. Definition of Prevailing Market. For purposes of this Right
of First Offer provision, "Prevailing Market" shall mean the
annual rental rate per square foot for space comparable to
the applicable portion of the Offering Space in the Building
and office buildings comparable to the Building in the Santa
Rosa, California area under leases and renewal and expansion
amendments being entered into at or about the time that
Prevailing Market is being determined, giving appropriate
consideration to tenant concessions, brokerage commissions,
tenant improvement allowances, existing improvements in the
space in question, and the method of allocating operating
expenses and taxes. Notwithstanding the foregoing, space
leased under any of the following circumstances shall not be
considered to be comparable for purposes hereof: (i) the
lease term is for less than the lease term of the applicable
portion of the Offering Space, (ii) the space is encumbered
by the option rights of another tenant, or (iii) the space
has a lack of windows and/or an awkward or unusual shape or
configuration. The foregoing is not intended to be an
exclusive list of space that will not be considered to be
comparable.
F. Subordination. Notwithstanding anything herein to the
contrary, Tenant's Right of First Offer is subject and
subordinate to the expansion rights (whether such rights are
designated as a right of first offer, right of first refusal,
expansion option or otherwise) of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, Inc.
with respect to the second floor of the Building.
2. FIRST RENEWAL OPTION.
▇. ▇▇▇▇▇ of Option; Conditions. Tenant shall have the right to
extend the Term (the "First Renewal Option") for one
additional period of 5 years commencing on the day following
the Termination Date of the initial Term and ending on the
5th anniversary of the Termination Date (the "First Renewal
Term"), if:
1. Landlord receives notice of exercise ("First Initial
Renewal Notice") not less than 9 full calendar months
prior to the expiration of the initial Term and not more
than 12 full calendar months prior to the expiration of
the initial Term; and
2. Tenant is not in default under the Lease beyond any
applicable cure periods at the time that Tenant delivers
its First Initial Renewal Notice or at the time Tenant
delivers its First Binding Notice (as defined below);
and
3. No part of the Premises is sublet (other than pursuant
to a Permitted Transfer, as defined in Section 11 of the
Lease) at the time that Tenant delivers its First
Initial Renewal Notice or at the time Tenant delivers
its First Binding Notice; and
4. The Lease has not been assigned (other than pursuant to
a Permitted Transfer, as defined in Section 11 of the
Lease) prior to the date that Tenant delivers its First
Initial Renewal Notice or prior to the date Tenant
delivers its First Binding Notice.
B. Terms Applicable to Premises During First Renewal Term.
1. The initial Base Rent rate per rentable square foot for
the Premises during the First Renewal Term shall equal
the Prevailing Market (hereinafter defined) rate per
rentable square foot for the Premises. Base Rent during
the First Renewal Term shall increase, if at all, in
accordance with the increases assumed in the
determination of Prevailing Market rate. Base Rent
attributable to the Premises shall be payable in monthly
installments in accordance with the terms and conditions
of Section 4 of the Lease.
2. Tenant shall pay Additional Rent (i.e., Taxes and
Expenses) for the Premises during the First Renewal Term
in accordance with Exhibit B of the Lease, and the
manner and method in which Tenant reimburses Landlord
for Tenant's share of Taxes and Expenses and the Base
Year, if any, applicable to such matter, shall be some
of the factors considered in determining the Prevailing
Market rate for the First Renewal Term.
C. Initial Procedure for Determining Prevailing Market. Within
30 days after receipt of Tenant's First Initial Renewal
Notice, Landlord shall advise Tenant of the applicable Base
Rent rate for the Premises for the First Renewal Term.
Tenant, within 15 days after the date on which Landlord
advises Tenant of the applicable Base Rent rate for the First
Renewal Term, shall either (i) give Landlord final binding
written notice ("First Binding Notice") of Tenant's exercise
of its Renewal Option, or (ii) if Tenant disagrees with
Landlord's determination, provide Landlord with written
notice of rejection (the "Rejection Notice"). If Tenant
fails to provide Landlord with either a First Binding Notice
or Rejection Notice within such 15 day period, Tenant's First
Renewal Option shall be null and void and of no further force
and effect. If Tenant provides Landlord with a First Binding
Notice, Landlord and Tenant shall enter into the First
Renewal Amendment (as defined below) upon the terms and
conditions set forth herein. If Tenant provides Landlord
with a Rejection Notice, Landlord and Tenant shall work
together in good faith to agree upon the Prevailing Market
rate for the Premises during the First Renewal Term. When
Landlord and Tenant have agreed upon the Prevailing Market
rate for the Premises, such agreement shall be reflected in a
written agreement between Landlord and Tenant, whether in a
letter or otherwise, and Landlord and Tenant shall enter into
the First Renewal Amendment in accordance with the terms and
conditions hereof. Notwithstanding the foregoing, if
Landlord and Tenant are unable to agree upon the Prevailing
Market rate for the Premises within 30 days after the date
Tenant provides Landlord with the Rejection Notice, Tenant,
by written notice to Landlord (the "First Arbitration
Notice") within 5 days after the expiration of such 30 day
period, shall have the right to have the Prevailing Market
rate determined in accordance with the arbitration procedures
described in Section D below. If Landlord and Tenant are
unable to agree upon the Prevailing Market rate for the
Premises within the 30 day period described and Tenant fails
to timely exercise its right to arbitrate, Tenant's First
Renewal Option shall be deemed to be null and void and of no
further force and effect.
D. Arbitration Procedure.
1. If Tenant provides Landlord with a First Arbitration
Notice, Landlord and Tenant, within 5 days after the
date of the First Arbitration Notice, shall each
simultaneously submit to the other, in a sealed
envelope, its good faith estimate of the Prevailing
Market rate for the Premises during the First Renewal
Term (collectively referred to as the "Estimates"). If
the higher of such Estimates is not more than 105% of
the lower of such Estimates, then Prevailing Market rate
shall be the average of the two Estimates. If the
Prevailing Market rate is not resolved by the exchange
of Estimates, then, within 7 days after the exchange of
Estimates, Landlord and Tenant shall each select an
appraiser to determine which of the two Estimates most
closely reflects the Prevailing Market rate for the
Premises during the First Renewal Term. Each appraiser
so selected shall be certified as an MAI appraiser or as
an ASA appraiser and shall have had at least 5 years
experience within the previous 10 years as a real estate
appraiser working in Santa Rosa, California area, with
working knowledge of current rental rates and practices.
For purposes hereof, an "MAI" appraiser means an
individual who holds an MAI designation conferred by,
and is an independent member of, the American Institute
of Real Estate Appraisers (or its successor
organization, or in the event there is no successor
organization, the organization and designation most
similar), and an "ASA" appraiser means an individual who
holds the Senior Member designation conferred by, and is
an independent member of, the American Society of
Appraisers (or its successor organization, or, in the
event there is no successor organization, the
organization and designation most similar).
2. Upon selection, Landlord's and Tenant's appraisers shall
work together in good faith to agree upon which of the
two Estimates most closely reflects the Prevailing
Market rate for the Premises. The Estimate chosen by
such appraisers shall be binding on both Landlord and
Tenant as the Base Rent rate for the Premises during the
First Renewal Term. If either Landlord or Tenant fails
to appoint an appraiser within the 7 day period referred
to above, the appraiser appointed by the other party
shall be the sole appraiser for the purposes hereof. If
the two appraisers cannot agree upon which of the two
Estimates most closely reflects the Prevailing Market
within 20 days after their appointment, then, within 10
days after the expiration of such 20 day period, the two
appraisers shall select a third appraiser meeting the
aforementioned criteria. Once the third appraiser (i.e.
arbitrator) has been selected as provided for above,
then, as soon thereafter as practicable but in any case
within 14 days, the arbitrator shall make his
determination of which of the two Estimates most closely
reflects the Prevailing Market rate and such Estimate
shall be binding on both Landlord and Tenant as the Base
Rent rate for the Premises. If the arbitrator believes
that expert advice would materially assist him, he may
retain one or more qualified persons to provide such
expert advice. The parties shall share equally in the
costs of the arbitrator and of any experts retained by
the arbitrator. Any fees of any appraiser, counsel or
experts engaged directly by Landlord or Tenant, however,
shall be borne by the party retaining such appraiser,
counsel or expert.
3. If the Prevailing Market rate has not been determined by
the commencement date of the First Renewal Term, Tenant
shall pay Base Rent upon the terms and conditions in
effect during the last month of the initial Term for the
Premises until such time as the Prevailing Market
rate has been determined. Upon such determination, the
Base Rent for the Premises shall be retroactively
adjusted to the commencement of the First Renewal
Term for the Premises. If such adjustment results in
an underpayment of Base Rent by Tenant, Tenant shall
pay Landlord the amount of such underpayment within 30
days after the determination thereof. If such
adjustment results in an overpayment of Base Rent by
Tenant, Landlord shall credit such overpayment against
the next installment of Base Rent due under the Lease
and, to the extent necessary, any subsequent
installments, until the entire amount of such
overpayment has been credited against Base Rent.
E. First Renewal Amendment. If Tenant is entitled to and
properly exercises its First Renewal Option, Landlord shall
prepare an amendment (the "First Renewal Amendment") to
reflect changes in the Base Rent, Term, Termination Date and
other appropriate terms. The First Renewal Amendment shall
be sent to Tenant within a reasonable time after Landlord's
receipt of the First Binding Notice or other written
agreement by Landlord and Tenant regarding the Prevailing
Market rate, and Tenant shall execute and return the First
Renewal Amendment to Landlord within 15 days after Tenant's
receipt of same, but, upon final determination of the
Prevailing Market rate applicable during the First Renewal
Term as described herein, an otherwise valid exercise of the
First Renewal Option shall be fully effective whether or not
the First Renewal Amendment is executed.
F. Definition of Prevailing Market. For purposes of this First
Renewal Option, "Prevailing Market" shall mean the arms
length fair market annual rental rate per rentable square
foot under renewal leases and amendments entered into on or
about the date on which the Prevailing Market is being
determined hereunder for space comparable to the Premises in
the Building and office buildings comparable to the Building
in the Santa Rosa, California area. The determination of
Prevailing Market shall take into account any material
economic differences between the terms of this Lease and any
comparison lease or amendment, such as rent abatements,
construction costs and other concessions and the manner, if
any, in which the landlord under any such lease is reimbursed
for operating expenses and taxes. The determination of
Prevailing Market shall also take into consideration any
reasonably anticipated changes in the Prevailing Market rate
from the time such Prevailing Market rate is being determined
and the time such Prevailing Market rate will become
effective under this Lease.
G. Subordination. Notwithstanding anything herein to the
contrary, Tenant's First Renewal Option is subject and
subordinate to the expansion rights (whether such rights are
designated as a right of first offer, right of first refusal,
expansion option or otherwise) of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, Inc.
with respect to the second floor of the Building.
3. SECOND RENEWAL OPTION.
▇. ▇▇▇▇▇ of Option; Conditions. Tenant shall have the right to
extend the Term (the "Second Renewal Option") for one
additional period of 5 years commencing on the day following
the Termination Date of the First Renewal Term and ending on
the 5th anniversary of the Termination Date of the First
Renewal Term (the "Second Renewal Term"), if:
1. Landlord receives notice of exercise ("Second Initial
Renewal Notice") not less than 9 full calendar months
prior to the expiration of the First Renewal Term and
not more than 12 full calendar months prior to the
expiration of the First Renewal Term; and
2. Tenant is not in default under the Lease beyond any
applicable cure periods at the time that Tenant delivers
its Second Initial Renewal Notice or at the time Tenant
delivers its Second Binding Notice (as defined below);
and
3. No part of the Premises is sublet (other than pursuant
to a Permitted Transfer, as defined in Section 11 of the
Lease) at the time that Tenant delivers its Second
Initial Renewal Notice or at the time Tenant delivers
its Second Binding Notice; and
4. The Lease has not been assigned (other than pursuant to
a Permitted Transfer, as defined in Section 11 of the
Lease) prior to the date that Tenant delivers its Second
Initial Renewal Notice or prior to the date Tenant
delivers its Second Binding Notice; and
5. The First Renewal Option has been properly exercised by
Tenant.
B. Terms Applicable to Premises During Second Renewal Term.
1. The initial Base Rent rate per rentable square foot for
the Premises during the Second Renewal Term shall equal
the Prevailing Market (hereinafter defined) rate per
rentable square foot for the Premises. Base Rent during
the Second Renewal Term shall increase, if at all, in
accordance with the increases assumed in the
determination of Prevailing Market rate. Base Rent
attributable to the Premises shall be payable in monthly
installments in accordance with the terms and conditions
of Section 4 of the Lease.
2. Tenant shall pay Additional Rent (i.e., Taxes and
Expenses) for the Premises during the Second Renewal
Term in accordance with Exhibit B of the Lease, and the
manner and method in which Tenant reimburses Landlord
for Tenant's share of Taxes and Expenses and the Base
Year, if any, applicable to such matter, shall be some
of the factors considered in determining the Prevailing
Market rate for the Second Renewal Term.
C. Initial Procedure for Determining Prevailing Market. Within
30 days after receipt of Tenant's Second Initial Renewal
Notice, Landlord shall advise Tenant of the applicable Base
Rent rate for the Premises for the Second Renewal Term.
Tenant, within 15 days after the date on which Landlord
advises Tenant of the applicable Base Rent rate for the
Second Renewal Term, shall either (i) give Landlord final
binding written notice ("Second Binding Notice") of Tenant's
exercise of its Renewal Option, or (ii) if Tenant disagrees
with Landlord's determination, provide Landlord with written
notice of rejection (the "Rejection Notice"). If Tenant
fails to provide Landlord with either a Second Binding Notice
or Rejection Notice within such 15 day period, Tenant's
Second Renewal Option shall be null and void and of no
further force and effect. If Tenant provides Landlord with a
Second Binding Notice, Landlord and Tenant shall enter into
the Second Renewal Amendment (as defined below) upon the
terms and conditions set forth herein. If Tenant provides
Landlord with a Rejection Notice, Landlord and Tenant shall
work together in good faith to agree upon the Prevailing
Market rate for the Premises during the Second Renewal Term.
When Landlord and Tenant have agreed upon the Prevailing
Market rate for the Premises, such agreement shall be
reflected in a written agreement between Landlord and Tenant,
whether in a letter or otherwise, and Landlord and Tenant
shall enter into the Second Renewal Amendment in accordance
with the terms and conditions hereof. Notwithstanding the
foregoing, if Landlord and Tenant are unable to agree upon
the Prevailing Market rate for the Premises within 30 days
after the date Tenant provides Landlord with the Rejection
Notice, Tenant, by written notice to Landlord (the "Second
Arbitration Notice") within 5 days after the expiration of
such 30 day period, shall have the right to have the
Prevailing Market rate determined in accordance with the
arbitration procedures described in Section D below. If
Landlord and Tenant are unable to agree upon the Prevailing
Market rate for the Premises within the 30 day period
described and Tenant fails to timely exercise its right to
arbitrate, Tenant's Second Renewal Option shall be deemed to
be null and void and of no further force and effect.
D. Arbitration Procedure.
1. If Tenant provides Landlord with a Second Arbitration
Notice, Landlord and Tenant, within 5 days after the
date of the Second Arbitration Notice, shall each
simultaneously submit to the other, in a sealed
envelope, its good faith estimate of the Prevailing
Market rate for the Premises during the Second Renewal
Term (collectively referred to as the "Estimates"). If
the higher of such Estimates is not more than 105% of
the lower of such Estimates, then Prevailing Market rate
shall be the average of the two Estimates. If the
Prevailing Market rate is not resolved by the exchange
of Estimates, then, within 7 days after the exchange of
Estimates, Landlord and Tenant shall each select an
appraiser to determine which of the two Estimates most
closely reflects the Prevailing Market rate for the
Premises during the Second Renewal Term. Each appraiser
so selected shall be certified as an MAI appraiser or as
an ASA appraiser and shall have had at least 5 years
experience within the previous 10 years as a real estate
appraiser working in Santa Rosa, California area, with
working knowledge of current rental rates and practices.
For purposes hereof, an "MAI" appraiser means an
individual who holds an MAI designation conferred by,
and is an independent member of, the American Institute
of Real Estate Appraisers (or its successor
organization, or in the event there is no successor
organization, the organization and designation most
similar), and an "ASA" appraiser means an individual who
holds the Senior Member designation conferred by, and is
an independent member of, the American Society of
Appraisers (or its successor organization, or, in the
event there is no successor organization, the
organization and designation most similar).
2. Upon selection, Landlord's and Tenant's appraisers shall
work together in good faith to agree upon which of the
two Estimates most closely reflects the Prevailing
Market rate for the Premises. The Estimate chosen by
such appraisers shall be binding on both Landlord and
Tenant as the Base Rent rate for the Premises during the
Second Renewal Term. If either Landlord or Tenant fails
to appoint an appraiser within the 7 day period referred
to above, the appraiser appointed by the other party
shall be the sole appraiser for the purposes hereof. If
the two appraisers cannot agree upon which of the two
Estimates most closely reflects the Prevailing Market
within 20 days after their appointment, then, within 10
days after the expiration of such 20 day period, the two
appraisers shall select a third appraiser meeting the
aforementioned criteria. Once the third appraiser (i.e.
arbitrator) has been selected as provided for above,
then, as soon thereafter as practicable but in any case
within 14 days, the arbitrator shall make his
determination of which of the two Estimates most closely
reflects the Prevailing Market rate and such Estimate
shall be binding on both Landlord and Tenant as the Base
Rent rate for the Premises. If the arbitrator believes
that expert advice would materially assist him, he may
retain one or more qualified persons to provide such
expert advice. The parties shall share equally in the
costs of the arbitrator and of any experts retained by
the arbitrator. Any fees of any appraiser, counsel or
experts engaged directly by Landlord or Tenant, however,
shall be borne by the party retaining such appraiser,
counsel or expert.
3. If the Prevailing Market rate has not been determined by
the commencement date of the Second Renewal Term, Tenant
shall pay Base Rent upon the terms and conditions in
effect during the last month of the First Renewal Term
for the Premises until such time as the
Prevailing Market rate has been determined. Upon such
determination, the Base Rent for the Premises shall be
retroactively adjusted to the commencement of the Second
Renewal Term for the Premises.
If such adjustment results in an underpayment of Base
Rent by Tenant, Tenant shall pay Landlord the amount of
such underpayment within 30 days after
the determination thereof. If such adjustment results in
an overpayment of Base Rent by Tenant, Landlord shall
credit such overpayment against the next installment of
Base Rent due under the Lease and, to the extent
necessary, any subsequent installments, until
the entire amount of such overpayment has been credited
against Base Rent.
E. Second Renewal Amendment. If Tenant is entitled to and
properly exercises its Second Renewal Option, Landlord shall
prepare an amendment (the "Second Renewal Amendment") to
reflect changes in the Base Rent, Term, Termination Date and
other appropriate terms. The Second Renewal Amendment shall
be sent to Tenant within a reasonable time after Landlord's
receipt of the Second Binding Notice or other written
agreement by Landlord and Tenant regarding the Prevailing
Market rate, and Tenant shall execute and return the Second
Renewal Amendment to Landlord within 15 days after Tenant's
receipt of same, but, upon final determination of the
Prevailing Market rate applicable during the Second Renewal
Term as described herein, an otherwise valid exercise of the
Second Renewal Option shall be fully effective whether or not
the Second Renewal Amendment is executed.
F. Definition of Prevailing Market. For purposes of this Second
Renewal Option, "Prevailing Market" shall mean the arms
length fair market annual rental rate per rentable square
foot under renewal leases and amendments entered into on or
about the date on which the Prevailing Market is being
determined hereunder for space comparable to the Premises in
the Building and office buildings comparable to the Building
in the Santa Rosa, California area. The determination of
Prevailing Market shall take into account any material
economic differences between the terms of this Lease and any
comparison lease or amendment, such as rent abatements,
construction costs and other concessions and the manner, if
any, in which the landlord under any such lease is reimbursed
for operating expenses and taxes. The determination of
Prevailing Market shall also take into consideration any
reasonably anticipated changes in the Prevailing Market rate
from the time such Prevailing Market rate is being determined
and the time such Prevailing Market rate will become
effective under this Lease.
G. Subordination. Notwithstanding anything herein to the
contrary, Tenant's Second Renewal Option is subject and
subordinate to the expansion rights (whether such rights are
designated as a right of first offer, right of first refusal,
expansion option or otherwise) of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, Inc.
with respect to the second floor of the Building.
4. REASSESSMENT.
A. Notwithstanding the foregoing to the contrary, for one time
only, if the Building and/or Property is reassessed (the
"Reassessment") pursuant to Proposition 13 (as adopted by the
voters of the State of California in the June 1978 election
and as amended from time to time) as a result of a sale,
hypothecation, refinancing, transfer or improvement which
occurs at any time during the Term, then for purposes of
calculating Tenant's Pro Rata Share of Taxes, the increase in
Taxes directly attributable to such reassessment (the
"Increase") that may be included in Taxes for purposes of
calculating Tenant's Pro Rata Share of Taxes shall be limited
during and following the year of Reassessment in accordance
with the following schedule:
Percentage of Increase Pass-
Through
Lease Year During Term for Lease Year
1 0%
2 33%
3 66%
Any period thereafter 100%
B. Notwithstanding the foregoing to the contrary, for purposes
of calculating the Taxes payable hereunder, the "Increase"
shall mean that portion of the Taxes, as calculated
immediately following the Reassessment, that are attributable
solely to the Reassessment. Accordingly, the Increase shall
not include any portion of the Taxes, as calculated
immediately following the Reassessment that are
(a) attributable to the initial assessment of the Building or
the tenant improvements located in the Building;
(b) attributable to assessments pending immediately before
the Reassessment that were conducted during, and included, in
that Reassessment or that were otherwise rendered unnecessary
following the Reassessment, (c) attributable to the annual
inflationary increase in Taxes, or (d) part of the Taxes
incurred or considered to be incurred during the Base Year as
determined under this Lease. In the event the reassessed
valuation arising from such sale, hypothecation, refinancing,
transfer or improvement is less than the assessed maximum
valuation which would have been attributable to such Lease
Year absent such Reassessment, then Tenant's obligation to
pay Taxes shall not be affected by such sale, hypothecation,
refinancing, transfer or improvement. The protection set
forth herein with respect to any Increase resulting from such
a Reassessment shall be personal to Tenant and shall not
apply or be available to any sublessee, assignee or other
transferee of any interest of Tenant in the Premises or the
Lease. Furthermore, in the event Tenant, at any time during
the Term, assigns the Lease or subleases the Premises, the
protection set forth herein with respect to any increase
resulting from such a Reassessment shall terminate, and
Tenant shall pay the full amount of the Increase resulting
from any Reassessment. For purposes hereof, "Lease Year"
shall mean the one year period ending on the first
anniversary of the Commencement Date, and each one year
period thereafter.
C. The provisions set forth in this Section 4 shall only be
applicable with respect to the first Reassessment during the
Term (and any extension thereof) of this Lease. In the event
there are one or more additional Reassessments after the
initial Reassessment, the provisions of this Section 4 shall
not apply, and any Increase resulting from such subsequent
Reassessments shall be due and payable as otherwise provided
in this Lease.
5. ACCELERATION OPTION.
A. Tenant shall have the right to accelerate the Termination
Date ("Acceleration Option") of the Lease, with respect to
the entire Premises only, from August 31, 2014 to August 31,
2009 (the "Accelerated Termination Date"), if:
1. Tenant is not in default under the Lease at the date
Tenant provides Landlord with an Acceleration Notice
(hereinafter defined); and
2. no part of the Premises is sublet for a term extending
past the Accelerated Termination Date; and
3. the Lease has not been assigned; and
4. Landlord receives notice of acceleration ("Acceleration
Notice") not less than twelve (12) full calendar months
prior to the Accelerated Termination Date.
B. If Tenant exercises its Acceleration Option, Tenant, shall pay
to Landlord the sum equal to the unamortized portion of the
costs and expenses relating to the Landlord Work
("Acceleration Fee") as a fee
in connection with the acceleration of the Termination Date
and not as a penalty. Tenant shall pay the Acceleration Fee
to Landlord simultaneously with Tenant's delivery of the
Acceleration Notice.
Notwithstanding the foregoing, if space has been added to the
Premises since the date this Acceleration Option was granted
to Tenant, then the Acceleration Fee shall be increased
by an amount equal to the unamortized portion of any
concessions, commissions, allowance or other
expenses incurred by Landlord in connection with any
additional space leased by Tenant that is subject to
acceleration hereunder,and such additional Acceleration Fee
shall be payable upon the demand of
Landlord, but in no event earlier than the date Tenant is
required to pay the original Acceleration Fee to Landlord.
Tenant shall remain liable for all Base Rent, Additional Rent
and other sums due under the Lease up to and including the
Accelerated Termination Date even though ▇▇▇▇▇▇▇▇ for such
may occur subsequent to the Accelerated Termination
Date. The "unamortized portion" of any of the foregoing shall
be determined using an interest rate of 8% per annum.
C. If Tenant, subsequent to providing Landlord with an
Acceleration Notice, defaults in any of the provisions of
this Lease (including, without limitation, a failure to pay
any installment of the Acceleration Fee due hereunder),
Landlord, at its option, may (i) declare Tenant's exercise of
the Acceleration Option to be null and void, and any
Acceleration Fee paid to Landlord shall be returned to
Tenant, after first applying such Acceleration Fee against
any past due Rent under the Lease, or (ii) continue to honor
Tenant's exercise of its Acceleration Option, in which case,
Tenant shall remain liable for the payment of the
Acceleration Fee and for all Base Rent, Additional Rent and
other sums due under the Lease up to and including the
Accelerated Termination Date even though ▇▇▇▇▇▇▇▇ for such
may occur subsequent to the Accelerated Termination Date.
D. As of the date Tenant provides Landlord with an Acceleration
Notice, any unexercised rights or options of Tenant to renew
the Term of the Lease or to expand the Premises (whether
expansion options, rights of first or second refusal, rights
of first or second offer, or other similar rights), and any
outstanding tenant improvement allowance not claimed and
properly utilized by Tenant in accordance with the Lease as
of such date, shall immediately be deemed terminated and no
longer available or of any further force or effect.
EXHIBIT G
PARKING AGREEMENT
This Exhibit (the "Parking Agreement") is attached to and made a
part of the Lease by and between CA-FOUNTAINGROVE CENTER LIMITED
PARTNERSHIP, a Delaware limited partnership ("Landlord") and SONOMA
NATIONAL BANK ("Tenant") for space in the Building located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
1. The capitalized terms used in this Parking Agreement shall have
the same definitions as set forth in the Lease to the extent that
such capitalized terms are defined therein and not redefined in
this Parking Agreement. In the event of any conflict between the
Lease and this Parking Agreement, the latter shall control.
2. During the initial Term, Tenant agrees to lease from Landlord and
Landlord agrees to lease to Tenant a total of 54 non-reserved
parking spaces and 5 reserved parking spaces in the parking
facility servicing the Building ("Parking Facility"). During the
initial Term, Tenant shall pay in advance, concurrent with Tenant's
payment of monthly Base Rent, the prevailing monthly charges
established from time to time for
parking in the Parking Facility. Such charges shall be payable to
Landlord or such other entity as designated by Landlord, and shall
be sent to the address Landlord designates from time to time. The
initial charge for such parking spaces is $0.00 per non-reserved
parking pass, per month, and $0.00 per reserved parking pass,
per month. No deductions from the monthly charge shall be made
for days on which the Parking Facility is not used by Tenant.
Tenant may, from time to time request additional parking spaces,
and if Landlord shall provide the same, such parking spaces shall
be provided and used on a month-to-month basis, and otherwise on
the foregoing terms and provisions, and
at such prevailing monthly parking charges as shall be established
from time to time. Such additional spaces shall be limited to
the uppermost level of the Parking Facility and to the extent such
additional parking spaces are granted to Tenant, Tenant shall
ensure that Tenant's employees which utilize such spaces will park
only in the uppermost level of the Parking Facility.
3. Tenant shall at all times comply with all applicable ordinances,
rules, regulations, codes, laws, statutes and requirements of all
federal, state, county and municipal governmental bodies or their
subdivisions respecting the use of the Parking Facility. Landlord
reserves the right to adopt, modify and enforce reasonable rules
("Rules") governing the use of the Parking Facility from time to
time including any key-card, sticker or other identification or
entrance system and hours of operation. The Rules set forth
herein are currently in effect. Landlord may refuse to permit any
person who violates such Rules to park in the Parking Facility,
and any violation of the Rules shall subject the car to removal
from the Parking Facility.
4. Unless specified to the contrary above, the parking spaces
hereunder shall be provided on a non-designated "first-come, first-
served" basis. Tenant acknowledges that Landlord has no liability
for claims arising through acts or omissions of any independent
operator of the Parking Facility. Except to the extent caused by
the negligence or willful misconduct of Landlord, Landlord shall
have no liability whatsoever for any damage to items located in
the Parking Facility, nor for any personal injuries or death
arising out of any matter relating to the Parking Facility, and in
all events, Tenant agrees to look first to its insurance carrier
and to require that Tenant's employees look first to their
respective insurance carriers for payment of any losses sustained
in connection with any use of the Parking Facility. Tenant hereby
waives on behalf of its insurance carriers all rights of
subrogation against Landlord or Landlord's agents. Landlord
reserves the right to assign specific parking spaces, and to
reserve parking spaces for visitors, small cars, handicapped
persons and for other tenants, guests of tenants or other parties,
which assignment and reservation or spaces may be relocated as
determined by Landlord from time to time, and Tenant and persons
designated by Tenant hereunder shall not park in any location
designated for such assigned or reserved parking spaces. Tenant
acknowledges that the Parking Facility may be closed entirely or
in part in order to make repairs or perform maintenance services,
or to alter, modify, re-stripe or renovate the Parking Facility,
or if required by casualty, strike, condemnation, act of God,
governmental law or requirement or other reason beyond the
operator's reasonable control. In such event, Landlord shall
refund any prepaid parking fee hereunder, prorated on a per diem
basis.
5. If Tenant shall default under this Parking Agreement, the operator
shall have the right to remove from the Parking Facility any
vehicles hereunder which shall have been involved or shall have
been owned or driven by parties involved in causing such default,
without liability therefor whatsoever. In addition, if Tenant
shall default under this Parking Agreement, Landlord shall have
the right to cancel this Parking Agreement on 10 days' written
notice, unless within such 10 day period, Tenant cures such
default. If Tenant defaults with respect to the same term or
condition under this Parking Agreement more than 3 times during
any 12 month period, and Landlord notifies Tenant thereof promptly
after each such default, the next default of such term or
condition during the succeeding 12 month period, shall, at
Landlord's election, constitute an incurable default. Such
cancellation right shall be cumulative and in addition to any
other rights or remedies available to Landlord at law or equity,
or provided under the Lease (all of which rights and remedies
under the Lease are hereby incorporated herein, as though fully
set forth). Any default by Tenant under the Lease shall be a
default under this Parking Agreement, and any default under this
Parking Agreement shall be a default under the Lease.
RULES
(i) Landlord reserves the right to establish and change Parking
Facility hours from time to time, although, as of the date of
this Lease, Tenant shall have access to the Parking Facility
on a 24-hour basis, 7 days a week, subject to the other terms
of this Parking Agreement. Tenant shall not store or permit
its employees to store any automobiles in the Parking
Facility without the prior written consent of the operator.
Except for emergency repairs, Tenant and its employees shall
not perform any work on any automobiles while located in the
Parking Facility, or on the Property. If it is necessary for
Tenant or its employees to leave an automobile in the Parking
Facility overnight, Tenant shall provide the operator with
prior notice thereof designating the license plate number and
model of such automobile.
(ii) Cars must be parked entirely within the stall lines painted
on the floor, and only small cars may be parked in areas
reserved for small cars.
(iii) All directional signs and arrows must be
observed.
(iv) The speed limit shall be 5 miles per hour.
(v) Parking spaces reserved for handicapped persons must be used
only by vehicles properly designated.
(vi) Parking is prohibited in all areas not expressly designated
for parking, including without limitation:
(a) Areas not striped for parking
(b) aisles
(c) where "no parking" signs are posted
(d) ramps
(e) loading zones
(vii) Parking stickers, key cards or any other devices or
forms of identification or entry supplied by the operator
shall remain the property of the operator. Such device must
be displayed as requested and may not be mutilated in any
manner. The serial number of the parking identification
device may not be obliterated. Parking passes and devices
are not transferable and any pass or device in the possession
of an unauthorized holder will be void.
(viii) Monthly fees shall be payable in advance prior to the
first day of each month. Failure to do so will automatically
cancel parking privileges and a charge at the prevailing
daily parking rate will be due. No deductions or allowances
from the monthly rate will be made for days on which the
Parking Facility is not used by Tenant or its designees.
(ix) Parking Facility managers or attendants are not authorized to
make or allow any exceptions to these Rules.
(x) Every ▇▇▇▇▇▇ is required to park and lock his/her own
car.
(xi) Loss or theft of parking pass, identification, key cards or
other such devices must be reported to Landlord and to the
Parking Facility manager immediately. Any parking devices
reported lost or stolen found on any authorized car will be
confiscated and the illegal holder will be subject to
prosecution. Lost or stolen passes and devices found by
Tenant or its employees must be reported to the office of the
Parking Facility immediately.
(xii) Washing, waxing, cleaning or servicing of any vehicle by
the customer and/or his agents is prohibited. Parking spaces
may be used only for parking automobiles.
(xiii) Tenant agrees to acquaint all persons to whom Tenant
assigns a parking space with these Rules.
6. TENANT ACKNOWLEDGES AND AGREES THAT, TO THE FULLEST EXTENT
PERMITTED BY LAW, LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY LOSS
OR DAMAGE TO TENANT OR TENANT'S PROPERTY (INCLUDING, WITHOUT
LIMITATIONS, ANY LOSS OR DAMAGE TO TENANT'S AUTOMOBILE OR THE
CONTENTS THEREOF DUE TO THEFT, VANDALISM OR ACCIDENT) ARISING FROM
OR RELATED TO TENANT'S USE OF THE PARKING FACILITY OR EXERCISE OF
ANY RIGHTS UNDER THIS PARKING AGREEMENT, EXCEPT TO THE EXTENT SUCH
LOSS OR DAMAGE RESULTS FROM LANDLORD'S ACTIVE NEGLIGENCE OR
NEGLIGENT OMISSION.
7. Without limiting the provisions of Paragraph 6 above, Tenant
hereby voluntarily releases, discharges, waives and relinquishes
any and all actions or causes of action for personal injury or
property damage occurring to Tenant arising as a result of parking
in the Parking Facility, or any activities incidental thereto,
wherever or however the same may occur, and further agrees that
Tenant will not prosecute any claim for personal injury or
property damage against Landlord or any of its officers, agents,
servants or employees for any said causes of action except to the
extent such personal injury or property damage is caused by the
negligence or willful misconduct of Landlord.
8. The provisions of Section 20 of the Lease are hereby incorporated
by reference as if fully recited.
Tenant acknowledges that Tenant has read the provisions of this
Parking Agreement, has been fully and completely advised of the
potential dangers incidental to parking in the Parking Facility
and is fully aware of the legal consequences of agreeing to this
instrument.