Exhibit 10.29
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
LEASE AGREEMENT (OFFICE)
Basic Lease Information
I. Terms and Definitions. For the purpose of this Lease, the following
capitalized terms shall have the following definitions:
A. Lease Date: August 19, 2003
B. Landlord: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇.,
A Delaware corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
C. Tenant: American River Bank, a California corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
D. Premises: The Premises referred to in this Lease are located at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
and consists of approximately 4,010 rentable square
feet (3,427 usable square feet) as shown in Exhibit A,
which is 4.83% ("Tenant's Proportionate Share") of the
rentable square feet of the Building. The Building
referred to in this Lease consists of approximately
83,056 rentable square feet.
E. Term: The term shall be ten (10) years and three (3) months
from the Commencement Date (as hereinafter defined).
Landlord anticipates that the Premises shall be
completed no later than January 5, 2004 (the
"Completion Deadline"), as further described in
Section 4. F. Business Hours: The hours of 7:00 a.m.
to 6:00 p.m., Monday through Friday, and 9:00 a.m. to
1:00 p.m. on Saturday (federal holidays excepted).
G. Base Rent: Months 1-3 $0.00 fully serviced, per rentable sf
Months 4-30 $2.60 fully serviced, per rentable sf
Months 31-60 $2.70 fully serviced, per rentable sf
Months 61-90 $2.80 fully serviced, per rentable sf
Months 91-123 $2.90 fully serviced, per rentable sf,
as may be adjusted pursuant to Section 5.
H. Base Year: Calendar year 2004
I. Lease Year: The Base Year and each succeeding calendar year.
J. Use: General office, including but not limited to retail
banking, financial services, related services thereto
and any other lawful use.
K. Security Deposit: None
L. Broker for
Landlord: CB ▇▇▇▇▇▇▇ ▇▇▇▇▇- Payment terms pursuant to separate
written agreement.
M. Broker for
Tenant: Cornish & ▇▇▇▇▇- To be paid four percent (4%) by
Landlord of the total Base Rent for Lease Years one
(1) through (5) of the Term and two percent (2%) for
the remainder of the term, payable one-half (1/2) upon
full execution and delivery of the Lease and Tenant's
written approval of the Tenant Working Drawings and
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the Final Tenant Space Plan and Cost Proposal, and
one-half (1/2) upon the Commencement Date. Tenant is
not responsible for any amounts owed to any Broker
related to this Lease.
LIST OF EXHIBITS
A Description of Premises
B Work Letter Agreement
B-1 Tenant Improvement Standard Specifications
C First Amendment to Lease and Acknowledgement
D Exclusion from Operating Expenses
E Rules and Regulations
F Personal Guaranty
G Subordination, Non-Disturbance and Attornment Agreement
(ii)
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TABLE OF CONTENTS
1. PREMISES..................................................................1
2. ACCEPTANCE OF PREMISES....................................................1
3. PROJECT COMMON AREAS......................................................1
4. TERM AND POSSESSION.......................................................2
5. BASE RENT.................................................................3
6. SECURITY DEPOSIT..........................................................3
7. OPERATING EXPENSES........................................................3
8. USE ......................................................................5
9. COMPLIANCE WITH THE LAW...................................................6
10. ALTERATIONS AND ADDITIONS.................................................6
11. REPAIRS AND MAINTENANCE...................................................7
12. WASTE.....................................................................7
13. LIENS.....................................................................7
14. UTILITIES AND SERVICES....................................................7
15. ASSIGNMENT AND SUBLETTING.................................................9
16. INDEMNITY................................................................10
17. DAMAGE TO PREMISES OR BUILDING...........................................11
18. TENANT'S INSURANCE.......................................................11
19. AD VALOREM TAXES.........................................................12
20. WAIVER...................................................................12
21. ENTRY BY LANDLORD........................................................12
22. CASUALTY DAMAGE..........................................................12
23. CONDEMNATION.............................................................13
24. TENANT'S DEFAULT.........................................................14
25. REMEDIES FOR TENANT'S DEFAULT............................................15
26. SURRENDER OF PREMISES....................................................16
27. DEFAULT BY LANDLORD......................................................16
28. PARKING..................................................................16
29. ESTOPPEL CERTIFICATE.....................................................17
30. SALE OF PREMISES.........................................................17
31. SUBORDINATION, ATTORNMENT................................................17
32. AUTHORITY OF TENANT......................................................18
33. BROKER...................................................................18
34. HOLDING OVER.............................................................18
35. RULES AND REGULATIONS....................................................18
36. OTHER RIGHTS RESERVED BY LANDLORD........................................18
37. HAZARDOUS MATERIALS......................................................19
38. GENERAL PROVISIONS.......................................................20
39. NOTICES..................................................................23
40. SECURITY.................................................................23
41. EXPANSION RIGHTS.........................................................23
42. DEPOSIT NIGHT DROP.......................................................24
43. ROOF SATELLITE DISH/ANTENNA..............................................24
(iii)
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LEASE AGREEMENT
(OFFICE)
This Lease Agreement ("Lease") is made and entered into by the Landlord
and Tenant referred to in the Basic Lease Information. The Basic Lease
Information attached to this Lease as page i and page ii is hereby incorporated
in to this Lease by this reference.
1. PREMISES:
(a) Description of Premises. Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord upon the terms and conditions
contained herein the Premises, which are more particularly described in Exhibit
A attached hereto and made a part hereof (the "Premises"), including the tenant
improvements (the "Tenant Improvements") thereon presently existing or to be
constructed in accordance with the "Work Letter Agreement" attached as Exhibit
B, which is made a part hereof by this reference. As hereinafter used in this
Lease, the term "Building" shall refer to the entire structure in which the
Premises are located, the term "Lot" shall refer to the Assessor's tax parcel on
which the Building is situated, and the term "Project" shall collectively refer
to the Lot and the Building. This Lease confers no rights either with regard to
the subsurface of the land below the ground level of the Building or with regard
to airspace above the roof of the Building.
(b) Measurement of Premises. By execution of this Lease,
Tenant hereby stipulates that all the information relating to the rentable
square footage of the Premise and Tenant's Proportionate Share are the amounts
set forth in the Basic Lease Information. Notwithstanding the foregoing, for a
period of sixty (60) days following the Commencement Date, Tenant, at its cost,
shall have the right, but not the obligation, to confirm the rentable and usable
square footage of the Premises by independent measurement. For such purpose, the
measurement of the usable area of the Premises shall be in accordance with the
Building Owners and Managers Association Standard Method for Measuring Floor
Area in Office Buildings (ANSI Z65.1-1996), and multiplying the resulting number
by seventeen percent (17.00%). If Tenant, within such time period, causes the
Premises to be remeasured, and such remeasurement is coordinated with Landlord
and done in accordance with the standards contained herein, and such
remeasurement is approved by Landlord (which approval shall not be unreasonably
withheld or delayed), and the rentable square footage of the Premises differs
from that set forth in the Basic Lease Information, Tenant and Landlord shall
amend this Lease to reflect such revised rentable area of the Premises. If
Tenant does not elect to remeasure the Premises within such time period, the
rentable area of the Premises set forth in the Basic Lease Information shall be
binding upon Landlord and Tenant. [If Tenant wants to verify the Building
measurement they can do so but it will be at Tenant's cost. Incidentally, the
measurement was done by ▇▇▇▇▇▇▇ and Associates]
2. ACCEPTANCE OF PREMISES: Provided Landlord warrants the
Premises and equipment to be in good working order and repair and that it is in
compliance with all applicable codes and laws, Tenant's taking possession of the
Premises shall constitute Tenant's acknowledgment that the Premises are in good
condition and that the Tenant Improvements are constructed in accordance with
the Work Letter Agreement, and that Tenant agrees to accept the same in its
condition existing as of the date of such entry and subject to all applicable
municipal, county, state and federal statutes, laws, ordinances, including
zoning ordinances, and regulations governing and relating to the use, occupancy
or possession of the Premises. Notwithstanding the foregoing, within thirty (30)
days after the Tenant takes possession of the Premises, Tenant shall deliver to
Landlord a list of items ("Punch List Items") that Tenant reasonably deems that
Landlord complete or correct in order for the Premises to be reasonably
acceptable. Landlord shall complete and/or correct such items set forth on the
Punch List Items using its good faith efforts and due diligence. If Tenant does
not deliver the Punch List Items to Landlord within such time period, Tenant
shall be deemed to have accepted the condition of the Premises.
3. PROJECT COMMON AREAS: The term "Project Common Areas" shall
refer to all areas and facilities outside the Premises and within the Project
that are provided and designated by Landlord from time to time for the general
non-exclusive use of Landlord, Tenant, and of other lessees in the Project and
their respective employees, suppliers, shippers, customers, and invitees.
Landlord hereby grants to Tenant, during the term of this Lease, the
non-exclusive right to use, in common with others entitled to such use, the
Project Common Areas as they exist from time to time, subject to any any
reasonable and non-discriminatory rules, regulations, and restrictions governing
the use of the Project as from time to time made or amended by Landlord. Under
no circumstances shall the right granted herein to use the Project Common Areas
be deemed to include the right to store any property in the Project Common
Areas. Provided that Landlord, using its reasonable efforts, does not
unreasonably interfere with Tenant's use of the Premises, Landlord reserves the
right at any time and from time to time, to: (i) make alterations in or
additions to the Project and to the Project Common Areas; (ii) close the Project
Common Areas to whatever extent required in the opinion of Landlord's counsel to
prevent a dedication of any of the Project Common Areas or the accrual of any
rights of any person or of the public to the Project Common Areas; (iii)
temporarily close any of the Project Common Areas for maintenance purposes; and
(iv) promulgate rules and regulations governing the use of the Project Common
Areas.
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4. TERM AND POSSESSION:
(a) Subject to and upon the terms and conditions set
forth herein, the Term of this Lease shall be for the period specified in the
Basic Lease Information, commencing upon the earlier of the following dates (the
"Commencement Date"): (i) the date on which the Premises are Substantially
Complete (as defined below); (ii) the date on which the Premises would have been
Substantially Complete had there been no delays caused by or attributable to the
Tenant; or (iii) the date upon which the Tenant takes possession of the Premises
with the Landlord's written consent. Within thirty (30) days after the
Commencement Date, Landlord and Tenant shall execute an amendment to this Lease
("First Amendment to Lease and Acknowledgment") setting forth the Commencement
Date and the expiration date of the term of the Lease, which shall be in the
form attached hereto as Exhibit C. For purposes of the foregoing, the Premises
shall be deemed to be "Substantially Complete" when Tenant is tendered direct
access to the Premises with building services ready to be furnished to the
Premises, a certificate of occupancy (temporary or final) has been issued by the
appropriate governmental entity, and all construction to be provided by
Landlord, as set forth in the Work Letter Agreement has been completed, with the
exception of the Punch List Items. Landlord shall Substantially Complete the
Premises by the Completion Deadline as set forth in the Basic Lease Information,
plus extensions thereto equal to the durations of (i) any delays beyond the
reasonable control of Landlord, such as acts of God, fire, earthquake, acts of a
public enemy, riot, insurrection, unavailability of materials, governmental
restrictions on the sale of materials or supplies or on the transportation of
such materials or supplies, strike directly affecting construction or
transportation of materials or supplies, shortages of materials or labor
resulting from government controls, weather conditions, or any other cause or
events beyond the reasonable control of Landlord (collectively, "Force Majeure
Event"), or (ii) delays caused by Tenant. The parties agree that if Landlord is
unable to Substantially Complete the Premises by the Completion Deadline, plus
any extension thereto pursuant to this Section, this Lease shall not be void or
voidable, but Tenant shall receive a credit of two days of free rent for each
day of delay and the expiration date of the Term of this Lease shall be extended
for such delay; but in such event, Tenant shall not be liable for any Rent until
the Commencement Date; provided, however if such delays were Tenant, Rent shall
commence as of the scheduled Completion Deadline. Notwithstanding the foregoing,
if the Premises are not substantially completed within ninety (90) days of the
Completion Deadline (excluding and Tenant Delays or Force Majeure Events),
Tenant shall have the option to complete the Premises and deduct such completion
costs from the Rent (plus interest) until fully reimbursed or Tenant shall have
the right, but not the obligation, to terminate the Lease in accordance with the
terms upon five (5) business days prior written notice, and the parties shall
thereafter be relieved of any further obligations, or liability under this
Lease, except as otherwise provided herein.
(b) Tenant's Right to Early Access. Subject to scheduling
by Landlord as to dates and times, Tenant shall be entitled to early access and
use of the Premises, in order to install cabling (not already installed during
the construction phase for the Tenant Improvements), place partition/modular
component furniture and for other related purposes, not less than fourteen (14)
days but not more than twenty-one (21) days prior to the anticipated
Commencement Date. The foregoing right of early access and use is conditioned
upon Tenant's compliance with all of the terms and conditions of this Lease,
except that Tenant shall not be required to pay Rent for such early access and
use of the Premises. Furthermore, Tenant and its representatives shall be
subject to all reasonable and non-discriminatory directives of Landlord and
Landlord's contractors in connection with such entry as well as the use of the
Building's common areas, restrooms, elevators, truck loading areas and other
facilities. Tenant expressly agrees that its contractors shall comply with the
rules and regulations pertaining to construction activities established, from
time to time, by Landlord which reasonable and non-discriminatory rules and
regulations prohibit the playing of radios, smoking cigarettes, leaving trash
outside of designated trash receptacles, and the parking of vehicles in the
Building's parking lot, except in the area(s) designated by Landlord for such
vehicles. Prior to the commencement of any construction in the Premises, Tenant
shall provide Landlord's representative (as designated in Section 2 of the Work
Letter Agreement) with a proposed work schedule for Tenant's contractors and
other representatives, which schedule shall be subject to Landlord's approval,
which approval shall not be unreasonably withheld or delayed. Tenant agrees that
Landlord shall not be liable in any way for any injury, loss or damage which may
occur to any of Tenant's property placed upon or installed in the Premises prior
to the Commencement Date, the same being at Tenant's sole risk, and Tenant shall
be liable for all injury, loss or damage to persons or property arising as a
result of such entry of the Premises by Tenant or its representatives except to
the extent arising from the negligence or willful misconduct of Landlord. Tenant
shall not interfere with Landlord's construction of the Tenant Improvements to
the Premises (any such interference shall constitute a Tenant Delay). Tenant
shall indemnify, defend and hold Landlord harmless from any claims, costs,
damages, losses and liability arising from Tenant's early access and use of the
Premises except to the extent that any such claims, costs, damages, losses and
liability arise from the negligence or willful misconduct of Landlord or its
agents, representatives or employees.
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(c) Option to Extend. At the expiration of the original
Term hereof, Tenant may extend this Lease for (i) one (1) extended term of sixty
(60) months, and (ii) if the option to extend described in the preceding clause
(i) is first exercised and is continuing, one (1) additional extended term of
sixty (60) months by giving Landlord unequivocal written notice of its intention
to do so at least nine (9) months prior to the expiration of such applicable
term. Tenant will provide six (6) months notice to Landlord of its intent to
exercise its option to extend this Lease. Notwithstanding the foregoing, Tenant
shall have no right to extend the Term of this Lease if Tenant is in material
default beyond any applicable cure period under the Lease on the date of giving
such notice or on the date of commencement of such extended term. The extended
term shall be upon all of the terms and conditions of this Lease, except that
the following rights of Tenant during the original Term of this Lease (if and to
the extent expressly provided for in this Lease) shall not apply during such
option period: (a) any right to the initial rent-free possession, (b) any right
to further extension of the term of the Lease beyond the extended term set forth
herein above, and (c) any right to continue to pay the same Base Rent. Landlord
and Tenant hereby acknowledge and agree that the Base Rent during any extended
term shall be according to the following schedule: Months 124-153 to be $3.00
fully serviced, per rentable square foot; Months 154-183 to be $3.10 fully
served per rentable square foot; Months 184-213 to be $3.20 fully serviced, per
rentable square foot; Months 214-243 to be $3.30 fully serviced per rentable
square foot. The new Base Year shall be the calendar year in which the
respective extension begins.
5. BASE RENT:
(a) Tenant agrees to pay Landlord the Base Rent for the
Premises, without prior notice, demand, deduction or offset, except as otherwise
set forth herein, as adjusted from time to time in the manner set forth in this
Section 5. The term "Rent" as used in this Lease shall mean Base Rent, Tenant's
Proportionate Share of Operating Expenses and any other amounts owing from
Tenant to Landlord pursuant to the provisions of this Lease. The Base Rent shall
be payable in advance on or before the first business day of each month (but no
later than the tenth day of the month) throughout the term of the Lease, it
being agreed that the first month's Base Rent shall be paid upon execution of
this Lease. Base Rent for any period during the term hereof which is for less
than one month shall be a prorated portion of the monthly installment based upon
the actual days in that month.
(b) The Base Rent shall be increased during the Term of
this Lease as follows:
Months During Term of this Lease Base Rent (Fully Serviced,
(From Commencement Date) Per Rentable Square Foot)
Months 1-3 $0.00
Months 4-30 $2.60
Months 31-60 $2.70
Months 61-90 $2.80
Months 91-123 $2.90
(c) If the amount of Rent or any other payments due under
this Lease violates the terms of any governmental restrictions on such Rent or
payment, then the Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those restrictions. Upon termination
of such restrictions, Landlord shall, to the extent it is legally permitted,
recover from Tenant the difference between the amounts received during the
period of the restrictions and the amount Landlord would have received had their
been no restrictions.
6. SECURITY DEPOSIT: Intentionally Omitted
7. OPERATING EXPENSES:
(a) For the purpose of this Section 7(a) and this Lease,
the following terms are defined as follows:
(1) "Base Year" shall mean the calendar year set
forth in the Basic Lease Information.
(2) "Tenant's Proportionate Share" of the total
rentable area of the Building as set forth as a percentage in the Basic Lease
Information.
(3) "Operating Expenses" shall mean all costs
and expenses paid or incurred by or on behalf of Landlord (whether directly or
through independent contractors) in connection with the operation, repair, and
maintenance of the Building and the Project, including the following costs: (i)
salaries, wages, compensation, benefits, pension or contributions and all
medical, insurance and other fringe benefits paid to, for or with respect to all
persons (whether they be employees of Landlord, its managing agent or any
39
independent contractor) for their direct services in the operation (including
security services), maintenance, repair or cleaning of the Project, and payroll
taxes, worker's compensation, uniforms and dry cleaning costs for such persons;
(ii) payments under service contracts with independent contractors for operating
(including providing security services, if any), maintaining, repairing or
cleaning the Project or any portion thereof or any fixtures or equipment
therein; (iii) all costs for electricity, water, gas, steam, sewer and other
utility services to the Project only to the extent of an office use , including
any taxes on any such utilities; (iv) repairs and replacements which are
appropriate to the continued operation of the Building as a first-class office
building; (v) cost of lobby decoration, painting and decoration of non-tenant
areas; (vi) cost of landscaping in, on or about the Project; (vii) cost of
building and cleaning supplies and equipment, cost of replacements for tools and
equipment used in the operation, maintenance and repair of the Project and
charges for lobby and elevator telephone service for the Building; (viii)
financial expenses incurred in connection with the operation of the Project,
such as premiums and commercially reasonable deductible amount for such
insurance as Landlord may, in its commercially reasonable discretion, from time
to time carry (including, without limitation, liability insurance, fire and
casualty insurance, rental interruption insurance, flood and earthquake
insurance, and any other insurance), attorneys' fees and disbursements, auditing
and other professional fees and expenses, association dues and any other
ordinary and customary financial expenses incurred in connection with the
operation of the Project; (ix) fees payable to a property management company
(which may be owned or controlled by Landlord or Landlord's principals) for the
management of a first-class office building; (x) the cost of capital
improvements made by Landlord in order (i) to conform to any changes in laws,
rules, regulations or requirements of any governmental authority having
jurisdiction, or of the board of fire underwriters or similar insurance body to
the extent such laws occurred after the commencement of this Lease and are to
benefit the Project, Building, and the Premises but not for corrections of
violations or defects that occurred prior to the commencement date of this Lease
or in Landlord's initial construction, later expansion or remodeling, or (ii) to
effect a labor saving, energy saving or other economy, which cost shall be
included in Operating Expenses for the Lease Year in which such improvement was
made; (xi) rental payments made for equipment used in the operation and
maintenance of the Project; (xii) the cost of governmental licenses and permits,
or renewals thereof, necessary for the operation of the Project; (xiii) the cost
of any testing or remediation efforts to ensure that the Building is in
compliance with all environmental rules, regulations or standards promulgated by
any governmental authority or generally recognized industry association; (xiv)
sales, use and excise taxes on goods and services for the Project; (xv) real
property taxes and assessments, which shall include, but not be limited to, any
and all taxes, assessments, water and sewer charges and other similar
governmental charges levied on or attributable to the Project, including the
Building and the Lot, or their operation, ordinary and extraordinary, substitute
and additional, unforeseen as well as foreseen, present and future, of any kind
and nature whatsoever, including without limitation, (i) real property taxes or
assessments levied or assessed against the Project, including the Building and
the Lot, (ii) assessments or charges levied or assessed against the Project,
including the Building and the Lot by any redevelopment agency, (iii income,
franchise, capital stock, estate or inheritance taxes imposed by the state or
federal government or their agencies, branches or departments are excluded(xvi)
costs associated with the maintenance of the Building management offices or
related facilities in the Building, including fair rental value of any space
occupied for such purposes in the event the Landlord performs such management
services itself, or the rental paid to Landord for such space by any management
company in the event that Landlord employs a management company to provide such
services (in no event, however, will such management office or related facility
exceed two thousand (2,000) square feet, (xviii) all other reasonable or
necessary expenses paid in connection with the operation, maintenance, repair,
and cleaning of the Project in order to maintain the Project in first class
condition.
Any cost of expenses of the nature described above
shall be included in Operating Expenses for any Lease Year no more than once,
notwithstanding that such cost or expenses may fall under more than one of the
categories listed above. Operating Expenses shall not be reduced as a result of
Tenant performing for itself any of the services that Landlord provides for the
Project or the tenants thereof. Landlord may use related or affiliated entities
to provide service or furnish materials for the Project provided these are at
competitive prices.
The Operating Expenses that vary with occupancy and
that are attributable to any Lease Year in which less than ninety-five percent
(95.00%) of the rentable area of the Building is occupied by tenants will be
adjusted by Landlord to the amount that Landlord reasonably believes they would
have been if ninety-five percent (95.00%) of the rentable area of the Building
had been occupied.
The costs and expenses set forth in Exhibit D shall
not be included in Operating Expenses, which exhibit is
incorporated hereto.
(4) Tenant's Proportionate Share of Operating
Expenses shall be payable by Tenant to Landlord as follows:
(i) Beginning with the Lease Year
following the Base Year and for each Lease Year thereafter, Tenant shall pay
Landlord an amount equal to Tenant's Proportionate Share of the Operating
Expenses incurred by Landlord in the Lease Year which exceeds the total amount
of Operating Expenses payable by Landlord for the Base Year. This excess is
referred to as the "Excess Expenses."
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(ii) To provide for current payments of
Excess Expenses, Tenant shall, at Landlord's request, pay as additional rent
during each Lease Year, an amount equal to Tenant's Proportionate Share of the
Excess Expenses payable during such Lease Year, as estimated by Landlord from
time to time. Such payments shall be made in monthly installments, commencing on
the first day of the month following the month in which Landlord notifies Tenant
of the amount it is to pay hereunder and continuing until the first day of the
month following the month in which Landlord gives Tenant a new notice of
estimated Excess Expenses. It is the intention hereunder to estimate from time
to time the amount of the Excess Expenses for each Lease Year, including the
Lease Year immediately following the Base Year, and Tenant's Proportionate Share
thereof, and then to make an adjustment in the following year based on the
actual Excess Expenses incurred for that Lease Year.
(iii) On or before April 1 of each Lease
Year after the first Lease Year (or as soon thereafter as is practical),
Landlord shall deliver to Tenant a statement ("Expense Statement") setting forth
Tenant's Proportionate Share of the Excess Expenses for the preceding Lease
Year; provided, however, that the failure of Landlord to supply such statement
shall not constitute a waiver of Landlord's rights to collect for such Excess
Expenses unless it is delayed by more than six (6) months. If Tenant's
Proportionate Share of the actual Excess Expenses for the previous Lease Year
exceeds the total of the estimated monthly payments made by Tenant for such
year, Tenant shall pay Landlord the amount of the deficiency within thirty (30)
days of the receipt of the statement. If such total exceeds Tenant's
Proportionate Share of the actual Excess Expenses for such Lease Year, then
Landlord shall promptly pay Tenant the amount of the credit. The obligations of
Tenant and Landlord to make payments required under this Section 7 shall survive
the Expiration Date for a period of six (6) months thereafter. Tenant's
Proportionate Share of Excess Expenses in any Lease Year having less than three
hundred sixty-five (365) days shall be appropriately prorated.
(iv) For a period of three (3) months
after receipt of the Expenses Statement, Tenant shall be entitled, upon thirty
(30) days prior written notice and during normal business hours, at the office
of the Building's property manager or such other place as Landlord shall
designate, to inspect and examine those books and records of Landlord relating
to the determination of Excess Expenses for the immediately preceding Lease
Year. Failure of Tenant to request such inspection within such three (3) month
period shall render such Expenses Statement conclusive and binding on Tenant.
If, after inspection and examination of such books and records, Tenant disputes
the amounts of the Excess Expenses charged by Landlord, Tenant may, by written
notice to Landlord, request an independent audit of such books and records. The
independent audit of the books and records shall be conducted by a certified
public accountant ("CPA") acceptable to both Landlord and Tenant, which shall be
compensated on an hourly basis only. If, within thirty (30) days after
Landlord's receipt of Tenant's notice requesting an audit, Landlord and Tenant
are unable to agree on the CPA to conduct such audit, then Landlord may
designate a nationally recognized accounting firm not then employed by Landlord
or Tenant to conduct such audit. The audit shall be limited to the determination
of the amount of Excess Expenses for the subject Lease Year. With respect to the
Operating Expenses which vary with occupancy and which Landlord has adjusted the
audit shall be limited to the determination of the actual amount of such
Operating Expenses and shall not include a determination of the reasonableness
of Landlord's adjustment. If the audit discloses that the amount of Excess
Expenses billed to Tenant was incorrect, the appropriate party shall pay to the
other party the deficiency or overpayment, as applicable. All costs and expenses
of the audit shall be paid by Tenant unless the audit shows that Landlord
overstated Excess Expenses for the subject Lease Year by more than five percent
(5.00%), in which case Landlord shall pay all costs and expenses of the audit.
Tenant and the CPA shall keep any information gained from such audit
confidential and shall not disclose it to any other party. The exercise by
Tenant of the audit rights hereunder shall not relieve Tenant of its obligation
to timely pay all sums due hereunder, including, without limitation, the
disputed Excess Expenses.
8. USE: Notwithstanding anything contained herein to the contrary
in this Lease, Tenant shall use the Premises for the uses set forth in the Basic
Lease Information, and shall not use the Premises for any other purposes. Tenant
shall be solely responsible for obtaining any necessary governmental approvals
of such use. Tenant shall not do, bring, or keep anything in or about the
Premises that will cause a cancellation of any insurance covering the Premises.
If the rate of any insurance carried by Landlord is increased as a result of
Tenant's use, Tenant shall pay to Landlord within thirty (30) days after
Landlord delivers to Tenant a certified statement from Landlord's insurance
carrier stating that the rate increase was caused solely by an activity of
Tenant on the Premises as permitted in this Lease, a sum equal to the difference
between the original premium and the increased premium. Landlord shall
coordinate with Tenant the prescribing of the weight and position of all safes,
fixtures and heavy installations that Tenant desires to place in the Premises so
as to distribute properly the weight, or to require plans prepared by a
qualified structural engineer for such heavy objects, which shall be prepared at
Tenant's sole cost and expense. Landlord agrees and understands that Tenant is
subject to federal and state banking regulations that may supercede any
requirements Landlord may impose (such as days and hours of operation) and other
permitted uses and in such cases of conflict, Landlord agrees that the
requirements of the federal and state banking regulations shall prevail.
41
Landlord agrees that Tenant shall have exclusive rights to retail
banking and similar retail services in the Building and Landlord will not allow
interior (excluding electronic building directory) or exterior signage referring
to another commercial banking entity in or on the Building. . Landlord further
agrees that it shall not, during the term of this Lease and any extensions
thereof, (a) permit any other tenant or occupant in the main level (▇▇▇ ▇▇▇▇▇)
of the building that engages in any form of banking or financial services
(including, without limitation, a credit union, savings & loan organization,
automatic teller machine or machines, check cashing services, or any other
business that engages in the lending of and/or deposits of money and/or such
negotiable interests) or (b) any other ATM (or electronic dispensing devices or
night drop facilities) be located in any part of the exterior of the building or
in any of the parking and/or common area facilities, provided, however,
Securities brokerage firms will be an exception to Exclusive Use Rights of
Tenant.
9. COMPLIANCE WITH THE LAW: Tenant shall not use the Premises or
permit anything to be done in or about the Premises which will in any way
conflict with any law, statute, zoning restriction, ordinance or governmental
law or rule, regulation, or requirement of any duly constituted public
authorities now in force or which may hereafter be enacted or promulgated, or
subject Landlord to any liability for injury to any person or property by reason
of any business operation being conducted in or about the Premises provided
Landlord warrants and represents that the Premises are delivered to Tenant free
of any Hazardous Materials and in compliance with all ▇▇▇ ▇▇▇▇ (federal and
state) and all building and fire codes, then, thereafter,. Tenant shall, at its
sole cost and expense, promptly comply with all laws, statutes, ordinances, and
governmental rules, regulations, including, but not limited to, the Americans
with Disabilities Act ("ADA") of 1990 (42 U.S.C. ss. 12101 et seq.), any
amendment thereto or regulations promulgated thereunder, or state or local
ordinances or codes enacted pursuant thereto; or requirements of any board or
fire insurance underwriters or other similar bodies, now or hereafter
constituted, relating to or affecting the condition, use, or occupancy of the
Premises, excluding structural changes not related to or affected by Tenant's
improvements or acts. The final judgment of any court of competent jurisdiction
or the admission of Tenant in any action against Tenant, whether Landlord be a
party thereto or not, that Tenant has violated any law, statute, ordinance, or
governmental rule, regulation, or requirement, shall be conclusive of that fact
as between Landlord and Tenant.
10. ALTERATIONS AND ADDITIONS: Tenant shall not make or suffer to
be made any alterations, additions, or improvements (collectively,
"Alterations") to or of the Premises, or any part thereof, without first
obtaining the written consent of Landlord, which shall not be unreasonably
withheld or delayed; provided, however, if the Alterations would adversely
affect the structure or safety of the Building or its electrical, plumbing,
HVAC, mechanical or safety systems, or if such Alterations would create an
obligation on Landlord's part to make modifications to the Building, Landlord
may withhold its consent in its sole and absolute discretion. Notwithstanding
the foregoing, without the prior consent of Landlord, but with the prior notice
to Landlord, Tenant shall be entitled to make Alterations within the Premises,
provided that (i) the cost of construction such Alterations does not exceed
Fifty Thousand and No/100ths/100ths Dollars ($50,000.00) per project in the
aggregate, and (ii) does not effect the structure or mechanical systems of the
Building, and (iii) Tenant otherwise complies with the provisions of this
Section. All Alterations shall comply with all applicable laws, statutes and
ordinances, which include, but are not limited to ADA. Any Alterations to or of
said Premises, including, but not limited to, wall covering, paneling, and
built-in cabinet work but excepting movable furniture and trade fixtures, shall
on the expiration of the Term become a part of the realty and belong to
Landlord, and shall be surrendered with the Premises. Vaults and/or safes
installed on the Premises will be removed at the cost of the Tenant unless
Landlord and Tenant mutually agree that a subsequent Tenant of the Premises will
be able to use these certain vaults and/or safes and can arrange for a transfer
of ownership to said subsequent Tenant. However, Landlord shall provide written
notice to Tenant prior to the construction of such Alteration whether Tenant
will be required to remove such Alteration and restore the Premises to its
original condition upon the expiration of the Term. If Landlord so states,
Tenant, at its own cost shall restore the Premises to its original condition
upon the expiration of the Term. Upon Landlord's approval of the requested
Alterations, Tenant shall secure all necessary permits, if applicable. In the
instances that consent is required and before Landlord's consent to such
Alterations, Tenant shall submit detailed specifications, floor plans and
necessary permits (if applicable) to Landlord for review. In no event shall any
Alterations affect the structure of the Building or its facade. As a condition
to its consent, Landlord may request adequate assurance that all contractors who
will perform such work have in force ▇▇▇▇▇▇▇'▇ compensation and such other
employee and public liability insurance as Landlord reasonably deems necessary.
In the event Landlord consents to the making of any Alterations to the Premises
by Tenant, the same shall be made by Tenant at Tenant's sole cost and expense,
completed to the satisfaction of Landlord, and the contractor or person selected
by Tenant to make the same must first be approved in writing by Landlord which
will not be unreasonably withheld. If Tenant makes any Alterations to the
Premises as provided in this Section, the Alterations shall not be commenced
until ten (10) business days after Landlord has received notice from Tenant
42
stating the date the installation of the Alterations is to commence so that
Landlord can post and record an appropriate notice of non-responsibility. Tenant
shall indemnify, defend and hold the Landlord, the Building and the Premises
free and harmless from any liability, loss, damage, cost, attorneys' fees and
other expenses incurred on account of such construction, or claims by any person
performing work or furnishing materials or supplies for Tenant or any persons
claiming under Tenant.
11. REPAIRS AND MAINTENANCE:
(a) Provided Landlord warrants the Premises and equipment
to be in good working order and repair and that it is in compliance with all
applicable codes and laws including, but not limited to ▇▇▇ ▇▇▇▇ (federal and
state) and building codes, by taking possession of the Premises, Tenant shall be
deemed to have accepted the Premises as being in good and sanitary order,
condition and repair, excepting the Punch List Items. Tenant shall, at Tenant's
sole cost and expense, maintain the Premises, and the areas adjacent thereto, in
good, clean and first-class condition and repair. Tenant shall be solely
responsible for maintaining and repairing all fixtures, electrical lighting,
ceilings and flooring coverings, windows, doors, and interior walls within the
Premises. In addition, Tenant shall be responsible for all repairs made
necessary by Tenant or Tenant's invitees in the Premises. Tenant acknowledges
that Landlord shall have no obligation to maintain, repair or replace any
telecommunications or computer cabling or wiring which is located in the
Premises or which exclusively serves the Premises (collectively, "Cabling").
Tenant shall, at Tenant's expense, contract with Pacific ▇▇▇▇ or another
reputable contractor to maintain the Cabling; provided, however, that Landlord
may, at Landlord's option and with Tenant's consent and upon thirty (30) days'
written notice to Tenant, undertake the responsibility for the maintenance of
some or all of the Cabling, in which event the cost of such maintenance may be
included as an "Operating Expense." Landlord shall have no obligation to alter,
remodel, improve, repair, decorate or paint the Premises except as specifically
set forth in this Lease. Under no circumstances shall Tenant make any repairs to
the Building or to the mechanical, electrical or heating, ventilating or air
conditioning systems of the Premises or the Building, unless such repairs are
previously approved in writing by Landlord. Provided such waiver is not against
public policy or any existing law, Tenant waives the provisions of Sections
1931(1), 1941 and 1942 of the California Civil Code, and any similar or
successor law regarding Tenant's right to make repairs and deduct expenses of
such repairs from the Rent due under this Lease.
(b) Landlord shall be responsible for maintaining and
repairing all structural portions of the Building, and shall maintain the roof,
side-walls, and foundations of the Building in good, clean and safe condition
and repair. Landlord shall be entitled to approve the sealing of any roof
penetrations caused by Tenant Improvements. Landlord shall also maintain all
landscaping, driveways, parking lots, fences, signs, sidewalks and the Project
Common Areas. Landlord shall be responsible for maintenance and repair of all
plumbing, heating, electrical, air conditioning and ventilation systems.
Landlord shall use reasonable efforts to minimize any interference with Tenant's
business at the Premises. If Tenant fails to maintain the Premises in good
order, condition and repair, Landlord shall give Tenant thirty (30) days'
written notice to do such acts as are reasonably required to so maintain the
Premises and Tenant shall have a reasonable time in which to respond to
Landlord's request for these repairs and if Tenant fails to promptly commence
such work within such time period as was agreed to between Landlord and Tenant
and diligently prosecute it to completion, then Landlord shall have the right to
do such acts and expend such funds at the expense of Tenant as are reasonably
required to perform such work. Any amount so expended by Landlord shall be paid
by Tenant promptly after demand. Landlord agrees and understands that Tenant is
subject to federal and state banking regulations that may supercede any
requirements Landlord may impose (such as days and hours of operation) and,
Landlord agrees that the requirements of the federal and state banking
regulations shall prevail.
12. WASTE: Tenant shall not use the Premises in any manner that
will constitute waste, nuisance, or unreasonable annoyance to owners or
occupants of adjacent properties or to other tenants of the Building.
13. LIENS: Tenant shall keep the Premises and the Project is free
from any liens arising out of any work performed, materials furnished, or
obligations incurred by Tenant. Landlord may, at its election, and upon thirty
(30) days' notice to Tenant (and provided Tenant is not already proceeding to do
so), remove any liens, in which case Tenant shall pay to Landlord the cost of
removing the lien, including reasonable attorneys' fees. Landlord shall have the
right at all times to post on the Premises any notices permitted or required by
law for the protection of Landlord, the Premises, the Building or the Project
from mechanics' and materialmen's liens.
14. UTILITIES AND SERVICES:
(a) Provided that Tenant is not in default hereunder,
Landlord agrees to furnish to the Premises during the Business Hours, subject to
the conditions and in accordance with the standards set forth in writing by
Landlord from time to time during the term of this Lease and delivered to
Tenant, reasonable quantities of electric current for normal lighting and
general office machines, water for lavatory and drinking purposes, heat and air
conditioning required in Landlord's and Tenant's mutual judgment for the
43
comfortable use and occupation of the Premises, and elevator service by
non-attended automatic elevators. In addition, provided that Tenant is not in
default hereunder, Landlord agrees to provide janitorial service to the Premises
five (5) days a week, during such hours and days as Tenant is required to
operate under federal and state banking regulations. Landlord may schedule, in
its discretion, outside the hours for the Tenant as set forth in the preceding
sentence provided in no event shall it interfere with Tenant's federal and state
operating days and hours. Tenant acknowledges and agrees that Landlord may
impose a reasonable charge for the use of any additional or unusual janitorial
services required by Tenant's carelessness or the nature of Tenant's business.
Landlord's obligation regarding any heating, ventilation and air conditioning
("HVAC") and electrical systems shall be limited to the Building's standard
central HVAC and electrical systems, and Landlord shall have no obligation to
maintain or repair any HVAC or electrical system that has been installed to
accommodate Tenant's specific use of the Premises (provided, however, that any
contractor retained by Tenant to maintain or repair any such HVAC or electrical
system shall be subject to Landlord's reasonable approval). Landlord shall not
be obligated to service, maintain, repair or replace any system or improvement
in the Premises that has not been installed by Landlord at Landlord's expense,
or which is a specialized improvement requiring additional or extraordinary
maintenance or repair (by way of example only, if the standard premises in the
Building contain fluorescent light fixtures, Landlord's obligation shall be
limited to the replacement of fluorescent light tubes, irrespective of any
incandescent fixtures that may have been installed in the Premises at Tenant's
expense). Landlord shall not be liable for, and Tenant shall not be entitled to
any abatement or reduction of rent by reason of Landlord's failure to furnish
any of the foregoing when such failure is caused by accident, breakage, repairs,
strikes, lockouts or other labor disturbances or labor disputes of any character
or for any other causes. Tenant hereby waives the provisions of California Civil
Code Section 1932(1) or any other applicable existing or future law, ordinance
or governmental regulation permitting the termination of this Lease due to the
interruption or failure of any services to be provided under this Lease.
Landlord agrees and understands that Tenant is subject to federal and state
banking regulations that may supercede any requirements Landlord may impose and,
Landlord agrees that the requirements of the federal and state banking
regulations shall prevail.
(b) If the temperature otherwise maintained in any
portion of the Premises by the HVAC systems of the Building is affected by
reason of any lights, machines or equipment used by Tenant in the Premises, or
by the occupancy of the Premises by more persons than are contemplated by the
design criteria of the HVAC systems, then Landlord shall have the right to
install machines or equipment that Landlord reasonably deems necessary to
restore temperature balance, including modifications to the standard air
conditioning equipment and electrical systems serving the Premises. The cost of
any such equipment and modifications, including the cost of installation and any
additional cost of operation and maintenance of the same, shall be paid by
Tenant to Landlord upon demand.
(c) Tenant acknowledges and agrees that Tenant's use of
the Premises during Non-Business Hours imposes additional burden on the
Project's janitorial services, fluorescent light tubes, HVAC and electrical
services, and the Project Common Areas. Accordingly, Non-Business Hours use of
services will be made available to Tenant through an access or override switch
accessible to Tenant from the Premises and will be billed as an after hours rent
assessment. After hours use will be monitored and such costs will be payable by
Tenant to Landlord upon demand (a minimum two (2) hour charge will be due for
any such after-hours usage), on an hourly basis at the then prevailing rate
("Prevailing Rate") established by the Landlord. Landlord and Tenant acknowledge
and agree that, as of the date of execution of this Lease, the Prevailing Rate
for use of the Premises during Non-Business Hours is Thirty and No/100ths
Dollars ($30.00) per hour per zone with the entire Premises occupied by Tenant
recognized as a single zone. The Prevailing Rate is subject to change, based
upon changes in the cost of such utilities however, Tenant shall not be liable
for such costs unless Tenant has activated such access or override switch.
(d) Tenant shall not, without the prior consent of
Landlord, connect to the utility systems of the Building any apparatus,
machinery or other equipment except typical office machines and devices such as
electric typewriters, word processors, mini and microcomputers and office-size
photocopiers and other similar machines. Nor shall Tenant, without the prior
written consent of Landlord, connect to any electrical circuit in the Premises
any apparatus or equipment with power requirements that exceed the designed
electrical capacity of the Premises. Tenant shall pay the cost of all utilities
and services supplied to Tenant in connection with Tenant's use of additional
office equipment approved by Landlord hereunder. Tenant shall not, without the
prior consent of Landlord, connect to any dedicated electrical circuit in the
Premises electrical apparatus or equipment of any type having in the aggregate
electrical power requirements in excess of two (2) amps per outlet.
Notwithstanding Landlord's consent to such excess loading of circuits, Tenant
shall pay the cost of any additional or above-standard capacity electrical
circuits necessitated by such excess loading circuits and the installation
thereof.
(e) All sums payable hereunder by Tenant for additional
services or for excess utility usage shall be payable within thirty (30) days
after written request from Landlord, including reasonable supporting
documentation; except that Landlord may require Tenant to pay monthly for the
estimated cost of Tenant's excess utility usage if such usage occurs on a
regular basis, and such estimated amounts shall be payable in advance on the
first day of each month.
44
15. ASSIGNMENT AND SUBLETTING:
(a) Tenant shall not, without the prior written consent
of Landlord, which shall not be unreasonably withheld or delayed as provided in
this Section 15: (a) assign, mortgage, pledge, encumber or otherwise transfer
this Lease, the term or estate hereby granted, or any interest hereunder; (b)
permit the Premises or any part thereof to be utilized by anyone other than
Tenant (whether as concessionaire, franchisee, licensee, permittee or
otherwise); or (c) except as hereinafter provided, sublet or offer or advertise
for subletting the Premises or any part thereof. Any assignment, mortgage,
pledge, encumbrance, transfer or sublease without Landlord's consent shall be
voidable and, at Landlord's election, shall constitute a default.
Notwithstanding the foregoing and Subsection (b) below, Tenant
may assign this Lease or sublet the Premises or a portion thereof, without
Landlord's consent, but with prior written notice, to any corporation,
partnership, individual or other entity which controls, is controlled by or is
under common control with Tenant; or to any corporation, partnership, individual
or other entity, resulting from the merger or consolidation with Tenant; or to
any person or entity which acquires all of the assets of Tenant's business going
concern, provided that (i) the assignee or subtenant assumes, in full, the
obligations of Tenant under this Lease, (ii) Tenant remains fully liable under
this Lease, and (iii) the use of the Premises remains unchanged. Provided that
Tenant is a corporation, and (i) the stock of Tenant is traded on a national
exchange, the transfer of stock in Tenant shall not be considered an assignment,
sublease or transfer under the Lease, or (ii) the stock of Tenant is not traded
on a national exchange, the collective transfer of thirty percent (30.00%) or
less of such stock shall not be considered an assignment, sublease or transfer
under this Lease.
(b) If at any time or from time to time during the Term
of this Lease, Tenant desires to assign this Lease with respect to, or to
sublet, all or any part of the Premises, then at least thirty (30) days prior to
the date when Tenant desires the assignment or subletting to be effective (the
"Transfer Date"), and if consent is required, Tenant shall give Landlord a
notice (the "Transfer Notice") which shall set forth the name, address and
business of the proposed assignee or subtenant, information (including financial
statements and references) concerning the character of the proposed assignee or
subtenant, in the case of a proposed sublease, a detailed description of the
space proposed to be sublet, which must be a single, self-contained unit (the
"Space"), any rights of the proposed assignee or subtenant to use Tenant's
improvements and the like, the Transfer Date, and the fixed rent and/or other
consideration and all other material terms and conditions of the proposed
assignment or subletting, all in such detail as Landlord may reasonably require,
if Landlord promptly requests additional detail, the Transfer Notice shall not
be deemed to have been received until Landlord receives such additional detail.
(c) Landlord shall be permitted to consider any
reasonable factor in determining whether or not to withhold its consent to a
proposed assignment or sublease and Landlord shall make such determination
within thirty (30) days following Landlord's receipt of the Transfer Notice. The
failure of Landlord to deliver written notice of such determination within such
time period shall be deemed Landlord's disapproval thereof. Without limiting the
other instances in which it may be reasonable for Landlord to withhold its
consent to an assignment or sublease, it shall be reasonable for Landlord to
withhold its consent if any of the following conditions are not satisfied:
(1) The proposed use by the transferee shall (i)
comply with Tenant's permitted use, (ii) be consistent with the general
character of businesses carried on by tenants of a first-class office building,
(iii) not increase the likelihood of damage or destruction, (iv) not increase
the density of occupancy of the Premises or increase the amount of pedestrian
and other traffic through the Building, (v) not be likely to cause an increase
in insurance premiums for insurance policies applicable to the Building, (vi)
not require new tenant improvements incompatible with then-existing Building
systems and components, (vii) unless paid by Tenant, not require Landlord to
make modifications to the Building outside of the Premises (in order, for
example, to comply with laws such as the ADA), (viii) not increase the
electrical or HVAC usage in the Premises, and (ix) not otherwise have or cause a
material adverse impact on the Premises, the Building, the Project, or
Landlord's interest therein;
(2) Tenant or such transferee shall, prior to
occupancy, deliver to Landlord any increase in the security deposit required by
Landlord's then-current standards for delivery of security deposits by tenants;
(3) The proposed transferee shall not be a labor
union, foreign or domestic governmental entity or public utility company;
(4) If Landlord has vacant space at the Building
suitable for such proposed transferee, the proposed transferee shall not be an
existing tenant or occupant of the Building or a person or entity with whom
Landlord is then dealing, or with whom Landlord has had any dealings within the
previous six (6) months, with respect to the leasing of space in the Building;
45
(5) Any ground lessor or mortgagee whose consent
to such transfer is required fails to consent thereto; and
(6) Any proposed subletting shall not result in
more than two (2) subleases of portions of the Premises being in effect at any
one time during the Term. Tenant shall have the burden of demonstrating that
each of the foregoing conditions has been satisfied.
(d) Provided Landlord has consented to such assignment or
subletting, Tenant shall be entitled to enter into such Assignment or Sublease
with the third party identified in the Transfer Notice subject to the following
conditions:
(1) At the time of the transfer, there is no
event of default under this Lease;
(2) The assignment or sublease shall be on the
same terms set forth in the Transfer Notice given to Landlord;
(3) No assignment or sublease shall be valid and
no assignee or sublessee shall take possession until an executed counterpart of
the assignment or sublease has been delivered to Landlord;
(4) No assignee or sublessee shall have a right
further to assign or sublet without Landlord's consent thereto in each instance,
which consent in the case of a future assignment should not be unreasonably
withheld or delayed;
(5) Any assignee shall have assumed in writing
the obligations of Tenant under this Lease;
(6) Any subtenant shall have agreed in writing
to comply with all applicable terms and conditions of this Lease with respect to
the Space;
(7) In the event Tenant sublets the entire
Premises or any part thereof, Tenant shall deliver to Landlord fifty percent
(50.00%) of any excess rent within thirty (30) days of Tenant's receipt thereof
pursuant to such subletting. As used herein, "excess rent" shall mean any sums
or economic consideration per square foot of the Premises received by Tenant
pursuant to such subletting in excess of the amount of the rent per square foot
of the Premises payable by Tenant under this Lease applicable to the part or
parts of the Premises so sublet; provided, however, that no excess payment shall
be payable until Tenant shall have recovered therefrom all of the costs incurred
by Tenant for brokerage commissions, tenant improvement work approved by
Landlord, reasonable attorneys fees, and reasonable marketing fees, in
conjunction with such sublease; and
(8) In the event Tenant assigns this Lease,
Tenant shall deliver to Landlord fifty percent (50.00%) of any excess payment
within thirty (30) days of Tenant's receipt thereof pursuant to such assignment.
As used herein, "excess payment" shall mean the amount of payment received for
such assignment of this Lease in excess of the rent payable by Tenant under this
Lease; provided, however, that no excess payment shall be payable until Tenant
shall have recovered therefrom all of the costs incurred by Tenant for brokerage
commissions, tenant improvement work approved by Landlord, reasonable attorneys
fees, and reasonable marketing fees, in conjunction with such assignment.
(e) No subletting or assignment shall release Tenant of
Tenant's obligations under this Lease or alter the liability of Tenant to pay
the rent and to perform all other obligations to be performed by Tenant
hereunder. The acceptance of rent by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by an assignee or subtenant of
Tenant or any successor of Tenant in the performance of any of the terms hereof,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against such assignee, subtenant or successor. Landlord may consent to
subsequent assignments of the Lease or sublettings or amendments or
modifications to the Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and any such actions shall not relieve Tenant of liability under this Lease.
(f) INTENTIONALLY DELETED.
16. MUTUAL INDEMNITY: Each party shall indemnify, defend, protect
and hold the other, any partner, co-venturer, co-tenant, officer, director,
employee, agent, or representative of the other (collectively, "Affiliates")
harmless against and from all claims, damages and liabilities, arising from each
party's use and operation of their respective property and/or the conduct of
46
their respective or from any activity, work, or other thing done, permitted or
suffered by each of them as to each other in or about the Building, and shall
further indemnify and hold each other, any partner, co-venturer, co-tenant,
officer, director, employee, agent, or representative of each other harmless
against and from any and all claims, damages and liabilities, directly arising
from any breach or default in the performance of any obligation on either
party's part to be performed under the terms of this Lease, or arising from any
act or negligence of either party or any officer, agent, or employee, guest, and
from all and against all costs, attorneys' fees, expenses, and liabilities
incurred in or about any such claim or any action or proceeding brought thereon,
and, in any case, action, or proceeding brought against either specific party by
reason of any such claim. Each party as a material part of the consideration to
the other under this Lease, hereby assumes all risk of damage to property or
injury to persons in, upon or about the Premises, except that neither party
shall assume any risk for damage resulting from the gross negligence or willful
misconduct of the other party or its authorized representatives.
17. DAMAGE TO PREMISES OR BUILDING: All injury to the Premises or
the Building caused by moving the property of Tenant or its employees, agents,
guests or invitees into, in or out of the Building and all breakage done by
Tenant or the agents, servants, employees, and visitors of Tenant shall be
repaired as determined by the Landlord at the expense of the Tenant.
18. TENANT'S INSURANCE:
(a) All insurance required to be carried by Tenant
hereunder shall be issued by responsible insurance companies which are rated by
Best Insurance Reports as A:VII or better and acceptable to Landlord and
Landlord's lender and licensed or authorized to do business in the State of
California. Each policy shall name Landlord, and at Landlord's request any
mortgagee of Landlord, as an additional insured, as their respective interests
may appear. Each policy shall contain (i) a separation of insureds condition,
(ii) a provision that such policy and the coverage evidenced thereby shall be
primary and non-contributing with respect to any policies carried by Landlord
and that any coverage carried by Landlord shall be excess insurance for
Landlord's interest only, and (iii) a waiver by the insurer of any right of
subrogation against Landlord, its agents, employees and representatives, which
arises or might arise by reason of any payment under such policy or by reason of
any act or omission of Landlord, its agents, employees or representatives. A
copy of a certificate of each paid up policy (authenticated by the insurer)
evidencing the existence and amount of each insurance policy required hereunder
shall be delivered to Landlord before the date Tenant is given possession of the
Premises, and thereafter, within thirty (30) days after any demand by Landlord
therefor. Landlord may, at any time and from time to time, inspect , copy any
insurance policies required to be maintained by Tenant hereunder. No such policy
shall be cancelable, materially changed or reduced in coverage except after
thirty (30) days' written notice to Landlord and Landlord's lender. Tenant shall
furnish Landlord with renewals or "binders" of any such policy at least ten (10)
days prior to the expiration thereof. Tenant agrees that if Tenant does not take
out and maintain such insurance, Landlord may (but shall not be required to)
,after notice and opportunity to cure, procure said insurance on Tenant's behalf
and charge the Tenant the premiums, which shall be payable upon demand. Tenant
shall have the right to provide such insurance coverage pursuant to blanket
policies obtained by the Tenant, provided such blanket policies expressly afford
coverage to the Premises, Landlord, Landlord's mortgagee and Tenant as required
by this Lease.
(b) Beginning on the date Tenant is given access to the
Premises for any purpose and continuing until expiration of the term of the
Lease, Tenant shall procure, pay for and maintain in effect policies of property
insurance covering (i) all Tenant Improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant to the provisions of
Section 10 hereof), and (ii) trade fixtures, merchandise and other personal
property from time to time, in, on or about the Premises, in an amount not less
than one hundred percent (100.00%) of their actual replacement cost from time to
time, providing protection against all risks of physical loss or damage. The
proceeds of such insurance shall be used for the repair or replacement of the
property so insured. Upon termination of this Lease following a casualty as set
forth herein, the proceeds under (i) shall be paid to Landlord, and the proceeds
under (ii) above shall be paid to Tenant.
(c) Beginning on the date Tenant is given access to the
Premises for any purpose and continuing until expiration of the Term of the
Lease, Tenant shall procure, pay for and maintain in effect workers'
compensation and employer's liability insurance and commercial general liability
insurance which includes coverage for personal injury, contractual liability and
Tenant's independent contractors. The commercial general liability should be
procured and maintained with not less than Two Million and No/100ths Dollars
($2,000,000.00) per occurrence combined single limit for bodily injury, personal
injury or property damage liability. If such insurance covers more than one
location, and general aggregate limit shall apply on a per location basis.
(d) INTENTIONALLY DELETED
47
(e) INTENTIONALLY DELETED
(f) Tenant agrees to obtain or cause to be obtained
certificates of insurance evidencing commercial general liability insurance,
including completed operations, and workers' compensation insurance and
employer's liability insurance from any contractors or subcontractors engaged in
repairs or maintenance to the Premises during the term of the Lease. Such
liability insurance must be for minimum limits of One Million and No/100ths
Dollars ($1,000,000.00) per occurrence combined single limit for bodily injury
including death and property damage liability.
(g) Landlord and Tenant each hereby waive all rights of
recovery against the other and against the officers, employees, agents and
representatives of the other, on account of loss by or damage to the waiving
party of its property or the property of others under its control, to the extent
that such loss or damage is insured against and payment is made under any "all
risk" insurance policy which either may have in force at the time of the loss or
damage. Both parties shall, upon obtaining the policies of insurance required
under this Lease, give notice to its insurance carrier or carriers that the
foregoing mutual waiver of subrogation as contained in this Lease.
19. AD VALOREM TAXES: Tenant shall pay, or cause to be paid,
before delinquency, any and all taxes levied or assessed and which become
payable during the term hereof upon all Tenant's leasehold improvements,
equipment, furniture, fixtures, and personal property located in the Premises,
except that which has been paid for by Landlord and is the standard of the
Building. In the event any or all of the Tenant's leasehold improvements,
equipment, furniture, fixtures, and personal property shall be assessed and
taxed with the Building, Tenant shall pay to Landlord its share of such taxes
within thirty (30) days after delivery to Tenant by Landlord of a statement in
writing setting forth the amount of such taxes applicable to Tenant's property
with supporting documentation.
20. WAIVER: No delay or omission in the exercise of any right or
remedy of Landlord or Tenant on any default by Tenant or Landlord shall impair
such a right or remedy or be construed as a waiver. The subsequent acceptance of
Rent by Landlord after breach by Tenant of any covenant or term of this Lease
shall not be deemed a waiver of such breach, other than a waiver of timely
payment for the particular Rent involved, and shall not prevent Landlord from
maintaining an unlawful detainer or other action based on such breach. No act or
conduct of Landlord, including without limitation the acceptance of the keys to
the Premises, shall constitute an acceptance of the surrender of the Premises by
Tenant before the expiration of the term. Prior to the scheduled expiration of
the term of the Lease, only a notice from Landlord to Tenant shall constitute
acceptance of the surrender of the Premises and accomplish an early termination
of the Lease. Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord or Tenant of any default must be in writing and shall not
be a waiver of any other default concerning the same or any other provision of
the Lease. The review, approval, or inspection by Landlord of any item to be
reviewed, approved, or inspected by Landlord under the terms of this Lease shall
not constitute the assumption of any responsibility by Landlord for the accuracy
or sufficiency of any such item or the quality or suitability of such item for
its intended use. . The provisions of this Paragraph 20 are made reciprocal as
to Landlord and Tenant.
21. ENTRY BY LANDLORD: Landlord reserves, and shall at any and all
reasonable times with reasonable notice and prior approval from Tenant have the
right to enter the Premises to inspect the same, to supply any service to be
provided by Landlord to Tenant hereunder, to show the Premises to prospective
purchasers or tenants, to post notices of non-responsibility, and to maintain
and repair the Premises and any portion of the Building that Landlord may deem
necessary or desirable, without abatement of Rent, and may for that purpose
erect scaffolding and other necessary structures, where reasonably required by
the character of the work to be performed, always providing that the entrance to
the Premises shall not be blocked thereby and further providing that the
business of the Tenant shall not be interfered with unreasonably. For each of
the aforesaid purposes, Landlord shall at all times have and retain a key with
which to unlock all of the doors in, upon and about the Premises, excluding
Tenant's vaults, safes and files, and other such areas that Tenant deems private
and Landlord shall have the right to use any and all means which Landlord may
deem proper to open said doors in the event of an emergency (as determined by
Landlord or its employees or representatives acting in good faith), in order to
obtain entry to the Premises without liability to Landlord. Any entry to the
Premises obtained by Landlord by any of said means shall not under any
circumstances be construed or be deemed to be a forcible or unlawful entry into,
or a detainer of the Premises, or an eviction of Tenant from the Premises or any
portion thereof.
22. CASUALTY DAMAGE: During the Term hereof, if the Premises or
any part thereof shall be damaged by fire or other casualty, Tenant shall give
prompt written notice thereof to Landlord. In case the Building shall be so
damaged by fire or other casualty that substantial alteration or reconstruction
of the Building shall be required (whether or not the Premises shall have been
damaged by such fire or other casualty), (i) if such damage cannot be repaired
within ninety (90) days thereafter, as reasonably determined by Landlord, (ii)
48
if any mortgagee under a mortgage or deed of trust covering the Building
requires that the insurance proceeds payable as a result of said fire or other
casualty be used to retire or reduce such mortgage debt, or (iii) if such damage
is not covered by insurance carried by Landlord, Landlord may, at its option,
terminate this Lease and the term and estate hereby granted by notifying Tenant
in writing of such termination within sixty (60) days after the date of such
damage, in which event the Rent shall be abated as of the date of such damage.
If Landlord elects to repair the Premises and/or the Building, Landlord shall
within sixty (60) days after the date of such damage commence to repair and
restore the Building and shall proceed with reasonable diligence to restore the
Building (except that Landlord shall not be responsible for delays outside its
control) to substantially the same condition in which it was immediately prior
to the happening of the casualty, except that Landlord shall not be required to
rebuild, repair or replace any part of Tenant's furniture and furnishings or
fixtures and equipment removable by Tenant under the provisions of this Lease,
but such work shall not exceed the scope of the work done by Landlord in
originally constructing the Building. Tenant shall not be entitled to any
compensation or damages from Landlord, and Landlord shall not be liable, for any
loss of the use of the whole or any part of the Premises, the Building, Tenant's
personal property, or any inconvenience or annoyance occasioned by such loss of
use, damage, repair, reconstruction or restoration, except that, subject to the
provisions of the next sentence, Landlord shall allow Tenant a diminution of
Rent on a square footage basis during the time and to the extent the Premises
are unfit or unavailable for occupancy to the extent Landlord is able to collect
from its own business income loss insurance policy. If the Premises or any other
portion of the Building are damaged by fire or other casualty resulting from the
negligence of Tenant or any of Tenant's agents, employees, or invitees, Tenant
shall be liable to Landlord for the cost and expense of the repair and
restoration of the Building caused thereby to the extent such cost and expense
is not covered by insurance proceeds. Any insurance which may be carried by
Landlord or Tenant against loss or damage to the Building or to the Premises
shall be for the sole benefit of the party carrying such insurance and under its
sole control. Tenant hereby specifically waives any and all rights it may have
under any law, statute, ordinance or regulation to terminate the Lease by reason
of casualty or damage to the Premises or Building, and the parties hereto
specifically agree that the Lease shall not automatically terminate by law upon
destruction of the Premises. Except as otherwise provided in this Section 22,
and except if against any other provision of the law or against public policy.
Tenant hereby waives the provisions of Sections 1932(2), 1933(4), 1941 and 1942
of the California Civil Code.
23. CONDEMNATION:
(a) If the whole of the Building or Premises should be
condemned, this Lease shall terminate as of the date when physical possession of
the Building or the Premises is taken by the condemning authority. If less than
substantially the whole of the Building or the Premises is thus taken or sold,
this Lease shall be unaffected by such taking, provided that (i) Tenant shall
have the right to terminate this Lease by written notice to Landlord given
within ninety (90) days after the date of such taking if twenty percent (20.00%)
or more of the Premises is taken and the remaining area of the Premises is not
reasonably sufficient for Tenant to continue operation of its business, and (ii)
either party (if the Project is affected by a taking of more than 25%) may
terminate this Lease by giving written notice thereof to the other within sixty
(60) days after the date of such taking, in which event this Lease shall
terminate as of the date when physical possession of such portion of the
Building or Premises is taken by the condemning authority. If, upon any such
condemnation of less than substantially the whole of the Building or the
Premises, this Lease shall not be thus terminated, the Rent payable hereunder
shall be diminished by an amount representing that part of the Rent as shall
properly be allocable to the portion of the Premises which was so condemned, and
Landlord shall, at Landlord's sole expense, restore and reconstruct the
remainder of the Building and the Premises to substantially their former
condition to the extent that the same, in Landlord's reasonable judgment, may be
feasible, but such work shall not exceed the scope of the work done in
originally constructing the Building, nor shall Landlord in any event be
required to spend for such work an amount in excess of the amount received by
Landlord as compensation awarded upon a taking of any part or all of the
Building or the Premises. Subject to the rights of any mortgagee under a
mortgage or deed of trust covering the Building, Landlord shall be entitled to
and shall receive the total amount of any award made with respect to
condemnation of the Premises or Building, regardless of whether the award is
based on a single award or a separate award as between the respective parties,
provided any portion of said award for Tenant's Leasehold Improvements that were
installed and paid for by Tenant, Tenant's personal property, relocation costs,
or other such part of the award specifically made to Tenant shall be paid to
Tenant by Landlord, and to the extent that any such award or awards shall be
made to Tenant or to any person claiming through or under , that is for the
portion of the award that is Landlord's, Tenant hereby irrevocably assigns to
Landlord all of its rights, title and interest in and to any such awards. No
portion of any such award or awards shall be allocated to or paid to Tenant for
any so-called bonus or excess value of this Lease by reason of the relationship
between the rental payable under this Lease and what may at the time be a fair
market rental for the Premises. The foregoing notwithstanding, Landlord shall
turn over to Tenant, promptly after receipt thereof by Landlord, that portion of
any such award received by Landlord hereunder which is attributable to Tenant's
unamortized costs of leasehold improvements installed and paid for by Tenant,
fixtures and equipment which are condemned as part of the property taken but
which Tenant would otherwise be entitled to remove, and the appraisal of the
condemning authority with respect to the amount of any such award allocable to
49
such items shall be conclusive. The foregoing shall not, however, be deemed to
restrict Tenant's right to pursue a separate award specifically for its
relocation expenses or the taking of Tenant's unamortized costs of leasehold
improvements installed and paid for by Tenant, Tenant's personal property or
trade fixtures. Tenant hereby specifically waives any and all rights it may have
under any law, statute, ordinance or regulation (including, without limitation,
Sections 1265.120 and 1265.130 of the California Code of Civil Procedure), to
terminate or petition to terminate this Lease upon partial condemnation of the
Premises or Building, and the parties hereto specifically agree that this Lease
shall not automatically terminate upon condemnation.
(b) Landlord may, without any obligation or liability to
Tenant and without affecting the validity and existence of this Lease other than
as hereafter expressly provided, agree to sell and/or convey to the condemnor
the Premises or portion thereof sought by the condemnor, without first requiring
that any action or proceeding be instituted, or if such action or proceeding
shall have been instituted, without first requiring any trial or hearing thereof
(and Landlord is expressly empowered to stipulate to judgment therein), free
from this Lease provided the rights of Tenant hereunder as set forth in (a)
above as to the award shall not be restricted and Landlord shall pay to Tenant
any part of Landlord's proceeds that constitute Tenant's claim and/or property..
(c) If all or any portion of the Premises is condemned or
other-wise taken for a period (i) of less than one hundred twenty (120) days,
this Lease shall remain in full force and effect and Tenant shall continue to
perform all terms and covenants of this Lease; provided, however, Rent shall
▇▇▇▇▇ during such limited period in proportion to the portion of the Premises
that is rendered unusable as a result of such condemnation or other taking, or
(ii) of one hundred twenty (120) days or more, Tenant shall have the right to
terminate this Lease by providing written notice of such election within thirty
(30) days of such condemnation, in which case Rent shall be abated as of the
date of such condemnation.
(d) The words "condemnation" or "condemned" as used
herein shall mean the taking for any public or quasi-public use under any
governmental law, ordinance, or regulation, or the exercise of, or the intent to
exercise, the power of eminent domain, expressed in writing, as well as the
filing of any action or proceeding for such purpose, by any person, entity,
body, agency, or authority having the right or power of eminent domain, and
shall include a voluntary sale by Landlord to any such person, entity, body
agency or authority, either under threat of condemnation expressed in writing or
while condemnation proceedings are pending, and shall occur in point of time
upon the actual physical taking of possession pursuant to the exercise of said
power of eminent domain.
24. TENANT'S DEFAULT: The occurrence of any one or more of the
following events shall constitute a default and breach of this Lease by Tenant:
(a) The failure by Tenant to make any payment of Rent or
any other payment required to be made by Tenant hereunder as and when due and
written notice from Landlord, where such failure shall continue for a period of
five (5) days after the due date.
(b) Tenant's failure to observe or perform any of the
covenants, conditions, or provisions of this Lease to be observed or performed
by Tenant, other than as described in subparagraph (b) above, where such failure
shall continue for a period of thirty (30) days after written notice thereof by
Landlord to Tenant; provided, however, that if the nature of Tenant's default is
such that more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure within
said thirty (30)-day period and thereafter diligently prosecutes such cure to
completion.
(c) The making by Tenant of any general assignment or
general arrangement for the benefit of creditors, or the appointment of a
trustee or a receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within sixty (60) days, or the attachment, execution,
or other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged in sixty (60) days.
(d) The filing of any voluntary petition in bankruptcy by
Tenant, or the filing of any involuntary petition by Tenant's creditors, which
involuntary petition remains undischarged for a period of sixty (60) days. In
the event that under applicable law the trustee in bankruptcy or Tenant has the
right to affirm this Lease and perform the obligations of Tenant hereunder, such
trustee or Tenant shall, in such time period as may be permitted by the
bankruptcy court having jurisdiction, cure all defaults of Tenant hereunder
outstanding as of the date of the affirmance of this Lease, and provide to
Landlord such adequate assurances as may be necessary to ensure Landlord of the
continued performance of Tenant's obligation under this Lease.
50
(e) Without the prior written consent of Landlord, which
shall not be unreasonably withheld, selling, leasing, assigning, encumbering,
hypothecating, transferring, or otherwise disposing of all or substantially all
of the Tenant's assets.
(f) If Tenant is a partnership or consists of more than
one (1) person or entity, if any partner of the partnership or other person or
entity is involved in any of the acts or events described in Sections (d) or (e)
above.
25. REMEDIES FOR TENANT'S DEFAULT: In the event of Tenant's
default, Landlord may:
(a) Terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord. In
such event, Landlord shall be entitled to recover from Tenant:
(1) the worth at the time of the award of any
unpaid rent which had been earned at the time of such termination; plus
(2) the worth at the time of the award of the
amount by which the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss which Tenant
proves could have been reasonably avoided; plus
(3) the worth at the time of the award of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss which Tenant proves could be
reasonably avoided; plus
(4) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which in the ordinary course of things would
be likely to result therefrom (including, without limitation, the cost of
recovering possession of the Premises, expenses of reletting including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, and real
estate commissions actually paid and that portion of the leasing commission paid
by Landlord and applicable to the unexpired portion of this Lease); plus
(5) such other amounts in addition to or in lieu
of the foregoing as may be permitted from time to time by applicable California
law.
As used in Subsections (1) and (2) above, the "worth at the
time of the award" shall be computed by allowing interest at the lesser of ten
percent (10.00%) per annum, or the maximum rate permitted by law per annum. As
used in Subsection (3) above, the "worth at the time of award" 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 one percent (1.00%).
(b) Continue this Lease in full force and effect, and the
Lease will continue in effect, as long as Landlord does not terminate Tenant's
right to possession, and Landlord shall have the right to collect Rent when due.
During the period Tenant is in default, Landlord may enter the Premises and
relet them, or any part of them, to third parties for Tenant's account. Tenant
shall be liable immediately to Landlord for all costs Landlord reasonably incurs
in reletting the Premises, including, without limitation, brokers' commissions,
expenses of remodeling the Premises required by the reletting, and like costs.
Reletting can be for a period shorter or longer than the remaining term of this
Lease. Tenant shall pay to Landlord the Rent due under this Lease on the dates
the Rent is due, less the rent Landlord receives from any reletting. In no event
shall Tenant be entitled to any excess rent received by Landlord. No act by
Landlord allowed by this Paragraph shall terminate this Lease unless Landlord
notifies Tenant in writing that Landlord elects to terminate this Lease. After
Tenant's default and for as long as Landlord does not terminate Tenant's right
to possession of the Premises, if Tenant obtains Landlord's consent, Tenant
shall have the right to assign or sublet its interest in this Lease, but Tenant
shall not be released from liability.
(c) Cause a receiver to be appointed to collect Rent.
Neither the filing of a petition for the appointment of a receiver nor the
appointment itself shall constitute an election by Landlord to terminate the
Lease.
(d) Cure the default at Tenant's cost. If Landlord at any
time, by reason of Tenant's default, reasonably pays any sum or does any act
that requires the payment of any sum after due written notice and opportunity to
cure, the sum paid by Landlord shall be due immediately from Tenant to Landlord
at the time the sum is paid, and if paid at a later date shall bear interest at
the lesser of ten percent (10.00%) per annum, or the maximum rate an individual
is permitted by law to charge from the date the sum is paid by Landlord until
Landlord is reimbursed by Tenant. The sum, together with interest on it, shall
be additional Rent.
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The foregoing remedies are not exclusive; they are cumulative,
in addition to any remedies now or later allowed by law, to any equitable
remedies Landlord may have, and to any remedies Landlord may have under
bankruptcy laws or laws affecting creditors' rights generally. The waiver by
Landlord of any breach of any term, covenant or condition of this Lease shall
not be deemed a waiver of such term, covenant or condition or of any subsequent
breach of the same or any other term, covenant or condition; and the provisions
of this sentence are made mutual as between the parties. Acceptance of Rent by
Landlord subsequent to any breach hereof shall not be deemed a waiver of any
proceeding breach other than a failure to pay the particular Rent so accepted,
regardless of Landlord's knowledge of any breach at the time of such acceptance
of Rent. Landlord shall not be deemed to have waived any term, covenant or
condition unless Landlord gives Tenant written notice of such waiver and the
provisions of this sentence are made mutual as between the parties.
26. SURRENDER OF PREMISES: On expiration of this Lease or within
five (5) days after the earlier termination of the Term, Tenant shall surrender
to Landlord the Premises in good condition (except for ordinary wear and tear,
repair and maintenance which is the obligation of Landlord, and destruction to
the Premises covered by Section 22). Tenant shall remove all its personal
property within the above-stated time or it shall be deemed abandoned. .
Landlord may elect to retain or dispose of in any manner any
alterations or any of Tenant's personal property that Tenant does not remove
from the Premises on expiration or termination of the term as allowed or
required by this Lease by giving at least twenty (20) days' notice to Tenant.
Title to any such alterations or any of Tenant's personal property that Landlord
elects to retain or dispose of on expiration of the twenty (20)-day period shall
vest in Landlord. Tenant waives all claims against Landlord for any damage to
Tenant resulting from Landlord's retention or disposition of any such
alterations or any of Tenant's personal property. Tenant shall be liable to
Landlord for Landlord's costs for storing, removing, and disposing of any
alterations or any of Tenant's personal property.
If Tenant fails to surrender the Premises to Landlord on
expiration or five (5) days after termination of the term as required by this
Paragraph, Tenant shall indemnify and hold Landlord harmless from all claims,
liability and damages resulting from Tenant's failure to surrender the Premises,
including, without limitation, claims made by a succeeding tenant resulting from
Tenant's failure to surrender the Premises.
27. DEFAULT BY LANDLORD:
(a) Landlord shall not be deemed to be in default in the
performance of any obligation required to be performed by it hereunder unless
and until it has failed to perform such obligations within thirty (30) days
after written notice by Tenant to Landlord specifying wherein Landlord has
failed to perform such obligation; provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are required for
its performance, then Landlord shall not be deemed to be in default if it shall
commence such performance within such thirty (30)-day period and thereafter
diligently prosecute the same to completion. In no event shall Landlord be
liable to Tenant for loss of profits, business interruption, or consequential
damages if Landlord performs its obligations within the time periods specified
in this Paragraph.
(b) Tenant agrees to give any mortgagee and/or trust deed
holders, by registered mail, a copy of any Notice of Default served upon the
Landlord, provided that prior to such notice Tenant has been notified in writing
(by way of Notice of Assignment of Rents and Leases, or otherwise) of the
address of such mortgagee and/or trust deed holder. Tenant further agrees that
if Landlord shall have failed to cure such default within the time provided for
in this Lease, then the mortgagees and/or trust deed holders shall have an
additional thirty (30) days within which to cure such default, or if such
default cannot be cured within that time, then such additional time as may be
necessary if within thirty (30) days mortgagee and/or trust deed holder has
commenced and is diligently pursuing the remedies necessary to cure such default
(including, but not limited to, commencement of foreclosure proceedings, if
necessary to effect such cure), in which event this Lease shall not be
terminated while remedies are being so diligently pursued.
28. PARKING: Tenant shall be entitled throughout the Term of this
Lease to the use of not less than six (6) unreserved employee parking spaces and
six (6) client parking spaces located in the Building's parking facilities upon
terms and conditions as may form time to time be established by Landlord.
Subject to change by Landlord as herein described, the current monthly cost of
parking shall be $140.00 per month for unreserved employee and for client
parking spaces. The cost of parking shall not increase by more than 5% per year.
Landlord will designate six (6) reserved client parking spaces on the first
floor of the parking garage for the full term of the Lease and any extensions
thereof and Tenant shall be entitled to identifying signage for the six (6)
client parking spaces. The monthly cost of the client parking spaces will not
exceed the cost of the unreserved parking spaces which is currently $140 per
month.Tenant agrees not to overburden the parking facilities and agrees to
cooperate with Landlord and other Tenants in the use of the parking facilities.
Except for the six reserved client parking spaces, Landlord reserves the right
52
in its absolute discretion to determine whether the parking facilities are
becoming crowded and to allocate and assign parking spaces among Tenant and the
other tenants, and to alter, relocate, reduce or otherwise change the parking
facilities and to take measures with respect to the parking area from time to
time in order to comply with the policies of any transportation management
association or any governmental ordinance, law or regulation,; however,
unreserved employee parking shall not be reduced to the extent that Tenant is
allowed less than nine (9) parking spaces overall. Additionally, Tenant, at its
sole discretion, may annually surrender to Landlord any of its unreserved or
client parking spaces.. Landlord shall have the right, in addition to pursuing
any other legal remedy available, to tow any vehicle belonging to Tenant or
Tenant's employees which is not in compliance with the regulations for the
parking facility then in effect if a violation continues after the first notice
of each such violation, at the expense of the violator; Upon Tenant's request
Landlord shall tow parked cars or take other actions of violators in Tenant's
reserved Client parking spaces to free occupied spaces for Tenant's use.
Landlord shall not be liable for any claims, losses, damages, expenses or
demands with respect to injury or damage to the vehicles of Tenant or Tenant's
customers or employees that park in the parking areas of the Project, except for
such loss or damage as may be caused by Landlord's gross negligence or willful
misconduct, and Tenant agrees to indemnify, defend, protect and hold harmless
Landlord from and against any such claim, loss, damage, demand, cost or expense,
including without limitation, reasonable attorneys' fees and legal expenses.
Landlord shall obtain a certificate of insurance annually from the parking
garage operator to confirm that the operator has secured insurance coverage for
the parking garage.
29. ESTOPPEL CERTIFICATE: Tenant shall at any time and from time
to time upon not less than thirty (30) days' prior written notice from Landlord
execute, acknowledge, and deliver to Landlord a statement in writing concerning
the following matters, (a) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease as modified is in full force and effect) and the date
to which the Rental and other charges are paid in advance, if any; (b)
certifying that the Premises have been accepted by Tenant; (c) confirming the
Commencement Date and the expiration date of the Lease; (d) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of the
Landlord hereunder, or specifying such defaults, if any are claimed, and (e)
such other matters requested by Landlord. Any such statement may be relied upon
by a prospective purchaser or encumbrancer of all or any portion of the real
property of which the Premises are a part.
30. SALE OF PREMISES: In the event of any sale of the Project,
Landlord shall be and hereby is entirely freed and relieved of all liability
under any and all of its covenants and obligations contained in or derived from
this Lease only if the purchaser, at such sale or any subsequent sale of the
Premises, shall be deemed, without any further agreement between the parties or
their successors in interest or between the parties and any such purchaser, to
have assumed and agreed to carry out any and all of the covenants and
obligations of Landlord under this Lease. If any Security Deposit or prepaid
Rent has been paid by Tenant, Landlord will transfer the Security Deposit and
prepaid Rent to Landlord's successor and upon such transfer, Landlord shall be
relieved of any and all further liability with respect thereto.
31. SUBORDINATION, ATTORNMENT:
(a) This Lease is and shall be subordinate to any
encumbrance now of record or recorded after the date of this Lease affecting the
Building, other improvements, and land of which the Premises are a part. Such
subordination is effective without any further act of Tenant. If any mortgagee,
trustee, or ground lessor shall elect to have this Lease and any options granted
hereby prior to the lien of its mortgage, deed of trust, or ground lease, and
shall give written notice thereof to Tenant, this Lease and such options shall
be deemed prior to such mortgage, deed of trust, or ground lease, whether this
Lease or such options are deeded prior or subsequent to the date of said
mortgage, deed of trust, or ground lease, or the date of recording thereof.
(b) In the event any proceedings are brought for
foreclosure, or in the event of a sale or exchange of the real property on which
the Building is located, or in the event of the exercise of the power of sale
under any mortgage or deed of trust made by Landlord covering the Premises,
provided Tenant is not in default, such transferee shall recognize Tenant's
lease and provide to Tenant a non-disturbance agreement; Tenant shall attorn to
the purchaser upon any such foreclosure and sale and recognize such purchaser as
the Landlord under this Lease.
(c) Subject to (b) above, Tenant agrees to execute any
documents required to effectuate an attornment or to make this Lease or any
options granted herein prior to the lien of any mortgage, deed of trust, or
ground lease, as the case may be. If Tenant fails to execute and deliver any
such documents or instruments as required hereunder, Tenant irrevocably
constitutes and appoints Landlord as Tenant's special attorney-in-fact to
execute and deliver any such documents or instruments.
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(d) Notwithstanding anything contained herein to the
contrary, Landlord agrees that Tenant's obligations to subordinate under this
Section 31 to any future ground lease, mortgage, or deed of trust shall be
conditioned upon Tenant's receipt of a non-disturbance agreement from the party
requiring such subordination (which party is referred to for the purposes of
this Section as the "Superior Lienor"). Such non-disturbance agreement shall
provide, at a minimum, that Tenant's possession of the Premises shall not be
interfered with following a foreclosure, provided Tenant is not in default
beyond any applicable cure periods. Landlord's obligation with respect to such a
non-disturbance agreement shall be limited to obtaining the non-disturbance
agreement in such form as the Superior Lienor generally provides in connection
with its standard commercial loans, however, Tenant shall have the right to
negotiate, and Landlord shall use its good faith efforts and due diligence in
assisting Tenant in the negotiation of, revisions to that non-disturbance
agreement directly with the Superior Lienor. Tenant agrees to use its good faith
efforts to reach agreement with the Superior Lienor upon acceptable terms and
conditions of a non-disturbance agreement.
32. AUTHORITY OF TENANT: If Tenant is a corporation, each
individual executing this Lease on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf
of said corporation, and that this Lease is binding upon said corporation in
accordance with its terms. If Tenant is a partnership, each individual executing
this Lease on behalf of said partnership represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of said partnership under
the terms of the partnership agreement of said partnership. The provisions of
this paragraph 32 are reciprocal between Landlord and Tenant.
33. BROKER: Landlord and Tenant each warrants that it has had no
dealings with any real estate broker or agents in connection with the
negotiation of this Lease except for the broker or brokers listed in the Basic
Lease Information of this Lease ("Broker"), and it knows of no other real estate
broker or agent who is entitled to a commission in connection with the Lease.
Landlord agrees to pay any commission to which Broker is entitled in connection
with this Lease. Tenant agrees to indemnify and defend Landlord and hold
Landlord harmless from any claims for brokerage commissions arising out of any
discussion allegedly had by Tenant with any broker other than Broker. If the
Broker has acted as the Broker for both the Landlord and Tenant in connection
with the negotiation and execution of this Lease, by execution hereof, Landlord
and Tenant acknowledge and agree that Broker has made a full disclosure of its
representation of both Landlord and Tenant, and that Landlord and Tenant consent
and approve of Broker's dual representation of their interests in connection
with this transaction.
34. HOLDING OVER: Upon termination of the Lease or expiration of
the Term hereof, if Tenant retains possession of the Premises without Landlord's
written consent first had and obtained, then Tenant's possession shall be deemed
a month-to-month tenancy upon all of the terms and conditions contained in this
Lease, except the base rent portion of the Rent which shall be increased to one
hundred and twenty-five percent (125.00%) of the amount of the base rent portion
of the Rent for the first ninety (90) days following the expiration or earlier
termination of the Lease, as the case may be; thereafter at a rate of one
hundred fifty percent (150%) of the amount of the Base Rent portion of the Rent,
all for such period of time that Tenant remains in possession of the Premises at
the expiration or earlier termination of the Lease, as the case may be. Rent, as
adjusted pursuant to this Section, shall be payable in advance on or before the
first day of each month. If either party desires to terminate such
month-to-month tenancy, it shall give the other party not less than thirty (30)
days' advance written notice of the date of termination.
35. RULES AND REGULATIONS: Tenant shall faithfully observe and
comply with the reasonable rules and regulations that Landlord shall from time
to time promulgate. Landlord reserves the right from time to time to make all
reasonable modifications to said rules. The additions and modifications to those
rules shall be binding upon Tenant upon delivery of a copy to them to Tenant (a
copy of the present Rules and Regulations is attached hereto as Exhibit E).
Landlord shall use its reasonable efforts to enforce compliance with such rules,
but shall not be responsible to Tenant for the non-performance of any of said
rules by other tenants or occupants. All such rules shall be reasonable and
non-discriminatory.
36. OTHER RIGHTS RESERVED BY LANDLORD: In addition to any other
rights contained in this Lease, and except as otherwise provided in this Lease,,
Landlord retains and shall have the rights set forth below, exercisable without
notice and without liability to Tenant for damage or injury to property, person
or business and without effecting an eviction, constructive or actual, or
disturbance of Tenant's use or possession of the Premises or giving rise to any
claim for setoff or abatement of Rent:
(a) To install, affix and maintain any and all signs on
the exterior and interior of the Building.
(b) To grant to anyone the exclusive right to conduct any
business or render any service in or to the Building and its tenants, provided
such exclusive right shall not operate to require Tenant to use or patronize
such business or service or to exclude Tenant from its use of the Premises
expressly permitted herein.
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(c) To prohibit the placing of vending or dispensing
machines of any kind in or about the Premises without the prior written
permission of Landlord, unless such vending or dispensing machines are for the
exclusive use of Tenant's employees, visitors, and representatives, in which
case no Landlord consent shall be required.
(d) To reduce, increase, enclose or otherwise change at
any time and from time to time the size, number, location, layout and nature of
the Project Common Area and facilities and other tenancies and premises in the
Project and to create additional rentable areas through use or enclosure of
Project Common Area, provided that access to and from the Premises is not
impaired thereby and Tenant's reserved client parking spaces are not changed. .
37. HAZARDOUS MATERIALS:
(a) For the purpose of this Section and this Lease, the
following terms are defined as follows:
(1) "Hazardous Materials" shall mean any
substance: (A) that now or in the future is regulated or governed by, requires
investigation or remediation under, or is defined as a hazardous waste,
hazardous substance, pollutant or contaminant under any governmental statute,
code, ordinance, regulation, rule or order, and any amendment thereto, including
for example only and without limitation, the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq., and the
Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 et seq., or (B) that
is toxic, explosive, corrosive, flammable, radioactive, carcinogenic, dangerous
or otherwise hazardous, including for example only and without limitation,
gasoline, diesel, petroleum hydrocarbons, polychlorinated biphenyls (PCBs),
asbestos, radon and urea formaldehyde foam insulation.
(2) "Environmental Requirements" shall mean all
present and future governmental statutes, codes, ordinances, regulations, rules,
orders, permits, licenses, approvals, authorizations and other requirements of
any kind applicable to Hazardous Materials.
(3) "Handle," "Handled," or "Handling" shall
mean any installation, handling, generation, storing, treatment, use, disposal,
discharge, release, manufacture, refinement, presence, migration, emission,
abatement, removal, transportation, or any other activity of any type in
connection with or involving Hazardous Materials by Tenant or its officers,
employees, contractors, assignees, sublessees, agents or invitees.
(4) "Environmental Losses" shall mean all costs
and expenses of any kind, damages, foreseeable and unforeseeable consequential
damages, fines and penalties incurred in connection with any violation of and
compliance with Environmental Requirements and all losses of any kind
attributable to the diminution of value, loss of use or adverse effects on
marketability or use of any portion of the Premises, Building or Project.
(b) No Hazardous Materials shall be Handled at or about
the Premises, Building or Project without Landlord's prior written consent,
which consent may be granted, denied, or conditioned upon compliance with
Landlord's requirements, all in Landlord's absolute discretion. Notwithstanding
the foregoing, normal quantities and use of those Hazardous Materials
customarily used in the conduct of general office activities, for example,
copier fluids and cleaning supplies, may be used and stored at the Premises
without Landlord's prior written consent. Tenant's activities at or about the
Premises, Building or Project and the Handling of all Hazardous Materials shall
comply at all times with all Environmental Requirements. At the expiration or
termination of the Lease, Tenant shall promptly remove from the Premises,
Building or Project all Hazardous Materials Handled at the Premises, Building or
Project (but Tenant shall not be required to remove, or have any liability
whatsoever with respect to any Hazardous Materials not in any way Handled or
disturbed by Tenant or Tenant's Representatives). Tenant shall keep Landlord
fully and promptly informed of all Handling of Hazardous Materials.
(c) Tenant covenants and warrants that it shall, at its
own expense, promptly take all actions required by any governmental agency or
entity in connection with the Handling of Hazardous Materials at or about the
Premises, Building or Project, including without limitation, inspection and
testing, performing all cleanup, removal and remediation work required with
respect to those Hazardous Materials, complying with all closure requirements
and post-closure monitoring, and filing all required reports or plans. All of
the foregoing work and all Handling of all Hazardous Materials shall be
performed in a good, safe and workmanlike manner by consultants qualified and
licensed to undertake such work and in a manner that will not interfere with
Landlord's use, operation, leasing and sale of the Project and other tenants'
quiet enjoyment of their premises in the Property. Tenant shall deliver to
Landlord prior to delivery to any governmental agency, or promptly after receipt
from any such agency, copies of all permits, manifests, closure or remedial
action plans, notices, and all other documents relating to the Handling of
Hazardous Materials at or about the Premises, Building or Project. Tenant shall
remove at its own expense, by bond or otherwise, all liens or charges of any
kind filed or recorded against the Premises, Building or Project in connection
55
with the Handling of Hazardous Materials, within ten (10) days after the filing
or recording of such lien or charge, and if Tenant fails to do so, Landlord
shall have the right, but not the obligation, to remove the lien or charge at
Tenant's expense in any manner Landlord deems expedient.
(d) Landlord shall have the right, but not the
obligation, to enter the Premises at any reasonable time after reasonable prior
written notice to Tenant (i) to confirm Tenant's compliance with the provisions
of this Section, and (ii) to perform Tenant's obligations under this Section if
Tenant has failed to do so. Landlord shall also have the right to engage
qualified Hazardous Materials consultants to inspect the Premises and review the
Handling of Hazardous Materials, including review of all permits, reports,
plans, and other documents regarding same. Tenant shall pay the costs of
Landlord's consultants' fees and all costs incurred by Landlord in performing
Tenant's obligations under this Section. Landlord shall use reasonable efforts
to minimize any interference with Tenant's business caused by Landlord's entry
into the Premises, but Landlord shall not be responsible for any interference
caused thereby.
(e) Notwithstanding anything otherwise contained in this
Lease to the contrary, Tenant agrees that Tenant shall be responsible for any
Hazardous Materials that are brought into the Premises by Tenant, its agents,
representatives or employees and to that extent, Tenant agrees to indemnify,
defend and hold harmless Landlord and its partners and their directors,
officers, shareholders, employees and agents from all Environmental Losses and
all other claims, losses, damages, liabilities, costs and expenses of every
kind, including without limitation, reasonable attorneys' and consultants' fees
and costs, incurred at any time by Landlord from or in connection with the
Handling of Hazardous Materials at or about the Premises, Building or Project or
Tenant's failure to comply with all Environmental Requirements with respect to
the Premises.
(f) Landlord agrees to indemnify, defend and hold
harmless Tenant from all Environmental Losses and all other claims, losses,
damages, liabilities, costs and expenses of every kind, including without
limitation, reasonable attorneys' and consultants' fees and costs, incurred at
any time by Tenant resulting from claims, costs and liabilities with respect to
Hazardous Materials that are either (i) caused by Landlord (to the extent not
caused or contributed to by Tenant), or (ii) existing as of the Commencement
Date or (iii) not caused by Tenant..
(g) The respective obligations of each party under this
Section shall survive the expiration or termination of this Lease.
38. GENERAL PROVISIONS:
(a) Plats and Riders: Clauses, plats, and riders, if any,
signed by the Landlord and Tenant and endorsed on or affixed to this Lease are a
part hereof.
(b) Joint Obligation: If there be more than one Tenant,
the obligations hereunder imposed upon Tenant shall be joint and several.
(c) Marginal Headings: The marginal headings and titles
to the Paragraphs of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
(d) Time: Time is of the essence in this Lease and with
respect to each and all of its provisions in which performance is a factor.
(e) Quiet Possession: Upon Tenant paying the Rent
reserved hereunder, and observing and performing all of the covenants,
conditions, and provisions on Tenant's part to be observed and performed
hereunder, Tenant shall have quiet possession of the Premises for the entire
term hereof, subject to all the provisions of this Lease.
(f) Prior Agreements: This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned
in this Lease, and no prior agreements or understanding pertaining to any such
matters shall be effective for any purpose. No provision of this Lease may be
amended or added to except by an agreement in writing signed by the parties
hereto or their respective successors in interest. This Lease shall not be
effective or binding on any party until fully executed by both parties hereto.
(g) Inability to Perform: This Lease and the obligations
of Tenant hereunder shall not be affected or impaired because the Landlord is
unable to fulfill any of its obligations or furnish services and utilities
hereunder or is delayed in doing so, if such inability or delay is caused by
reason of acts of God, strikes, lockouts, labor troubles, inability to procure
materials, governmental laws or regulations, governmental requests for the
general public welfare, or other causes beyond the reasonable control of
Landlord.
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(h) Jury Trial: The parties hereto shall, and they hereby
do, waive trial by jury in any action, proceeding, or counterclaim brought by
either of the parties hereto against the other on any matters whatsoever arising
out of or in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of the Premises and/or any claim of injury or
damage.
(i) Limitation on Liability: In consideration of the
benefits accruing hereunder, Tenant and all successors and assigns covenant and
agree that, in the event of any actual or alleged failure, breach or default
hereunder by Landlord:
(1) Tenant's sole and exclusive recourse shall
be against Landlord's interest in the Project. Tenant shall not have any right
to satisfy any judgment which it may have against Landlord from any other assets
of Landlord;
(2) No partner, stockholder, director, officer,
employee, beneficiary or trustee (collectively, "Partner") of Landlord shall be
sued or named as a party in any suit or action (except as may be necessary to
secure jurisdiction over Landlord);
(3) No service of process shall be made against
any Partner of Landlord (except as may be necessary to secure jurisdiction over
Landlord);
(4) No Partner of Landlord shall be required to
answer or otherwise plead to any service of process;
(5) No judgment will be taken against any
Partner of Landlord;
(6) Any judgment taken against any Partner of
Landlord may be vacated and set aside at any time nunc pro tunc;
(7) No writ of execution will ever be levied
against the assets of any Partner of Landlord;
(8) These covenants and agreements are
enforceable both by Landlord and also by any Partner of Landlord.
(j) No Construction Against Drafter: The provisions of
this Lease shall be construed in accordance with the fair meaning of the
language used and shall not be strictly construed against either party. If the
parties delete any provision appearing in the original draft of this Lease, this
Lease will be interpreted as if the deleted language were never a part of this
Lease.
(k) Tenant's Remedies: If any provision of this Lease
expressly or impliedly obligates Landlord not to unreasonably withhold or delay
its consent or approval, an action for declaratory judgment or specific
performance shall be only one of Tenant's sole right and remedy in any dispute
as to whether Landlord has breached such obligation.
(l) Separability: Any provisions of this Lease which
shall prove to be invalid, void, and illegal shall in no way affect, impair, or
invalidate any other provision hereof, and such other provisions shall remain in
full force and effect.
(m) Choice of Law: This Lease shall be governed by the
laws of the Stateof California.
(n) Signs: Tenant shall be entitled to have its name and
the names of its employees listed in the electronic lobby directory for the
Building and a Tenant suite sign at or near the main entrance to the Premises
(collectively, "Standard Signage"). The Standard Signage is subject to
Landlord's review and approval, which approval shall not be unreasonably
withheld. Tenant shall not place any other signage (Non-Standard Signage") upon
any portion of the Project or the Premises without Landlord's prior written
consent which Landlord may withhold in its sole, good faith discretion, as to
the Project, and in its reasonable discretion, as to the Premises. The cost of
any Non-Standard Signage approved by Landlord shall be installed at Tenant's
sole cost and expense. Signage designating client parking spaces and signage for
Night Drop/ATM shall be deemed Non-Standard Signage. Exterior signage will be
provided to Tenant subject to City of Sacramento review and approval and at
Tenant's sole cost and expense. Tenant's exterior signage will be the only
exterior signage referring to a bank as a Tenant of the Building.
(o) Project Name: Tenant may use the name of the Project
in which the Premises are located in all Tenant's advertising in connection with
Tenant's business at the Premises and for no other purpose, except with
Landlord's consent. Tenant shall not have or acquire any property right or
interest in the name of the Project. Landlord reserves the right to change the
57
name, title, or address of the Project or the address of the Premises at any
time, and Tenant waives all claims for damages caused by such change.
(p) Late Charges: Tenant acknowledges that late payment
by Tenant to Landlord of Rent will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such costs being extremely
difficult and impracticable to fix. Such costs include, without limitation,
processing charges, accounting charges, and late charges that may be imposed on
Landlord by the terms of any encumbrance and note secured by any encumbrance
covering the Premises. Therefore, if any delinquent installment of Rent or other
sums due from Tenant is not received by Landlord on the date same are due,
Tenant shall pay to Landlord an additional sum equal to five percent (5.00%) of
such overdue amount as a late charge. The parties agree that this late charge
represents a fair and reasonable estimate of the administrative and other costs
that Landlord will incur by reason of late payment by Tenant. Acceptance of any
late charge shall not constitute a waiver of Tenant's default with respect to
the overdue amount, nor prevent Landlord from exercising any of the other rights
and remedies available to Landlord.
(q) Interest: Notwithstanding any other provisions of
this Lease, any installment of Rent or other amounts due under this Lease not
paid to Landlord when due and after prior written notice and opportunity to cure
shall bear interest from the date due or from the date of expenditure by
Landlord for the account of Tenant, until the same have been fully paid, at a
rate per annum which is equal to the Prime Rate, plus two (2) percentage points,
but not to exceed the highest rate permitted under applicable law. The payment
of such interest shall not constitute a waiver of any default by Tenant
hereunder.
(r) Attorneys' Fees: If any action for breach of or to
enforce the provisions of this Lease is commenced, the court in such action
shall award to the party in whose favor a judgment is entered, a reasonable sum
as attorneys' fees and costs. The losing party in such action shall pay such
attorneys' fees and costs. Tenant shall also indemnify Landlord against and hold
Landlord harmless from all costs, expenses, demands and liability Landlord may
incur if Landlord becomes or is made a party to any claim or action (a)
instituted by Tenant against any third party, or by any third party against
Tenant, or by or against any person holding any interest under or using the
Project by license of or agreement with Tenant; (b) for foreclosure of any lien
for labor or material furnished to or for Tenant or such other person; (c)
otherwise arising out of or resulting from any act or transaction of Tenant or
such other person; or (d) necessary to protect Landlord's interest under this
Lease in a bankruptcy proceeding, or other proceeding under Title 11 of the
United States Code, as amended. Tenant shall defend Landlord against any such
claim or action at Tenant's expense with counsel reasonably acceptable to
Landlord, or at Landlord's election, Tenant shall reimburse Landlord for any
legal fees or costs Landlord incurs in any such claim or action.
(s) Modification: This Lease contains the entire
agreement between the parties relating to the rights herein granted and the
obligations herein assumed. Any oral representations or modifications concerning
this Lease shall be of no force or effect, excepting a subsequent modification
in writing signed by the party to be charged.
(t) Execution: Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of or an
option for lease, and it is not effective as a lease or otherwise until
execution and delivery by both Landlord and Tenant.
(u) Successors and Assigns: Subject to the provisions of
Section 15, this Lease and each of its covenants and conditions shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, legal representatives, successors and assigns.
(v) Waiver of California Code Sections: Notwithstanding
any other provision of this Lease and in addition to any waivers which may be
contained in this Lease, but to the extent such waiver does not violate other
laws or is against public policy, Tenant waives the provisions of Civil Code
Sections 1932(2) and 1933(4) with respect to the destruction of the Premises;
Civil Code Sections 1932(1), 1941 and 1942 with respect to Landlord's repair
duties and Tenant's right of repair; and Code of Civil Procedure Section
1265.130 allowing either party to petition the Superior Court to terminate this
Lease in the event of a partial taking of the Premises for public or
quasi-public use by statute, by right of imminent domain, or by purchase in lieu
of imminent domain; and any right of redemption or reinstatement of Tenant under
any present of future case law or statutory provision (including Code of Civil
Procedure Sections 473, 1174(c) and 1179 and Civil Code Section 3275) in the
event Tenant is dispossessed from the premises for any reason. This waiver
applies to future statutes enacted in addition or in substitution to the statue
specified herein, and this waiver shall apply even though Tenant may be the
subject of a voluntary or involuntary petition in bankruptcy.
(w) Force Majeure: In the event Landlord is delayed,
interrupted or prevented from performing any of its obligations under this
Lease, including its obligations under the Work Letter Agreement, and such
delay, interruption or prevention is due to fire, act of God, governmental act,
strike, labor dispute, unavailability of materials or any other cause outside
the reasonable control of such party (excepting, however, such party's financial
58
inability), then the time for performance of the affected obligations of such
party shall be extended for a period equivalent to the period of such delay,
interruption or prevention .
(x) Government Energy or Utility Controls: In the event
of imposition of federal, state or local governmental controls, regulations or
restrictions on the use or consumption of energy or other utilities during the
term, both Landlord and Tenant shall be bound thereby.
(y) Accord and Satisfaction; Allocation of Payments: No
payment by Tenant or receipt by Landlord of a lesser amount than the Rent
provided for in this Lease shall be deemed to be other than account of the
earliest due Rent, nor shall any endorsement or statement on any check or letter
accompanying any check or payment as Rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of the Rent or pursue any other remedy provided for
in this Lease. In connection with the foregoing, Landlord shall have the
absolute right in its sole discretion to apply any payment received from Tenant
to any account or other payment of Tenant which is then due or delinquent.
(z) Changes Requested by Lender: Neither Landlord nor
Tenant shall unreasonably withhold its consent to changes or amendments to this
Lease requested by the lender on Landlord's interest, so long as these changes
do not alter the basic business terms of this Lease or otherwise diminish any
right or increase any obligations of the party for whom consent to such change
or amendment is requested.
(aa) Furnishing Annual Reports: In order to induce
Landlord to enter into this Lease, prior to the Commencement Date, Tenant agrees
that it shall promptly furnish Landlord, from time to time, upon Landlord's
written request, with its annual report reflecting Tenant's current financial
condition, Tenant represents and warrants that all financial information
furnished by Tenant to Landlord in connection with the Lease are true, correct
and complete in all respects.
(bb) Objection to Statements: Except as otherwise set
forth in this Lease, Tenant's failure to object to any statement, invoice or
billing rendered by Landlord within a period of thirty (30) days after receipt
thereof shall constitute Tenant's acquiesce with respect thereto and shall
render such statement, invoice or billing an account stated between Landlord and
Tenant.
(cc) Recording: Tenant shall not record this Lease or a
memorandum thereof, or any other reference to this Lease, without the prior
written consent of Landlord. Tenant, upon the request of Landlord, shall execute
and acknowledge a "short form" memorandum of this Lease for recording purposes.
(dd) Execution of Lease, No Options: The submission of
this Lease to Tenant shall be for examination purposes only, and does not and
shall not constitute a reservation of or option for Tenant to Lease, or
otherwise created any interest of Tenant in the Premises or any other Premises
within the Building. Execution of this Lease by Tenant and its return to
Landlord shall not be binding on Landlord notwithstanding any time interval,
until Landlord has in fact signed and delivered this Lease to Tenant.
(ee) Public Transportation Programs: Tenant hereby agrees
to designate one of its employees to act as a liaison with Landlord to
facilitate and coordinate such programs as may be required by governmental
agencies to reduce the traffic generated by the Project as required by the City
of Sacramento's Trip Reduction Ordinance or any governmental department, and to
facilitate the use of public transportation.
39. NOTICES: All notices and demands required to be sent to the
Landlord or Tenant under the terms of this Lease shall be personally delivered
or sent by certified mail, postage prepaid or by overnight courier (i.e.,
Federal Express), to the addresses indicated in the Basic Lease Information, or
to such other addresses as the parties may from time to time designate by notice
pursuant to this Paragraph. Notices shall be deemed received upon the earlier of
(i) if personally delivered, the date of delivery to the address of the person
to receive such notice (ii) if mailed, two (2) days following the date of
posting by the U.S. Postal Service, and (iii) if by overnight courier, on the
business day following the deposit of such notice with such courier.
40. SECURITY: Landlord shall arrange for a lobby attendant to be
present during Building hours, as well as after hours until 9:00 p.m. The cost
of Building security will be included as an Operating Expense of the Building.
41. EXPANSION RIGHTS: Tenant shall have a continuing right of
first offer on all contiguous space.
59
42. DEPOSIT NIGHT DROP: At the time determined by Tenant, in its
sole discretion, that it desires to have a Night Drop and/or ATM installed on or
around the Project, it shall so advise the Landlord in writing of such
determination and, therafter, Landlord and Tenant agree that they will use
commercially reasonable best efforts to mutually and diligently plan, locate,
and design a deposit Night Drop/ATM to meet the retail banking needs of the
Tenant. Landlord agrees that said location may include, but not be limited to, a
site outside of the Building accessible by pedestrian traffic as a walk-up kiosk
or by motor vihicles as a drive-up kiosk or both; or it may be a
through-the-wall unit accessible from the Building's first floor lobby in the
rear of the Building (South entrance). The cost of design, permitting,
materials, and installation of the deposit night drop will be part of the tenant
improvement allowance ("Allowance") or will be paid for by Tenant in the event
the Allowance has been entirely used during tenant improvement work. Landlord
agrees that no additional costs shall be assessed to Tenant as rent applicable
to the installation oand placement of such ATMs and/or Night Drop facilities and
such shall be considered one of the Tenant's improvements and shall be subject
to all provisions of the Lease which govern such improvements.
43. ROOF SATELLITE DISH/ANTENNA: Notwithstanding anything
contained herein to the contrary, Tennat is permitted to install a satelllite
dish or an antenna on the roof of the Premises pursuant to Landlord's reasonable
approval as to location and size but which shall be owned and controlled by
Tenant. Any damage caused to the roof by Tenant as a result of such
installation, its repair, and/or removal shall be repaired by Tenant at Tenant's
sole cost. Such satellite dish shall be considered one of Tenant's Improvements
and shall be subject to all provisions of the Lease which govern such
Improvements.
IN WITNESS WHEREOF, this Lease is executed on the date and year first
above written.
LANDLORD: TENANT:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇., a Delaware AMERICAN RIVER BANK,
corporation a CALIF. corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-------------------------------- ------------------------------------
Its: Vice President/CFO Its: President / CEO
-------------------------------- ------------------------------------
Date: August 21, 2003 Date: 8-19-03
------------------------------- -----------------------------------
60
EXHIBIT A
DESCRIPTION OF PREMISES
61
EXHIBIT A-1
Tenant space plan
62
EXHIBIT A-2
Preliminary tenant improvement cost itemization
63
EXHIBIT B
WORK LETTER AGREEMENT
Ladies and Gentlemen:
You (hereinafter called "Tenant") and we (hereinafter called
"Landlord") are executing simultaneously with this Work Letter Agreement
("Agreement"), a written Lease Agreement (the "Lease") covering those certain
premises more particularly described in Exhibits A and A-1 to the Lease (the
"Premises") in the building addressed at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇.
To induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this agreement
may apply thereto) and in consideration of the mutual covenants hereinafter
contained, Landlord and Tenant mutually agree as follows:
1. DEFINITIONS. Unless otherwise defined in this Agreement, the
capitalized terms used herein shall have the meaning assigned to them in the
Lease.
2. REPRESENTATIVES. Landlord hereby appoints ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as
Landlord's representative to act for Landlord in all matters covered by this
Agreement. Each named Landlord representative has the authority to act for
Landlord in all matters covered by this Agreement. Tenant hereby appoints
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Tenant's representative to act for Tenant in all matters
covered by this Agreement. All inquiries, requests, instructions, authorizations
and other communications with respect to the matters covered by this Agreement
shall be related to Landlord's representative or Tenant's representative, as the
case may be. Neither Landlord or Tenant will not make any inquiries of or
request to, and will not give any instructions or authorizations to, any other
employee or agent of the other's, including the other's architects, engineers,
and contractors or any of their agents or employees, with regard to matters
covered by this Agreement. Either Landlord or Tenant may change its
representative at any time by written notice to the other party.
3. TENANT SPACE PLAN AND PRELIMINARY Tenant IMPROVEMENT COST
ITEMIZATION. Within thirty (30) days following the mutual execution of the
Lease, Tenant, through its architect , shall deliver to Landlord a preliminary
space layout and improvement plan for the Premises ("Tenant Space Plan") for
Landlord's approval. Tenant shall incorporate all reasonable revisions requested
by Landlord. Within ten (10) business days following Landlord's approval of the
Tenant Space Plan, Landlord shall deliver to Tenant an estimate of the cost of
constructing the improvements to the Premises desired by Tenant ("Preliminary
Tenant Improvement Cost Itemization"). Within ten (10) business days following
Tenant's receipt of such document, Tenant shall approve or disapprove of such
total estimate by delivery of written notice to Landlord.
4. TENANT WORKING DRAWINGS. Based upon the approved Tenant Space
Plan, Tenant will, through Tenant's architect or space planner, cause working
drawings for the improvements to the Premises (the "Tenant Working Drawings") to
be prepared and delivered to Landlord within thirty (30) days following Tenant's
approval of the Preliminary Tenant Improvement Cost Itemization. The Tenant
Working Drawings will include all architectural, mechanical and electrical
engineering plans required for the issuance of permits and the completion of the
leasehold improvements including complete detailed plans and specifications for
Tenant's partition layout, reflected ceiling, heating and air conditioning,
electrical outlets and switches, telephone outlets, plumbing, fire sprinklers
and fire alarm, and finish specifications. It is further agreed that all plans
and specifications referred to in this Paragraph 4 above are subject to
Landlord's approval, which Landlord agrees shall not be unreasonably withheld or
delayed. Excepting compliance with law, Tenant's preparation or approval of the
Tenant Working Drawings, the Tenant Space Plan and any other plans or
specifications shall not constitute any representation as to the adequacy,
efficiency, performance or desirability of any space plan or improvements.
5. COST OF CONSTRUCTION AND PLANS. In connection with the Tenant
Improvements to be constructed by Landlord, Landlord shall contribute the
following allowance (the "Allowance"): (i) an amount equal to the lesser of $45
per square foot of usable area in the Premises toward the cost of architectural
design, working drawings, governmental permits, construction and installation of
Tenant Improvements, or (ii) the actual cost of architectural design, working
drawings, governmental permits, construction and installation of Tenant
Improvements. The balance, if any, of the cost in completing the Tenant
Improvements (the "Above-Allowance Work"), shall be paid to Landlord in
accordance with Paragraph 11 below. If the total cost of completing the Tenant
Improvements is less than the amount set forth in clause (i) above, any savings
shall inure to the benefit of Tenant.
6. FINAL TENANT COST PROPOSAL. At the time Tenant's architect
delivers the Tenant Working Drawings, Landlord will provide Tenant a final cost
proposal for the Premises in accordance with the Tenant Working Drawings (the
"Final Tenant Cost Proposal"). The Final Tenant Cost Proposal will be based on
64
actual bids received by three contractors, one of which will be selected by the
Tenant, and shall set forth the cost, if any, to Tenant of constructing the
Above-Allowance Work.
7. APPROVAL OF TENANT WORKING DRAWINGS AND FINAL TENANT COST
PROPOSAL. Tenant will deliver to Landlord written approval of the executed Final
Tenant Cost Proposal within five (5) business days after Tenant receipt. If the
total cost of the leasehold improvements as shown on the Final Tenant Cost
Proposal is less than the dollar amount shown in clause (i) of Paragraph 6
above, Tenant shall be entitled to the savings. Landlord shall use reasonable
care in preparing the Final Tenant Cost Proposal; provided, however, that the
Final Tenant Cost Proposal shall not limit Tenant's obligation to pay the actual
cost of the Above-Allowance Work if such cost is attributable to: (i) any
changes in the Tenant Working Drawings required by the governmental authority
issuing the building permits for the leasehold improvements; or (ii) any
changes, modifications, or change orders requested by Tenant; or (iii) any delay
by Tenant enumerated in Paragraph 12 below that increases the cost of
construction.
8. MODIFICATIONS TO TENANT WORKING DRAWINGS AND FINAL TENANT COST
PROPOSAL. If Tenant timely rejects the Final Tenant Cost Proposal, Tenant will
have a period of fifteen (15) days after such rejection during which it may have
the changes made to the plans for improvements to the Premises. During such
fifteen business-day period, Landlord's representative will be available for a
cost reduction consultation with Tenant. Landlord will act in a reasonably
diligent manner in approving or rejecting modifications to the Tenant Working
Drawings. Each day after such fifteen business-day period until Tenant approves
revised Tenant Working Drawings and executes and returns to Landlord a revised
Final Tenant Cost Proposal will constitute a delay chargeable to Tenant. If
Tenant fails to execute a revised Final Tenant Cost Proposal within the time
period in this Paragraph, Landlord will have the right, at any time after the
end of that time period to submit to Tenant a revised Final Tenant Cost
Proposal.
9. EFFECT OF APPROVAL. Tenant's approval of Tenant Working
Drawings (initial or revised) will constitute Tenant's acknowledgment that such
drawings correctly depict the proper layout and design for any and all
improvements to the Premises desired by Tenant. Tenant's execution of a Final
Tenant Cost Proposal will constitute authorization to Landlord to proceed with
and complete construction of the leasehold improvements in the Premises. All of
the work called for by the Tenant Working Drawings will be performed by one or
more contractors engaged by Landlord. Following approval of the Tenant Working
Drawings and the Final Tenant Cost Proposal, Landlord will submit the Tenant
Working Drawings to the appropriate governmental authorities for necessary
approvals and building permits.
10. PAYMENT FOR ABOVE-ALLOWANCE WORK. Upon completion of all work
and acceptance by Tenant of said work, Tenant will pay to Landlord one hundred
percent (100.00%) of the cost of the Above-Allowance Work. All amounts payable
by Tenant under this Agreement shall constitute additional rent under the Lease,
and Landlord shall have the same remedies against Tenant for default in the
payment thereof as in the case of Tenant's failure to pay any other sum due
under the Lease. The terms of this Section 10. shall apply to any Tenant
authorized change orders which individually or collectively exceed the
Landlord's Tenant Improvement Allowance.
11. COMPLETION AND RENTAL COMMENCEMENT DATE. Each of the following
shall be deemed a "Tenant Delay" for the purposes of establishing the
Commencement Date of the Lease:
(a) Tenant's failure to have Tenant's Working Drawings
prepared by Tenant's architect by September 30, 2003 or Tenant's failure to
timely (in accordance with this Agreement) approve the Working Drawings and
Final Tenant Improvement Cost Itemization.
(b) Tenant's request for new work involving
Above-Allowance Work; or
(c) modifications, revisions and changes to the Tenant
Space Plan or Tenant Working Drawings requested by or on behalf of Tenant; or
(d) changes in the work requested by or on behalf of
Tenant or orders to halt or delay the work given by or on behalf of Tenant; or
(e) any delay in the completion of the work caused by
Tenant's contractors or materials suppliers; or
(f) any other delay of any kind or nature caused by
Tenant or its contractors, architects, space planners or other agents or
employees.
65
Unless in any of the above instances there is not a
substantial or materially adverse delay or if the instance causes a time savings
instead of a delay, then not deemed a "Tenant Delay". In the event that Landlord
reasonably believes that a Tenant Delay has occurred which will result in the
Commencement Date occurring more than six (6) months after the Estimated
Delivery Date, then Landlord shall have the right, in addition to any other
remedy provided for in the Lease, to terminate this Lease upon written notice to
Tenant and thereafter both parties shall be relieved of all obligations under
the Lease thereafter accruing.
12. PUNCH LIST PROCEDURE. Following Landlord's Substantial
Completion of the leasehold improvements, but prior to the date that Tenant
commences its fixturization, Landlord and Tenant shall inspect the Premises and
jointly prepare a punch list of agreed upon items of construction remaining to
be completed by Landlord. Landlord shall complete the items (except any
long-lead items which it will do diligently to completion) set forth in the
punch list within thirty (30) days after the preparation of the punch list.
13. CHANGE ORDERS. Tenant may authorize changes in the work during
construction only by written instructions to Landlord's representative on a form
approved by Landlord. Also, such changes will be subject to Landlord's prior
written approval. Before commencing any change, Landlord will prepare and
deliver to Tenant, for Tenant's approval, the change order setting forth the
cost of such change, which will include associated architectural, engineering
and construction fees, if any, and the cost of such change for Landlord's
contractor's overhead. If Tenant fails to approve such change order within three
(3) days, Tenant will be deemed to have withdrawn the proposed change and
Landlord will not proceed to perform that change.
14. ACCESS TO PREMISES PRIOR TO DELIVERY. Landlord shall allow
Tenant and its contractors to enter the Premises at reasonable times prior to
the Commencement Date to permit Tenant to install its cabling for telephone,
computers, work stations and security system, or other work, if any; provided,
however, that prior to such entry into the Premises, Tenant shall provide
evidence reasonably satisfactory to Landlord that the insurance required to be
carried by Tenant pursuant to the terms of the Lease shall be in full force and
effect at the time of such entry. Tenant and its representatives shall not
interfere with Landlord or Landlord's contractor in completing the work required
of Landlord under this Agreement and Tenant and its representatives shall be
subject to all directives of Landlord and Landlord's contractors in connection
with such entry as well as the use of the Building's common areas, restrooms,
elevators, truck loading areas and other facilities. Tenant expressly agrees
that its contractors shall not play radios, smoke cigarettes, leave trash in the
Premises or park their motor vehicles in any portion of the Building's parking
lot, except in the area designated by Landlord for such vehicles. Prior to the
commencement of any construction in the Premises, Tenant shall provide
Landlord's representative a proposed work schedule for Tenant's contractors and
other representation, which schedule shall be subject to Landlord's reasonable
approval.
Tenant agrees that Landlord shall not be liable in any way for
any injury, loss or damage which may occur to any of Tenant's property placed
upon or installed in the Premises prior to the Commencement Date, the same being
at Tenant's sole risk, and Tenant shall be liable for all injury, loss or damage
to persons or property arising as a result of such entry of the Premises by
Tenant or its representatives.
15. NO ROOF ACCESS. Tenant agrees that neither this Agreement nor
the Lease grants Tenant any right of access to the roof of the Building. Should
Landlord, in connection with this Agreement or the Lease, agree to mount
equipment of any nature on the Building roof, such equipment shall, at
Landlord's option, either be maintained and installed by Landlord, or maintained
and installed under Landlord's direction, unless this Agreement expressly
provides otherwise, all at Tenant's expense. Should this Agreement or the Lease
permit Tenant to install any equipment on the roof, any modifications to the
roof or the roof's structure to accommodate that equipment shall be made at
Tenant's sole cost and expense provided Tenant has approved such cost in advance
of any such installation.
16. EXCESSIVE LOADS. Tenant agrees that should the nature of its
layout or any of its equipment, fixtures or furnishings to be placed in the
Premises place a burden in excess of the Building's designed load (which is 80
pounds per square foot partition load), Tenant agrees to pay Landlord the cost
of any modifications to the Building necessary to accommodate Tenant's
furniture, furnishings or layout, as well as any design, engineering or other
professional fees incurred by Landlord in connection with such modifications
provided Tenant has approved such cost in advance of any such installation..
17. ALTERATIONS. Any alterations or improvements described by
Tenant after Landlord's delivery of the Premises shall be subject to the
provisions of the Lease.
18. FORCE MAJEURE DELAYS. For purposes of this Agreement "Force
Majeure Delays" shall mean any actual delay beyond the reasonable control of
Landlord in construction of the Tenant Improvements, which is not a Tenant Delay
and which is caused by, without limitation, any one or more of the following:
66
(a) Strikes or labor disturbances;
(b) War;
(c) Fire;
(d) Earthquake, flood or other natural disaster;
(e) Unusual and unforeseeable delay not within the reasonable
control of Landlord or its General Contractor or its General Contractor's
subcontractors (excluding financial inability) in transportation of materials or
equipment and the unavailability of reasonable substitutes therefore ,provided
such items are for Tenant and/or Tenant's Premises;
(f) Casualties; or
(g) Governmental action or inaction (including failure,
refusal or delay in issuing permits, approvals and/or authorizations) or
injunction, permit appeal or court order requiring cessation of construction
taking place in the Premises and/or the Project.
If the foregoing correctly sets forth our understanding,
please sign this Agreement where indicated below.
LANDLORD: TENANT:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇., a Delaware AMERICAN RIVER BANK
corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-------------------------------- ------------------------------------
Its: Vice President/CFO Its: President / CEO
-------------------------------- ------------------------------------
Date: August 21, 2003 Date: 8-19-03
------------------------------- -----------------------------------
Address: Address:
----------------------------- ---------------------------------
------------------------------------ -----------------------------------------
67
EXHIBIT B-1
TENANT IMPROVEMENT STANDARD SPECIFICATIONS
1. NON-RATED PARTITION
a. 2-1/2" or 3 -5/8" x 25 gauge metal studs at 24" o.c.
b. 5/8" gypsum board one (1) layer each side
c. Level four finish, with Smooth Texture
d. Partition height to extend to underside of finished ceiling,
unless noted on plans.
2. WOOD DOORS
a. 3'-0" x 8'- 10" solid core, plain sliced white maple veneer
w/l
b. WIC Custom/Premium Grade
c. 20 minutes rated/labeled (as required)
d. Pre-finished to match architect's sample
3. METAL DOOR FRAMES
a. AAF Architectural Components: Aluminum "Standard" Profile,
Finish: Clear Anodized
b. 3'-0" x 8'-10"
c. 20 minute rated/labeled (as required)
4. HARDWARE
a. Lockset: Shell: L Series, Mortised - 03A(Lever)-
626 Satin Finish
Tenant: D Series, Cylindrical -
Sparta(Lever) - 626 Satin Finish
b. Hinges: ▇▇▇▇▇ No. BB1279, 4-1/2 x 4-1/2 size, 2 pair
per door, 626 Satin Finish
c. Entrance Closer: Dorma TS93-1 x 689
d. Doorstop: ▇▇▇▇▇ 230W x 630
5. ACOUSTICAL CEILING
a. 15/16" grid. Exposed White
b. USG: Radar Illusion 2 x 4 x 3/4. Item No.: 2742 ME2742
c.
68
6. CARPET
Manufacturer: ▇▇▇▇
Style: Pattern Loop / Movement or Equal
a. Upgraded 100% Solution Dyed nylon, graphic loop pile carpet
b. Density - 6,109 oz./yd3
c. 1/10 gauge, 12.0 Stitches per inch
d. Polypropylene backing
e. Direct glue installation
7. BASE
▇. ▇▇▇▇▇
b. 4" rubber base. (Coved for VCT, straight for carpet.)
c. Color selections per standard color chart
8. RESILIENT FLOORING
a. VCT: Manningtion Commercial Inspirations 12" x 12" x 1/8"
thick or equal
9. PAINTING
a. Walls
(1) Flat latex finish
(2) Color selections per Landlord's standard color chart
(3) Paint to be two coats
10. LIGHT FIXTURE
a. Lithonia 2 x 4
b. 3 Lamp, T-8, warm white fluorescent
c. Electronic ballasts
d. 18 cell parabolic louver, semi-specular silver finish
69
11. LIGHT SWITCHES
a. Standard switch-paired in double gang box to meet CAC Title 24
▇. ▇▇▇▇▇ colored plastic cover plate
12. ELECTRICAL WALL OUTLET
a. Leviton 120 V duplex
▇. ▇▇▇▇▇ colored plastic cover plate
13. TELEPHONE WALL JUNCTION BOX
a. Junction box with ring and pull wire in wall
b. Cover plate by telephone company to match white electrical
wall outlet
14. WINDOW COVERING
Manufacturer: ▇▇▇▇▇▇
a. 12-3/4% Perforated Vertical Blinds
b. Color: Ivory
16. HVAC
a. Heating and air conditioning will be provided throughout the
leased space in accordance with industry standard engineering
practices
17. EXIT LIGHT
a. Manufacturer: Lithonia: Type, # LQMSW3G-120/277-EL
18. PLASTIC LAMINATE
a. Manufacturer: Wilsonart, Formica, Nevamar, Pionite, or Equal
19. FIRE EXTINGUISHERS
a. Semi Recessed Fire Extinguisher Cabinet
b. 2A10BC Fire Extinguisher
70
20. UPGRADES
a. Millwork
b. Wall covering
c. Side Light
d. Downlight
(1) Capri
(2) 2 lamp fluorescent
(3) Clear Alzark reflector
(4) 6" aperture
21. FIBER OPTIC
71
EXHIBIT C
FIRST AMENDMENT TO LEASE AND ACKNOWLEDGEMENT
This First Amendment to Lease and Acknowledgement (Address: ) is made
as of _______________, 20__, with reference to that certain Lease Agreement
("Lease") by and between ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Inc., a Delaware corporation, as
"Landlord" therein, and American River Bank, a _____________ corporation, as
"Tenant" therein, regarding that certain premises ("Premises") located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and which is more particularly
described in the Lease.
The undersigned hereby confirms the following and the provisions of the
Lease are hereby amended by the following:
1. That Tenant accepted possession of the Premises from Landlord
on ________________________, 20___, and acknowledges that the Premises are as
represented by Landlord, in good condition and repair; and that the
improvements, if any, required to be constructed for Tenant by Landlord pursuant
to the Lease, have been so constructed and are satisfactory completed in all
respects, excepting _______________________________.
2. That all conditions which are to be satisfied prior to the
full effectiveness of the Lease have been satisfied and that Landlord has
fulfilled all of its duties of an inducement nature, except
______________________________________________..
3. That in accordance with Section 4 of the Lease, the
Commencement Date is ____________________, 20___, and that, unless sooner
terminated, the Expiration Date is _______________.
4. That the Lease is in full force and effect and that the same
represents the entire agreement between Landlord and Tenant concerning Tenant's
lease of the Premises.
5. That there are no existing defenses known to Tenant at this
time which Tenant has against the enforcement of the Lease by Landlord, and no
offsets or credits against any amounts owed by Tenant pursuant to the Lease.
6. That Tenant's obligations to pay the Rent is presently in
effect and that all rentals, charges and other obligations on the part of Tenant
under the Lease commences to accrue on ___________________, 20___.
7. That Tenant has not made any prior assignment, hypothecation
or pledge of the Lease or of the rents thereunder.
8. Except as modified herein, the Lease remains in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date set forth below.
LANDLORD: TENANT:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇., a Delaware AMERICAN RIVER BANK,
corporation a _________ corporation
By: By:
-------------------------------- ------------------------------------
Its: Its:
-------------------------------- ------------------------------------
Date: Date:
------------------------------- -----------------------------------
Address: Address:
----------------------------- ---------------------------------
------------------------------------ -----------------------------------------
72
EXHIBIT D
EXCLUSIONS FROM OPERATING EXPENSES
Notwithstanding anything to the contrary in the definition of
"Operating Expenses" as set forth in Section 7(a)(3) of the Lease, Operating
Expenses shall be defined so as to exclude the following:
1. Any ground or underlying lease rental;
2. Bad debt expenses and interest, principal, points and fees on
debts, bad debt expenses or amortization on any mortgage or other debt
instrument encumbering the Building or the Property;
3. Costs of a capital nature, including, without limitation,
capital repairs, capital replacements, capital improvement, capital equipment
and capital tools, all as determined in accordance with generally accepted
accounting principles ("GAAP"), consistently applied (including any such costs
relating to any governmentally required improvements, alterations or repairs
performed by Landlord or its employees, contractors, agents or licensees);
except for the amortized portion of such over the useful life, as determined by
GAAP, of such capital expenditures;
4. Costs incurred by Landlord for repair of damage to the
Building to the extent that Landlord is reimbursed by insurance proceeds;
5. Marketing costs, including leasing commissions, attorneys'
fees (in connection with the negotiation and preparation of letters, deal memos,
letters of intent, leases, subleases and/or assignments), space planning costs,
and other costs and expenses incurred in connection with lease, sublease and/or
assignment negotiations and transactions with present or prospective tenants or
other occupants of the Building;
6. Costs, including permit, license and inspection costs,
incurred with respect to the installation of tenants' or other occupants'
improvements made for tenants or other occupants in the Building or incurred in
renovating or otherwise improving, decorating, painting or redecorating vacant
space for tenants or other occupants of the Building;
7. Amount of the management fee paid or charged by Landlord in
connection with the management of the Building and Property to the extent such
management fee is in excess of the management fee customarily paid or charged by
landlords of comparable buildings in the vicinity of the Building;
8. Notwithstanding any contrary provision of the Lease,
including, without limitation, any provision relating to capital expenditures,
costs arising from the presence of Hazardous Materials, which Landlord is
obligated to remediate in accordance with the provisions of the Lease; General
or special, ad valorem or specific, excise, capital levy or other tax,
assessment, levy or charge directly on the rent received under this Lease or on
the rent received under any other leases of space in the Building or the
Project, or (2) any license fee, excise or franchise tax, assessment, levy or
charge measured by or based, in whole or in part upon such rent, or (3) any
transfer, transaction, or similar tax, assessment, levy or charge based directly
or indirectly upon the transaction represented by this Lease or such other
leases, or (4) any occupancy, use, per capita or other tax, assessment, levy or
charge based directly or indirectly upon the use or occupancy of the Premises or
other premises within the Building or the Project
9. Costs (including in connection therewith all attorneys' fees
and costs of settlement judgments and payments in lieu thereof) arising from
claims, disputes or potential disputes in connection with potential or actual
claims litigation or arbitrations pertaining to Landlord and/or the Building
and/or the Property and the Project;
10. Electric power costs or other utility costs for which any
tenant directly contracts with the local public service company (but Landlord
shall have the right to "gross up" as if such tenants' space was occupied; and
11. Costs incurred in connection with the original construction of
the Building or in connection with any major change in the Building, such as
adding or deleting floors.
12. Costs of alterations or improvements of Tenant's Premises of
the premises of other tenants.
13. Costs of correcting defects in or inadequacy of the initial
design or construction of the Building.
14. Expenses directly resulting from the negligence of the
Landlord, its agents, servants or employees.
73
15. The expense of extraordinary services provided to other
tenants in the Building.
16. Costs associated with the operation of the business of the
partnership or entity which constitutes Landlord as the same are distinguished
from the costs of operation of the Building, including partnership accounting
and legal matters, costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Building, costs of any disputes
between Landlord and its employees (if any) not engaged in Building operation,
disputes of Landlord with Building Management, or outside fees paid in
connection with disputes with other tenants.
17. The wages of any employee who does not devote substantially
all of his time to the Building or are not allocated accordingly.
18. Fines, penalties, and interest.
19. Advertising and promotional expenses
Operating Expenses shall be reduced by all cash discounts, trade
discounts, or quantity discounts received by Landlord or Landlord's managing
agent in the purchase of any goods, utilities, or services in connection with
the operation of the Building. Landlord shall make payments for goods, utilities
and services in a timely manner to obtain the maximum possible discount.
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EXHIBIT E
RULES AND REGULATIONS
1. Landlord shall have the right to control and operate the
public portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best for
the benefit of the tenants generally. No tenant shall invite to the demised
Premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of the entrances,
corridors, elevators and facilities of the Building by other tenants.
2. Landlord reserves the right to close and keep locked all
entrance and exit doors of the Building outside of normal business hours as
Landlord may deem to be advisable for the protection of the property. All
tenants, their employees, or other persons entering or leaving the Building at
any time when it is so locked may be required to sign the Building register when
so doing, and the watchman in charge may refuse to admit to the Building while
it is so locked Tenant or any of Tenant's employees, or any other person,
without a pass previously arranged, or other satisfactory identification showing
his right of access to the Building at such time. Landlord assumes no
responsibility and shall not be liable for any damage resulting from any error
in regard to any such pass or identification, or from the admission of any
unauthorized person to the Building.
3. Landlord reserves the right to exclude or expel from the
Building or in regard to any such pass or identification, or from the admission
of any unauthorized person to the Building, or any person who, in the judgment
of Landlord, is intoxicated or under the influence of liquor or drugs, or who
shall in any manner do any act in violation of any of the Rules and Regulations
of the Building or in violation of any law, order, ordinance, or governmental
regulation.
4. The entries, corridors, stairways and elevators shall not be
obstructed by any tenant, or used for any other purpose than ingress or egress
to and from its respective offices. Tenant shall not bring into or keep within
the Building any animal or vehicle, other than those for the disabled and/or for
delivery purposes..
5. Freight, furniture, business equipment, merchandise and bulky
matter of any description ordinarily shall be delivered to and removed from the
demised Premises only in the designated freight elevator and through the service
entrances and corridors, but special arrangements will be made for moving large
quantities or heavy items of equipment and supplies into or out of the Building.
6. All entrance doors in the demised Premises shall be left
locked when the demised Premises are not in use.
7. INTENTIONALLY DELETED
8. Canvassing, soliciting or peddling in the Building is
prohibited and each tenant shall cooperate to prevent the same.
9. INTENTIONALLY DELETED
10. The drinking fountains, lavatories, water closets and urinals
shall not be used for any purpose other than those for which they were
installed.
11. No awnings or other projections over or around the windows or
entrances of the demised Premises shall be installed by any tenant. Tenant shall
not change the draperies or the color of induction unit enclosures in any manner
which will alter the Building's appearance from the outside of the Building. In
the event Tenant requests an automated teller machine to be installed on the
Property, Landlord and Tenant will work together toward a mutually agreeable
design and location.
12. Rooms or other areas used in common by tenants shall be
subject to such regulations.
13. Landlord is not responsible to any tenant for the
non-observance or violation of the Rules and Regulations by any other tenant.
14. Landlord reserves the right by thirty (30) days prior written
notice to Tenant, to rescind, alter to waive any rule or regulation at any time
prescribed for the Building when, in Landlord's reasonable judgment, it is
necessary, desirable or proper for the best interest of the Building and its
tenants provided such rule change is reasonable and non-discriminatory.
15. The Tenant shall not exhibit, sell or offer for sale on the
demised Premises or in the Building any article or thing except those articles
and things essentially connected with the stated use of the demised Premises by
the Tenant without the advance consent of the Landlord.
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16. The Tenant shall never use any picture or likeness of the
Building in any circulars, notices, advertisements or correspondence without the
Landlord's consent which shall not be unreasonably withheld or delayed.
17. The Tenant shall cooperate fully with the Landlord to assure
the effective operation of the Building's air conditioning system. If Tenant
shall so use the demised Premises that noxious or objectionable fumes, vapors
and odors exist beyond the extent to which they are discharged or eliminated by
means of the flues and other devices contemplated by the various plans,
specifications and leases, then Tenant shall provide proper ventilating
equipment for the discharge of such excess fumes, vapors and odors so that they
shall not enter into the air conditioning system or be discharged into other
vents or flues of the Building or annoy any of the tenants of the Building or
adjacent properties. The design, location and installation of such equipment
shall be subject to Landlord's approval.
18. All loading and unloading of merchandise, supplies, materials,
garbage and refuse shall be made only through such entryways and elevators and
at such times as the Landlord shall designate. In its use of the loading areas
in the basement, the Tenant shall not obstruct or permit the obstruction of said
loading area and at no time shall park or allow its officers, agents or
employees to park vehicles therein except for loading or unloading.
19. There shall not be used or kept anywhere in the Building by
any tenant or persons or firms visiting or transacting business with a tenant
any hand trucks, except those equipped with rubber tires and side guards, or
other vehicles of any kind.
20. The Tenant shall not contract for any work or service which
might involve the employment of labor incompatible with the Building employees
or employees of contractors doing work or performing services by or on behalf of
the Landlord.
21. No curtains, blinds, shades or screens shall be attached to or
hung in, or used in connection with any window or door of the demised Premises
without the prior written consent of the Landlord.
22. No sign, advertisement notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the outside or
inside of the demised Premises or of the Building, without the prior written
consent of Landlord which shall not be unreasonably withheld or delayed. In the
event of any violation of the foregoing by Tenant, Landlord may remove same
without any liability, and may charge the expense incurred by such removal to
Tenant. Interior signs on doors and directory tablet shall be inscribed, painted
or affixed for Tenant by Landlord at the expense of Tenant provided Tenant has
approved such cost, and shall be of a quality, quantity, type, design, color,
size, style, composition, material, location and general appearance acceptable
to Landlord.
23. The sashes, sash doors, skylights, windows and doors that
reflect or admit light or air into the halls, passageways or other public places
in the Building shall not be covered or obstructed by Tenant, nor shall any
bottles, parcels, or other articles be placed on the window ▇▇▇▇▇, or in the
public portions of the Building.
24. Tenant shall not ▇▇▇▇, paint, drill into or in any way deface
any part of the demised Premises or the Building. No boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
Landlord, and as Landlord may direct.
25. No animal or bird of any kind shall be brought into or kept in
or about the demised Premises or the Building other than those attending to the
needs of a handicapped person or persons .
26. Neither Tenant nor any of Tenant's agents, servants,
employees, contractors, visitors or licensees shall at any time bring or keep
upon the demised Premises any inflammable, combustible or explosive fluid,
chemical or substance. Normal office materials are excepted.
27. No additional locks, bolts or mail slots of any kind shall be
placed upon any of the doors or windows by Tenant, nor shall any change be made
in existing locks or the mechanism thereof. Tenant must, upon the termination of
the tenancy, restore to Landlord all keys of stores, offices and toilet rooms,
either furnished to, or otherwise procured by Tenant, and in the event of the
loss of any keys so furnished, Tenant shall pay to Landlord the cost thereof.
28. Landlord shall have the right to prohibit any advertising
referring to the Building which, in Landlord's reasonable opinion, tends to
impair the reputation of the Building or its desirability as a first-class
building for offices, and upon notice from Landlord, Tenant shall refrain from
or discontinue such advertising.
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29. Tenant's contractors shall, while in the Building or elsewhere
in the complex of which the Building forms a part, be subject to and under the
control and direction of the Superintendent of the Building (but not as agent or
servant of said Superintendent or of Landlord), except Exhibit 2, Paragraph B
representatives.
30. If the demised Premises is or becomes infested with vermin as
a result of the use or any misuse or neglect of the demised Premises by Tenant,
its agents, servants, employees, Tenant shall forthwith at Tenant's expense
cause the same to be exterminated from time to time to the satisfaction of
Landlord and shall employ such licensed exterminators as shall be approved in
writing in advance by Landlord.
31. The requirements of Tenant will be attended to only upon
application at the office of the Landlord. Building personnel shall not perform
any work or do anything outside of their regular duties, unless under special
instructions from the office of Landlord. Tenant will be provided with contact
information for Landlord's property manager and will have an emergency contact
number for calls after Business hours.
32. No water cooler, air conditioning unit or system or other
apparatus shall be installed or used by Tenant without the written consent of
Landlord which shall not be unreasonably approved or delayed.
33. Tenant shall install and maintain, at Tenant's sole cost and
expense, an adequate visibly marked (at all times properly operational) fire
extinguisher next to any duplicating or photocopying machine or similar heat
producing equipment, which may or may not contain combustible material, in the
demised Premises.
34. INTENTIONALLY DELETED
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