EXHIBIT 99.1
LEASE
BY AND BETWEEN
ONE CAPITAL CENTER,
a California limited partnership
as "Landlord"
AND
AMERICAN RIVER BANKSHARES,
a California corporation
as "Tenant"
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TABLE OF CONTENTS
Page
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1. TERMS AND DEFINITIONS; SCHEDULES...........................................7
1.1 Terms and Definitions...........................................7
1.2 Schedules.......................................................8
2. PREMISES...................................................................9
2.1 Lease of Premises...............................................9
2.2 Prior Occupancy.................................................9
2.3 Renewal Options.................................................9
2.4 Tenant's Right of Opportunity...................................9
3. PAYMENT OF RENT AND OPERATING COSTS.......................................11
3.1 Lease Term Rent................................................11
3.2 Base Rent Adjustment...........................................11
3.3 Renewal Term Rent..............................................11
3.4 Operating Costs................................................12
3.5 Taxes..........................................................14
3.6 Prepaid Rent/Security Deposit..................................15
4. IMPROVEMENTS BY LANDLORD; POSSESSION......................................15
4.1 Construction Conditions........................................15
4.2 Commencement of Possession.....................................15
5. PROJECT SERVICES..........................................................15
5.1 Project Services...............................................15
5.2 Interruption of Services.......................................16
6. TENANT'S COVENANTS........................................................16
6.2 Insurance......................................................20
6.3 Repairs........................................................21
6.4 Assignment and Subletting......................................21
6.5 Estoppel Certificate...........................................22
6.6 Brokerage Commissions..........................................23
7. LANDLORD'S RESERVED RIGHTS................................................23
7.1 Additional Rights Reserved to Landlord.........................23
8. CASUALTY AND UNTENANTABILITY..............................................23
8.1 Termination by Landlord........................................23
8.2 Restoration of Premises........................................23
8.3 Termination by Tenant..........................................23
8.4 Rent; Prorations...............................................24
9. CONDEMNATION..............................................................24
9.1 Rent Abatement.................................................24
9.2 Lease Termination..............................................24
10. INDEMNITY, SUBROGATION AND WAIVER.........................................24
10.1 Indemnity......................................................24
10.2 Waiver of Subrogation..........................................25
10.3 Limitation of Landlord's Liability.............................25
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11. TENANT'S DEFAULT AND LANDLORD'S REMEDIES..................................25
11.1 Tenant's Default...............................................25
11.2 Remedies on Default............................................25
12. TERMINATION...............................................................27
12.1 Surrender of Leased Premises...................................27
12.2 Hold Over Tenancy..............................................27
13. MISCELLANEOUS.............................................................27
13.1 Quiet Enjoyment................................................27
13.2 Accord and Satisfaction........................................27
13.3 Severability...................................................28
13.4 Subordination and Attornment...................................28
13.5 Applicable Law/Construction....................................28
13.6 Binding Effect.................................................28
13.7 Time...........................................................28
13.8 Entire Agreement...............................................28
13.9 Notices........................................................28
13.10 Force Majeure..................................................29
13.11 Attorneys' Fees; Prejudgment Interest..........................29
13.12 Authority......................................................29
13.13 Hazardous Materials............................................29
13.14 Building Directory.............................................30
13.15 Parties' Approvals.............................................30
SCHEDULES
SCHEDULE 1: Description of the Leased Premises and Floor Plan
SCHEDULE 1-A: Available Space
SCHEDULE 2: Rules and Regulations
SCHEDULE 3: Utility Services
SCHEDULE 4: Maintenance Services
SCHEDULE 4-A: Janitorial Specifications
SCHEDULE 5: Work Letter Agreement
SCHEDULE 5-A: Approved Preliminary Plan
SCHEDULE 5-B: Building Standards
SCHEDULE 5-C: Tenant Specifications
SCHEDULE 5-D: Turnkey Costs
SCHEDULE 6: Certificate of Acceptance
SCHEDULE 7: Base Rent
SCHEDULE 8: Parking
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ONE CAPITAL CENTER LEASE
------------------------
This One Capital Center Lease (this "Lease") is made this 17th day of May,
2005, by and between ONE CAPITAL CENTER, a California limited partnership
("Landlord"), and AMERICAN RIVER BANKSHARES, a California Corporation ("Tenant")
on the terms, covenants and conditions set forth below.
1. TERMS AND DEFINITIONS; SCHEDULES.
1.1 Terms and Definitions.
1.1.1 "Leased Premises" shall mean Suite 450 on the Fourth (4th)
floor of the Building (hereinafter defined), all as more fully described
in Schedule 1 attached.
1.1.2 "Building" shall mean the six (6) story office building
located at 0000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000, and
more fully described on Schedule 1 attached (the "Land"), which is a
part of the Project.
1.1.3 "Project" shall mean, collectively, (i) the Land, (ii) the
Building, and (iii) the other improvements on the Land, including,
without limitation, a parking area, driveways, lighting and landscaping,
which Building, Land and other improvements are commonly known as One
Capital Center.
1.1.4 "Tenant's Square Footage" shall mean a portion of the
Building consisting of approximately Seven Thousand Three Hundred
Seventy-Eight (7,378) Rentable square feet on the Fourth (4th) floor,
which number includes Tenant's Pro Rata Share of the Common Area (as
defined below), and which translates into approximately Six Thousand
Four Hundred Eighty-Five (6,485) Usable square feet. The actual Rentable
area will be calculated by Landlord's representative using the method
for determining Rentable Area as set forth in the "Standard Method for
Measuring Floor Area in Office Buildings, ANSI/BOMA Z65.1-1996"
published by the Building Owners and Managers Association International,
approved June 7, 1996 by American National Standards Institute, Inc.
("BOMA Method"). "Total Rentable Square Footage of the Building," for
purposes of this calculation, shall be One Hundred Twenty Three Thousand
Six Hundred Thirty Seven (123,637) Rentable square feet, which
translates into approximately One Hundred Ten Thousand Three Hundred
Seventy Eight (110,378) Usable square feet. The Total Rentable Square
Footage of the Building may be adjusted pursuant to Subparagraph 7.1(c)
below. "Common Area" shall be determined in accordance with the BOMA
Method.
1.1.5 "Lease Commencement Date" shall mean that date on which
Substantial Completion has been achieved pursuant to Schedule 5
attached. "Lease Expiration Date" shall mean ninety-one (91) months
after Lease Commencement Date. "Lease Term" shall mean the ninety-one
(91) month period commencing on the Lease Commencement Date and ending
on the Lease Expiration Date. The parties' present estimate of the Lease
Commencement Date is September 1, 2005 (the "Scheduled Lease
Commencement Date").
1.1.6 "Renewal Options" shall mean Tenant's right to renew this
Lease for two (2) additional successive periods of sixty (60) months
each. Each such sixty (60) month period shall constitute a "Renewal
Term", and shall be entered into on the terms and conditions set forth
in Subparagraph 2.3 below.
1.1.7 "Base Rent" shall refer to the basic rental payments
payable by Tenant to Landlord pursuant to Schedule 7 attached, (which
payments include the Operating Cost Stop) and initially shall mean One
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and 73/100 Dollars ($1.73) per Rentable square foot per month, which
rate shall be adjusted as set forth in Paragraph 3.2 and on Schedule 7
attached hereto.
1.1.8 "Tenant's Pro Rata Share" shall mean the ratio that
Tenant's Useable Square Footage bears to the Total Useable Square
Footage of the Building, and which is presently expected to be five and
88/100ths percent (5.88%), which may be adjusted pursuant to
Subparagraph 7.1(c), below. "Operating Cost Stop" shall mean the cost
per square foot of Total Rentable Square Footage of the Building per
year, which shall be the actual per square foot Operating Costs of the
Project for the calendar year 2006 (the "Base Year"), adjusted (if
occupancy in said period is less than ninety-five percent (95%)) to a
ninety-five percent (95%) occupancy. "Excess Operating Costs" shall mean
the difference between (a) Landlord's annual Operating Costs (as defined
in Subparagraph 3.4.1 below) for the Base Year, and (b) Landlord's
annual Operating Costs for any comparison year, in each case
"grossed-up" as provided above.
1.1.9 "Prepaid Rent" shall mean an amount equal to the first
installment of Base Rent due and payable hereunder or Twelve Thousand
Seven Hundred Sixty Three and 94/100 Dollars ($12,763.94) which shall be
handled in accordance with Paragraph 3.6 below.
1.1.10 "Permitted Purpose" means that Tenant may use the Leased
Premises for general office use and any lawful purpose incidental
thereto.
1.1.11 "Permitted Parking" shall mean four (4) parking spaces
provided to Tenant for each one thousand (1,000) rentable square feet of
the Leased Premises, or thirty-six (36) spaces, of which four (4)
parking spaces shall be specifically reserved for Tenant and labeled
"American River Bankshares" by Landlord, (or such other tradename
selected by Tenant) at a location mutually acceptable to Landlord and
Tenant; provided that Landlord shall have no obligation to police such
reserved parking spaces. Tenant's Permitted Parking shall be on the
terms and conditions set forth in Schedule 8. Landlord reserves the
right to reduce the number of parking spaces allocated to Tenant
pursuant to the adoption by any governmental entity or any laws, rules,
regulations or ordinances requiring such reductions; provided, however,
that Landlord shall apply any such government-imposed reduction in a
non-discriminatory fashion to all tenants in the Project to which the
ordinance or regulation applies.
1.1.12 "Managing Agent" shall mean Xxxxx X. Xxxxxx Interests,
Inc., 0000 X Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxxxx, 00000,
Attention Property Manager, or any other agent specified in writing by
Landlord pursuant to the provisions for Notice in this Lease.
1.1.13 Landlord's mailing address: Xxxxx X. Xxxxxx Interests,
Inc., 0000 X Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxxxx, 00000,
Attention: Property Manager, with a mandatory copy to Xxxxxxx Xxxxxxxx,
Esq., Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxx LLP, 0000 X Xxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxx 00000.
1.1.14 Tenant's mailing address: American River Bankshares, 0000
Xxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, Attention, Xxxxx
Xxxxxx, Senior Vice President, with a copy to the Leased Premises.
1.2 Schedules. The schedules and exhibits listed below are incorporated
into this Lease by reference unless lined out. The terms of schedules, exhibits
and typewritten addenda, if any, attached or added hereto shall control over any
inconsistent provisions in the paragraphs of this Lease.
(a) Schedule 1: Description of the Leased Premises and Site Plan
(b) Schedule 1-A: Available Space
(c) Schedule 2: Rules and Regulations
(d) Schedule 3: Utility Services
(e) Schedule 4: Maintenance Services
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(f) Schedule 4-A: Janitorial Specifications
(g) Schedule 5: Work Letter Agreement
(h) Schedule 5-A: Approved Preliminary Plans
(i) Schedule 5-B: Building Standards
(j) Schedule 5-C: Tenant Specifications
(k) Schedule 5-D: Turnkey Costs
(l) Schedule 6: Certificate of Acceptance
(m) Schedule 7: Base Rent
(n) Schedule 8: Parking
2. PREMISES.
2.1 Lease of Premises. In consideration of the Rent (as such term is
defined in Subparagraph 3.1 hereof) and the provisions of this Lease, Landlord
leases to Tenant and Tenant accepts from Landlord the Leased Premises, subject
to the terms, covenants and conditions set forth herein.
2.2 Prior Occupancy. Tenant shall not occupy the Leased Premises prior
to the Lease Commencement Date except with the express prior written consent of
Landlord. If Tenant occupies the Leased Premises (to conduct Tenant's business
as opposed to occupying or entering to perform work required to make the Leased
Premises ready for occupancy pursuant to Schedule 5 hereof) prior to such Date
with Landlord's consent, Tenant shall pay Landlord for the period from the first
(1st) day of such occupancy to the Lease Commencement Date, Base Rent in the
amount of the first installment of Base Rent due and payable by Tenant. A
prorated monthly installment shall be paid for the fraction of the month if
Tenant's occupancy of the Leased Premises commences on any day other than the
first (1st) day of the month. If Tenant shall occupy the Leased Premises prior
to the Lease Commencement Date, all covenants and conditions of this Lease
except for the payment of rental shall be binding on the parties commencing upon
the date of such prior occupancy. The foregoing notwithstanding, the parties
acknowledge that, subject to coordination with Landlord's general contractor and
Tenant's compliance with Section 5 of the Work Letter Agreement attached as
Schedule 5 pertaining to access, Landlord shall permit Tenant to have access to
the Leased Premises not more than four (4) weeks prior to the date on which
Substantial Completion is anticipated, so that Tenant can commence installation
of Tenant's furniture, furnishings, telephone systems, computer cabling and
equipment.
2.3 Renewal Options.
2.3.1 Grant of Options. As long as there does not exist an
uncured Event of Default (as defined in Subparagraph 11.1. below),
Landlord hereby grants to Tenant two (2) successive Renewal Options for
a term of sixty (60) months each. During each such Renewal Term, all
covenants and conditions applicable to the immediately preceding Lease
Term or Renewal Term (as appropriate) shall apply, except as otherwise
set forth herein.
2.3.2 Exercise of Options. The Renewal Options shall be
exercised by Tenant's delivery to Landlord of a written notice of
Tenant's intention to exercise its Renewal Option, delivered not later
than 180 days prior to the expiration of the Lease Term or immediately
preceding Renewal Term, as applicable ("Notice of Exercise"). The
failure of Tenant to exercise the first Renewal Option as required by
this Subparagraph 2.3.2 shall constitute Tenant's election to terminate
this Lease at the end of the original Lease Term, and Landlord's
acceptance of any Rent (as such term is defined in Subparagraph 3.1
hereof) subsequent to the expiration of such Lease Term shall not
constitute a waiver by Landlord of the requirement that Tenant timely
exercise the Renewal Option in writing.
2.4 Tenant's Right of Opportunity.
2.4.1 Grant of Right of Opportunity. Subject to the Superior
Rights (defined below), Landlord hereby grants to Tenant a right of
opportunity to lease ("Tenant's Right of Opportunity") any space on the
Fourth (4th) floor of the Building which is immediately contiguous to
the Leased Premises in the general location shown on the drawing
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attached hereto as a part of Schedule 1-A (the "Available Space"), as
follows: at any time during the Lease Term (but not any Renewal Term)
Tenant shall have a one (1) time right to lease the Available Space on
the same terms and conditions as this Lease, provided, however, that (a)
Base Rent shall be as determined pursuant to Subparagraph 2.4.2 below;
and (b) Landlord's responsibility for tenant improvements shall be based
on an allowance of $26.00 per useable square foot until there are five
(5) years remaining in the Lease Term, after which the tenant
improvements allowance shall be prorated based on the period remaining
on the Lease Term (e.g., if there are 36 months left in the Lease Term
upon commencement of Tenant's occupancy of the Available Space, Tenant
will receive an allowance of $15.60 per usable square foot to modify the
Available Space). Notwithstanding anything to the contrary contained in
this Paragraph 2.4, Tenant's Right of Opportunity is expressly subject
to the rights of any tenant of the Building who currently has such an
express right (set forth in a lease existing at the time this Lease is
executed) to the Available Space (the "Superior Right").
2.4.2 Exercise of Tenant's Right of Opportunity. Provided there
does not exist, on the date of exercise of the Tenant's Right of
Opportunity, an uncured Event of Default (as defined in Paragraph 11.1
below) Tenant's Right of Opportunity shall be exercised by Tenant's
delivery to Landlord of written notice pursuant to the terms hereof
("Tenant's Notice"), stating that Tenant desires to lease all or a
portion of the Available Space, under the terms and conditions of this
Lease, except that (i) Base Rent and other payments by Tenant hereunder
as applied to the Available Space, shall be at the then current rates
hereunder (and shall adjust as and when Base Rent and other payments
adjust hereunder); (ii) the location and configuration of space which is
the subject of Tenant's Notice must be such that it does not create
left-over space which has no usefulness to another typical tenant user
because of the remaining size and/or configuration (which shall be
determined by Landlord in the exercise of its sole and absolute
discretion); and (iii) Tenant shall receive a tenant improvement
allowance calculated in the manner provided in Subparagraph 2.4.1. The
length of the term which shall be applicable to such Available Space
shall be coterminous with the then-current term for the Leased Premises.
Tenant's failure to provide the Tenant's Notice within the original
Lease Term shall be conclusively deemed Tenant's election not to
exercise Tenant's Right of Opportunity as to the Available Space.
Landlord shall be free to enter into a lease or leases with other
tenants for the Available Space during the Lease Term. In addition to
the foregoing procedures for Tenant's independent exercise of Tenant's
Right of Opportunity, Landlord agrees that in the event that all or any
portion of the Available Space (which is subject to a lease to another
tenant) becomes available, or Landlord receives notice that it shall
become available, Landlord shall give Tenant written notice of such
availability and, subject to the Superior Right, Tenant shall have a
period of three (3) days from the effective date of Landlord's notice
(in accordance with the terms and conditions of this Lease) within which
to notify Landlord that Tenant desires to lease the Available Space in
accordance with Tenant's Right of Opportunity. Should Tenant timely
notify Landlord, then the parties shall conclude such additional leasing
transaction in accordance with the procedures for exercise set forth
above in this Subparagraph 2.4.2. The parties agree that the foregoing
Landlord's notice shall state on its face the existence of any Superior
Right and the effect of such rights on Tenant's Right of Opportunity
(including, without limitation, the timing for the exercise of such
Superior Right).
2.4.3 Documentation of Tenant's Right of Opportunity. Within a
reasonable period of time, not to exceed thirty (30) days after the
effective date of Tenant's Notice, the parties shall execute (i) an
addendum to this Lease confirming the terms and conditions upon which
the Available Space shall be leased to Tenant, including, without
limitation, the date upon which Tenant's occupancy of such space shall
commence (the "Tenant's Right Commencement Date"), Tenant's Square
Footage (with the addition of the square footage in the Available Space
to be leased by Tenant), the new amount for the monthly installment of
Base Rent (which shall be reflective of the new number for Tenant's
Square Footage), and (ii) a Work Letter in the form of Schedule 5
attached, covering Leasehold Improvements to be performed in such space.
Tenant's Right Commencement Date shall be the earlier to occur of (i)
Tenant's actual conduct of business in the Available Space, or (ii) five
(5) days following Substantial Completion, as determined in accordance
with the Work Letter executed by the parties in connection with such
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space. Tenant's obligation for payment of Rent shall begin on Tenant's
Right Commencement Date; provided that such obligation shall be moved
forward by the number of days, if any, by which Tenant delays
Substantial Completion as determined by such work letter.
3. PAYMENT OF RENT AND OPERATING COSTS.
3.1 Lease Term Rent.
3.1.1 Base Rent. Each monthly installment of Base Rent in the
amount set forth in Schedule 7 shall be due in advance the first (1st)
calendar day of each month, together with each monthly installment of
Tenant's Pro Rata Share of Excess Operating Costs. Monthly installments
for any fractional calendar month, at the beginning or end of the Lease
Term or any Renewal Term, shall be prorated based on the number of days
in such month. Base Rent and Tenant's Pro Rata Share of Excess Operating
Costs, together with all other amounts payable by Tenant to Landlord
under this Lease, shall be sometimes referred to collectively as "Rent."
Tenant shall pay all Rent, without deduction or set off, to Landlord or
Managing Agent at a place specified by Landlord.
3.1.2 Late Charge and Interest. Tenant acknowledges that the
late payment of Rent by Tenant to Landlord hereunder will cause Landlord
to incur administrative costs and other damages, the exact amount of
which would be impracticable or extremely difficult to ascertain.
Landlord and Tenant agree that if Landlord does not receive any such
payment on or before the date the payment is past due, Tenant shall pay
to Landlord, as additional Rent, (a) a late charge equal to five percent
(5%) of the overdue amount to cover such additional administrative
costs; provided that Landlord agrees to waive such late charge two times
during the Lease Term, and (b) interest on the delinquent amounts at the
lesser of the maximum rate permitted by law, if any, or ten percent
(10%) per annum from the date due to the date paid.
3.2 Base Rent Adjustment. Base Rent shall be subject to adjustment as
set forth in Schedule 7.
3.3 Renewal Term Rent. During the first Renewal Term, the Base Rent
shall be one hundred percent (100%) of the fair market rental ("Fair Market
Rental") for the Leased Premises as of the end of the just expired Lease Term.
During the second Renewal Term, the Base Rent shall be one hundred percent
(100%) of the Fair Market Rental for the Leased Premises as of the end of the
just expired first Renewal Term.
3.3.1 Fair Market Rental Defined. As used herein, Fair Market
Rental shall mean the annual amount per square foot that a willing
comparable entity, non-renewal, non-expiration new tenant would pay and
a willing, comparable Landlord of a similar class building which is
situated along the Interstate Highway 50 corridor between Watt Avenue
and Sunrise Boulevard, in Sacramento County, would accept at arm's
length, giving appropriate consideration to annual rental rate per
square foot, types of escalation clauses, abatement provisions
reflecting free rent and/or no rent during a lease term, brokerage
commissions, if any, length of lease term, size and location of
premises, new Operating Costs base, building standard work letter and/or
tenant improvement allowances, and other generally applicable terms and
conditions of tenancy.
3.3.2 Procedure for Determining Fair Market Rental.
(a) The Fair Market Rental shall be determined by
Landlord and Tenant within thirty (30) days after Landlord
receives Tenant's Notice of Exercise. If the parties are unable
to agree on such Rental, they shall select an appraiser within
ten (10) days after the expiration of such thirty (30) days
following the Notice of Exercise. If they are unable to select a
single appraiser, each party shall select its own appraiser
within ten (10) days thereafter, and the two (2) appraisers
shall meet promptly and attempt to determine the Fair Market
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Rental. If each appraiser determines a Fair Market Rental that
varies less than five percent (5%) from the determination of the
other appraiser, the Fair Market Rental shall be the average of
the two (2) appraisals. If the two (2) appraisers are unable to
agree, within thirty (30) days after their selection, on a Fair
Market Rental that varies less than five percent (5%) (as among
the two (2) appraisers), the two (2) appraisers shall select a
third (3rd) appraiser within ten (10) days following expiration
of the thirty (30) days. The third (3rd) appraiser shall in all
events be a person who has not previously acted in any capacity
for either Landlord or Tenant. If the two (2) appraisers are
unable to agree on a third (3rd) appraiser (or if either party
should within the time specified fail to appoint its appraiser),
then either party, upon written application with ten (10) days'
prior written notice to the other, may request such appointment
be made by the then presiding judge of the Superior Court of the
County of Sacramento acting pursuant to Code of Civil Procedure
Section 1281.6.
(b) The determination of a majority of the appraisers
shall be binding upon the parties and shall be made not later
than thirty (30) days following selection of the third (3rd)
appraiser. If a majority of the appraisers are unable to set the
Fair Market Rental within the stipulated period of time, the
three (3) appraisals shall be added together and their totals
divided by three (3); the resulting quotient shall be such
Rental. If, however, the low appraisal and/or the high appraisal
are/is more than five percent (5%) lower and/or higher than the
middle appraisal, the low and/or high appraisal shall be
disregarded. If only one (1) appraisal is disregarded, the
remaining two (2) appraisals shall be added together and their
total divided by two (2); the resulting quotient shall be the
Fair Market Rental. If both the low appraisal and the high
appraisal are disregarded, the middle appraisal shall be the
Fair Market Rental. Each party shall bear the cost of the
appraisers selected by it; the expenses of the third (3rd)
appraiser shall be borne one-half (1/2) by Landlord and one-half
(1/2) by Tenant.
3.3.3 Qualifications of Appraiser. Any person selected as an
appraiser under this Subparagraph 3.3 shall be a member in good standing
of the American Institute of Real Estate Appraisers or successor
organizations and shall have had at least five (5) years experience in
appraising commercial real estate similar to the Building in the same
general location.
3.4 Operating Costs. Tenant shall pay Tenant's Pro Rata Share of any
Excess Operating Costs as follows:
3.4.1 Definition. "Operating Costs" shall mean all expenses
relating to the maintenance and operation of the Leased Premises, the
Building or the Project, including, but not limited to: real estate
taxes and assessments (including debt service payments on amortizing
bonds which are included in the real property tax xxxx); but not
including taxes on gross rents, sales, use, business, corporation or
other similar taxes unless such taxes are levied or assessed in
substitution for any other real property tax and further not including ,
franchise taxes, documentary transfer taxes, inheritance taxes, or
capital stock taxes; but including any fees or charges directly related
to and imposed against the Project (for example, traffic, parking or air
quality mitigation, child care, low income housing, or other such fees)
by governmental authorities having jurisdiction over the Project;
utilities not separately paid by tenants; insurance premiums and (to the
extent used) reasonable deductibles for all insurance being carried by
Landlord against the Project or its operation; maintenance, repairs and
replacements; refurbishing and repainting; cleaning, janitorial and
other related services, equipment, tools, materials and supplies
purchased and used only for the Project; air conditioning, heating and
elevator service; commercially reasonable property management fees;
security; resurfacing and restriping of walks, drives and parking areas;
signs, directories and markers; landscaping; and snow and rubbish
removal. Operating Costs shall not include expenses for legal services
other than for vendor services, real estate brokerage and leasing
commissions, expenses for individual tenants or tenants' spaces
(including advertising for tenants); earthquake or flood insurance; or
replacement of roof and exterior walls, structure or foundation of the
Building; ground lease or mortgage loan payments; or any item(s) where
Page 12 of 56
Landlord is reimbursed by insurance or otherwise compensated; any bad
debt or loss or reserves for such; financing and/or refinancing costs;
Landlord's net income taxes, income tax accounting, interest,
depreciation, general corporate overhead, or capital improvements to the
Building or Project except for capital improvements installed for the
purpose of reducing or controlling (efficiently) expenses, or required
by any governmental or other authority having jurisdiction over the
Project, which shall be amortized by Landlord in accordance with
Generally Accepted Accounting Principles. In computing Excess Operating
Costs for purposes of Subparagraph 3.4.2 below, Landlord's estimate of
Operating Costs shall be used, and for purposes of Subparagraph 3.4.3
below, Landlord's actual Operating Costs for any calendar year shall be
used. Landlord shall not duplicate any costs.
3.4.2 Payment of Excess Operating Costs. Tenant shall pay, in
equal monthly installments, beginning on January 1, 2007, Tenant's Pro
Rata Share of any Excess Operating Costs for each calendar year which
falls (in whole or in part) during the Lease Term (prorated for any
partial calendar year at the beginning or end of the Lease Term).
Annually, or from time to time, based on actual and projected Operating
Costs data, Landlord may adjust its estimate of Operating Costs upward
or downward. All monthly installments of Excess Operating Costs payable
after notice to Tenant of a revised estimate of Operating Costs shall be
paid in equal monthly amounts sufficient to pay in full the unpaid
balance of Tenant's Pro Rata Share of any Excess Operating Costs by the
end of the calendar year in which such adjustment is made, and
thereafter Excess Operating Costs shall be paid in equal monthly amounts
sufficient to pay in full Tenant's Pro Rata Share of any Excess
Operating Costs by the end of each succeeding calendar year. In the
event that the Building is not fully leased during any calendar year,
Landlord shall make appropriate adjustments to the Operating Costs to
adjust such expenses to a ninety-five percent (95%) leased basis, and
such adjusted expenses shall be used for purposes of these Subparagraphs
3.4.1, 3.4.2 and 3.4.3. Tenant shall have a cumulative annual cap of
five percent (5%) on increases for all Excess Operating Costs over the
prior year's Excess Operating Costs that are controllable by Landlord
(the "Controllable Expense Items"). Any Operating Costs that are subject
to union wages and union compensation packages shall not be a
Controllable Expense Item. Tenant acknowledges and agrees that the
following general categories will not be subject to the annual cap:
utilities, union labor (e.g., HVAC) provided by any vendor, waste
disposal, elevator contract, real estate taxes, and insurance. Landlord
agrees to prudently manage the Operating Costs, including bidding to
commercial vendors. In all instances, detailed statements shall be sent
to Tenant by Landlord no later than thirty (30) days before any such
payment(s) are due.
3.4.3 Actual Operating Cost Adjustment. As soon as possible each
year, Landlord shall compute the actual Operating Costs for the prior
calendar year, and shall give written detailed notice thereof to Tenant
("Landlord's Statement"). Within thirty (30) days after receipt of such
notice, Tenant shall pay any deficiency in Tenant's Pro Rata Share of
any Excess Operating Costs for the prior calendar year (prorated for any
partial calendar year prior to or at the beginning or end of the Lease
or Renewal Term). In the event of overpayment by Tenant, Landlord shall
apply the excess to the next payment of Rent when due, until such excess
is exhausted or until no further payments of Rent are due, in which case
Landlord shall pay to Tenant the balance of such excess within thirty
(30) days thereafter. At the end of the Lease term, Landlord shall pay
any such overpayment directly to Tenant.
3.4.4 Review of Landlord's Statement. Provided that Tenant is
not then in default beyond any applicable cure period of its obligations
under this Lease and provided further that Tenant strictly complies with
the provisions of this Subparagraph 3.4.4, Tenant shall have the right,
once each calendar year, to reasonably review supporting data for
Building Operating Costs for the Project and Tenant's Pro Rata Share of
Excess Operating Costs for the Project for any portion of Landlord's
Statement, in accordance with the following procedure:
(a) Tenant shall, within ninety (90) days after
Landlord's Statement is delivered, deliver a written notice to
Landlord specifying the portions of Landlord's Statement that
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are in question or are claimed to be incorrect, and Tenant shall
simultaneously pay to Landlord all amounts due from Tenant to
Landlord as specified in Landlord's Statement if not previously
paid, without waiving Tenant's right to dispute such amounts.
Except as expressly set forth in subsection (c) below, in no
event shall Tenant be entitled to withhold, deduct, or offset
any monetary obligation of Tenant to Landlord under this Lease
(including, without limitation, Tenant's obligation to make all
payments of Base Rent and all payments of Tenant's Pro Rata
Share of Operating Costs) pending the completion of and
regardless of the results of any review of records under this
Subparagraph 3.4.4. The right of Tenant under this Subparagraph
3.4.4 may only be exercised once for any Landlord's Statement,
and if Tenant fails to meet any of the above conditions as a
prerequisite to the exercise of such right, the right of Tenant
under this Subparagraph 3.4.4 for a particular Landlord's
Statement shall be deemed waived.
(b) Tenant acknowledges that Landlord maintains its
records for the Building at Landlord's Managing Agent's
corporate offices presently located at the address set forth in
Subparagraph 1.1.12, and Tenant agrees that any review of
records under this Subparagraph 3.4.4 shall be at the sole
expense of Tenant. Tenant acknowledges and agrees that any
records reviewed under this Subparagraph 3.4.4 constitute
confidential information of Landlord, which shall not be
disclosed to anyone other than the accountants performing the
review and the principals, employees (on a need-to-know basis),
attorneys or consultants of Tenant who receive the results of
the review. The disclosure of such information to any other
person, caused by the conduct of Tenant or Tenant's employees,
contractors or agents, shall constitute a material breach of
this Lease, unless required by law or pursuant to Tenant's
normal accounting and reporting procedures.
(c) Any errors disclosed by the review shall be promptly
corrected by Landlord, provided, however, that if Landlord
disagrees with any such claimed errors after Landlord's own
internal review, no corrections shall be made, but if Tenant
still disputes the amount of the Operating Costs set forth in
Landlord's Statement and Tenant's Pro Rata Share of Excess
Operating Costs, Tenant shall have the right at Tenant's cost to
elect to cause an independent certified public accounting firm
selected by Tenant (and not affiliated with Tenant or with a
prior relationship with Tenant, or compensated on a contingent
fee basis or based upon a share of any refund obtained by
Tenant) and reasonably acceptable to Landlord (the
"Accountant"), to commence and complete an audit of Landlord's
books and records directly relevant to Landlord's calculation of
the Operating Costs and Tenant's payment of its Pro Rata Share
of Excess Operating Costs, in order to determine the proper
amount of the Operating Costs incurred and amounts payable by
Tenant for the calendar year which is the subject of such
Landlord's Statement. If such audit reveals that Landlord has
over-charged Tenant, then the amount of overpayment shall be
credited against Tenant's subsequent installment obligations to
pay Tenant's Pro Rata Share of Operating Costs, and if such
overcharge is in excess of 5%, Landlord shall reimburse Tenant
for the costs of such audit. If the audit reveals that the
Tenant was under-charged, then Tenant shall reimburse to
Landlord the amount of such under-charge with the next
succeeding installment obligation of Tenant's Pro Rata Share of
Excess Operating Costs.
3.5 Taxes. In addition to the Base Rent and other sums to be paid by
Tenant hereunder, Tenant shall reimburse Landlord, as additional rent, upon
demand, any and all personal property taxes payable (a) upon, measured by or
reasonably attributable to the cost or value of Tenant's equipment, fixtures and
other personal property located in the Leased Premises or by the cost or value
of any leasehold improvements made in or to the Leased Premises by Tenant,
regardless of whether title to such improvements is in Tenant or Landlord, and
Tenant shall reimburse Landlord as additional rent upon demand any and all such
taxes paid by Landlord; (b) upon or measured by the monthly Rental payable
hereunder, including, without limitation, any gross receipts tax or excise tax;
(c); upon or with respect to the possession, leasing , operating, management,
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maintenance, alteration, repair, use or occupancy by Tenant of the Leased
Premises or any portion thereof; and (d) upon this transaction or any document
to which Tenant is a party creating or transferring an interest or an estate in
the Leased Premises. In the event Tenant is billed for and pays such Personal
Property taxes directly to the taxing authority, there shall be no reimbursement
to Landlord.
3.6 Prepaid Rent . Simultaneously upon execution of this Lease, Tenant
shall pay to Landlord the Prepaid Rent. In the event Tenant fully complies with
all the terms and conditions of this Lease, the Prepaid Rent shall be credited
to the account of Tenant for the first installment of Base Rent due and payable
hereunder.
4. IMPROVEMENTS BY LANDLORD; POSSESSION.
4.1 Construction Conditions. Landlord shall construct the improvements
described in the Work Letter Agreement attached hereto as Schedule 5 (the
"Leasehold Improvements"). The expenses to be incurred as between Landlord and
Tenant for construction of the Leasehold Improvements are specified in Schedule
5.
4.2 Commencement of Possession. If the Leased Premises are not
Substantially Complete (as defined in Schedule 5 attached), by the scheduled
Lease Commencement Date, subject only to items which do not materially affect
the use thereof, then the Lease Commencement Date shall be extended to the date
five (5) days afterLandlord shall notify Tenant that the Leased Premises are
ready for occupancy. If Landlord fails to cause the Leased Premises to be ready
for occupancy at the time of the scheduled Lease Commencement Date, (a) neither
Landlord nor Landlord's agents, officers, employees or contractors shall be
liable for any damage, loss, liability or expense caused thereby, (b) nor shall
this Lease become void or voidable unless such failure continues for more than
one hundred twenty (120) days, in which case, Tenant shall have the right to
terminate this Lease upon twenty (20) days' prior written notice to Landlord;
provided that the time for Landlord to perform shall be extended by any delay
caused by Tenant, as identified in the Work Letter Agreement, and force majeure
events. Landlord acknowledges and agrees that in the event the Lease
Commencement Date occurs after the Scheduled Commencement Date (except as a
result of delays caused by Tenant, as identified in the Work Letter Agreement),
there will be no reduction in Tenant's free Rent, as provided for in Schedule 7.
Prior to occupying the Leased Premises, Tenant shall execute and deliver to
Landlord a letter in the form attached as Schedule 6, acknowledging the Lease
Commencement Date and certifying that the Leasehold Improvements have been
substantially completed and that Tenant has examined and accepted the Leased
Premises. Tenant hereby authorizes an officer of Tenant who receives the keys to
the Leased Premises on behalf of Tenant to execute and deliver such letter in
Tenant's name. If Tenant fails to deliver such letter, Tenant shall conclusively
be deemed to have made such acknowledgement and certification by accepting the
keys to the Premises.
5. PROJECT SERVICES.
5.1 Project Services. Landlord shall furnish:
5.1.1 Utility Services. The utility services listed on Schedule
3 ("Utility Services"). Should Tenant, in Landlord's reasonable
judgment, use additional, unusual or excessive Utility Services at times
other than those specified in Schedule 3 attached hereto, Landlord
reserves the right to charge for such unusual or excess services at the
rate of Twenty Five Dollars ($25.00) per hour per zone of the Leased
Premises (which zones shall be designated by Landlord), with a two (2)
hour minimum.
5.1.2 Maintenance Services. Maintenance of all exterior areas,
including lighting, landscaping, cleaning, painting, maintenance and
repair of the exterior of the Building and its structural portions and
roof, floor and latent defects, including all of the services listed on
Schedule 4 ("Maintenance Services"); and Landlord shall also supply
public restroom supplies, public area lamp replacement, window washing
with reasonable frequency, but in no event less than two (2) times per
year, and janitor services to the common areas and Leased Premises
during the time and in the manner that such janitor services are
customarily furnished in general office buildings in the area
Page 15 of 56
("Janitorial Services"). The janitorial specifications currently being
used by Landlord are set forth on Schedule 4-A attached.
5.1.3 Project Services. Utility Services and Maintenance
Services, described above, shall be collectively referred to as "Project
Services." The costs of Project Services shall be part of Operating
Costs except that the replacement of the roof, exterior walls, structure
and foundation of the Building shall not be included in the Operating
Costs payable by Tenant.
5.2 Interruption of Services. Landlord does not warrant that any of the
Project Services will be free from interruption to the extent that such
interruption is beyond the reasonable control of Landlord, or in case of an
emergency. Any Project Service may be suspended or limited by reason of accident
or (upon reasonable advance notice to Tenant, except in the case of an
emergency) of necessary repairs, alterations or improvements, or by strikes or
lockouts, or by reason of operation of law, or causes beyond the reasonable
control of Landlord. Subject to possible Rent abatement as may be provided
pursuant to the conditions described in Paragraph 8, and except as hereinafter
specifically provided in this Subparagraph 5.2, any such interruption or
discontinuance of such Project Services shall not be deemed a disturbance of
Tenant's use and possession of the Leased Premises, or render Landlord liable to
Tenant for damages by abatement of Rent or otherwise, or relieve Tenant from
performance of Tenant's obligations under this Lease. However, Landlord shall
use its best efforts to maintain the Project Services and cause the Project
Services to be restored promptly. Notwithstanding the foregoing, in the event
that there occurs an interruption of Project Services (the "Interruption") which
renders the Leased Premises untenantable, in the reasonable judgment of Tenant,
such that Tenant is unable to conduct its normal business operations, and Tenant
therefore ceases doing business in a material portion of the Leased Premises,
Tenant shall give Landlord written notice of the untenantability and Tenant
shall have the following rights: (i) regardless of the cause of the
Interruption, should Landlord fail, within five (5) business days following the
effective date of Tenant's notice, to commence and diligently pursue steps
necessary to restore the affected Project Services, then Base Rent and Tenant's
Pro Rata Share of Excess Operating Costs shall be abated in the proportion to
the Leased Premises rendered untenantable, commencing on the effective date of
Tenant's notice and continuing until the affected Project Services are restored
to the standard prescribed by this Lease; (ii) if the cure of the Interruption
is within Landlord's control, then should Landlord fail, within ten (10)
business days following the effective date of Tenant's notice, to cure the
Interruption, Base Rent and Tenant's Pro Rata Share of Excess Operating Costs
shall xxxxx in the manner described in Subsection 5.2(i) above, and Tenant shall
have the right to effect a cure of the same and to xxxx Landlord the reasonable
cost of such repair; and (iii) should the cause of the Interruption and/or its
cure be beyond the control of Landlord, then should Landlord fail, within sixty
(60) days following the effective date of Tenant's notice, to restore the
affected Project Services, then Base Rent and Tenant's Pro Rata Share of Excess
Operating Costs shall xxxxx as provided in Subsections 5.2(i) and (ii) above,
but Tenant shall have no right to attempt a cure of such Interruption.
6. TENANT'S COVENANTS.
6.1 Use of Leased Premises. From and after the Lease Commencement Date,
Tenant agrees to:
6.1.1 Permitted Usage. Use the Leased Premises for the Permitted
Purpose only and for no other purposes.
6.1.2 Compliance With Laws. Comply with the provisions of all
recorded covenants, conditions and restrictions and all building,
zoning, fire and other governmental laws, ordinances, rules or
regulations applicable to the Leased Premises and all reasonable
requirements of the carriers of insurance covering the Project. The
foregoing notwithstanding, with respect to the compliance with
applicable laws, Tenant shall be responsible for complying with those
laws applicable to the Leased Premises that are enacted or are
interpreted after the Lease Commencement Date or which relate to the
unique use and occupancy of the Leased Premises by Tenant as opposed to
general office use, or are triggered by Tenant's alterations or
improvements or activities within the Leased Premises.. Landlord shall
provide Tenant with a copy of any notice it receives from an insurance
Page 16 of 56
carrier pertaining to the Leased Premises insofar as such notice sets
forth an alleged failure to meet the carrier's requirements, and Tenant
shall have twenty (20) days thereafter to remedy any failure to so
comply; provided, however, that such compliance shall not increase
Tenant's insurance requirements hereunder.
6.1.3 Nuisances or Waste.
(a) Not do or permit anything to be done in or about the
Leased Premises, or bring or keep anything in the Leased
Premises that may increase Landlord's fire and extended coverage
insurance premium, damage the Building or the Project,
constitute waste, constitute an immoral purpose, or be a
nuisance, public or private, or menace or other disturbance to
tenants of adjoining premises, or anyone else in or near the
general vicinity of the Project, or store, maintain, generate,
manufacture, handle, dispose, release or discharge any Hazardous
Substances (as defined in Subparagraph 13.13.4), toxic
chemicals, wastes, elements or substances in the Leased
Premises, unless such Hazardous Substances, toxic chemicals,
waste, elements or substances are used, stored, maintained,
generated, manufactured, handled, disposed, released or
discharged in full compliance with any local, state or federal
laws, ordinances, rules and regulations presently in effect or
hereafter enacted pertaining to such activities (including all
Environmental Laws, as defined in Subparagraph 13.13.4) and any
rules or regulations established by Landlord, and then only if
used or stored in connection with Tenant's ordinary and usual
business operations, and such quantities as are reasonably
necessary for such uses (that is, for example, white-out
correction fluid and photocopy toner). This Subparagraph 6.1.3.
is in addition to those provisions set forth in Subparagraph
13.13 below.
(b) Tenant further agrees to defend, indemnify and hold
harmless Landlord, or any partner, officer or director of
Landlord, against any and all claims, demands, liabilities,
costs and expenses (including without limitation reasonable
attorneys' fees and expenses, expert witness fees and
post-judgment collection costs) which Landlord may sustain at
any time as a result of, arising out of, or in any way connected
with a breach of Subparagraph 6.1.3(a). Additionally, Tenant
agrees to cease the activity which amounts to such breach
immediately upon receipt of written notice from Landlord or any
regulatory or governmental agency that, such activity is in
violation of any governmental laws, ordinances, regulations or
rules. Tenant shall give notice to Landlord (i) of any Hazardous
Substances that come to be located on the Leased Premises
pursuant to Health & Safety Code section 25359.7, (ii) any
enforcement, clean-up or other regulatory action taken or
threatened by any governmental or regulatory authority with
respect to the presence of any Hazardous Substances on the
Leased Premises, (iii) any demands or claims made or threatened
by any party against Tenant or the Leased Premises relating to
loss or injury resulting from Hazardous Substances, (iv) any
release, discharge or non-routine, improper or unlawful disposal
or transportation of any Hazardous Substances on or from the
Leased Premises, and (v) any matters where Tenant is required by
law to give a notice to any governmental or regulatory authority
respecting any Hazardous Substances on the Leased Premises.
6.1.4 Alterations and Improvements. Make no alterations or
improvements to the Leased Premises without the prior written approval
of Landlord. Any such alterations or improvements by Tenant shall be
done in a good and workmanlike manner, at Tenant's expense, by a
licensed contractor reasonably approved by Landlord in conformity with
plans and specifications reviewed by Landlord. Tenant shall obtain all
necessary governmental approvals and permits. At Landlord's Option,
Tenant shall contract with Landlord for construction of such alterations
or improvements, but only if Landlord's price for such work is
competitive. In any case, Tenant shall give Landlord not less than ten
(10) business days' notice prior to the commencement of construction so
that Landlord may post a notice of nonresponsibility on the Leased
Premises. Notwithstanding any other provisions in this Lease, unless
Landlord otherwise agrees in writing, Tenant shall remove, prior to
expiration of the Lease Term and at Tenant's sole cost and expense, any
and all wires, cables and related telecommunications devices installed
by or on behalf of Tenant.
Page 17 of 56
6.1.5 Liens. Keep the Leased Premises, the Building and the
Project free from liens arising out of any work performed, materials
furnished or obligations incurred by or for Tenant. If requested by
Landlord, Tenant shall post a bond or other security reasonably
satisfactory to Landlord to protect Landlord against such liens. If, at
any time, a lien or encumbrance is filed against the Leased Premises,
the Building or the Project as a result of Tenant's work, materials or
obligations, Tenant shall promptly discharge such lien or encumbrance.
If such lien or encumbrance has not been removed within thirty (30) days
from the date it is filed, Tenant agrees to post a bond or other
security in at least the amount prescribed by applicable California
statute then in effect as security for the lien being discharged.
6.1.6 Rules and Regulations. Observe, perform and abide by all
the rules and regulations promulgated by Landlord from time to time on a
reasonable basis for the benefit of the Project and its tenants and
which rules and regulations are applied in a non-dicriminatory manner.
Schedule 2 sets forth Landlord's rules and regulations in effect on the
date hereof.
6.1.7 Signage. Obtain the prior approval of the Landlord, which
approval may be withheld in Landlord's sole and absolute discretion,
before placing any sign or symbol in doors or windows or elsewhere in or
about the Leased Premises, or upon any other part of the Building or
Project, including building directories. Any signs or symbols which have
been placed without Landlord's approval may be removed by Landlord. Upon
expiration or termination of this Lease, all signs installed by Tenant
shall be removed and any damage resulting therefrom shall be promptly
repaired by Tenant, or if Tenant has not done so after given reasonable
notice and opportunity to do so, such removal and repair may be done by
Landlord and the cost charged to Tenant as Rent. Tenant shall be
entitled to monument signage on the sign to be installed at the
Zinfandel Drive entrance in accordance with detailed plans (the cost of
which installation shall be paid for by Landlord) approved by Landlord
and subject to all requirements imposed by applicable governmental
authorities. Tenant shall be responsible for the installation, repair,
maintenance and removal of such strip of signage located on the monument
(but not the monument unless it is a monument sign for Tenant only) and
all costs and expenses incurred in connection therewith. Directory and
suite signage shall be included for Tenant shall be provided at no
additional cost to Tenant.
6.1.8 Installation and Maintenance of Tenant's Rooftop Devices.
(a) Tenant may, at its sole expense and risk, and
subject to Landlord's approval of specific plans and
specifications, install Tenant's rooftop device, such as an
antennae or similar equipment ("Rooftop Devices") on the roof of
the Building. Such installation shall be performed in a good and
workmanlike manner, and in compliance with plans and
specifications approved pursuant to Subparagraph 6.1.4 above and
with all zoning, building, electric, communications and safety
codes, ordinances, standards, regulations, and requirements of
the state, the city, and the county in which the Project is
located, and the federal government, including, without
limitation, the Federal Communications Commission (the "FCC") or
any successor agency having jurisdiction over radio or
telecommunications and the Federal Aviation Administration (the
"FAA"). Tenant shall be solely responsible for the adequacy and
safety of the installation, operation, maintenance, repair and
removal of the Rooftop Devices. Tenant shall be solely liable
for any damages or injury arising out of such installation,
operation, maintenance, repair or removal by Tenant, its agents,
employees or contractors, including without limitation, any
damage to the roof of the Building. Tenant shall pay to Landlord
within thirty (30) days after demand, the cost of repairing any
damage to the Building caused by such installation, operation,
Page 18 of 56
maintenance, repair or removal by Tenant, its agents, employees
or contractors, and all reasonable costs incurred by Landlord in
reviewing and inspecting the plans and specifications,
installation, operation, maintenance, repair and removal of the
Rooftop Devices, including without limitation, the costs and
fees of any consulting engineers, roofer, or other expert
contractor hired by Landlord for such purpose. Tenant covenants
and agrees that the design, size, weight, location (provided
such location is free from interference by or with other rooftop
devices), and manner of attachment of the Rooftop Devices to the
roof shall be at all times during the Lease Term: (i) reasonably
acceptable to Landlord (evidenced by Landlord's written
statement of such approval); and (ii) in accordance with all
applicable governmental restrictions and all other covenants,
conditions and restrictions against the Project. Tenant
acknowledges and agrees that Landlord is relying on the
foregoing Tenant's covenant, and but for such covenant, Landlord
would not have entered into this Lease.
(b) Landlord shall have a discretionary right of
relocation from time to time of the Rooftop Devices, at
Landlord's expense, on ninety (90) days prior written notice to
Tenant, as long as such relocation does not materially interfere
with operation of the Rooftop Devices. Any such relocations
shall be completed in coordination with Landlord or its
designee, and be arranged with a minimum of interruption to
Tenant. Tenant may not add any additional Rooftop Devices and/or
change the specified use thereof, without the prior written
consent of Landlord; provided that such consent may not be
unreasonably withheld or delayed.
(c) Landlord makes no representation, express or
implied, to Tenant as to the fitness of the Building or roof for
Tenant's intended use nor shall Landlord have any liability to
Tenant for any inability of Tenant to install or operate the
Rooftop Devices thereon.
(d) Landlord agrees that Tenant shall have reasonable
access to the roof for the purpose of installing, operating,
maintaining, repairing and removing the Rooftop Devices, subject
always to such reasonable rules and regulations of the Building
as are now in effect and those which may be promulgated
hereafter. Such access shall be limited to authorized engineers
or contractors of Tenant, or persons under their direct
supervision. Tenant shall notify Landlord each time Tenant
requires access to the roof. Access will be via a roof hatch and
by ladder. Tenant will be responsible for locking the roof hatch
upon completion of each maintenance visit. Landlord shall have
no responsibility or liability for the conduct or safety of any
of Tenant's representatives, or repair, maintenance or
engineering personnel while in any part of the Building or on
any area of the roof unless due to the gross negligence or
willful misconduct of Landlord, its agents, or employees. The
parties agree that Tenant shall be solely liable for any injury
to or death of any such person from any cause unless due to the
culpable negligence or willful misconduct of Landlord, its
agents, or employees.
(e) The operation of the Rooftop Devices shall not
interfere with the maintenance or operation of the Building,
including but not limited to, the Building's HVAC systems,
satellite earth station, electronically controlled elevator
system, or any system now or hereafter serving the Building, or
the operation of any existing laser, radio or telecommunications
equipment operated as of the date the Rooftop Devices are
installed on or from the Building. The operation of Tenant's
Rooftop Devices also shall not cause frequency, wavelength or
line of sight interference with the infra-red line of sight
laser equipment currently installed on the roof of the Building
by Barclays Global Investors, N.A. In the event that Tenant's
operation would violate any of the terms or conditions of this
provision, Tenant agrees to suspend operation of the Rooftop
Devices within twenty-four (24) hours after notice from Landlord
of such violation; and Tenant shall not resume operation of the
Rooftop Devices until such interference is removed.
Page 19 of 56
(f) During the Lease Term and all Renewal Terms, if any,
Landlord reserves the right to lease space on and in the
Building for the installation of similar rooftop devices, and to
enter into leases for space on the roof of the Building, for the
operation of laser, radio and telecommunications equipment by
other tenants; provided, however, that such other equipment
installed after the installation of the Rooftop Devices shall
not unreasonably hinder or interfere with Tenant's installation,
operation, maintenance or repair of its Rooftop Devices.
6.2 Insurance.
6.2.1 Insurance Obtained by Tenant. Tenant shall, at its own
expense, procure and maintain during the Lease Term commercial general
liability insurance with respect to the Leased Premises and Tenant's
activities in the Leased Premises and in the Building and the Project,
providing bodily injury, broad form property damage with a maximum One
Thousand Dollar ($1,000.00) deductible, unless otherwise approved by
Landlord, as follows:
(a) Five Million Dollars ($5,000,000) for bodily injury
and property damage and Five Million Dollars ($5,000,000) in the
aggregate;
(b) Fire and extended casualty insurance covering
Tenant's trade fixtures, merchandise and other personal property
in an amount not less than one hundred percent (100%) of their
actual replacement cost or highest insurable value;
(c) Workers' compensation insurance in at least the
statutory amounts; and
(d) Business interruption insurance of such type and
coverage sufficient to pay all Rent and other sums due hereunder
for a period of not less than twelve (12) months in the event of
any cessation or reduction of Tenant's business for any reason,
including without limitation, damage or destruction described
below.
6.2.2 Coverage Increase. Not more frequently than each five (5)
years if, in the reasonable business judgment of Landlord, the amount of
public liability and property damage insurance coverage maintained by
Tenant is at that time not adequate, Tenant shall increase the insurance
coverage to an amount which is determined to be adequate by Landlord in
the exercise of reasonable business judgment.
6.2.3 Excess Coverage Liability Policy. Nothing in this
Subparagraph 6.2 shall prevent Tenant from obtaining insurance of the
kind and in the amounts provided for under this Paragraph under an
excess coverage liability insurance policy covering other properties as
well as the Leased Premises; provided, however, that any such policy of
excess coverage liability insurance (i) shall specify the amounts of the
total insurance allocated to the Leased Premises, which amounts shall
not be less than the amounts required by Subparagraph 6.2.1 hereof, and
(ii) such amounts so specified shall be sufficient to prevent any one of
the insureds from becoming a co-insurer within the terms of the
applicable policy, and (iii) shall, as to the Leased Premises, otherwise
comply as to endorsements and coverage with the provisions of the
Paragraph.
6.2.4 Acceptable Insurance. Tenant's insurance shall be with a
Best's Insurance Reports A- rated company (or Class VI or larger).
Landlord, Landlord's agents and Landlord's mortgagee, if any, shall be
named as "additional insureds" under Tenant's general liability
insurance, and such Tenant's insurance shall be primary and
noncontributing with Landlord's insurance. Landlord and Landlord's
mortgagee, if any, shall be named as "Loss Payees" under Tenant's
casualty insurance. Tenant's insurance policies shall contain
endorsements requiring thirty (30) days notice to Landlord and
Landlord's mortgagee, if any, prior to any cancellation, lapse or
nonrenewal or any reduction in the amount of coverage.
Page 20 of 56
6.2.5 Evidence of Insurance. Tenant shall deliver to Landlord,
as a condition precedent to its taking occupancy of the Leased Premises,
a certificate or certificates evidencing such insurance.
6.2.6 Insurance of Tenant's Contractors and Agents. In addition
to any other insurance requirements, Tenant expressly agrees that none
of its agents, contractors, workmen, mechanics, suppliers or invitees
performing work of any kind in the Leased Premises, except for general
office equipment repair persons, shall enter the Leased Premises unless
and until each of them shall furnish Landlord with satisfactory evidence
of insurance coverage, financial responsibility and, as appropriate
during the course of the work, written releases of mechanic's or
materialman's lien claims, if necessary.
6.3 Repairs. Subject to the obligation of Landlord to provide Project
Services as set forth in Subparagraph 5.1 above, Tenant, at its sole expense,
agrees to maintain the interior of the Leased Premises in a neat, clean and
sanitary condition and in accordance with law and insurance underwriting
requirements. If Tenant fails to maintain or keep the Leased Premises in good
repair and such failure continues (or a cure is not commenced) for thirty (30)
days after receipt of written notice from Landlord, or if such failure results
in a nuisance or health or safety risk, Landlord may perform any such required
maintenance and repairs and the cost thereof shall be payable by Tenant as Rent
within ten (10) business days of receipt of an invoice from Landlord. Tenant
shall also pay to Landlord the costs of any repair to the Leased Premises,
Building or Project necessitated by any act or neglect of Tenant. Unless
otherwise prohibited by law or against public policy, Tenant waives the
provisions of Sections 1941 and 1942 of the Civil Code of the State of
California and any other statutes or laws permitting repairs by a tenant at the
expense of a landlord or termination of a lease by reason of the condition of
the Leased Premises.
6.4 Assignment and Subletting.
6.4.1 Landlord's Consent Required. Tenant shall not assign,
mortgage, pledge or encumber this Lease, or permit all or any part of
the Leased Premises to be subleased to another, without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Notwithstanding anything contained in this
Subparagraph 6.4.1 to the contrary, Tenant shall have the right to (a)
assign the Lease or sublease the Leased Premises, or any part thereof,
to an "Affiliate," or (b) transfer this Lease by merger, consolidation
or sale of assets or stock, without the prior written consent of
Landlord, or any increase in rent or processing fee, provided that
Tenant delivers notice to Landlord not later than thirty (30) days after
such assignment, subletting or transfer. For purposes of this provision,
the term "Affiliate" shall mean (a) any corporation or other entity
controlling, controlled by, or under common control with (directly or
indirectly) Tenant, including, without limitation, any parent
corporation (or any other entity) controlling Tenant or (b) any
subsidiary that Tenant controls or (c) any entity resulting from any
consolidation, merger, or reorganization of Tenant with another entity
(whether partnership, stock or otherwise). The term "control," as used
herein, shall mean the power to direct or cause the direction of the
management and policies of the controlled entity through the ownership
of more than fifty percent (50%) of the voting securities in such
controlled entity. Any transfer of this Lease by operation of law shall
not constitute an assignment for purposes of this Subparagraph 6.4.1
6.4.2 Basis for Withholding Consent. Landlord agrees that it
will not unreasonably withhold its consent to Tenant's assigning this
Lease or subletting the Leased Premises. In addition to other reasonable
bases, Tenant hereby agrees that Landlord shall be deemed to be
reasonable in withholding its consent to such where Landlord's consent
is required if (a) the proposed assignment or sublease is for a rental
rate less than seventy-five percent (75%) of the then current Fair
Market Rental (as defined in Subparagraph 3.3.1 hereof); or (b) for the
first four (4) years of the term, the proposed assignment or sublease is
to any party who is then a tenant of the Building or the Project, and
thereafter only if Landlord has comparable area available at that time,
at a rental rate not less than seventy-five percent (75%) of the then
current Fair Market Rental; or (c) the proposed sublease or assignment
results in two (2) or more tenants in the Leased Premises; or (d) there
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exists an Event of Default and the cure period has elapsed (as defined
in Subparagraph 11.1 below) at the time of request for consent or on the
effective date of such subletting or assigning; or the proposed
subtenant or assignee seeks to use any portion of the Leased Premises
for a use not consistent with the use set forth in this Lease. Tenant
shall submit to Landlord the name of a proposed assignee or subtenant,
the terms of the proposed assignment or subletting, the nature of the
proposed subtenant's or assignee's business, and such information as to
the assignee's or subtenant's financial responsibility and general
reputation as Landlord may reasonably require. Landlord may also
consider the amount of square feet of the Leased Premises proposed to be
subleased and the number of employees the subtenant anticipates it will
utilize the subleased premises.
6.4.3 No Release of Obligations. No subletting or assignment,
even with the consent of Landlord, shall relieve Tenant of its primary
obligation to pay the Rent and to perform all of the 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 of this Lease or to be a consent to any assignment,
subletting or other transfer. Consent to one assignment, subletting or
other transfer shall not be deemed to constitute consent to any
subsequent assignment, subletting or other transfer.
6.4.4 Recapture. As material consideration for the execution of
this Lease by Landlord, Tenant hereby agrees that whenever it delivers
notice to Landlord that it desires approval of a sublease or assignment
to a party that is not an Affiliate, Landlord shall have the right to
review the terms and conditions of such proposed sublease or assignment
and shall have a right for a period of fifteen (15) business days, to
cancel this Lease as to the portion of the Leased Premises to be
assigned or subleased, and enter into a direct Lease with any
prospective sublessee or assignee. Such fifteen (15) day period shall
commence upon Tenant's delivery to Landlord of written notice of the
terms of the proposed assignment or sublease and financial statements
for the proposed assignee or sublessee. If Landlord exercises its right
to cancel this Lease, Tenant shall surrender possession of all, or the
applicable portion, of the Leased Premises which is the subject of this
right to cancel, as the case may be, not later than the date on which
the proposed sublease or assignment term would commence. If this lease
is canceled as to a portion of the Premises only, the Rent after the
date of cancellation shall be reduced proportionately on a square
footage basis.
6.4.5 Proceeds of Sublease or Assignment. For transfers that are
not to an Affiliate, one-half (1/2) of any proceeds (net of any costs (
including carrying costs and/or inducement costs) incurred by Tenant in
subletting to subtenant) in excess of Base Rent and Tenant's Pro Rata
Share of Excess Operating Costs which is received by Tenant pursuant to
an assignment or subletting consented to by Landlord shall be remitted
to Landlord as extra Rent within ten (10) days of receipt by Tenant net
of any costs Tenant incurs in subletting space. For purposes of this
Paragraph, all money or value in whatever form received by Tenant from
or on account of any party as consideration for an assignment or
subletting shall be deemed to be proceeds received by Tenant pursuant to
an assignment or subletting.
6.4.6 Administrative Costs of Assignment Transaction. In
connection with any request by Tenant for approval of an assignment or
sublease, Tenant shall pay Landlord's then standard processing fee, any
taxes or other charges imposed upon Landlord or the Project as a result
of such assignment or sublease, and shall reimburse Landlord for all
costs, including the reasonable fees of attorneys, architects or other
consultants incurred by Landlord in connection with such assignment or
sublease, only in the event such proposed assignment or sublease is
consented to by Landlord.
6.5 Estoppel Certificate. From time to time and within ten (10) days
after request by Landlord, Tenant shall execute and deliver a certificate to any
proposed lender or purchaser, or to Landlord, certifying, with any appropriate
exceptions, (a) that this Lease is in full force and effect without modification
except as noted, (b) the amount, if any, of Prepaid Rent and Deposit paid by
Tenant to Landlord (and not returned to Tenant), (c) the nature and kind of
concessions, rental or otherwise, if any, which Tenant has received or is
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entitled to receive, (d) that Landlord has performed all of its obligations due
to be performed under this Lease and that there are no defenses, counterclaims,
deductions or offsets outstanding or other excuses for Tenant's performance
under this Lease as of such date, and (e) any other fact reasonably requested by
Landlord or such proposed lender or purchaser. Should Tenant fail to deliver
such estoppel certificate within such ten (10)-day period, then Landlord shall
have the right, at its option, to immediately declare an Event of Default
without the requirement for further notice or demand and pursue all remedies
provided under Subparagraph 11.2 below.
6.6 Brokerage Commissions. Each of Tenant and Landlord represents to the
other that no broker or agent other than Colliers International, which is
Tenant's broker, and CB Xxxxxxx Xxxxx, Inc., which is Landlord's broker, was
instrumental in procuring or negotiating or consummating this Lease, and each
party agrees to defend and indemnify the other party against any loss, expense
or liability incurred by the other party as a result of a claim by any broker or
finder claiming representation of the indemnifying party in connection with this
Lease or its negotiation.
7. LANDLORD'S RESERVED RIGHTS.
7.1 Additional Rights Reserved to Landlord. Without notice and without
liability to Tenant, or without effecting an eviction or disturbance of Tenant's
use or possession, Landlord shall have the right to (a) grant utility easements
or other easements in, or replant, subdivide or make other changes in the legal
status of the land underlying the Leased Premises, the Building or the Project
as Landlord shall deem appropriate in its sole discretion; provided such changes
do not substantially interfere with or reduce Tenant's rights or use, or cause
Tenant any substantial increase in its obligations under the Lease of the Leased
Premises for the Permitted Purpose; (b) enter the Leased Premises at reasonable
times after reasonable prior notice to Tenant, and at any time in the event of
an emergency, to inspect (including inspections by perspective lenders for or
buyers of the Project), alter or repair the Leased Premises or the Building and
to perform any acts related to the safety, protection, sale or improvement of
the Leased Premises or the Building, all after prior reasonable written notice
to Tenant; (c) add or take away from the Project any building or portion
thereof, in which event Total Square Footage of the Building and Tenant's Pro
Rata Share shall be adjusted accordingly, except Tenant's Pro Rata Share shall
not be increased; (d) install and maintain signs on and in the Building and the
Project; and (e) make such rules and regulations as, in the sole judgment of
Landlord, may be needed from time to time for the safety of the tenants, the
care and cleanliness of the Leased Premises, the Building and the Project and
the preservation of good order therein.
7.2 [INTENTIONALLY OMITTED]
8. CASUALTY AND UNTENANTABILITY.
8.1 Termination by Landlord. If the Building is made substantially
untenantable, or if Tenant's use and occupancy of the Leased Premises are
substantially interfered with, due to damage to the common areas of the
Building, or the Leased Premises are made wholly or partially untenantable by
fire or other casualty, Landlordmay, by noticeTenant, within sixty (60) days
after the damage, terminate this Lease, and Rent shall be abated from the time
the fire or other casualty occurred.
8.2 Restoration of Premises. If the Leased Premises are made partially
or wholly untenantable by fire or other casualty and this Lease is not
terminated as provided above, Landlord shall restore the Leased Premises to the
condition immediately prior to such casualty; provided that Tenant shall agree
to restore its personal property with Tenant's insurance proceeds carried by
Tenant under Subparagraph 6.2.1 above. Unless otherwise prohibited by law or
against public policy, Tenant waives the provisions of Section 1932 of the Civil
Code of the State of California and any other statute or law permitting Tenant
to terminate this Lease in the event of casualty to the Leased Premises.
8.3 Termination by Tenant. If the Landlord does not terminate this Lease
as provided above, and Landlord fails within One Hundred Eighty (180) days from
the date of such casualty, to restore the damaged common areas, thereby
eliminating substantial interference with Tenant's use and occupancy of the
Page 23 of 56
Leased Premises, or fails to restore the Leased Premises to the condition
immediately prior to such casualty, Tenant may notify Landlord of its intention
to terminate this Lease, and Tenant shall have the right to so terminate as of
the end of such One Hundred Eighty (180) day period.
8.4 Rent; Prorations. In the event of termination of this Lease pursuant
to the immediately preceding Paragraph, Rent shall be prorated on a per diem
basis and paid to the date of the casualty, unless the Leased Premises shall be
tenantable, in which case Rent shall be payable to the date of the Lease
termination and if only partly tenantable, Tenant shall receive abatement to the
extent that portion is untenantable. If the Leased Premises are wholly
untenantable and this Lease is not terminated, Rent shall xxxxx on a per diem
basis from the date of the casualty until the Leased Premises are ready for
occupancy by Tenant. If part of the Leased Premises are untenantable, Rent shall
be prorated on a per diem basis and partially abated in accordance with the part
of the Leased Premises which is usable by Tenant until the damaged part is ready
for Tenant's occupancy. Notwithstanding the foregoing, if any damage was
proximately caused by an act of omission of Tenant, its employees, agents,
contractors, licensees or invitees, then, in such event, Tenant agrees that Rent
shall not xxxxx or be diminished during the term of this Lease.
9. CONDEMNATION.
9.1 Rent Abatement. If all or any part of the Leased Premises shall be
taken under power of eminent domain or sold under imminent threat to any public
authority or private entity having such power, this Lease shall terminate as to
the part of the Leased Premises so taken or sold, effective as of the date
possession is required to be delivered to such authority. In such event Base
Rent and Tenant's Pro Rata Share of Excess Operating Costs shall xxxxx in the
ratio that the portion of Tenant's Square Footage taken or sold bears to
Tenant's Square Footage.
9.2 Lease Termination. If a partial taking or sale of the Leased
Premises, the Building or the Project (a) substantially reduces the Tenant's
Square Footage, resulting in an inability of Tenant to use the Leased Premises
for the Permitted Purpose in Tenant's reasonable judgment, or (b) renders the
Building or the Project commercially inviable to Landlord, in Landlord's sole
opinion, Tenant, in the case of (a), or Landlord in the case of (b), may
terminate this Lease by notice to the other party within thirty (30) days after
the terminating party receives written notice of the portion to be taken or
sold. Such termination shall be effective one hundred eighty (180) days after
notice thereof, or when the portion is taken or sold, whichever is sooner. All
condemnation awards and similar payments shall be paid and belong to Landlord,
except for any amounts awarded or paid specifically to Tenant by the acquiring
agency for removal and reinstallation of Tenant's trade fixtures and personal
property, Tenant's relocation or moving costs or Tenant's goodwill.
10. INDEMNITY, SUBROGATION AND WAIVER.
10.1 Indemnity. From and after the Lease Commencement Date, Tenant
agrees to defend, indemnify and save harmless Landlord against and from any and
all claims, demands, actions, damages, liability and expense in connection with
or for loss of or damage to property or injury or death to any person from any
cause whatsoever while in, upon or about the Leased Premises, or from any such
claim, demand or the like arising from or out of any occurrence in, upon or at
the Leased Premises, by or on behalf of any person, firm or corporation arising
from Tenant's use of the Leased Premises or the conduct of its business or from
any activity, work, or thing done, permitted or suffered by Tenant, in or about
the Leased Premises, and Tenant shall further defend, indemnify and save
Landlord harmless against and from any and all claims arising from any breach or
default (defined in Subparagraph 11.1 below) on Tenant's part in the performance
of any covenant or agreement on Tenant's part to be performed, pursuant to the
terms of this Lease, or arising from any act or negligence of Tenant, or any of
its agents, contractors, servants, employees or licensees, and from and against
all costs, attorneys' fees, expenses and liabilities incurred in or arising from
any such claim or action or proceeding brought thereon; and in case any action
or proceeding is brought against Landlord by reason of any such claim, Tenant
upon notice from Landlord covenants to resist or defend at Tenant's expense such
action or proceeding by counsel reasonably satisfactory to Landlord. Tenant, as
a material part of the consideration to Landlord, hereby assumes all risk of
Page 24 of 56
damage to property in, upon or about the Leased Premises, the Building or the
Project from any source and to whomever belonging, and Tenant hereby waives all
claims in respect thereof against Landlord, except to the extent such damage is
caused by Landlord's grossnegligence or willful misconduct. The foregoing waiver
shall inure only to the benefit of Landlord and its agents, and the exception to
such waiver for Landlord's negligence or willful misconduct shall inure only to
the benefit of Tenant and its agents and to no other party.
10.2 Waiver of Subrogation. Tenant and Landlord release each other and
waive any right of recovery against each other for any claims for loss or damage
to any person or the Leased Premises, which occurs on or about the Leased
Premises, the Building or the Project, whether due to the negligence of either
party, their agents, employees, officers, contractors, licensees, invitees or
otherwise, if such loss or damage is insured against under insurance policy
carried by the releasing party and in force at the time of such loss or damage,
and to the extent of the proceeds received from such policy. Tenant and Landlord
agree that all policies of insurance obtained by either of them in connection
with the Leased Premises shall contain appropriate waiver of subrogation
clauses. The provisions of this Subparagraph 10.2 shall survive the expiration
or termination of this Lease with respect to any claims or liability arising
from events occurring prior to such expiration.
10.3 Limitation of Landlord's Liability. The obligations of Landlord
under this Lease do not constitute personal obligations of the individual
partners, shareholders, directors, officers, employees, or agents of Landlord,
and Tenant shall look solely to Landlord's interest in the Leased Premises and
to no other assets of Landlord, for satisfaction of any liability in respect of
this Lease. Tenant will not seek recourse against the individual partners,
shareholders, directors, officers, employees or agents of Landlord or any of
their personal assets for such satisfaction. Notwithstanding any other
provisions contained herein, Landlord shall not be liable to Tenant, its
contractors, agents or employees for any consequential damages or damages for
loss of profits.
11. TENANT'S DEFAULT AND LANDLORD'S REMEDIES.
11.1 Tenant's Default. It shall be an "Event of Default" if Tenant shall
(a) fail to pay when due any such monthly installment of Base Rent or of
Tenant's Pro Rata Share of Excess Operating Costs is past due; (b) violate or
fail to perform any of the other conditions, covenants or agreements herein made
by Tenant, and such violation or failure shall continue for thirty (30) days
after written notice thereof to Tenant by Landlord except that if within the
thirty (30) day period Tenant commences and thereafter proceeds diligently to
remedy the violation or failure, Tenant shall not be in default hereunder;
provided, however, that in no event shall such remedy extend beyond ninety (90)
days from the effective date of such notice from Landlord to Tenant of such
violation or failure; (c) make a general assignment for the benefit of its
creditors or file a petition for bankruptcy or other reorganization,
liquidation, dissolution or similar relief; (d) have a proceeding filed against
Tenant seeking any relief mentioned in (c) above which is not discharged within
sixty (60) days thereafter; (e) have a trustee, receiver or liquidator appointed
for Tenant or a substantial part of its property; or (f) abandon or vacate the
Leased Premises for more than six (6) consecutive months without payment of
rent.
11.2 Remedies on Default. Landlord shall have the following remedies if
Tenant commits an Event of Default. These remedies are not exclusive; they are
cumulative in addition to any remedies now or later allowed by law.
11.2.1 Continue Lease. Landlord may continue this Lease in full
force and effect. In such case, the Lease will continue in effect so
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 can enter the Leased 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 reasonable costs
Landlord incurs in reletting the Leased Premises including, without
limitation, broker's commissions, expenses of remodeling the Leased
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 date the Rent
is due, less the Rent Landlord receives from any reletting. No act by
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Landlord allowed by this Paragraph shall terminate this Lease unless
Landlord notifies Tenant 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 Leased 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.
11.2.2 Terminate Lease. Landlord can terminate Tenant's right to
possession of the Leased Premises at any time. No act by Landlord other
than giving notice to Tenant shall terminate this Lease. Acts of
maintenance, efforts to relet the Leased Premises or the appointment of
a receiver on Landlord's initiative to protect Landlord's interest under
this Lease shall not constitute a termination of Tenant's right to
possession. On termination, Landlord has the right to recover from
Tenant:
(a) The worth, at the time of the award, of the unpaid
Rent that had been earned at the time of termination of this
Lease;
(b) The worth, at the time of the award, of the amount
by which the unpaid Rent that would have been earned after the
date of termination of this Lease until the time of the award
exceeds the amount of the loss of Rent that Tenant proves could
have been reasonably avoided;
(c) 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 the award exceeds the amount of the loss of Rent that
Tenant proves could have been reasonably avoided;
(d) Any other amount, and court costs, necessary to
compensate Landlord for all detriment proximately caused by
Tenant's Default, including, without limitation, any unamortized
brokerage commissions attributable to this Lease, or any
unamortized costs of tenant improvements as set forth on
Schedule 5 attached hereto.
"The worth, at the time of the award," as used in Subparagraphs (a) and
(b) of this Subparagraph 11.2.2 is to be computed by allowing interest
at the maximum rate allowed by applicable usury law at that time, or if
there is no such maximum, at twelve percent (12%) per annum. "The worth,
at the time of the award," as referred to in Subparagraph (c) of this
Subparagraph 11.2.2 is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time
of the award, plus one percent (1%).
11.2.3 Receiver. Landlord shall have the right to have a
receiver 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 this Lease.
11.2.4 Cost of Reletting Premises. In the event of Tenant's
Default and Landlord's reentering of the Premises, Tenant agrees to pay
to Landlord, as an additional item of damages, the cost of repairs,
alterations, redecorating, lease commissions and Landlord's other
reasonable expenses incurred in reletting the Leased Premises to a new
tenant.
11.2.5 Waiver. Provided it is not otherwise prohibited by law or
against public policy, Tenant hereby waives any right of redemption or
relief from forfeiture under California Code of Civil Procedure Sections
1174 or 1179, or under any other present or future law, if Tenant is
evicted or Landlord takes possession of the Leased Premises by reason of
any Default by Tenant hereunder.
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12. TERMINATION.
12.1 Surrender of Leased Premises. On expiration of this Lease, if no
Event of Default exists, Tenant shall surrender the Leased Premises in the same
condition as when the Lease Term commenced, ordinary wear and tear excepted.
Except for furniture, equipment and trade fixtures other than those which are
affixed to the Leased Premises so that they cannot be removed without material
damage to the Leased Premises and other than utility installations, all
alterations, additions or improvements, whether temporary or permanent in
character, made in or upon the Leased Premises, either by Landlord or Tenant,
shall be Landlord's property and at the expiration or earlier termination of the
Lease or any Renewal Term shall remain on the Leased Premises without
compensation to Tenant. Landlord may dispose of such property abandoned by
Tenant pursuant to law, provided that, if Landlord requests in writing, Tenant
shall, at its expense and without delay, remove any alterations, additions or
improvements, including, without limitation all telecommunications equipment and
cabling, whether or not these items are part of the Leasehold Improvements, and
all alterations and improvements made by Tenant after the Lease Commencement
Date, that are not defined as Landlord's property made to the Leased Premises by
Tenant and designated by Landlord to be removed, and repair any damage to the
Leased Premises or the Building caused by such removal. If Tenant fails to
repair the Leased Premises, Landlord may complete such repairs and Tenant shall
reimburse Landlord for such repairs and restoration. If Tenant fails to remove
such property as required under this Lease, Landlord may dispose of such
property abandoned by Tenant pursuant to law. Notwithstanding the foregoing,
however, the parties acknowledge and agree that (i) Tenant shall remove all
telecommunications equipment and cabling at the end of the Lease Term, (ii) all
initial Leasehold Improvements (other than telecommunications equipment and
cabling) constructed pursuant to the Work Letter Agreement in Schedule 5 shall
not be removed by Tenant and will remain part of the Leased Premises at the end
of the Lease Term, and (iii) Landlord shall deliver notice to Tenant, during
Landlord's review of the plans and specifications for any future alterations,
additions or improvements to the Leased Premises, whether such alterations,
additions or improvements must be removed by Tenant at the end of the Lease Term
or shall remain part of the Leased Premises.
12.2 Hold Over Tenancy. If Tenant shall hold over after the Lease
Expiration Date or at the end of any Renewal Term, Tenant shall be deemed, at
Landlord's option, to occupy the Leased Premises as a tenant from month to
month, which tenancy may be terminated by one (1) month's written notice by
either party. During such tenancy, Tenant agrees to pay Landlord, monthly in
advance, an amount equal to one hundred fifty percent (150%) of all Rent which
would become due (based on Base Rent and Tenant's Pro Rata Share of Excess
Operating Costs payable for the last month of the Lease Term or Renewal Term as
applicable, together with all other amounts payable by Tenant to Landlord under
this Lease), and to be bound by all of the terms, covenants and conditions
herein specified. If Landlord relets the Leased Premises or any portion thereof
to a new tenant and the term of such new lease commences during the period for
which Tenant holds over, Landlord shall be entitled to recover from Tenant all
costs and expenses, reasonable attorneys' fees, post-judgment collection costs,
damages (including any reasonable relocation costs or other damages occasioned
to such new tenant and asserted against Landlord) and loss of profits incurred
by Landlord as a result of Tenant's failure to deliver possession of the Leased
Premises to Landlord when required under this Lease, together with any other
remedies provided to Landlord hereunder.
13. MISCELLANEOUS.
13.1 Quiet Enjoyment. Subject to the rights of Landlord to enter into
the Leased Premises as provided in Subparagraph 7.1 hereof, if and so long as
Tenant pays all Rent and timely keeps and performs each and every term, covenant
and condition herein contained on the part of Tenant to be kept and performed,
Tenant shall quietly enjoy the Leased Premises without hindrance by Landlord.
13.2 Accord and Satisfaction. No receipt and retention by Landlord of
any payment tendered by Tenant in connection with this Lease shall constitute an
accord and satisfaction, or a compromise or other settlement, notwithstanding
any accompanying statement, instruction or other assertion to the contrary
unless Landlord expressly agrees to an accord and satisfaction, or a compromise
or other settlement, in a separate writing duly executed by Landlord. Landlord
will be entitled to treat any such payments as being received on account of any
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item or items of Rent, interest, expense or damage due in connection therewith,
in such amounts and in such order as Landlord may determine at its sole option.
13.3 Severability. The parties intend this Lease to be legally valid and
enforceable in accordance with all of its terms to the fullest extent permitted
by law. If any term hereof shall be stricken from this Lease to the extent
unenforceable, the same shall be as if it never had been contained herein. Such
invalidity or unenforceability shall not extend to any other term of this Lease,
and the remaining terms hereof shall continue in effect to the fullest extent
permitted by law, the same as if such stricken term never had been contained
herein.
13.4 Subordination and Attornment. Tenant agrees that this Lease and
Tenant's rights hereunder are subordinate to the lien of any mortgage, deed of
trust or other encumbrance, together with any conditions, renewals, extensions
or replacements thereof ("Superior Instruments"), now or hereafter placed,
charged or enforced against any interest of Landlord in this Lease, in the
leasehold estate thereby created or in the Leased Premises or the Building or
the Project, together with any improvements included therein, provided that so
long as Tenant is not in default under this Lease, the rights of Tenant
hereunder shall not be disturbed by reason of the terms of such Superior
Instrument. If requested in writing by Landlord or any mortgagee, beneficiary or
ground lessor of Landlord, Tenant agrees to execute a subordination agreement
with non disturbance provisions for the benefit of Tenant to confirm the
provisions of this Paragraph and to provide that such party acquires and accepts
the Leased Premises subject to this Lease. If Tenant fails to execute and
deliver any such documents or instruments within fifteen (15) business days
following request therefor by Landlord, Landlord may declare an Event of
Default, without further notice and demand. In the event of any transfer in lieu
of foreclosure or termination of a lease in which Landlord is lessee or the
foreclosure of any Superior Instrument, or sale of the Property pursuant to any
Superior Instrument, Tenant shall attorn to such purchaser, transferee or lessor
and recognize such party as landlord under this Lease, provided such party
expressly assumes the obligations of Landlord under this Lease. The agreement of
Tenant to attorn contained in the immediately preceding sentence shall survive
any such foreclosure sale, termination of Landlord's interest, or transfer.
13.5 Applicable Law/Construction. This Lease shall be construed
according to the laws of the State of California and the provisions hereof shall
be construed in accordance with their fair meaning. Each of the parties has
agreed to the use of the particular language hereof (and in all attached
Schedules), and any questions of doubtful interpretation shall not be resolved
solely by any rule or interpretation providing for interpretation against the
party who causes the uncertainty to exist or against the draftsman. The subject
captions have been inserted for convenience only and shall not be used to alter
or interpret the content of this Lease.
13.6 Binding Effect. The covenants, conditions, warranties and
agreements contained in this Lease shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns.
13.7 Time. Time is of the essence of this Lease.
13.8 Entire Agreement. This Lease and the schedules attached set forth
all the covenants, promises, agreements, representations, conditions, statements
and understandings between Landlord and Tenant concerning the Leased Premises,
the Building and the Project, and there are no representations, either oral or
written between the parties other than those in this Lease. This Lease shall not
be amended or modified except in a writing signed by both parties. Failure to
exercise any right in one or more instance shall not be construed as a waiver of
the right to strict performance or as an amendment to or modification of this
Lease.
13.9 Notices. All notices pursuant to this Lease shall be in writing and
shall be effective on the earlier to occur of actual receipt or if mailed, three
(3) days after posting at a United States Post Office, when mailed by certified
mail or overnight mail, delivered (a) to Landlord or Tenant at the address
designated in Subparagraph 1.1 with a copy to the Managing Agent, or (b) to such
other address as may hereafter be designated by either party by written notice.
Page 28 of 56
13.10 Force Majeure. Except as otherwise provided in this Lease, the
obligations of Tenant to pay Rent and perform all of the terms, covenants and
conditions on the part of Tenant to be performed hereunder shall in no way be
affected, impaired or excused because Landlord, due to Unavoidable Delay (as
defined below), (a) is unable to fulfill any of its obligations under this
Lease, or (b) is delayed in providing any service, equipment or fixtures
expressly or impliedly to be provided, or (c) is unable to make or is delayed in
making any repairs, replacements, additions, alterations or decorations.
Landlord shall in each instance exercise reasonable diligence to
effect performance when and as soon as possible. Landlord, however,
shall not be obligated to pay overtime labor rates.
"Unavoidable delay" shall mean any and all delay beyond
Landlord's reasonable control, including without limitation, delays
caused by Tenant, governmental restrictions, regulations, controls,
preemptions or delays; orders of civil, military or naval authorities;
strikes, labor disputes, lock-outs, shortages of labor or materials or
reasonable substitutes therefor; Acts of God; fire, earthquake, floods,
explosions or other casualties; extreme weather conditions or other
actions of the elements; enemy action, terrorism, civil commotion, riot
or insurrection.
13.11 Attorneys' Fees; Prejudgment Interest. If the services of an
attorney are required by any party to secure the performance hereof or otherwise
upon the breach or Default of another party to this Lease, or if any judicial
remedy or arbitration is necessary to enforce or interpret any provision of this
Lease, or if the services of an attorney are required upon the bankruptcy of a
party to this Lease to compel or object to assumption or rejection of this
Lease, seek relief from the automatic stay or object to an action to recover a
preference or fraudulent transfer, the prevailing party shall be entitled to
reasonable attorneys' fees, costs, expert witnesses fees, post-judgment
collection costs, and other expenses, in addition to any other relief to which
such party may be entitled. Any award of damages following judicial remedy or
arbitration as a result of the breach of this Lease or any of its provisions
shall include an award of prejudgment interest from the date of the breach at
the maximum amount of interest allowed by law.
13.12 Authority. Both parties warrants and represents that it has full
authority to enter into this Lease; that this Lease constitutes a binding
obligation on behalf of each applicable party, and that the individual signing
on behalf of such applicable party is duly authorized to bind that party hereto.
13.13 Hazardous Materials.
13.13.1 Landlord's Representations and Warranties. Landlord
hereby warrants and represents to Tenant that Landlord has no knowledge
of the presence within the Leased Premises, the Building, or the
Project, of any Hazardous Substances.
13.13.2 Hazardous Substances Prohibited. Landlord and Tenant (in
addition to the provisions of Subparagraph 6.1.3 above) each agrees that
it shall not, under any circumstances, cause or permit any Hazardous
Substance to be used, released, discharged, disposed of, handled,
possessed or stored within the Building, or any part or parts thereof,
on the Project.
13.13.3 Notice. In the event that either Landlord or Tenant
discovers or is informed that a Hazardous Substance exists in the Leased
Premises, in the Building, or any part or parts thereof or in the
Project, it shall immediately notify the other in writing of such
discovery or information.
13.13.4 Definitions. As used in this Lease, "Environmental Laws"
shall mean all present and future federal, state or local laws,
ordinances, rules, regulations, decisions and other requirements of
governmental authorities relating to the environment or to any Hazardous
Substance, including without limitation the Hazardous and Solid Waste
Amendments of 1984 ("RCRA"), the Comprehensive Environmental Response
Compensation and Liability Act, as amended by the Superfund Amendments
and Reauthorization Act ("CERCLA"), the Toxic Substances Control Act,
the Safe Drinking Water Act, the Federal Water Pollution Control Act
(the "Clean Water Act"), the Clean Air Act, the Emergency Planning and
Community Right-to-Know Act, the Federal Insecticide, Fungicide and
Rodenticide Act, the Noise Control Act, the Radon Indoor Air Quality
Page 29 of 56
Research Act, and the National Environmental Policy Act (Environmental
Impact Statement), and any similar comparable California statutes and
regulations including but not limited to the Underground Storage of
Hazardous Substances Act, California Health and Safety Code ss. 25280 et
seq., Hazardous Substance Account Act, California Health and Safety Code
ss. 25300, et seq., the Hazardous Waste Control Law, California Health
and Safety Code ss. 25100, et seq., the Medical Waste Management Act,
California Health and Safety Code ss. 25015, et seq., the Safe Drinking
Water and Toxic Enforcement Act, California Health and Safety Code ss.
24249.5 et seq., and the Xxxxxx-Cologne Water Quality Act, California
Water Code ss. 13000, et seq., in each case, as amended, with
implementing rules and regulations, and the Occupational Safety and
Health Act of 1970, as amended.
As used in this Lease, "Hazardous Substances" shall mean any
substances defined or listed in, or otherwise classified pursuant to, or
regulated by, any applicable laws or regulations, including all
Environmental Laws, as a hazardous substance, hazardous material,
hazardous waste, infectious waste, toxic substance, toxic pollutant,
solid waste or any other term used to define, list, classify or regulate
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, including mold, asbestos, polychlorinate and biphenyls.
13.14 Building Directory. Landlord shall list the Tenant's name and, at
Tenant's option, the designated names of the officers and personnel of Tenant on
the Building directory in accordance with Landlord's listings for similar
tenants.
13.15 Parties' Approvals. Except as otherwise herein expressly provided,
whenever consent or approval of either party is required, that party shall not
unreasonably withhold or delay such consent or approval.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Page 30 of 56
SUBMISSION OF THIS INSTRUMENT FOR EXAMINATION OR SIGNATURE BY TENANT
DOES NOT CONSTITUTE A RESERVATION OF OR OPTION FOR LEASE, AND IT IS NOT
EFFECTIVE AS A LEASE OR OTHERWISE UNTIL EXECUTION AND DELIVERY BY BOTH LANDLORD
AND TENANT.
This Lease is executed as of this 17th day of May, 2005.
LANDLORD:
ONE CAPITAL CENTER,
a California limited partnership
By: 3100 ZINFANDEL PARTNERS,
a California limited partnership,
General Partner
By: PROSPECT CENTER PARTNERS,
a California joint venture,
General Partner
By: WEST 50 CORP.,
A California corporation
By: /s/ XXX X. XXXX
--------------------------------
Xxx X. Xxxx,
Its President
TENANT:
AMERICAN RIVER BANKSHARES,
a California corporation
By: /s/ XXXXX X. XXXXX
-----------------------------------
Its: CEO
-----------------------------------
By: /s/ XXXXXXXX X. XXXXXXX
-----------------------------------
Its: CFO
-----------------------------------
Where Tenant is a corporation, this Lease shall be signed by a President
or Vice President and Secretary or Assistant Secretary of Tenant. Any other
signatories shall require a certified corporate resolution.
Page 31 of 56
SCHEDULE 1
----------
DESCRIPTION OF THE LEASED PREMISES AND SITE PLAN
------------------------------------------------
The Land consists of that certain real property situated in the City of
Sacramento, County of Sacramento, State of California and is described as
follows:
The Leased Premises shall consist of approximately Seven Thousand Three
Hundred Seventy-Eight (7,378) Rentable square feet calculated as provided in
Subparagraph 1.1 of the Lease. A preliminary drawing showing Tenant's site plan
is attached as Schedule 5-A.
Page 32 of 56
SCHEDULE 1-A
------------
AVAILABLE SPACE
---------------
Page 33 of 56
SCHEDULE 2
----------
RULES AND REGULATIONS
---------------------
Except as otherwise provided in any provision of the Lease, as provided in
Subparagraph 1.2, the following Rules and Regulations shall apply:
1. The sidewalks, entrances, halls, corridors, elevators and stairways of
the Building and Project shall not be obstructed or used as a waiting or
lounging place by Tenants, and their agents, servants, employees, invitees,
licensees and visitors. All entrance doors leading from any Leased Premises to
the hallways are to be kept closed at all times.
2. Landlord reserves the right to refuse admittance to the Building between
the hours of 6:00 p.m. and 8:00 a.m. Monday through Saturday, and from 1:00 p.m.
Saturday to 8:00 a.m. Monday to any person not producing both a key to the
Leased Premises and/or a pass issued by Landlord. In case of invasion, riot,
public excitement or other commotion, Landlord also reserves the right to
prevent access to the Building during the continuance of same. Landlord shall in
no case be liable for damages for the admission or exclusion of any person to or
from the Building.
3. Landlord will furnish each Tenant with two keys to each door lock on the
Leased Premises, and Landlord may make a reasonable charge for any additional
keys and access cards requested by any Tenant. No Tenant shall have any keys
made for the Leased Premises; nor shall any Tenant alter any lock, or install
new or additional locks or bolts on any door without the prior written approval
of Landlord. In the event of such alteration or installation approved by
Landlord, the Tenant making such alteration shall supply Landlord with a key for
any such lock or bolt. Each Tenant, upon the expiration or termination of its
tenancy, shall deliver to Landlord all keys and access cards in any such
Tenant's possession for all locks and bolts in the Building.
4. In order that the Building may be kept in a state of cleanliness, each
Tenant shall, during the term of each respective lease, permit Landlord's
employees (or Landlord's agent's employees) to take care of and clean the Leased
Premises and Tenants shall not employ any person(s) other than Landlord's
employees (or Landlord's agent's employees) for such purpose. No Tenant shall
cause any unnecessary labor by reason of such Tenant's carelessness or
indifference in the preservation of good order and cleanliness of the Leased
Premises. Tenants will use reasonable efforts to see that (i) the windows are
closed, (ii) the doors are securely locked, and (iii) all water faucets and
other utilities are shut off (so as to prevent waste or damage) each day before
leaving the Leased Premises. In the event Tenant must dispose of crates, boxes,
etc., which will not fit into office waste paper baskets, it will be the
responsibility of Tenant to dispose of same. In no event shall Tenant set such
items in public hallways or other areas of the Building or garage facility,
excepting Tenant's owned Leased Premises, for disposal.
5. Landlord reserves the right to prescribe the date, time, method and
conditions that any personal property, equipment, trade fixtures, merchandise
and other similar items shall be delivered to or removed from the Building. No
iron safe or other heavy or bulky object shall be delivered to or removed from
the Building, except by experienced safe men, movers or riggers approved in
writing by Landlord. All damage done to the Building by the delivery or removal
of such items, or by reason of their presence in the Building, shall be paid to
Landlord, immediately upon demand, by the Tenant by, through, or under whom such
damage was done. There shall not be used in any space, or in the public halls of
the Building, either by Tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires.
6. The walls, partitions, skylights, windows, doors and transoms that
reflect or admit light into passageways or into any other part of the Building
shall not be covered or obstructed by any of the Tenants.
Page 34 of 56
7. The toilet rooms, toilets, urinals, wash bowls and water apparatus shall
not be used for any purposes other than for those for which they were
constructed or installed, and no sweepings, rubbish, chemicals, or other
unsuitable substances shall be thrown or placed therein. The expense of any
breakage, stoppage or damage resulting from violation(s) of this rule shall be
borne by the Tenant by whom, or by whose agents, employees, invitees, licensees
or visitors, such breakage, stoppage or damage shall have been caused.
8. No sign, name, placard, advertisement or notice visible from the
exterior of any Leased Premises, shall be inscribed, painted or affixed by the
Tenant on any part of the Building or Project without the prior written approval
of Landlord, which approval may be withheld in Landlord's sole and absolute
discretion, provided if such signs are required of Tenant due to state or
federal banking regulations, then Tenant may be permitted to so install same
subject to approval of the location by Landlord. All signs or letterings on
doors, or otherwise approved by Landlord shall be inscribed, painted or affixed
at the sole cost and expense of the Tenant, by a person approved by Landlord. A
directory containing the names of all tenants in the Building shall be provided
by Landlord at an appropriated place on the first floor of the Building.
9. Except for Tenant's satellite dish and/or other communication service
already approved herein by Landlord, no signaling, telegraphic or telephonic
instruments or devices, or other wires, instruments or devices, shall be
installed in connection with any Leased Premises without the prior written
approval of Landlord. Such installations, and the boring or cutting for wires,
shall be made at the sole cost and expense of the Tenant and under control and
direction of Landlord. Landlord retains, in all cases, the right to require (i)
the installation and use of such electrical protecting devices that prevent the
transmission of excessive currents of electricity into or through the Building,
(ii) the changing of wires and of their installation and arrangement underground
or otherwise as Landlord may direct, and (iii) compliance on the part of all
using or seeking access to such wires with such rules as Landlord may establish
relating thereto. All such wires used by Tenants must be clearly tagged at the
distribution boards and junction boxes and elsewhere in the Building, with (i)
the number of the Leased Premises to which said wires lead, (ii) the purpose for
which said wires are used, and (iii) the name of the company operating same.
10. Tenant, their agents, servants or employees, shall not (a) go on the
roof of the Building (except as permitted by Landlord for the installation of
Tenant's satellite or other like service, pursuant to Subparagraph 6.1.8 of the
Lease), (b) use any additional method of heating or air conditioning in the
Leased Premises, (c) sweep or throw any dirt or other substance from the Leased
Premises into any of the halls, corridors, elevators, or stairways of the
Building, (d) bring in or keep in or about the Leased Premises any vehicles or
animals (except for service animals for the disabled) of any kind, (e) install
any radio or television antenna or any other device or item on the roof,
exterior walls, windows or window silts of the Building, except that Tenant
shall have access to Building common television antenna, (f) place objects
against glass partitions, doors or windows which would be unsightly from the
interior or exterior of the Building, (g) use any Leased Premises: (1) for
lodging or sleeping, (2) for cooking (except that the use by any Tenant of
equipment for brewing coffee, tea and similar beverages shall be permitted as
well as counter top microwave cooking, provided that such use is in compliance
with law), (3) for any manufacturing, storage or sale of merchandise or property
of any kind; and (h) cause or permit unusual or objectionable odor to be
produced or permeate from the Leased Premises, including, without limitation,
duplicating or printing equipment fumes. Tenant, its agents, servants and
employees, invitees, licensees, or visitors shall not permit the operation of
any musical or sound producing instruments or device which may be heard outside
Leased Premises, Building or garage facility, or which may emit electrical waves
which will impair radio or television broadcast or reception from or into the
Building. Landlord acknowledges and agrees that Tenant shall be entitled to
operate a cafeteria for the use of its employees and business guests.
11. Tenants shall not store or use in any Leased Premises any (a) ether,
naphtha, phosphorous, benzol, gasoline, benzene, petroleum, crude or refined
earth or coal oils, flashlight power, kerosene or camphene, (b) any other
flammable, combustible, explosive or illuminating fluid, gas or material of any
kind, and (c) any other fluid, gas or material of any kind having an offensive
odor, without the prior written consent of Landlord.
Page 35 of 56
12. No canvassing, soliciting, distribution of hand bills or other written
material, or peddling shall be permitted in the Building or the Project, and
Tenants shall reasonably cooperate with Landlord in prevention and elimination
of same.
13. Tenant shall give Landlord prompt notice of all accidents to or defects
in air conditioning equipment, plumbing, electrical facilities or any part of
appurtenances of Leased Premises.
14. If any Leased Premises becomes infested with vermin, the Tenant, at its
sole cost and expense, shall cause its premises to be exterminated from time to
time to the satisfaction of the Landlord and shall employ such exterminators as
shall be approved by Landlord, except in the event such infestation is due to
Landlord's culpable negligence or willful misconduct.
15. No curtains, blinds, shades, screens, awnings or other coverings or
projections of any nature shall be attached to or hung in, or used in connection
with any door, window or wall of the premises of the Building without the prior
written consent of the Landlord.
16. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of Landlord or of
the Building, or its desirability as an office building for existing or
prospective tenants who require the highest standards of integrity and
respectability, and upon written notice from Landlord, Tenant shall refrain from
or discontinue such advertising.
17.Tenant shall cooperate with Landlord to assure compliance with rules and
regulations.
18. Landlord reserves the right to make reasonable amendments,
modifications and additions to the rules and regulations heretofore set forth,
and to make additional reasonable rules and regulations, as in Landlord's sole
judgment may from time to time be needed for the safety, care, cleanliness and
preservation of good order of the Building; provided that the same shall be
reasonable, non-discriminatory and applied consistently to all tenants in the
Building.
19. The Tenant shall not do anything in the Leased Premises, or bring or
keep anything herein, which will in any way increase or tend to increase the
risk of fire or rate of insurance, or which shall conflict with the Regulations
of the Fire Department or the fire laws or with any insurance policy on the
Building or any part thereof, or with any rules or ordinances established by
Municipal Authority.
20. The requirements of Tenant will be attended to only upon application at
the Office of the Building. Employees of Landlord shall not perform any work or
do anything outside of their regular duties unless under special instruction
from Landlord, and no employee will admit any person (Tenant or otherwise) to
any office without specific instructions from Landlord.
21. Landlord shall have the right, exercisable with sixty (60) days prior
notice and without liability to Tenant, to change the name and the street
address of the Building which the Premises are a part. Landlord will pay for all
reasonable costs incurred by Tenant as a result of changing the street address
of the Building unless the change is requested by an authorized governmental
agency.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Page 36 of 56
22. No Tenant shall obtain for use upon the Leased Premises ice, drinking
water, towel or other similar service or accept barbering or bootblacking
services on the Leased Premises, except from persons authorized by Landlord and
at the hours and under regulations fixed by Landlord. Notwithstanding the
foregoing, Tenant shall have the right to provide bottled water service of its
choice.
LANDLORD:
ONE CAPITAL CENTER,
a California limited partnership
By: 3100 ZINFANDEL PARTNERS,
a California limited partnership,
General Partner
By: PROSPECT CENTER PARTNERS,
a California joint venture,
General Partner
By: WEST 50 CORP.,
A California corporation
By: /s/ XXX X. XXXX
--------------------------------
Xxx X. Xxxx,
Its President
TENANT:
AMERICAN RIVER BANKSHARES,
a California corporation
By: /s/ XXXXX X. XXXXX
-----------------------------------
Its: CEO
-----------------------------------
By: /s/ XXXXXXXX X. XXXXXXX
-----------------------------------
Its: CFO
-----------------------------------
Page 37 of 56
SCHEDULE 3
----------
UTILITY SERVICES
----------------
The Landlord shall provide, as part of Operating Costs, the following services:
(1) Air Conditioning and heat for normal purposes only, to provide in
Landlord's judgment, comfortable occupancy Monday through Friday from 7:00 a.m.
to 6:00 p.m., Saturday, 9:00 a.m. to 1:00 p.m., and Sundays and Holidays
excepted. As used herein, "Holidays" shall mean New Year's Day, President's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
Tenant agrees not to use any air conditioning or heating apparatus or device, in
or upon or about the Leased Premises, and Tenant further agrees not to connect
any such apparatus or device with the conduits or pipes, or other means by which
such services are supplied, for the purpose of using additional or unusual
amounts of such services, without written consent of the Landlord. In the event
Tenant does request after-hours air conditioning, heating, electrical/lighting,
such services shall be available for use at any time, including weekends and
holidays, and will be charged as excess operating expenses to Tenant, in the
amount of Landlord's actual cost, which Landlord estimates as of the date of
this Lease to be Twenty Five and No/100 Dollars ($25.00) per hour per zone with
a two (2) hour minimum. The charge shall be payable as additional rental. Should
Tenant refuse to make payment upon demand to Landlord, such excess charge
constitutes a breech of the obligation to pay Rent under this Lease and shall
entitle Landlord to the rights hereinafter granted for such breach.
(2) Electric power for lighting and operation of office machines, air
conditioning and heating as may be required for comfortable occupancy of the
premise between Monday and Friday from 7:00 a.m. to 6:00 p.m., Saturday, 9:00
a.m. to 1:00 p.m., and Sundays and Holidays excepted. Electric power furnished
by Landlord is intended to be that consumed in normal office use for the
lighting, heating ventilating, air conditioning and small office machines.
Landlord reserves the right, if consumption of electricity exceeds that required
for normal office use as specified, to install a submeter to gauge the usage of
Tenant and charge Tenant for such excess based upon such submeter reading. Such
charge shall be additional Rent under this Lease. Should Tenant refuse to pay
upon demand to Landlord such excess charges, such refusal shall constitute a
breach of the obligation to pay Rent under this Lease and shall entitle Landlord
to the rights hereinafter granted for such breach.
(3) Water for drinking, lavatory and toilet purposes from the regular
Building supply (at the prevailing temperature) through fixtures installed by
Landlord, (or by Tenant with Landlord's written consent).
Page 38 of 56
SCHEDULE 4
MAINTENANCE SERVICES
--------------------
The Landlord shall provide, as part of Operating Costs, the following
services:
(1) Subject to the terms of the lease, Landlord shall supply, as a part of
Operating Costs, public restroom supplies, public area lamp replacement, window
washing with reasonable frequency, and janitor services to the Leased Premises
and the Common Areas during the time and in the manner that such janitor
services are customarily furnished in general office buildings in the area. The
janitorial specifications currently being used by Landlord are set forth on
Schedule 4-A attached.
(2) Landlord agrees to maintain the exterior and, subject to Tenant's
obligations in the Lease to maintain the interior of the Leased Premises.
Maintenance of the exterior of the Leased Premises includes lawn and shrub care,
rubbish removal, parking lot maintenance, maintenance of the structure, roof,
floor and latent defects, mechanical and electrical equipment, architectural
finish, and so on, excluding only those items specifically excepted elsewhere in
this Lease, except Tenant's share of Operating Costs shall not include any
replacement of the roof, exterior walls, structure or foundation of the
Building.
Page 39 of 56
SCHEDULE 4-A
------------
JANITORIAL SPECIFICATIONS
-------------------------
A. TENANT SPACE
-----------------------
D W M Q Y
-----------------------------------------------------------------------------------------------------------
1. Ash Urns - clean - if applicable X
-----------------------------------------------------------------------------------------------------------
2. Wastebaskets - empty & replace liners (as needed) X
-----------------------------------------------------------------------------------------------------------
3. Furniture - wipe clean X
-----------------------------------------------------------------------------------------------------------
4. Desk tops - clean when free of business materials X
-----------------------------------------------------------------------------------------------------------
5. All horizontal & vertical surfaces - wipe clean, including pictures X
-----------------------------------------------------------------------------------------------------------
6. Light switches & surrounding areas - wipe clean X
-----------------------------------------------------------------------------------------------------------
7. Partitions - spot clean (as needed) X
-----------------------------------------------------------------------------------------------------------
8. Carpets - vacuum & spot clean as necessary X
-----------------------------------------------------------------------------------------------------------
9. Hard surface floors - dust mop & spot clean X
-----------------------------------------------------------------------------------------------------------
10. Hard surface floors - clean & refinish X
-----------------------------------------------------------------------------------------------------------
11. Properly arrange furniture in offices X
-----------------------------------------------------------------------------------------------------------
12. Set night lights upon completion of work (where applicable) X
-----------------------------------------------------------------------------------------------------------
13. Check & lock all doors leading to outside (or common areas) X
-----------------------------------------------------------------------------------------------------------
14. Window coverings (Levelors) - dust (as needed) including xxxxx X
-----------------------------------------------------------------------------------------------------------
15. Clean conference rooms X
-----------------------------------------------------------------------------------------------------------
B. COMMON AREA
-----------------------
D W M Q Y
-----------------------------------------------------------------------------------------------------------
1. Cigarette urns & ashtrays - empty & wipe clean X
-----------------------------------------------------------------------------------------------------------
2. Drinking fountains - clean & polish X
-----------------------------------------------------------------------------------------------------------
3. Corridor carpets - vacuum (as needed) X
-----------------------------------------------------------------------------------------------------------
4. Tile floors - dust &/or damp mop - refinish (as needed) X
-----------------------------------------------------------------------------------------------------------
5. Brick entries - dust &/or damp mop N/A
-----------------------------------------------------------------------------------------------------------
6. Stairs - vacuum X
-----------------------------------------------------------------------------------------------------------
7. Handrails - wipe clean X
-----------------------------------------------------------------------------------------------------------
8. Directory Glass - wash as needed X
-----------------------------------------------------------------------------------------------------------
9. Entry Glass - spot clean X
-----------------------------------------------------------------------------------------------------------
10. Hard surface floors - clean & refinish as needed X
-----------------------------------------------------------------------------------------------------------
C. RESTROOMS
-----------------------
D W M Q Y
-----------------------------------------------------------------------------------------------------------
1. Wash basins, fixtures & counters - clean & sanitize X
-----------------------------------------------------------------------------------------------------------
2. Toilets & urinals - clean & sanitize X
-----------------------------------------------------------------------------------------------------------
3. Mirrors - clean X
-----------------------------------------------------------------------------------------------------------
4. Partitions, doors, walls - clean & sanitize X
-----------------------------------------------------------------------------------------------------------
5. Paper & handsoap dispensers - refill & wipe clean X
-----------------------------------------------------------------------------------------------------------
6. Waste receptacles - empty & wipe clean X
-----------------------------------------------------------------------------------------------------------
7. Floors - dust mop & wet mop with sanitizing solution X
-----------------------------------------------------------------------------------------------------------
8. Hard surface floors - clean & refinish X
-----------------------------------------------------------------------------------------------------------
-----------------------
D W M Q Y
-----------------------------------------------------------------------------------------------------------
D. CEILING VENTS - CLEAN AS NECESSARY X
-----------------------------------------------------------------------------------------------------------
E. WINDOW CLEANING - UPON REQUEST - EXTRA CHARGE
-----------------------------------------------------------------------------------------------------------
F. CARPET CLEANING - $. PER SQUARE FOOT WHEN REQUESTED
-----------------------------------------------------------------------------------------------------------
LEGEND: D=DAILY, W=WEEKLY, M=MONTHLY, Q=QUARTERLY, Y=YEARLY
Page 40 of 56
SERVICE SCHEDULE "B"
A. DAY XXXXXX DUTIES
--------------------------------------------------------------------------------
1. Sweep all walkways for debris Daily
--------------------------------------------------------------------------------
2. Glass entries kept clean Daily
--------------------------------------------------------------------------------
3. Cobwebing exterior of building Monthly
--------------------------------------------------------------------------------
4. All ash urns empties and refilled with sand (as needed) Daily
--------------------------------------------------------------------------------
5. All garbage cans emptied and lids washed off Daily
--------------------------------------------------------------------------------
6. Clearing the roof of any debris that may otherwise cause Seasonal
puddling or clog drains (as needed)
--------------------------------------------------------------------------------
7. Check with tenants regarding burnt out lights and any other Daily
light duty maintenance that could be handled without having
to call Xxxxxx'x maintenance people
--------------------------------------------------------------------------------
8. Emergencies such as clogged toilets, roof leaks, etc. Daily
--------------------------------------------------------------------------------
Page 41 of 56
SCHEDULE 5
----------
ONE CAPITAL CENTER
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxxxx, XX 00000
Date: May 9, 2005
WORK LETTER AGREEMENT
---------------------
AMERICAN RIVER BANKSHARES
0000 Xxxx Xxxxx Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: American River Bankshares
Re: Suite 450, One Capital Center, 0000 Xxxxxxxxx Xxxxx, Xxxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
You (referred to as "Tenant"), and we (referred to as "Landlord") are
executing, simultaneously with this Work Letter Agreement, a written lease (the
"Lease") pertaining to the space referred to above (the "Leased Premises"). This
Work Letter Agreement is attached to the Lease as Schedule 5 A-D and made a part
hereof.
To induce Tenant and Landlord, each, to enter into the Lease (which is
hereby incorporated by reference to the extent that the provisions of this Work
Letter Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant mutually agree as follows:
1. Definitions. The terms defined in this paragraph, for purposes of this
Work Letter Agreement, shall have the meanings specified herein, and in addition
to the terms defined herein, terms defined in the Lease shall, for the purposes
of this Work Letter Agreement, have the meanings specified therein.
1.1 "Leasehold Improvements" means the Building Standards and Tenant
Specifications, as defined below, which are supplied, installed and finished by
Landlord. Such Leasehold Improvements shall be paid for by Landlord as provided
for in paragraph 2.2 below.
1.2 "Building Standard" means the quantity and quality of materials,
finishing and workmanship specified by Landlord for the Building, as set forth
on Exhibit 5-B attached hereto and made a part hereof.
1.3 "Tenant Specifications" means the quantity and quality of
materials, finishing and workmanship specified by Tenant for the Tenant's
Premises, as set forth on Exhibit 5-C attached hereto and made a part hereof.
1.4 "Construction Documents" means the construction drawings, Approved
Plan and Tenant Specifications referred to in paragraphs 1.1, 1.3, 1.6, 2.1 and
2.2 of the Work Letter Agreement.
Page 42 of 56
1.5 "Substantial Completion" means that the Leasehold Improvements
have been substantially completed according to the Construction Documents and
that Landlord has obtained a Certificate of Occupancy or its equivalent for the
Leased Premises.
1.6 "Approved Plan" means the space plan and layout (inclusive of
Building Standards and Tenant Specifications defined above) which has been
approved by Tenant and which Landlord has used to determine its Turnkey Costs
(defined in paragraph 1.7 below).
1.7 "Turnkey Costs" means the fees and expenses Landlord shall incur
to deliver the Premises to Tenant in accordance with the Approved Plan, Building
Standards and Tenant Specifications, which are summarized and attached hereto as
Schedules 5A-D.
2. Construction Documents; Payments.
2.1 The following companies have prepared the Approved Plan, Tenant
Specifications, Building Standards and the General Contractor's Bid, which are
to comprise the Construction Documents:
General Contractor: ICON General Contractors, Inc. and Architectural:
HDL Design and Interior Specialist (collectively, the "Consultants"). The fees
and expenses of the Consultants shall be included in the Turnkey Costs.
2.2 Tenant acknowledges that Landlord's sole obligation is to pay the
Turnkey Costs attributable to the construction of the Leasehold Improvements
pursuant to the Construction Documents. All costs resulting from any changes to
the Construction Documents made by Tenant which result in additional costs over
and above the Turnkey Costs (including, without limitation, fees and expenses of
the Consultants and any increased costs of construction) shall be paid by Tenant
("Tenant's Share").
3. Leasehold Improvements.
3.1 The following provisions shall apply to the construction of the
Leasehold Improvements:
(a) All work involved in the completion of the Leasehold
Improvements shall be carried out by Landlord and its agents and contractors
under the sole discretion of Landlord at competitive prices. Tenant shall
cooperate with Landlord and its agents and contractors to promote the efficient
and expeditious completion of the Leasehold Improvements; and
/s/ DT /s/ MD /s/ EHH
------------------ ---------------------
Tenant Landlord
(b) Landlord agrees to construct the Leasehold Improvements in
accordance with the Construction Documents, provided Tenant has complied with
all the applicable provisions of this Work Letter Agreement and the Lease, and
no Event of Default exists under the Lease.
3.2 If Tenant requests any changes in the Leasehold Improvements from
the work as reflected in the Construction Documents, each such change must
receive the prior written approval of Landlord, and Tenant shall bear the cost
resulting from such changes in accordance with paragraph 2.2 above. Conversely,
if Tenant makes any changes to the Construction Documents which result in a
reduction of Landlord's Turnkey Costs, Tenant shall receive a credit in form of
free rent which shall not exceed ten thousand dollars ($10,000). Such changes by
Tenant shall be limited to upgrades such as elimination of cabinetry or the
supplemental HVAC unit and not base building improvements.
3.3 Landlord shall have no obligation to commence construction of any
work in the Leased Premises until Landlord has received Tenant's advance payment
of Tenant's Share.
Page 43 of 56
4. Lease Commencement Date.
4.1 Landlord shall notify Tenant when Substantial Completion has been
achieved, and thereafter the Lease Commencement Date shall be established as set
forth in the Lease. Notwithstanding anything to the contrary contained in the
Lease or this Work Letter Agreement, the Lease Commencement Date shall not be
extended for any delay in Substantial Completion to the extent that such delay
is caused by any act or omission attributable to Tenant, including, without
limitation:
(a) Tenant's request for any non-Building Standard finishes or
for any changes in the work that is reflected in the Construction Documents that
cause an extension in the time of completion.
(b) Tenant's failure to furnish promptly, information concerning
Tenant's requirements pertaining to construction of the Leasehold Improvements.
4.2 In any event, Rent payable under the Lease shall not xxxxx by
reason of any delay, expense or other burden arising out of or incurred in
connection with the design or construction of the Leasehold Improvements to the
extent that such delay, expense or other burden is caused by any act or omission
attributable to Tenant (including, the acts and omissions referred to in
subparagraphs (a) through (d) of paragraph 4.1 above).
5. Tenant's Access to Leased Premises.
5.1 Landlord, in its sole discretion, may grant Tenant and Tenant's
agents or independent contractors license to enter the Leased Premises prior to
the scheduled Lease Commencement Date in order that Tenant may do other work as
may be required by Tenant to make the Leased Premises ready for Tenant's use and
occupancy. Such permission must be in writing prior to entry. If Landlord
permits such prior entry, then such license shall be subject to the condition
that Tenant and Tenant's agents, contractors, workmen, mechanics, suppliers and
invitees shall work in harmony and not interfere with Landlord and its agents
and contractors in doing Landlord's work in the Leased Premises or the Building
or with other tenants and occupants of the Building or the Project. If at any
time such entry shall cause or threaten to cause disharmony or interference,
Landlord, in its sole discretion, shall have the right to withdraw and cancel
such license upon notice to Tenant. Tenant agrees that any such entry into the
Leased Premises shall be deemed to be under all of the terms, covenants,
conditions and provisions of the Lease, except the covenant to pay periodic
Rent. Tenant further agrees that, to the extent permitted by law, Landlord and
its principals shall not be liable in any way for any injury or death to any
person or persons, loss or damage to any of the Leasehold Improvements or
installations made in the Leased Premises or loss or damage to property placed
therein or thereabout, the same being at Tenant's sole risk. The parties
acknowledge that, subject to coordination with Landlord's general contractor and
Tenant's compliance with this Section 5 pertaining to access, Landlord shall
permit Tenant to have access to the Leased Premises not more than four (4) weeks
prior to the date on which Substantial Completion is anticipated, so that Tenant
can commence installation of Tenant's furniture, furnishings, telephone systems,
computer cabling and equipment.
5.2 In addition to any other conditions or limitations on such license
to enter the Leased Premises prior to the lease Commencement Date, Tenant
expressly agrees that none of its agents, contractors, workmen, mechanics,
suppliers shall enter the Leased Premises prior to the Lease Commencement Date
unless and until each of them shall furnish Landlord with satisfactory evidence
of insurance coverage, financial responsibility and, as appropriate during the
course of the work, written releases of mechanic's or materialmen's lien claims.
6. Miscellaneous Provisions. Landlord and Tenant further agree as follows:
6.1 Except as may be provided in the Lease and as herein expressly set
forth with respect to the Leasehold Improvements, Landlord has no agreement with
Tenant and has no obligation to do any work with respect to the Leased Premises.
Page 44 of 56
Any other work in the Leased Premises which may be permitted by Landlord
pursuant to the terms and conditions of the Lease, including any alterations or
improvements as contemplated by Subparagraph 6.1.4 of the Lease, shall be done
at Tenant's sole cost and expense and in accordance with the terms and
conditions of the Lease.
6.2 This Work Letter Agreement shall not be deemed applicable to: (i)
any additional space added to the original Leased Premises at any time, whether
by the exercise of any options under the Lease or otherwise, or (ii) any portion
of the original Leased Premises or any additions thereto in the event of a
renewal or extension of the original Lease Term, whether by exercise of any
options under the Lease or any amendment or supplement thereto. The construction
of any additions or improvements to the Leased Premises not contemplated by this
Work Letter Agreement shall be effected pursuant to a separate work letter
agreement, in the form then being used by Landlord and specifically addressing
the allocations of costs relating to such construction.
6.3 Any person signing this Work Letter Agreement on behalf of Tenant
warrants and represents he/she has authority to do so.
6.4 This Work Letter Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors and assigns. If the foregoing correctly sets forth our understanding,
kindly acknowledge your approval in the space provided below for that purpose
and return to us two signed counterparts of this Work Letter Agreement.
Very truly yours,
ONE CAPITAL CENTER,
a California limited partnership
By: 3100 ZINFANDEL PARTNERS,
a California limited partnership,
General Partner
By: PROSPECT CENTER PARTNERS,
a California joint venture,
General Partner
By: WEST 50 CORP.,
A California corporation
By: /s/ XXX X. XXXX
--------------------------------
Xxx X. Xxxx,
Its President
Agreed to and accepted this 17th day of May, 2005
AMERICAN RIVER BANKSHARES,
a California corporation
By: /s/ XXXXX X. XXXXX
-----------------------------------
Its: CEO
-----------------------------------
By: /s/ XXXXXXXX X. XXXXXXX
-----------------------------------
Its: CFO
-----------------------------------
Page 45 of 56
SCHEDULE 5-A
------------
APPROVED PRELIMINARY PLAN
-------------------------
Page 46 of 56
SCHEDULE 5-B
------------
BUILDING STANDARDS
------------------
Partitions:
-----------
Demising and Corridor Partition 25 gauge, 2-1/2" metal studs, 24" o.c., between
floor slab and structure above; 2-1/2" R-8 acoustic insulation. 5/8" type "X"
gypsum board on each face, painted with flat latex paint and 4" vinyl base on
both sides.
Interior Partition 25 gauge, 2-1/2" metal studs, 24" o.c., between floor slab
and suspended ceiling grid. No insulation. 5/8" type "X" gypsum board on each
face, painted with flat latex paint and 4" vinyl base on both sides.
All metal framing members and parts shall conform with AISI "specification for
design of cool steel structural members" ASTM A446 GRADE A. All framing details
shall conform wit U.S. gypsum - "Gypsum construction handbook". Non-bearing
interior partitions with G.WB. Only. No casework or other extra loading. All
values are to be determined from "WESTERN STEEL FRAMING SYSTEMS MANUALS.
Contractor is responsible for values if different.
Doors:
------
Entry Door 16 gauge, pressed steel frame, welded one-piece unit, to accept 3'0 x
9' 0 x 1-3/4" solid core plain sliced white maple veneer door (match existing
finishes in building). Door to be finished with 2 coats of clear sealer/
varnish. Schlage L-9000 Mortise Series brushed chrome hardware with LCN, Dorma
or equal closer, brushed chrome finish.
Interior Door Aluminum AAF-KD frames with factory paint finish to accept 3'0" x
9'0" x 1-3/4" solid core plain sliced white maple veneer door (match existing
finishes in building). Door to be finished with 2 coats of clear sealer/varnish.
Schlage L-9000 Mortise Series brushed chrome hardware with LCN, Dorma or equal
closer, brushed chrome finish.
Electric:
---------
Xxxxxxxxxxx Xxxxxx 0 x 0 Xxxxxxxxx, Xxxxxxxxx electronic ballasts with T-8 lamps
or equal. Fixtures to be factory lamped with warm white lamps.
Convenience Outlets Leviton #16242-W, or equal, 125-volt grounded duplex devices
or equal.
Telephone Outlet Standard junction box, cover plate, pull-string to top of wall.
Device cover plate and teflon cabling furnished and installed by Tenant's
telephone vendor.
Light Switch Leviton 5601-W, or equal, 277-volt standard rocker (line voltage)
switch. Provide hi-low level switch as required by code.
Tenant Requirements: One (1) circuit per cube and two (2) Cat.5 per cubes and
offices per Exhibit 2-B (Tenant Specifications).
Heating, Ventilating and Air Conditioning (HVAC):
-------------------------------------------------
HVAC design-build, engineered to meet requirement of Exhibit 2-A (Space Plan) in
accordance with Title 24 and Air Balanced (report provided at completion). A one
(1) ton supplemental HVAC unit provided for Data Room. Required subcontractor is
Indoor Environmental Services, the buildings' service provider.
Page 47 of 56
Ceiling System:
---------------
2 x 2 USG DX26 heavy duty grid with 2 x 2 Tegular USG Eclipse #76775 or equal
(or match existing). Install in accordance with U.B.C. STD. NO. 47-18.
Carpet and Title (Floor Coverings):
-----------------------------------
See Exhibit 2-B (Tenant Specifications)
Window Coverings - Exterior Windowline:
---------------------------------------
Off-white Louverdrape verticals (with p-21) 3-1/2" vanes, or equal.
Window Coverings - Interior Windows:
------------------------------------
See Exhibit 2-B (Tenant Specifications).
Paint and Finishes:
-------------------
See Exhibit 2-B (Tenant Specifications).
Millwork:
---------
See Exhibit 2-B (Tenant Specifications) for Boardroom and Reception Desk. All
other Millwork per Exhibit 2-A (Space Plan) located in Kitchen, Accounting,
Breakroom and Copy/HR rooms per plans with laminate finishes and standard
hardware. Colors to be determined.
Miscellaneous:
--------------
Exit lights, smoke detectors, fire sprinklers, and loud speakers as required by
code.
Page 48 of 56
SCHEDULE 5-C
TENANT SPECIFICATIONS
---------------------
GENERAL INFORMATION
-------------------
Tenant Improvement cost for space build out as shown on drawings dated March 9,
2005 prepared by HDL Design on behalf of American River Bank Shares, Inc.
INTERIOR FRAMING
----------------
Per Building Standards, Exhibit 2-C.
------------------------------------
SUSPENDED LAY-IN CEILING
------------------------
Per Building Standards, Exhibit 2-C.
------------------------------------
INTERIOR WINDOWS
----------------
Per Building Standards, Exhibit 2-C.
------------------------------------
INTERIOR WINDOWS
----------------
Per Building Standards, Exhibit 2-C.
------------------------------------
INTERIOR DOORS
--------------
Per Building Standards, Exhibit 2-C. Additionally, all doors will have key lock
except for Kitchen, Breakroom, Conference Room and Board Room..
INTERIOR WINDOWS
----------------
All interior windows will be floor to op of door height in Building Standard
frames.
All interior windows will have vertical blinds by Three Day blinds - Style
Malibu freestanding with valance. Color TBA.
PAINT AND FINISHES
------------------
All interior walls to be painted as shown on plans (Exhibit 2-A). Specification
to be Two coats PVA, two coats XXXXXXX XXXXXXXX PROMAR SERIES EGGSHELL with a
orange peel texture. Colors TBA.
Carpet: Patcraft Sweet 28 oz Textureweave loop, base 4" rubber cove. Color TBA.
TILE REQUIREMENTS
-----------------
Break Room, Copy Room, Data/IT Room will have Xxxxxxxxx Xxxxxx flooring. Color
TBA.
T-BAR CEILING
-------------
Per Building Standards, Exhibit 2-C.
Page 49 of 56
MILLWORK
--------
Reception Desk allowance of five thousand dollars ($5,000.00) shall be
allocated.
ELECTRICAL/DATA
---------------
One (1) circuit per cube and two (2) Cat. 5 per cubes and offices. All other per
Building Standards, Exhibit 2-C.
Page 50 of 56
EXHIBIT 5-D
TURNKEY COSTS
RSF 7,378 AR Holdings Specs Dated 5/3/04
USF 6,485 HDL Plan Dated: 3/9/05
Summary of Turnkey Tenant Improvement Cost:
-------------------------------------------
TI & Permits 233,010
Supplemental HVAC Unit included 1-Ton ductless Split System/
Server Rm
Reception Desk included Allowance of $5,000
----------
Subtotal: 233,010
CM Fee 3.0% 6,990
Architectural
HDL Architects $ 1.50 11,067
----------
Subtotal: 11,067
Other
Locksmith 200
Monument Sign 325
Directory/Door Sign 400
----------
Subtotal: 925
----------
Grand Total: 251,992
==========
USF $ 38.86
RSF $ 34.15
Page 51 of 56
EXHIBIT 5-D (Continued)
GENERAL CONTRACTOR'S COST BREAKDOWN
Descriptions Cost
------------ ----
General Conditions:
Supervision $ 12,000.00
Labor/Daily Clean Up $ 5,500.00
Permit & Fees (Engineering $ 10,350.00
Move In/Out
Area Protection $ 750.00
Dumpsters $ 850.00
Project Close Out $ 1,500.00
Liability Insurance $ 1,900.00
Material Delivery
Final Clean Up $ 1,297.00
Carpentry:
Rough/Finish Carpentry $ 550.00
Cabinet Work $ 20,970.00
Therm/Moist Protection
Insulation $ 2,500.00
Doors & Windows:
Doors & Hardware $ 16,470.00
Glazing $ 3,120.00
Finishes
Framing/Drywall $ 24,259.00
Acoustical Ceiling $ 12,750.00
Floor Covering $ 21,975.00
Painting $ 5,081.00
Specialties
Projection Screen $ 3,500.00
Window Coverings $ 750.00
Mechanical
Mechanical $ 36,369.00
Plumbing $ 7,400.00
Fire Protection $ 9,353.00
Fire Extinguisher $ 750.00
Electrical
Electrical Sub $ 19,470.00
Life Safety $ 2,500.00
total $ 221,914.00
Contractor Fee @ 5% $ 11,095.70
Grand Total: $ 233,009.70
Page 52 of 56
SCHEDULE 6
----------
CERTIFICATE OF ACCEPTANCE
-------------------------
TENANT: AMERICAN RIVER BANKSHARES
LOCATION: SUITE 450, One Capital Center, 0000 Xxxxxxxxx Xxxxx,
Xxxxxx Xxxxxxx, XX 00000
This letter is to certify that:
1. The above referenced space has been accepted by the Tenant for
possession.
2. The subject space is substantially complete in accordance with the plans
and specifications used in construction of the demised premises.
3. The subject space can now be used for intended purposes.
The execution of this certificate shall not relieve the Landlord of its
obligation to expeditiously complete all work in which the Tenant is entitled
under the terms of its lease with the Landlord. Neither this certificate, nor
Tenant's occupation of the premises, shall be construed to relieve the Landlord
of its responsibility to remedy, correct, replace, reconstruct or repair any
deviation, deficiency or defect in the work or in the materials or equipment
furnished by the Landlord, without cost to Tenant, if a claim with respect
thereto is made by Tenant.
Commencement Date: ____________________, 200__.
Expiration Date: ____________________, 200__.
Tenant's Total Rentable
Square Footage: ____________________________
Tenant's Total Useable
Square Footage: ____________________________
Executed this ____day of _______________, 200__.
"Tenant"
AMERICAN RIVER BANKSHARES,
a California corporation
By:
------------------------------------
Its:
------------------------------------
By:
------------------------------------
Its:
------------------------------------
Page 53 of 56
SCHEDULE 7
----------
BASE RENT
---------
Period Monthly Base Rent
------ -----------------
Initial Term (Months) Per Tenant's Rentable Square Foot
--------------------- ---------------------------------
01 - 07 $0.00
08 - 12 $1.73
13 - 24 $1.78
25 - 36 $1.83
37 - 48 $1.88
49 - 60 $1.93
61 - 72 $1.98
73 - 84 $2.03
85 - 91 $2.08
Page 54 of 56
SCHEDULE 8
----------
PARKING
-------
Landlord hereby grants to Tenant a license to the use during the term of
this Lease the space described in Subparagraph 1.1.11. Tenant agrees to comply
with such reasonable rules and regulations as may be made by Landlord from time
to time in order to insure the proper operation of the parking facilities.
Tenant agrees not to overburden the parking facilities and agrees to cooperate
with Landlord and other tenants in the use of parking facilities. Landlord
reserves the right in its sole discretion to determine whether parking
facilities are becoming crowded, and in such event, to allocate specific parking
spaces among Tenant and other tenants or to take such other steps necessary to
correct such condition, including but not limited to policing and towing, and if
Tenant, its agents, officers, employees, contractors, licensees or invitees are
deemed by Landlord to be contributing to such condition, to charge to Tenant as
Rent that portion of the cost thereof which Landlord reasonably determines to be
caused thereby. Landlord may, in its sole discretion, change the location and
nature of the reserved parking spaces available to Tenant, provided that after
such change, there shall be available to Tenant approximately the same number of
reserved spaces as available before such change and reasonably close to the
Building. Landlord reserves the right to provide daily in and out parking spaces
for the public during business hours, but in no event shall such daily business
hours parkers have access to the reserved (designated by signage) parking spaces
of Tenant; provided, however, Landlord reserves the right to provide in and out
parking spaces for the public during daily non-business hours and on weekends,
which spaces may include the reserved parking spaces of Tenant. Each of Tenant's
reserved and non-reserved spaces shall be provided at no cost to Tenant.
Tenant acknowledges that air quality laws, rules, regulations and/or
ordinances concerning Sacramento County have been proposed by federal, state and
local governmental officials which if adopted may require Tenant to encourage an
auto emissions reduction by Tenant's employees, and may cause a reduction in the
number of parking spaces available to Tenant. Landlord shall provide a
transportation manager to assist Tenant in developing a transportation
management plan to comply with any such law, rule, regulation, and/or ordinance.
LANDLORD:
ONE CAPITAL CENTER,
a California limited partnership
By: 3100 ZINFANDEL PARTNERS,
a California limited partnership,
General Partner
By: PROSPECT CENTER PARTNERS,
a California joint venture,
General Partner
By: WEST 50 CORP.,
a California corporation
BY /s/ XXX X. XXXX
-------------------
Xxx X. Xxxx,
Its President
Page 55 of 56
TENANT:
AMERICAN RIVER BANKSHARES,
a California corporation
By: /s/ XXXXX X. XXXXX
-----------------------------------
Its: CEO
-----------------------------------
By: /s/ XXXXXXXX X. XXXXXXX
-----------------------------------
Its: CFO
-----------------------------------
Page 56 of 56
