AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
Exhibit 10.1
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
(TRANCHE 1)
THISAGREEMENTFORPURCHASEANDSALEOFREALPROPERTY
(TRANCHE 1) (this “Agreement”) is made as of this _21 day of December, 2023 (the “Effective Date”), by and between BOTS OWNER LLC, a Delaware limited liability company (“Buyer”), and BANK OF THE SIERRA, a California corporation (“Seller”).
FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES SET FORTH HEREIN AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1.Terms and Definitions.
The terms listed below shall have the respective meaning given them as set forth adjacent to each term.
| (c) | “Buildings” shall mean all buildings located on the Land. |
c/o Blue Owl Real Estate Capital LLC 00 X. XxXxxxx Xx., Xxxxx 0000
Chicago, IL 60602
Attn: Asset Management
Email: XxxxXxxxxxXX@xxxxxxx.xxx With a copy to:
Xxxxxxxx & Xxxxx LLP 000 X. XxXxxxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxxx, P.C. & Xxxxxxx X. Xxxxxx
Email: xxxxx.xxxxxxxxx@xxxxxxxx.xxx & xxxxxxx.xxxxxx@xxxxxxxx.xxx
| (h) | “Closing Date” shall mean the Effective Date. |
| (j) | “Claim Cap” has the meaning ascribed to such term in Section 9(f) hereof. |
| (k) | “Code” has the meaning ascribed to such term in Section 11(m) hereof. |
| (l) | “ERISA” has the meaning ascribed to such term in Section 11(m) hereof. |
| (o) | “Executive Order” has the meaning ascribed to such term in Section 11(n) hereof. |
| (p) | “FIRPTA” has the meaning ascribed to such term in Section 11(i) hereof. |
| (q) | “Guarantor” shall mean Sierra Bancorp, a California corporation. |
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agreements, architectural and engineering plans and specifications, site plans, surveys and schematics, and all warranties and guaranties used exclusively in connection with the operation of the Real Properties, if any, but excluding the name of any Seller Entity and any derivation thereof and further excluding all intellectual property rights, business permits, and other rights or interests that are personal to any Seller Entity or are required to be held or maintained by any Seller Entity in connection with its continued use or occupation of the Real Properties as a tenant.
| (w) | “Permitted Exceptions” has the meaning ascribed to such term in Section 5 hereof. |
| (y) | “Plan” has the meaning ascribed to such term in Section 11(m) hereof. |
(aa) “Purchase Price” shall mean $16,181,103.82.
(bb) “Real Properties” shall mean, collectively, each and every Real Property.
(cc) “Real Property” shall mean each parcel of Land and the Improvements located thereon.
(dd) “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
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(ee) “Securities Exchange” means the New York Stock Exchange or The Nasdaq Stock Market.
(ff) “Seller Closing Documents” has the meaning ascribed to such term in Section 10(a) hereof.
(gg) “Seller Entity” shall mean, with respect to any Real Property, the applicable entity that owns fee title to such Property.
(hh) “Seller’s Notice Address” shall be as follows, except as same may be changed pursuant to the Section 15 hereof:
Bank of the Sierra 00 X. Xxxx Xxxxxx
Porterville, California 93257
Attn: Xxxxx XxXxxxxx & Xxxxxxxxxxx Xxxxxx Email: XXxXxxxx@xxxxxxxxxxxxxxx.xxx; XXxxxxx@xxxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxxx & Xxxxxx, LLP
0000 X. Xxxxxxxx Xxx., Xxxxx 000
Fresno, California 93711
Attn: Xxxxxxx X. Xxxxxxxxx & Xxxx Xxxxxx Email: xxxxxxx@xxxxxxxxxxxxxxx.xxx; xxxx@xxxxxxxxxxxxxxx.xxx
(jj) “Survival Period” has the meaning ascribed to such term in Section 9(e) hereof. (kk) “Tenant” shall mean BANK OF THE SIERRA, a California corporation.
(ll) “Title Insurer” shall mean Old Republic National Title Insurance Company (NCTS New York), 000 Xxxxx Xxxxxx 00xx Xxxxx, Xxx Xxxx Xxxx, XX 00000, Attn: Xxxxxxx Xxxxxx, Phone: (000) 000-0000, Email: xxxxxxx@xxxxxxxxxxxxxxxx.xxx.
(mm) “Title Policy” shall mean an ALTA owner’s policy of title insurance for each Real Property with extended coverage, or irrevocable and unconditional binder to issue the same, with extended coverage for each Real Property in the amount of the applicable Allocated Purchase Price, dated, or updated to, no earlier than the date of the Closing, insuring, or committing to insure, at its ordinary premium rates, Buyer’s good and marketable title in fee simple to the Real Property, free and clear of all liens, defects of title, and encumbrances, except for the Permitted Exceptions.
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Section 2.Proration of Expenses and Payment of Costs and Recording Fees.
Section 3.Payment of Purchase Price.
| (b) | Reserved. |
Seller agrees to sell and convey the Properties to Buyer (or its permitted assignee in accordance with the terms of this Agreement) at the Closing upon the terms and conditions set
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forth in this Agreement. At Closing, Tenant shall enter into the Sierra Lease, as tenant, and Seller acknowledges and agrees that the execution and delivery of the Sierra Lease, and the tenancy created thereby, is a condition to the effectiveness of the sale of the Properties to Buyer, without which Buyer would be unwilling to consummate the transactions contemplated hereby.
At Closing, Seller agrees to execute and deliver to Buyer (or Xxxxx’s permitted assignee in accordance with the terms of this Agreement) deeds in the form attached as Exhibit B for each Property, in each case, free and clear of all liens, defects of title, and encumbrances, except for (i) the Sierra Lease; (ii) real estate taxes, and water and sewer charges, if any, for the current year and subsequent years that are not yet due or payable; (iii) assessments for municipal improvements, if any, for the current year and subsequent years that are not yet due or payable; (iv) zoning ordinances and building codes, to the extent the Properties are in compliance therewith; and (v) any and all other exceptions approved by Buyer (collectively, the “Permitted Exceptions”).
Section 9.Breach of Representation.
All representations and warranties contained in this Agreement, and covenants required to be performed by the parties under this Agreement prior to Closing, shall survive the Closing and delivery of the Deeds and other documents for a period of twelve (12) months after the Closing (the “Survival Period”). Any right of action for the breach of any representation, warranty or covenant contained herein shall not merge with the deeds or other documents delivered at the Closing but shall survive the Closing for the Survival Period. Following the Closing but subject to the Survival Period, each party shall be liable for the direct and actual, but not special, indirect, consequential or punitive, damages resulting from any breach of its representations, warranties or covenants expressly set forth in this Agreement; provided, however, that: (i) following Closing, the total liability of Seller for all such breaches of its representations and warranties under this Agreement shall not, in the aggregate, exceed three percent (3%) of the Purchase Price (the “Claim Cap”) and (ii) following Closing, the total liability of Buyer for all such breaches of Buyer’s representations and warranties under this Agreement shall not, in the aggregate, exceed the Claim Cap. Buyer further agrees that, following the Closing, no claim may or shall be made for any alleged breach of any representations or warranties made by Seller under or relating to this Agreement unless the amount of such claim or claims, individually or in the aggregate, exceeds Fifteen Thousand and No/100 Dollars ($15,000.00) (the “Basket”) (in which event the full amount of such valid claims against Seller shall be actionable up to, but not in excess of, the Claim Cap). Notwithstanding anything to the contrary contained herein and for the avoidance of doubt, nothing contained in this Agreement shall limit or reduce any rights of Buyer, as landlord, or the obligations of Tenant under the Sierra Lease.
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| (iii) | with respect to each Property, one (1) copy of the Sierra Lease; |
| (iv) | with respect to each county in which one or more Properties is located, one |
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reasonably necessary or appropriate for purposes of recordation of each applicable Deed (including, without limitation, any water reading, water bill, certificate, clearance letter, release, evidence of payment of any sums owed to any government, agency, or municipality; and any other similar certificate, payment or deliverable customarily submitted or obtained in the jurisdiction in which any portion of the Property is located in connection with sales of property similar to the Property). In the event any state, county, local or municipal agency requires any holdback in connection therewith, the required amount shall be set aside from the Purchase Price and held in escrow with Title Insurer in accordance with such Title Insurer’s customary instructions and procedures in such jurisdiction;
| (i) | one (1) copy of the Bill of Sale for each Property; |
| (ii) | one (1) copy of the Assignment of Intangible Property for each Property; |
| (iv) | with respect to each Property, one (1) copy of the Sierra Lease; |
| (v) | with respect to each county in which one or more Properties is located, one |
| (1) | original of the Memorandum of Sierra Lease; |
| (vi) | the Settlement Statement; |
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The Closing shall be held through an escrow arrangement between the parties and the Title Insurer as is customary in the counties in which the Properties are located, or such other place or manner as the parties hereto may mutually agree.
Section 11.Seller’s Representations.
Seller represents and warrants to Buyer, effective as of the Closing Date, as follows:
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actual knowledge of, any current or pending environmental investigations against the Properties by any governmental authority;
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America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, and Executive Order No. 13224 (Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) (the “Executive Order”) (collectively, the “Anti-Money Laundering and Anti-Terrorism Laws”). Neither Seller nor, to Seller’s knowledge, its affiliates is acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the Annex to the Executive Order or are included on any other relevant lists maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or other U.S. government agencies, all as may be amended from time to time (collectively, the “Government Lists”). Neither Seller nor, to Seller’s actual knowledge, its affiliates or, without inquiry, any of its brokers or other agents acting in any capacity in connection with the sale of the Properties (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any person included in the Government Lists, (B) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order, or (C) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti- Money Laundering and Anti-Terrorism Laws. Neither Seller nor any of its affiliates is a country, territory, individual or entity named on a Government List, and the monies used in connection with this Agreement and amounts committed with respect thereto, were not and are not derived from any activities that contravene any applicable anti-money laundering or anti-bribery laws and regulations (including funds being derived from any person, entity, country or territory on a Government List or engaged in any unlawful activity defined under Title 18 of the United States Code, Section 1956(c)(7));
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default exists under any of the REAs by Seller or, to the best of Seller’s knowledge, any other party thereto;
For purposes of this Agreement, terms such as “to Seller’s knowledge”, “to the best of Seller’s knowledge”, or like phrases mean the actual knowledge, with no duty of inquiry, of Xxxxxxxxxxx Xxxxxx, who is an individual in Seller’s organization reasonably expected to have knowledge of the matters set forth in this Agreement; provided, however, that so qualifying Seller’s knowledge shall in no event give rise to any personal liability on the part of such individuals (or any other officer, director or employee of Seller or its affiliates) on account of any breach of any representation, warranty or covenant by Seller herein.
Section 12.Buyer’s Representations.
Buyer represents and warrants to Seller effective as of the Closing Date, as follows:
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For purposes of this Agreement, terms such as “to Buyer’s knowledge”, “to the best of Buyer’s knowledge”, or like phrases mean the actual knowledge, with no duty of inquiry, of Xxxxxxx Xxxxxx, who is an individual in Buyer’s organization expected to have knowledge of the matters set forth in this Agreement; provided however, that so qualifying Buyer’s knowledge shall in no event give rise to any personal liability on the part of such individual (or any other officer, director or employee of Buyer or its affiliates) on account of any breach of any representation, warranty or covenant by Buyer herein.
All notices and other communications which may be or are required to be given or made by any party to the other in connection herewith shall be in writing and shall be deemed to have been properly given on the date: (i) delivered in person, (ii) deposited in the United States mail, registered or certified, return receipt requested, (iii) delivery via electronic mail to the addresses set out in Section 1 or (iv) deposited with a nationally recognized overnight courier, to the addresses set out in Section 1. Such notices shall be deemed effective upon receipt, provided, however, as to item (iii), receipt occurs on or before 11:59 p.m. (Pacific Time) on a Business Day, otherwise, such notice shall be deemed to have been received on the next succeeding Business Day. Any address or name specified in Section 1 may be changed by notice given to the addressee by the other party in accordance with this Section 15. Anything to the contrary notwithstanding, if notice cannot be delivered because of a changed address of which no notice was given as provided, above, or because of rejection or refusal to accept any notice, then receipt of such notice shall be deemed to be as of the date of inability to deliver or rejection or refusal to accept. Any notice to be given by any party may be given by the counsel for such party.
This Agreement constitutes the sole and entire agreement among the parties hereto with regard to the subject matter hereof, and no modification of this Agreement shall be binding unless in writing and signed by Xxxxx and Seller. No prior agreement or understanding pertaining to the subject matter hereof (including, without limitation, any letter of intent executed prior to this Agreement) shall be valid or of any force or effect from and after the date hereof.
Section 00.Xx Representations or Warranties.
Buyer hereby acknowledges, understands and agrees that it has had an opportunity to inspect the Properties and, except for the express representations set forth in this Agreement and the closing documents, will rely solely on Xxxxx’s own investigation of the Properties and not on any information provided by or on behalf of Seller. Except as set forth in this Agreement and the other documents executed and delivered by Seller or its affiliates at Closing, the Properties shall be conveyed at Closing to Buyer in their “as-is,” where is” condition, with all faults, and with no
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representations or warranties whatsoever. Without limiting the generality of the foregoing, Buyer acknowledges that, except as expressly set forth in this Agreement and the closing documents, Seller does not make and specifically disclaims any warranty, guaranty or representation, oral or written, past, present or future, of, as to, or concerning (i) the nature and condition of the Properties, including, without limitation, the water, soil and geology, the suitability thereof for any and all activities and uses Xxxx may elect to conduct, the existence of any Hazardous Substances or compliance with applicable Environmental Laws; (ii) the nature and extent of any right-of way, easement or license; and (iii) whether the Properties, including any use or operation thereon or thereof, are in compliance with any applicable laws, ordinances or regulations. The provisions set forth in this Section shall survive the Closing and shall not be merged within the Seller Closing Documents.
This Agreement shall be construed under the laws of the State of California, without giving effect to any conflict of laws or principles.
Seller hereby represents and warrants to Buyer that there are no brokers involved or that have a right to proceeds in this transaction or under the Sierra Lease. At Closing, Buyer shall pay Stifel a consulting fee pursuant to a separate written agreement between Buyer and Stifel. Seller and Buyer each hereby agree to indemnify and hold the other harmless from all loss, cost, damage or expense (including reasonable attorneys’ fees at both trial and appellate levels) incurred by the other as a result of any claim arising out of the acts of the indemnifying party (or others on its behalf) for a commission, finder’s fee or similar compensation made by any broker, finder or any party who claims to have dealt with such party. The representations, warranties and indemnity obligations contained in this Section 20 shall survive the Closing and delivery of the Deeds or the earlier termination of this Agreement.
In any action between Buyer and Seller as a result of failure to perform or a default under this Agreement, the prevailing party shall be entitled to recover from the other party, and the other party shall pay to the prevailing party, the prevailing party’s reasonable attorneys’ fees and disbursements and court costs incurred in such action.
Buyer may not record this Agreement or any memorandum of short form hereof.
Section 24.Computation of Time.
The time in which any act under this Agreement is to be done shall be computed by excluding the first day and including the last day. If the last day of any time period stated herein shall fall on a day other than a Business Day, then the duration of such time period shall be
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extended so that it shall end on the next succeeding Business Day. Unless preceded by the word “business,” the word “day” shall mean a calendar day. The phrase “Business Day” or “Business Days” shall have the meaning set forth in Section 1. Time is of the essence with respect to this Agreement and the transactions contemplated hereby.
Section 25.Counterparts; Electronic Signatures.
This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become a binding agreement when one or more counterparts have been signed by each of the parties and delivered to the other party. A facsimile, PDF, digital, or other electronically transmitted signature (such as via .pdf, .jpeg, .TIF, .TIFF, or similar electronic format) on this Agreement, any amendment hereof, or any notice given hereunder shall be deemed an original signature and fully effective as such for all purposes.
This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and permitted assigns.
This Agreement is of no force or effect unless it is signed by Seller and Buyer, and a signed copy of this Agreement delivered by Seller to Buyer. The mailing, delivery or negotiation of this Agreement by Seller or Buyer or any agent or attorney of Seller or Buyer prior to the execution and delivery of this Agreement as set forth in this clause shall not be deemed an offer by Seller or Buyer to enter into this Agreement, whether on the terms contained in this Agreement or on any other terms.
Section 28.Waiver of Trial by Jury.
THE RESPECTIVE PARTIES HERETO SHALL AND HEREBY DO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, OR FOR THE ENFORCEMENT OF ANY REMEDY GRANTED IN THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY SELLER AND BUYER, EACH OF WHOM XXXXXX ACKNOWLEDGES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. SELLER AND BUYER EACH FURTHER REPRESENT THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
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This Agreement may not be assigned by Xxxxx or Seller without the prior written consent of the other such party. Notwithstanding the foregoing, Buyer may assign its rights under this Agreement, without the consent of Seller, to any entity which controls, is controlled by, or is under common control with Buyer (control meaning the power, through ownership of voting rights or contract, to manage the decision making of an entity) (each such entity being referred to as a “Buyer Affiliate”). Buyer shall not assign this Agreement to an entity or individual which would make any of the statements, representations or warranties of Buyer set forth in Section 12 of this Agreement untrue or incorrect and any such assignment shall be null and void and without force and effect. No assignment of this Agreement shall relieve Buyer from any of its obligations set forth herein arising prior to or after the effective date of the assignment. In addition, Xxxxx shall have the right to direct Seller, upon three (3) Business Days’ written notice to Seller prior to Closing, to transfer any individual Property to one or more Buyer Affiliates in lieu of transferring the Properties to Buyer at Closing. The final documents to be delivered at Closing, including, without limitation, the deed(s), the Assignment(s) of Intangible Property, the Memorandum(s) of Sierra Lease and the Sierra Lease, shall be conformed to reflect the appropriate transferee as communicated by Buyer in accordance herewith.
Section 30.Further Assurances.
From time to time, as and when requested by any party hereto, the other party shall execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all further or other actions as such other party may reasonably deem necessary or desirable to consummate the transactions contemplated by this Agreement.
If any term or provision of this Agreement or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Each of the parties hereto shall maintain the existence of this transaction and the terms and provisions contained herein in the strictest confidence and shall not, without prior written consent of the other party (which consent may be withheld in said party’s sole and absolute discretion), disclose to any other person or entity (other than such party’s respective attorneys, accountants, consultants, lenders, agents and/or advisors who are involved in the transaction and potential investors on the condition that all such persons or entities shall be bound by the confidentiality provisions hereof) by any means whatsoever: (a) any information or documentation (written or oral) provided to such party by the other party hereto concerning the Properties (including, without limitation, the Due Diligence Materials) or concerning such other party or its business, or (b) any information pertaining to the Agreement (clauses (a) and (b), collectively, “Confidential Information”). The foregoing confidentiality provision shall not apply to any Confidential Information (i) disclosed in any public records; (ii) that is or becomes part of the public domain (provided that such Confidential Information did not become part of the public domain as the result
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of the disclosing party’s breach of this Section); (iii) is independently developed by the disclosing party without reliance on the Confidential Information or (iv) is otherwise required to be disclosed by applicable law, regulation, or court order (including in response to a subpoena). Notwithstanding anything to the contrary contained herein, if any court or governmental agency or authority requires either party to disclose any portion of the Confidential Information, such party shall (x) provide prompt written notice of such requirement to the non-disclosing party and (y) cooperate with the non-disclosing party in a commercially reasonable manner, and at such non- disclosing party’s sole cost and expense, in obtaining a protective order or other remedy sought by the non-disclosing party with respect to such requirement. In the event that no such protective order is obtained prior to any deadline for compliance with such requirement, the disclosing party may disclose only that portion of Confidential Information which is so requested or required. This Section 32 shall survive the Closing and delivery of the Deeds.
Neither Seller nor Buyer shall issue any press release or other public announcement with respect to this Agreement to the press or the public without the prior written consent of the other (not to be unreasonably withheld, conditioned, or delayed). Notwithstanding the foregoing or the confidentiality provision set forth in Section 32, Seller and Buyer, or any direct parent entity of Seller or Buyer, may, without the prior consent of the other party, issue a press release or other public disclosure relating to this Agreement and the transactions contemplated hereby, as the disclosing party may determine is required under the Exchange Act, the Securities Act, the rules and regulations of the Securities Exchange Commission or any Securities Exchange, or other applicable laws, rules or regulations.
Section 34.State-Specific Provisions.
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Seller has no obligation to update, modify, or supplement the NHD Statement. Buyer shall be solely responsible for preparing and delivering its own natural hazard disclosure statement to subsequent prospective buyers of each Property.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURES APPEAR ON THE FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement for Purchase and Sale of Real Property (Tranche 1) as of the Effective Date.
SELLER:
BANK OF THE SIERRA,
a California corporation
By: /s/ Xxxxx XxXxxxxx
Name: Xxxxx XxXxxxxx
Title: President/CEO
BUYER:
BOTS OWNER LLC,
a Delaware limited liability company
By: Name: Title:
/s/ Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx
Authorized Representative
EXHIBITS AND SCHEDULES
Exhibit A | - Description of the Land (Common Address & APNs)* - Form of Deed* - Form of Sierra Lease - Allocation of Purchase Price* - Form of Bill of Sale* - Form of Assignment Intangible Property* - Form of FIRPTA Affidavit* - Form of Post-Closing Side Letters* |
Exhibit B | |
Exhibit C | |
Exhibit D | |
Exhibit E | |
Exhibit F | |
Exhibit G | |
Exhibit H |
*Omitted pursuant to Item 601(a)(5). The registrant hereby agrees to furnish a copy of any omitted schedule or similar attachment to the SEC upon request.
EXHIBIT C
Form of Sierra Lease
[see attached]
LEASE AGREEMENT
By and Between
BOTS OWNER LLC, a Delaware limited liability company
(“Landlord”) and
BANK OF THE SIERRA, a California corporation
(“Tenant”)
Property Address: [ ]
TABLE OF CONTENTS
| 1. | Basic Terms1 |
| 2. | Definitions and Base Provisions2 |
| 3. | Granting Clause9 |
| 4. | Use11 |
| 5. | Rent13 |
| 6. | True Lease.14 |
| 7. | Net Lease15 |
| 8. | Real Estate Taxes16 |
| 9. | Personal Property Taxes19 |
| 10. | Operating Expenses19 |
| 11. | Tenant’s Repair and Maintenance Responsibilities20 |
| 12. | Compliance with Laws24 |
| 13. | Surrender of Premises24 |
| 14. | Alterations25 |
| 15. | Entry by Landlord27 |
| 16. | Tenant’s Insurance Obligations29 |
| 17. | OFAC34 |
| 18. | Waiver of Subrogation36 |
| 19. | Fire or Other Casualty36 |
| 20. | Condemnation39 |
| 21. | Indemnification41 |
| 22. | Assignment and Subletting42 |
| 23. | Liens46 |
| 24. | Tenant’s Default46 |
| 25. | Remedies of Landlord47 |
| 26. | Subordination/Attornment50 |
| 27. | Estoppel Certificate50 |
| 28. | Hazardous Materials51 |
| 29. | Press Releases54 |
| 30. | Holding Over54 |
| 31. | Financial Covenants55 |
| 32. | Quiet Enjoyment55 |
| 33. | Notices56 |
| 34. | Personal Liability56 |
| 35. | Entire Agreement57 |
| 36. | Amendments57 |
| 37. | Legal Interpretation57 |
| 38. | Option to Renew58 |
| 39. | Authority to Enter into Lease58 |
| 40. | Parties Bound58 |
| 41. | Counterparts; Electronic Signatures59 |
| 42. | Severability59 |
| 43. | Waiver of Jury Trial; Consequential Damages59 |
| 44. | Memorandum of Lease59 |
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| 45. | Brokers60 |
| 46. | Confidentiality; Public Offering Information60 |
| 47. | Landlord Reimbursement62 |
| 48. | REIT Protection62 |
| 49. | Guaranty64 |
| 50. | Customer Records64 |
| 51. | Landlord Lien64 |
| 52. | Locks And Security System65 |
| 53. | Communications Equipment65 |
| 54. | Force Majeure65 |
| 55. | Signage66 |
| 56. | Local Law Provisions66 |
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this “Lease”) is entered into as of the [ ] day of [ ], 2023, by and between BOTS OWNER LLC, a Delaware limited liability company (“Landlord”), and BANK OF THE SIERRA, a California corporation (“Tenant”).
RECITALS
| X. | Xxxxxx was the fee simple owner of the Premises prior to the Commencement Date. |
NOW THEREFORE, in consideration of the mutual promises, covenants, and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
| 1. | Basic Terms. |
| (b) | “Building”: The building or buildings located on the Property. |
| (c) | “Commencement Date”: The date first written above. |
| (d) | “Expiration Date”: The last day of the calendar month in which the |
( )1 monthly anniversary of the Commencement Date shall occur, subject to extension pursuant to Section 38 of this Lease.
| (e) | “Option to Renew” or “Renewal Option”: additional periods of |
years each under the terms and conditions set forth in Section 38 of this Lease.
| (f) | “Premises”: Collectively, the Building and the Property. |
1 To be inserted in broken out drafts.
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| 2. | Definitions and Base Provisions. |
For purposes of this Lease, the following terms shall have the meanings indicated below:
| (c) | “Alterations”: Defined in Section 14(a) hereof. |
| (g) | “Base Rent”: Defined in Section 1(a) hereof. |
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| (j) | “Building”: Defined in Section 1(b) hereof. |
| (l) | “Commencement Date”: Defined in Section 1(c) hereof. |
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§1251 et seq.), (5) Safe Drinking Water Act (42 U.S.C. §300f et seq.), (6) Clean Air Act, formerly known as the Radon Gas and Indoor Air Quality Research Act of 1986 (42 U.S.C. §7401 et seq.), (7) Solid Waste Disposal Act (42 U.S.C. §3251 et seq.), (8) Toxic Substances Control Act (15 U.S.C.
§2601 et seq.), (9) Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. §11001 et seq.), (10) National Environmental Policy Act (42 U.S.C. §4321 et seq.), (11) Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. §9601 et seq.), (12) Occupational Safety and Health Act (29 U.S.C. §651 et seq.), (13) Refuse Act of 1899 (33 U.S.C. § 407 et seq.), (14) Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.), (15) Marine Protection, Research and Sanctuaries Act (33 U.S.C. § 1401 et seq.), (16) Atomic Energy Act (42 U.S.C. § 2011 et seq.), (17) Nuclear Waste Policy Act of 1982 (42 U.S.C.
§ 10101 et seq.), and (18) Noise Control Act (42 U.S.C. § 4901 et seq.), and any similar state or local Laws and any and all rules and regulations in effect under such Laws.
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| (v) | [“EV Agreement”: That certain .2] |
| (w) | “EV Equipment”: Any electric vehicle charging stations at the Premises as of the Commencement Date.]3 |
| (x) | “Event of Default”: Defined in Section 24 hereof. |
| (y) | “Exchange Act”: The Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. |
| (z) | “Expiration Date”: Defined in Section 1(d) hereof. |
(aa) “Final Completion”: With respect to any Tenant’s Work (a) the completion of construction of such Tenant’s Work, including all “punch list” items, in accordance with the applicable Plans, if any, and (b) the issuance and receipt of all Permits, if any, required for the legal occupancy of such Tenant’s Work.
(bb) “Financial Services Institution”: Any entity that performs one or more of the following activities (whether directly or indirectly through a subsidiary Controlled by said entity): (i) operation of a state or federally regulated commercial bank, savings bank, savings and loan association, credit union, mutual or thrift association or any other institution that accepts deposits of money, (ii) operation of a stock brokerage firm, (iii) mortgage broker, (iv) finance company, mortgage company or any other institution that lends money, (v) investment banking, (vi) insurance brokerage, and (vii) provision of any other financial services or sale of any products that Tenant is permitted to offer by Law.
(cc)“Guarantor”: Sierra Bancorp, a California corporation.
(dd) “Hazardous Materials”: Each of the following: (a) any toxic substance or hazardous waste, substance, solid waste or related material, or any pollutant or contaminant; (b) radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, radiation, mold or other microbial matter, odors, noise, per- and poly-fluoroalkyl substances, or any petroleum product or additive; (c) any substance, gas, material or chemical which is now or hereafter defined as or included in the definition of “hazardous substances,” “toxic substances,” “hazardous materials,” “hazardous wastes,” “regulated substances” or words of similar import under any Environmental Laws; and
(d) any other chemical, material, gas, condition or substance, the exposure to or release of which is prohibited, limited or regulated by any
2 To be inserted in broken out drafts.
3 To be included at any property where there are existing EV chargers and/or agreements, as applicable.
5
governmental authority, or that poses a hazard to human health or safety or to the environment.
(ee) “Indemnified Party”: With respect to any indemnification obligation contained in this Lease, the individual or entity so indemnified by the indemnifying party.
(ff)“Landlord”: Defined in the Preamble hereof.
(gg)“Landlord Claim”: Defined in Section 21(a) hereof.
(hh) “Landlord Indemnified Parties”: Landlord and Landlord Mortgagee, and each of their respective successors and assigns, and their respective members, managers, partners, shareholders, officers, directors, agents, employees, attorneys and representatives.
c/o Blue Owl Real Estate Capital LLC |
00 X. XxXxxxx, Xxxxx 0000 |
Chicago, Illinois 60602 |
Attention: Asset Management |
E-mail: XxxxXxxxxxXX@xxxxxxx.xxx |
With a copy to |
Xxxxxxxx & Xxxxx LLP |
000 Xxxxx XxXxxxx |
Chicago, Illinois 60654 |
Attention: Xxxxx X. Xxxxxxxxx & Xxxxxxx X. Xxxxxx |
E-mail: xxxxx.xxxxxxxxx@xxxxxxxx.xxx; xxxxxxx.xxxxxx@xxxxxxxx.xxx |
(ll) “Landlord’s Representatives”:Landlord’s agents, attorneys, representatives, members, directors, officers and employees.
(mm) “Late Charge”: Defined in Section 5(c) hereof.
(nn) “Law”: All applicable statutes, ordinances, rules, regulations, codes, orders, requirements, directives, binding written interpretations and binding written policies, common law, rulings, and decrees of all local, municipal, state and federal governments, departments, agencies, commissions, boards or political subdivisions.
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(oo) “Lease”: Defined in the Preamble hereof. (pp) “Loss(es)”: Defined in Section 21 hereof.
(qq) “OFAC Laws and Regulations”: All Laws administered by the Office of Foreign Asset Control (“OFAC”) of the U.S. Department of the Treasury, codified at 31 C.F.R. Part 500 (including those named on OFAC’s Specially Designated Nationals and Blocked Persons list) or under any statute, executive order (including the September 23, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), interpretive guidance or other governmental action regarding persons or entities with whom U.S. persons or entities are restricted from doing business, as same may be amended from time to time.
(rr)“Option to Renew”: Defined in Section 1(e) hereof.
(ss) “Permits”: All permits, licenses, approvals, authorizations, consents, waivers, exemptions, registrations, and certificates obtained from any governmental authority or required by any Law.
(tt) “Permitted Encumbrances”: Any and all Encumbrances (i) affecting any portion of the Premises as of the Commencement Date, including, but not limited to, those Encumbrances shown on Landlord’s title policy obtained on the Commencement Date, (ii) consisting of current taxes and assessments with respect to the Premises, not yet due or payable, (iii) arising or created by municipal and zoning ordinances, and (iv) arising after the Commencement Date that are approved in writing by Landlord in its reasonable discretion.
(uu) “Permitted Use”: Use as a Financial Services Institution, general office use, and/or any other use permitted on the Premises by Law and not expressly prohibited under this Lease, together with all other ancillary uses to the extent permitted by Law.
(vv) “Personal Property”: All fixtures and equipment other than Tenant’s Personal Property, if any, located in or on, or used in connection with the maintenance or operation of, the Property (including, without limitation, any bank vaults, HVAC systems, water heaters, and other equipment integral to the functionality of the Building).
(ww) “Plans”: With respect to any Tenant’s Work, the plans and specifications prepared by the Architect and approved by Landlord if required under this Lease.
(xx)“Premises”: Defined in Section 1(f) hereof.
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(yy) “Prime Rate”: The interest rate per annum as published, from time to time, in The Wall Street Journal as the “Prime Rate” in its column entitled “Money Rate”. The Prime Rate may not be the lowest rate of interest charged by any “large U.S. money center commercial banks” and Landlord makes no representations or warranties to that effect. In the event The Wall Street Journal ceases publication or ceases to publish the “Prime Rate” as described above, the Prime Rate shall be the average per annum discount rate (the “Discount Rate”) on ninety-one (91) day bills (“Treasury Bills”) issued from time to time by the United States Treasury at its most recent auction, plus three hundred (300) basis points. If no such 91-day Treasury Bills are then being issued, the Discount Rate shall be the discount rate on Treasury Bills then being issued for the period of time closest to ninety-one
(91) days.
(zz)“Prohibited Persons”: Defined in Section 17(b) hereof. (aaa)“Property”: Defined in Section 1(g) hereof.
(bbb) “Purchase Agreement”: Defined in Recital B hereto. (ccc)“Real Estate Taxes”: Defined in Section 8(a) hereof.
(ddd) “Release”: Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, migrating, presence of, exposure to or disposing into the environment or the workplace of any Hazardous Materials, including the abandonment or discarding of barrels, containers, and other closed receptacles containing any Hazardous Materials.
(eee)“Renewal Amendment”: Defined in Section 38(c) hereof. (fff)“Renewal Notice”: Defined in Section 38(a)(i) hereof. (ggg) “Renewal Option”: Defined in Section 38(a) hereof. (hhh) “Renewal Term”: Defined in Section 38(a) hereof.
| (iii) | “Rent”: Defined in Section 5(b) hereof. |
(jjj)“Repossessed Premises”: Defined in Section 25(c) hereof. (kkk) “Restoration Standards”: Defined in Section 19(a) hereof. (lll)“SEC”: The Securities Exchange Commission.
(mmm)“Securities Act”: The Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
8
(nnn) “SNDA”: Defined in Section 26(a) hereof.
(ooo) “Substitute Tenant”: Defined in Section 25(c) hereof. (ppp) “Taxes”: Defined in Section 8(d) hereof.
(qqq) “Tenant”: Defined in the Preamble hereto.
(rrr) “Tenant Indemnified Parties”: Xxxxxx and its successors and assigns, members, managers, partners, shareholders, officers, directors, agents, attorneys, and representatives.
(sss) “Tenant Notice Address”: Bank of the Sierra
00 X. Xxxx Xxxxxx Xxxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx XxXxxxxx & Xxxxxxxxxxx Xxxxxx Email: XXxXxxxx@xxxxxxxxxxxxxxx.xxx;
XXxxxxx@xxxxxxxxxxxxxxx.xxx
(ttt) “Tenant’s Personal Property”: Any and all personal property used by Tenant in connection with the operation of its business from the Premises, including, without limitation, all trade fixtures, signage, ATMs, safes, safe deposit boxes, overnight deposit boxes, drive-up teller kiosks, furnishings, office furniture and equipment, machinery, Communications Equipment, computers, printers, scanners, EV Equipment, and other items uniquely purchased by Tenant in connection with its banking operations), but excluding any bank vaults.
(uuu) “Tenant’s Representatives”: Tenant’s agents, attorneys, representatives, directors, officers and employees and any mortgagee of Tenant’s interest in this Lease or in the Premises.
(vvv) “Tenant’s Work”: Defined in Exhibit C hereof. (www) “Term”: Defined in Section 1(h) hereof.
(xxx) “Transfer”: Defined in Section 22(b) hereof.
(AAAA)“U.S. Publicly-Traded Entity”: Defined in Section 17(a) hereof. (BBBB)“Utility Charges”: Defined in Section 10(a) hereof.
| 3. | Granting Clause. |
| (a) | Landlord, in consideration of the covenants and agreements to be performed by Xxxxxx, and upon the terms and conditions contained in this Lease, does |
9
hereby lease, demise, let and deliver to Tenant, and Tenant, in consideration of the covenants and agreements to be performed by Landlord and upon the terms and conditions contained in this Lease, does hereby lease from Landlord, the Premises, to have and to hold for the Term. Tenant acknowledges receipt and delivery of complete and exclusive possession of the Premises, subject to the Permitted Encumbrances. Tenant acknowledges and confirms that for a substantial period prior to and up to and including the execution of this Lease, Xxxxxx has been in continuous ownership and possession of the Premises, and, accordingly, Tenant is fully familiar therewith, and Xxxxxx has examined and otherwise has knowledge of the condition of the Premises prior to the execution and delivery of this Lease and has found the same to be satisfactory for its purposes hereunder. Regardless, however, of any knowledge, examination or inspection made by Tenant and whether or not any patent or latent defect or condition was revealed or discovered thereby, Tenant is leasing the Premises “as is,” “where is” and “with all faults” in its present condition. Tenant hereby irrevocably, unconditionally and absolutely waives and relinquishes any claim or action against Landlord whatsoever in respect of the condition of the Premises as of the Commencement Date, including any patent or latent defects or adverse conditions not discovered or discoverable or otherwise known or unknown by Xxxxxx as of the Commencement Date.
LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN FACT OR IN LAW, IN RESPECT OF THE PREMISES OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, OR AS TO THE NATURE OR QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, OR THE EXISTENCE OF ANY HAZARDOUS MATERIALS, IT BEING AGREED THAT ALL SUCH RISKS, KNOWN AND UNKNOWN, LATENT OR PATENT, ARE TO BE BORNE SOLELY BY TENANT, INCLUDING ALL RESPONSIBILITY AND LIABILITY FOR ANY ENVIRONMENTAL CONDITION OF THE PREMISES, ENVIRONMENTAL REMEDIATION AND COMPLIANCE WITH ALL ENVIRONMENTAL LAWS.
Without limiting the foregoing, Xxxxxx realizes and acknowledges that factual matters existing as of the Commencement Date now unknown to it may have given or may hereafter give rise to losses, damages, liabilities, costs and expenses that are presently unknown, unanticipated and unsuspected, and Xxxxxx further agrees that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Tenant nevertheless hereby intends to release, discharge and acquit Landlord and Landlord Mortgagee, and each of their respective successors and assigns, and their respective members, managers, partners,
10
shareholders, officers, directors, agents, attorneys and representatives, from any and all such unknown Losses.
| 4. | Use. |
11
(II) may make possible a claim of adverse use or possession or an implied dedication of the Premises or any portion of the Premises, or (III) may subject the Premises or this Lease to any Encumbrances, other than Permitted Encumbrances. Notwithstanding anything herein to the contrary, Tenant shall not (1) permit any unlawful practice to be carried on or committed in the Premises; (2) make any use of or allow the Premises to be used for any purpose that might invalidate or increase the rate of insurance thereof; (3) deface or damage the Premises; (4) overload the floors, walls or ceilings of the Premises; (5) commit or suffer any material waste in or about the Premises; (6) use the Premises in any manner that may diminish the value of the Premises in any material respect; or (7) use the Premises for any of the following purposes without the Landlord’s prior consent (in its sole and absolute discretion): (i) bar, nightclub, adult bookstore or video shop or other adult entertainment establishment; (ii) incineration or reduction of garbage or any garbage dumps on the Premises; (iii) mortuary;
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Encumbrances created by Landlord unless required by Law or approved by Tenant, such approval not to be unreasonably withheld, conditioned or delayed). Tenant shall not, without Xxxxxxxx’s prior written consent (in Landlord’s sole discretion), apply for or otherwise seek or obtain any zoning changes or variances with respect to the Property. Tenant shall use commercially reasonable efforts to cooperate in all respects therewith, at Xxxxxxxx’s request, to secure any estoppels related to an Encumbrance.
| (d) | Tenant shall have the right to access and use the Premises twenty-four (24) hours per day, seven (7) days per week. |
| 5. | Rent. |
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any installment of Rent due to Landlord is not paid within two (2) business days after delivery of written notice from Landlord to Tenant of Tenant’s failure to pay Rent when due (provided, however, that Tenant shall only be entitled to such notice and cure one (1) time in any consecutive twelve (12)- month period during the Term), Tenant shall pay Landlord upon demand a late charge equal to the lesser of (i) five percent (5%) of the delinquent installment of Rent and (ii) the highest amount allowed by Law (each a “Late Charge”). The parties agree that this Late Charge represents a fair and reasonable estimate of the costs and expenses (including economic losses) that Landlord will incur by reason of late payment by Xxxxxx. The parties further agree that such Late Charge is Rent and not interest and such assessment does not constitute a lender or borrower/creditor relationship between Landlord and Tenant. In addition, any amount of delinquent Rent (including the amount of any Late Charge) due to Landlord shall accrue interest at the Default Rate from the date on which such Rent was due up to the date that such Rent is paid. The payment of such Late Charge or such interest shall not constitute a waiver of, nor excuse or cure, any default under this Lease, nor prevent Landlord from exercising any other rights and remedies available to Landlord. Without limitation of the foregoing, Tenant shall be responsible for payment of all interest, late charges, and other costs and fees imposed by third parties with respect to late payments of Utility Charges or other third-party charges that are the responsibility of Tenant hereunder.
| 6. | True Lease. |
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the Lease as a “true lease,” (3) stipulates and agrees, and is estopped from challenging, that nothing contained in the Lease creates or is intended to create a joint venture, partnership (de facto or de jure), equitable mortgage, trust, financing device or arrangement, security interest or the like, (4) stipulates and agrees, and is estopped from challenging, that none of the agreements contained herein is intended, or shall be deemed or construed, to make Tenant an agent, legal representative, partner, subsidiary or employee of Landlord, or to make Landlord in any way responsible for the debts, obligations or losses of Tenant, and (5) shall support the intent of the parties that the lease of the Premises pursuant to this Lease is a “true lease” and does not create a joint venture, partnership (de facto or de jure), equitable mortgage, trust, financing device or arrangement, security interest or the like, if, and to the extent that, any challenge occurs. Xxxxxxxx does not intend to convey any fee interest in any of the Premises to Tenant. Tenant does not intend to obtain an interest in the Premises other than a leasehold interest pursuant to the Lease. The Lease may not be construed in any manner to create any relationship between the parties other than a landlord-tenant relationship.
| 7. | Net Lease. |
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Premises and all improvements and appurtenances related thereto or any part thereto shall be performed and paid by Tenant, and Landlord shall have no responsibility or liability therefor. Landlord’s expenses shall include the reimbursement of Landlord’s commercially reasonable general liability, umbrella, and business interruption insurance premiums. Tenant’s covenants to pay Base Rent, Real Estate Taxes and all other Rent hereunder are independent covenants, and Tenant shall have no right to hold back, offset, deduct, credit against or fail to pay in full any such amounts for claimed or actual default or breach by Landlord of whatsoever nature, for force majeure or for any other reason whatsoever. For the avoidance of doubt, Tenant shall not have, and hereby expressly and absolutely waives, relinquishes, and covenants not to assert, accept or take advantage of, any right to deposit or pay with or into any court or other third-party escrow, depository account or tenant account with respect to any disputed Rent, or any Rent pending resolution of any other dispute or controversy with Landlord. Tenant hereby expressly waives any and all defenses it may have at law or in equity to payment of Rent, including, without limitation, based on any theories of frustration of purpose, impossibility, or otherwise. Notwithstanding the foregoing, Tenant is not waiving its right to assert any dispute regarding the application or interpretation of any terms of this Lease relating to Tenant’s obligation to pay Rent (other than Base Rent) hereunder or otherwise.
| 8. | Real Estate Taxes. |
16
other charges, in each case whether general or special, ordinary or extraordinary, or foreseen or unforeseen, of every character and any kind and nature whatsoever in respect of the Premises (including, without limitation, any Building and/or Property) and/or the Rent and all interest and penalties thereon attributable to any failure in payment by Tenant which at any time prior to, during or in respect of the Term hereof may be assessed or imposed on or in respect of or be a lien upon (i) the Premises or any part thereof or any appurtenance thereto, (ii) any Rent reserved or payable hereunder or any other sums payable by Tenant hereunder, (iii) this Lease or the leasehold estate hereby created or the operation, possession, occupancy or use of the Premises or any part thereof, (iv) any occupancy, operation, use or possession of, or sales from or activity conducted on or in connection with the Premises or the Property or the leasing or use of the Premises or the Property or any part thereof, or (v) any document to which Tenant is a party creating or transferring an interest or estate in the Premises, together with any interest or penalties thereon (all of which are hereinafter called “Real Estate Taxes”). Notwithstanding the foregoing, there shall be excluded from Real Estate Taxes: all excess profits, transfer, gain, foreign ownership or control, mortgage, intangible, gift, inheritance and succession, estate and income taxes, as well as any taxes attributable to Landlord’s business license(s). Tenant shall make such payments directly to the taxing authorities and shall promptly furnish to Landlord copies of official receipts or other satisfactory proof evidencing such direct payments. Tenant’s obligation to pay Real Estate Taxes shall be absolutely fixed upon the date such Real Estate Taxes become a lien upon the Premises or any part thereof, subject to Section 8(c). Tenant shall also be responsible for all Real Estate Taxes which, on the Commencement Date, are a lien upon the Premises or any part thereof.
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| 9. | Personal Property Taxes. |
Tenant shall be liable for and shall promptly pay when due all personal property taxes related to Personal Property and Tenant’s Personal Property placed in the Premises. Tenant may, without Xxxxxxxx’s consent, before delinquency occurs, contest any such taxes related to the Personal Property and/or Tenant’s Personal Property.
| 10. | Operating Expenses. |
(30) days’ prior notice to the third-party servicer. Any resulting termination premium, fee or penalty shall be the sole responsibility of Tenant.
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| 11. | Tenant’s Repair and Maintenance Responsibilities. |
20
but without expanding Tenant’s obligations under this Section 11, Tenant’s obligations shall include, without limitation and to the extent applicable:
21
(ii) giving Tenant any right, power or permission to contract for or permit the performance of any labor or services or the furnishing of any materials
22
or other property in such fashion as would permit the making of any claim against Landlord in respect thereof.
4 Schedule of immediate repairs to be discussed between business teams prior to inserting in broken out drafts.
23
timeframes set forth thereon. Landlord shall have the right to engage, at Tenant’s sole cost and expense not to exceed $11,000.00 in the aggregate for the Property and all other properties acquired by Landlord pursuant to the Purchase Agreement, a consultant to oversee the completion of the roof repairs more particularly described on Exhibit G and advise Landlord with respect to the same.
| 12. | Compliance with Laws. |
Tenant shall, at its sole cost and expense, use and maintain the Premises in compliance with all Laws, and Tenant shall, at its sole cost and expense, comply with all Laws applicable to or having jurisdiction over the use, occupancy, operation, and maintenance of the Premises, including without limitation, all Environmental Laws, the ADA and other access laws and those which require the making of any structural, unforeseen or extraordinary changes and including those which involve a change of policy on the part of the governmental body enacting the same. Tenant shall, at its sole cost and expense, comply with all Encumbrances affecting the Premises or any portion thereof (excepting Landlord’s obligations to pay debt service to any Landlord Mortgagee under any Landlord Mortgage and further excepting any other Encumbrances created by Landlord unless required by Law or approved by Tenant, such approval not to be unreasonably withheld, conditioned or delayed). Tenant, at its sole expense, shall comply with the requirements of policies of special form insurance coverage at any time in force with respect to the Premises as required pursuant to Section 16 hereof and with the provisions of all contracts, agreements and restrictions that affect the Premises or any part thereof (including the ownership, occupancy or use thereof), excepting any obligations of Landlord under any Landlord Mortgage and further excepting any other contracts, agreements, and restrictions entered into by Landlord without Tenant’s written consent, unless such contracts, agreements or restrictions are required by applicable Law. Without diminishing the obligations of Tenant, if Tenant shall at any time fail to comply as promptly as reasonably practicable with any Laws applicable to the Premises, or the use and occupation thereof, Landlord may, following prior written notice to Tenant, cause the Premises to so comply and the reasonable costs and expenses of Landlord in such compliance shall be paid by Tenant to Landlord upon demand with interest thereon at the Default Rate until paid.
| 13. | Surrender of Premises. |
Upon the expiration of this Lease pursuant to its terms (or, in the event of a termination of this Lease on a date other than the scheduled Expiration Date of this Lease, as promptly as commercially practicable thereafter (but in any event within thirty (30) days thereafter during which 30-day period Tenant shall be liable for holdover rent pursuant to Section 30 hereof)), Tenant shall surrender to Landlord the Premises, including all Alterations constructed by Tenant therein and all Personal Property (other than Alterations that Tenant is required to remove in accordance with Section 14 below and expressly excluding any and all Tenant’s Personal Property), free and clear of any occupants or tenancies (including subtenancies) (other than subtenants under subleases as in effect on the date hereof) and in compliance with Law (including, without limitation, Environmental Laws), to the extent required by Section 12 and Section 28, and in as good (or better) condition and repair as required pursuant to Section 11, reasonable wear and tear and damage from fire or other casualty excepted. Upon the expiration or earlier termination of this Lease, Tenant shall have the right to remove any or all of Tenant’s Personal Property
24
installed or placed on the Premises by Tenant or any subtenant or assignee of Tenant, in which case Tenant shall be responsible for repairing any and all damage to the Premises caused by said removal. In the event Tenant fails to remove all of Tenant’s Personal Property from the Premises within thirty (30) days after expiration or earlier termination of this Lease; then any such Tenant’s Personal Property not so removed shall, at Landlord’s election, be deemed abandoned and become the property of Landlord without any payment or offset therefor if Landlord so elects. If Landlord shall not so elect, Landlord may remove such property from the Premises and have it stored or discarded at Tenant’s risk and expense. Tenant shall repair and restore and save Landlord harmless from all damage to the Premises caused by such removal by Landlord, except to the extent caused by the gross negligence or willful misconduct of Landlord or any Landlord’s Representatives. Notwithstanding anything to the contrary contained herein, in the event that any applicable EV Agreements are still in force at the expiration or earlier termination of this Lease, unless requested by Landlord, Tenant shall not remove the EV Equipment and such EV Equipment shall become the property of Landlord without any payment or offset therefor.
| 14. | Alterations. |
(ii) will not change the essential nature of any Building as to its current use or ancillary uses; (iii) will not materially and adversely affect the structural elements or roof of any Building, the proper functioning of a Building’s systems or the value of such Building; and (iv) do not exceed the cost of Three Hundred Thousand and No/100 Dollars ($300,000) on a per project basis. For purposes of this Section 14(a), any Alterations made to a drive- through lane, drive-through canopy, or related element on the Premises shall not be considered structural in nature. In seeking approval from Landlord of any Alterations, if required, Tenant shall provide Landlord with (1) full and complete drawings and Plans for the proposed Alterations prepared by the Architect or engineer; and (2) notice of whether the Alteration will involve or affect Hazardous Materials. Tenant shall not have the right to seek any zoning changes or variances in connection with any Alterations without Landlord’s approval, which approval may (1) not be unreasonably withheld, conditioned or delayed if the zoning change or variance is purely additive and in connection with the use of the Premises as an office building or bank branch or ancillary use and (2) be withheld in Landlord’s sole and absolute discretion if the zoning change or variance is not purely additive and in connection with the use of the Premises for a use other than as an office building or bank branch or ancillary use. Landlord and Tenant agree that any such Alterations (including, without limitation, any need for Landlord consent in connection therewith) shall be subject to this Section 14. Tenant shall procure all necessary governmental permits and
25
approvals prior to commencing construction of any Alteration. Tenant shall reimburse Landlord upon demand for any reasonable out-of-pocket costs, including, without limitation, attorney’s fees and engineering advisor’s fees not to exceed $7,500, and any fees or expenses of Landlord Mortgagee payable by Landlord to Landlord Mortgagee, related to Landlord’s review of any Alterations where Landlord approval is required or where requested by Xxxxxx, provided that any fees or expenses of Landlord Mortgagee payable by Landlord to Landlord Mortgagee shall not be subject to the foregoing $7,500 cap.
26
remove such Alteration at the end of the Term. If Landlord does not notify Tenant of Landlord’s demand for Tenant to remove such Alteration, such Alteration may be removed at Tenant’s option. Upon the expiration or sooner termination of this Lease, all Alterations on the Premises required by Landlord to be removed as aforesaid shall be removed from the Premises by Tenant, and the Premises shall be restored, at Tenant’s expense, to a substantially similar condition as existed on the Commencement Date, reasonable wear and tear and damage from fire or other casualty excepted.
| 15. | Entry by Landlord. |
27
such entry shall be deemed an eviction of Tenant. At any time during which Landlord or Landlord’s Representatives are on the Premises, they shall use commercially reasonable efforts to not unreasonably interrupt or interfere with Xxxxxx’s use of the Premises and shall not cause any damage or injury to persons or property on the Premises.
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any Tenant Indemnified Party by reason of any claim, suit, or judgment obtained or brought by or on behalf of any person or persons against any Tenant Indemnified Party, for damage, loss, or expense due to bodily injury or property damage sustained by such person or persons, which arise out of, are occasioned by, or attributable to Landlord or Landlord’s Representatives’ gross negligence or willful misconduct during Landlord’s entry onto the Premises to perform any of its obligations or exercise any of its rights during the Term. In the event any action or proceeding shall be brought against any Tenant Indemnified Party by reason of any such claim described in the foregoing sentence (a “Tenant Claim”), Landlord shall defend the same at Landlord’s sole expense by counsel reasonably satisfactory to Tenant. If at any time a Tenant Indemnified Party shall have received written notice of or shall otherwise be aware of any Tenant Claim which is subject to indemnity under this Section 15(c), such Tenant Indemnified Party shall give reasonably prompt written notice of such Tenant Claim to Landlord; provided, that, except to the extent Landlord is prejudiced in its defense of such Tenant Claim, the failure of such Tenant Indemnified Party to give such a notice to Landlord shall not limit the rights of such Tenant Indemnified Party or the obligations of Landlord with respect to such Tenant Claim. Landlord shall have the right to reasonably control the defense or settlement of any Tenant Claim, provided that: (1) if the compromise or settlement of any Tenant Claim shall not result in the complete release of the subject Tenant Indemnified Party, the compromise or settlement shall require the prior written approval of such Tenant Indemnified Party, not to be unreasonably withheld, conditioned, or delayed; and (2) no such compromise or settlement shall include any admission of wrongdoing on the part of any Tenant Indemnified Party, provided further that any Tenant Indemnified Party shall have the right, but not the obligation, at its election and sole cost and expense, to participate fully in the defense of any Tenant Claim with counsel of its choice. Landlord’s liability under this Section 15(c) shall survive the expiration or earlier termination of this Lease.
| 16. | Tenant’s Insurance Obligations. |
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$50,000.00 or 10%),]5 and windstorm, including named windstorm, or hail (which shall have a deductible no greater than 5%). [Earthquake coverage shall only be required if the Premises are deemed to have an SEL (scenario expected loss) of 20% or higher, with minimum coverage equivalent to the greater of 1.0x SUL (scenario upper loss) and 1.5x SEL (scenario expected loss) multiplied by the full replacement cost of the Building]6. Such insurance shall be on terms (i) that have an agreed amount endorsement or with no co-insurance provisions; and (ii) with no exclusions for vandalism, malicious mischief, sprinkler leakage or terrorism. Boiler and Machinery Coverage, also referred to as Equipment Breakdown Coverage, shall be procured either by endorsement to the property policy or under a separate placement in an amount no less than one hundred percent (100%) of the replacement cost or as otherwise approved in writing by Landlord. The property insurance required hereunder shall (i) cover at least 30 days’ loss sustained when access to all or a portion of a Building is prevented due to an insured peril at a location in the vicinity of the Premises (such requirement may be satisfied by way of “egress/ingress” coverage/endorsement); (ii) cover loss sustained due to the action of a public authority preventing access to the Building if such order is the direct result of physical damage of the type insured against at such Building or within 1,000 feet of it, together with an ordinance or law extension for the period of any restoration with the undamaged portion of the Building included up to the Building limit and at least a limit equal to twenty percent (20%) or the Building limit for demolition and increased cost of construction (such requirement may be satisfied by way of “civil authority” coverage/endorsement); (iii) insure loss caused by equipment or mechanical breakdown; (iv) cover loss sustained due to the accidental interruption or failure of supplies of electricity, gas, sewers, water or telecommunication up to the terminal point of the utility supplier with the Premises; (v) name Landlord as an Additional Insured and Loss Payee, as designated by Landlord; (vi) name any Landlord’s Mortgagee as mortgagee and contain a lender’s loss payable endorsement (or the equivalent thereof) in favor of said Landlord’s Mortgagee; and (vii) contain an endorsement providing coverage for cleanup of sudden and accidental pollution releases, with a sub-limit of at least One Hundred Thousand and No/100 Dollars. In addition to the foregoing coverages on the Building, Tenant shall maintain property insurance covering Tenant’s machinery, equipment, furniture, fixtures, and all other Tenant’s Personal Property at a limit of liability
5 The bracketed language will only be included for properties with Earthquake Coverage required (collectively, the “Earthquake Coverage Properties”): The bracketed language will be deleted from all other leases.
6 The bracketed language will only be included for those leases that cover the Earthquake Coverage Properties and will be deleted from all other leases.
determined by Tenant in its sole discretion. During the period of any restoration and repair of the Premises or any portion thereof, Tenant shall maintain an “all-risk” property policy or an “all-risk” Builder’s Risk policy on a completed value basis for the full replacement cost of the property being repaired and restored, if and when there is a structural restoration and/or major repair required at any Building. All parties with an insurable interest, including Landlord and any Landlord Mortgagee, must be additional insureds and/or loss payees, as designated by Landlord, under the foregoing property or builder’s risk policy. To the extent any portion of the Premises is located within a Special Flood Hazard Area, Tenant shall maintain NFIP flood insurance, to the extent NFIP will provide such coverage, for the Premises and name Landlord as an additional named insured.
| (b) | During the Term, Tenant shall also provide and maintain the following insurance at the terms and in the limits specified below for the Premises: |
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and containing appropriate no-fault insurance provisions wherever applicable.
A. Landlord and Tenant shall cooperate with each other in the collection of any insurance proceeds which may be payable in the event of any loss, including the execution and delivery of any proof of loss or other actions required to effect recovery. Tenant shall cause all liability and property policies maintained by Tenant to be written as primary policies, not
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contributing with and not supplemental or excess to any coverage that Landlord or Landlord Mortgagee may carry.
(10) days after receipt by Landlord of written notice from such insurer of such cancellation, non-renewal or reduction. In addition to the foregoing, all policies of insurance required to be maintained pursuant to this Lease shall contain terms in accordance with Tenant’s normal business practice and reasonably acceptable to Landlord and shall (i) contain a separation of insureds clause; (ii) name Landlord and any Landlord Mortgagee as additional insureds and/or loss payees, as required under this Section 16 or otherwise reasonably designated by Landlord; and (iii) be endorsed to waive any rights of subrogation against Landlord as required under this Lease. All policies of insurance required to be maintained pursuant to this Lease (other than in respect to automobile liability or workers compensation insurance) shall insure the interests of Landlord and Tenant regardless of any breach or violation by Tenant or any other party of warranties, declarations or conditions contained in such policies or any action or inaction of Tenant or others.
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insurer or by an authorized representative thereof. Such certificates of insurance or binders shall identify underwriters, the type of insurance, the insurance limits and deductibles, and the policy term and shall specifically list the special provisions enumerated for such insurance required by this Lease. At Landlord’s request, Tenant shall furnish complete copies of all insurance policies required to be carried by Tenant pursuant to this Lease.
(ii) commercial general liability insurance, including completed operations coverage, endorsing Landlord and any Landlord Mortgagee as Additional Insureds with minimum limits of $1,000,000 per occurrence and $2,000,000 general aggregate. Regardless of the party performing the Alterations, the Tenant shall maintain all-risk property coverage, either under its own property policy or a separate builder’s risk policy, for the full replacement value of the Alterations and existing Building. All parties with an insurable interest, including Landlord and any Landlord Mortgagee, must be insureds under the foregoing property or builder’s risk coverage during the duration of construction of the Alterations.
| 17. | OFAC. |
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the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or otherwise a person or entity with whom U.S. persons or entities are prohibited from dealing pursuant to OFAC Laws and Regulations (including without limitation persons or entities identified on the “List of Specially Designated Nationals and Blocked Persons”) (any of the foregoing, and any person owned or controlled by any of the foregoing, “Prohibited Persons”), (2) is under investigation by any governmental authority for, or has been charged with, or convicted of, any violation of any Anti-Money Laundering Laws, or drug trafficking, terrorist-related activities or other money laundering predicated crimes or a violation of the BSA, (3) has been assessed civil penalties under these or related laws, or
(4) has had any of its funds seized or forfeited in an action under these or related laws; provided, however, none of the foregoing shall apply to any person to the extent that such person’s interest is in or through a U.S. Publicly-Traded Entity. If the foregoing representations are, or become untrue at any time during the Term, and Landlord suffers actual damages as a result thereof, an Event of Default will be deemed to have occurred, without the necessity of notice to Tenant.
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trafficking, terrorist-related activities, or other money laundering- predicated crimes, (3) have been assessed civil penalties under any of the foregoing or related laws, or (4) have had any of its funds seized or forfeited in an action under any of the foregoing or related laws; provided, however, none of the foregoing shall apply to any person to the extent that such person’s interest is in or through a U.S. Publicly- Traded Entity.
| 18. | Waiver of Subrogation. |
Notwithstanding anything to the contrary set forth in this Lease, to the fullest extent permitted by Law, neither Landlord nor Tenant shall be liable (by way of subrogation or otherwise) to the other party (or to any insurance company insuring the other party) for any loss or damage to the property of the releasing party to the extent the loss or damage is covered by property insurance carried or required by this Lease to be carried by the releasing party EVEN THOUGH SUCH LOSS MIGHT HAVE BEEN OCCASIONED BY THE NEGLIGENCE OR WILLFUL ACTS OR OMISSIONS OF LANDLORD OR TENANT OR THEIR RESPECTIVE
EMPLOYEES, AGENTS, CONTRACTORS OR INVITEES. Landlord and Tenant shall give each insurance company which issues policies of insurance, with respect to the items covered by this waiver, written notice of the terms of this mutual waiver, and shall have such insurance policies properly endorsed, if necessary, to prevent the invalidation of any of the coverage provided by such insurance policies by reason of such mutual waiver. For the purpose of the foregoing waiver, the amount of any deductible or self-insured retention applicable to any loss or damage shall be deemed covered by, and recoverable by the insured under the insurance policy to which such deductible or self-insured retention relates. Each party shall pay any additional expense, if any, for obtaining such waiver.
| 19. | Fire or Other Casualty. |
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Tenant upon request for the purpose of restoration of the Premises, pursuant to the procedures set forth in this Section 19, for the reasonable costs of preservation, stabilization, emergency restoration, reconstruction, and repair, as the case may be, of the Premises, or any portion thereof. All proceeds paid to Tenant by Escrow Agent shall be used for the restoration, reconstruction, and/or repair of or to the Premises. Any excess proceeds of insurance remaining after completion of the restoration or reconstruction of the Premises to substantially the same condition as existed immediately before the damage or destruction and with materials and workmanship of like kind and quality, all to Landlord’s reasonable satisfaction and in accordance with the general terms and conditions of Exhibit C attached hereto, as applicable (collectively, “Restoration Standards”), shall be paid to Tenant. Any and all salvage resulting from any risk covered by insurance for damage or loss to the Premises shall belong to Tenant. Tenant shall have the right to reasonably prosecute and settle insurance claims, provided that Tenant shall consult with and involve Landlord in the process of adjusting any insurance claims under this Section 19.
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thereof as a result of fire or any other hazard, risk or casualty whatsoever shall relieve Tenant from Tenant’s liability and obligation to timely pay the full Rent payable under this Lease and Rent shall continue unabated notwithstanding any casualty.
| 20. | Condemnation. |
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eighty (180) days after such taking. In such event, this Lease shall terminate on the date set forth in the notice provided by Tenant and upon such termination neither party shall have any obligation to the other under this Lease except for any such obligations that expressly survive the termination of this Lease. A taking of substantially all of the Premises under this Section 20(b) shall be deemed to have occurred if (i) thirty-five percent (35%) or more of the square footage of the Building shall have been subject to a taking, and the Premises can no longer reasonably be used by Tenant in substantially the manner it has previously operated or (ii) there shall have been a permanent loss of access, ingress or egress, parking capacity or any other appurtenance necessary for the operation of the Premises substantially in the manner in which it had previously been operated and there is no reasonably equivalent replacement therefor.
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reason of such temporary requisition. Any requisition lasting for a duration equal to or longer than the remaining Term of this Lease shall be considered a taking of substantially all of the Premises under Section 20(b), and Tenant shall be afforded the termination rights as and to the extent set forth in said Section 20(b).
| 21. | Indemnification. |
(ii) the conduct of Tenant’s or any subtenant’s business at the Premises; (iii) any activity, work or thing done or permitted by or on behalf of Tenant or its agents, contractors or subtenants in or about the Premises; (iv) the condition of the Premises; (v) Tenant’s obligations under this Lease; (vi) any sublease existing as of the Commencement Date or any other sublease, license or occupancy agreement entered into by Tenant, (vii) any breach or default in the performance of any obligation to be performed by Tenant under the terms of this Lease or arising from any act, neglect, fault or omission of Tenant or Tenant’s Representatives; or (viii) the Premises or any accident, injury to or death of any person or damage to any property howsoever caused in or on the Premises, except to the extent that any of the foregoing arise from or are caused by the gross negligence or willful misconduct of Landlord and/or any Landlord Indemnified Parties. Tenant, at its expense, shall contest, resist and defend any such claim, action or proceeding asserted or instituted against any Landlord Indemnified Party in connection with any of the foregoing Losses (“Landlord Claim”). If at any time a Landlord Indemnified Party shall have received written notice of or shall otherwise be aware of any Landlord Claim which is subject to indemnity under this Section 21(a), such Landlord Indemnified Party shall give reasonably prompt written notice of such Landlord Claim to Tenant; provided, that, except to the extent Tenant is prejudiced in its defense of such Landlord Claim, (I) such Landlord Indemnified Party shall have no liability for a failure to give notice of any Landlord Claim, and (II) the failure of such Landlord Indemnified Party to give such a notice to Tenant shall not limit the rights of such Landlord Indemnified Party or the obligations of Tenant with respect to such Landlord Claim. Tenant shall
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have the right to reasonably control the defense or settlement of any Landlord Claim, provided, that (1) if the compromise or settlement of any Landlord Claim shall not result in the complete release of the Landlord Indemnified Party, the compromise or settlement shall require the prior written approval of the Landlord Indemnified Party, which may be granted or withheld in Landlord’s sole discretion and (2) no compromise or settlement shall include any admission of wrongdoing on the part of the Landlord Indemnified Party, provided, further, that a Landlord Indemnified Party shall have the right, but not the obligation at its election and sole cost and expense, to participate fully in the defense of any Landlord Claim with counsel of its choice. Tenant’s liability under this Section 21 shall survive the expiration or earlier termination of this Lease.
| 22. | Assignment and Subletting. |
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whether by operation of law or otherwise; (ii) no direct or indirect transfer of fifty percent (50%) or more of an interest in Tenant or Guarantor (whether by stock, partnership interest or otherwise, voluntarily or by operation of law) shall occur except for any such transfer to an Affiliate;
(iii) no direct or indirect interest in Tenant and Guarantor shall be pledged, encumbered, hypothecated or assigned as collateral for any obligation of Tenant or Guarantor; and (iv) no change of Control of Tenant and Guarantor shall occur (each of items (i) through (iv) are hereinafter referred to as a “Transfer”). Notwithstanding the foregoing, a Transfer shall be permitted upon written notice to Landlord, but without Landlord’s consent if, following such Transfer, the successor or assign in said Transfer has an issuer credit rating equal to or greater than the greater of the credit rating of
(x) Tenant or Guarantor, as applicable, as of immediately prior to such Transfer and (y) BBB- or better from S&P Global Ratings or the equivalent credit rating from Xxxxx’x Investors Service, DBRS Morningstar, or Fitch Ratings (such requirement, the “Credit Requirement”). In the event an assignee of this Lease following a Transfer made pursuant to the foregoing sentence satisfies the Credit Requirement or an affiliate of such assignee that satisfies the Credit Requirement provides a guaranty to Landlord in the form of the Guaranty, Tenant and Guarantor shall be relieved of their respective obligations under this Lease and the Guaranty.
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any such transfer, assignment or conveyance shall not be effective until the transferee has provided written certification to Tenant or Guarantor, as applicable, and Landlord that (i) the transferee or any person who owns directly or indirectly any interest in transferee, is not an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations, and (ii) the transferee has taken reasonable measures to assure than any individual or entity who owns directly or indirectly any interest in transferee, is not an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations; provided, however, the covenant contained in this Section 22(d) shall not apply if and to the extent the interest being transferred, assigned, or conveyed is in a U.S. Publicly-Traded Entity.
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this Section 22(f), an acceptance of assignee or subtenant as Tenant, or a release of Tenant from the performance of Tenant’s obligations under this Lease.
$7,500.00 (provided that any fees or expenses of Landlord Mortgagee that are required to be paid by Landlord shall not be subject to the foregoing limit).
(B) an acknowledgment from Tenant that Xxxxxx remains liable for the full and punctual performance of all of the terms and obligations of this Lease.
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Notwithstanding anything to the contrary contained herein, any sublease for electric vehicle charging stations at the Premises (an “EV Sublease”) shall be subject to Landlord’s reasonable consent and Landlord shall, at its election, be entitled to 50% of any rent or other proceeds payable to Tenant under any such EV Sublease.
| 23. | Liens. |
Tenant will not, directly or indirectly, create or permit to be created or to remain, and will promptly discharge, at its expense, any mechanic’s, supplier’s or vendor’s lien, encumbrance or charge on the Premises or any part hereof. The existence of any mechanic’s, supplier’s or vendor’s lien, or any right in respect thereof, shall not constitute a violation of this Section 23 if payment is not yet due upon the contract or for the goods or services in respect of which any such lien has arisen or, if Tenant is protesting or challenging such lien in good faith and has, within thirty (30) days after Tenant receives actual notice of such lien, bonded over such lien. Nothing contained in this Lease shall be construed as constituting the consent or request of Landlord, expressed or implied, of any contractor, subcontractor, laborer, materialman or vendor to or for the performance of any labor or services or the furnishing of any materials for any construction, alteration, addition, repair or demolition of or to the Premises or any part thereof; and any such contractor, subcontractor, laborer, materialman or vendor shall look solely to Tenant and Xxxxxx’s interest in the Premises to secure the payment of any bills for any such labor, services, or materials so furnished. Notice is hereby given that Landlord will not be liable for any labor, services or materials furnished or to be furnished to Tenant, or to anyone holding the Premises or any part thereof through or under Tenant, and that no mechanic’s or other liens for any such labor, services or materials shall attach to or affect the interest of Landlord in and to the Premises. If Tenant has not removed any such lien or other encumbrance required to be removed by Tenant pursuant to this Section within thirty (30) days after written notice thereof to Tenant; Landlord may, but shall not be obligated to, pay the amount of such lien or other encumbrance or discharge the same by deposit, and the amount so paid or deposited shall constitute additional Rent and be collectible upon demand with interest at the Default Rate until paid. Landlord hereby consents to the granting of a lien or security interest on Tenant’s Personal Property, including any such Tenant’s Personal Property installed or placed on the Premises by Tenant in connection with any customary credit facility that Tenant has or may have during the Term hereof, and Tenant shall give Landlord written notice of any such lien. [Without limiting the generality of the foregoing, to the extent an applicable third party seeks to enforce its rights to with respect to the encroachment described on Exhibit I (the “Encroachment”), Tenant shall promptly take all reasonable actions to relocate or remedy, as appropriate, such Encroachment and keep Landlord reasonably informed with respect to same. Without diminishing the obligations of Tenant hereunder, if Tenant fails to cause such encroachment to be issued within a reasonable time after the commencement of the applicable enforcement proceedings (unless the obligations to remedy such Encroachment are stayed pending such proceedings), Landlord shall have the right, but not the obligation, to remedy the Encroachment at Tenant’s sole cost and expense and Tenant shall reimburse Landlord for its out- of-pocket costs and expenses incurred in connection with same within ten (10) business days following Xxxxxxxx’s written demand for such reimbursement. Tenant shall indemnify, defend and hold Landlord and the Landlord Indemnified Parties harmless, without limitation to and in the manner specified in Section 21, from and against any and all Losses (including without limitation
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all corrective action costs, fines and penalties, and reasonable attorney’s, consultant’s and contractor’s fees) resulting or arising from such encroachment proceedings.]7
| 24. | Tenant’s Default. |
Each of the following events shall be deemed to be an “Event of Default” under this Lease:
(i) failure of Tenant to pay Rent or any other monetary obligation as and when due, provided that Tenant shall have the right to cure any such failure within two (2) business days following written notice from Landlord (provided, however, that Tenant shall only be entitled to such notice and cure period one (1) in any consecutive twelve (12)-month period during the Term); (ii) Tenant abandons the Premises in violation of the provisions of this Lease; (iii) Tenant becomes insolvent, makes an assignment for the benefit of creditors, institutes a proceeding under state or federal bankruptcy or insolvency laws (or successor laws), or is adjudged bankrupt or insolvent in proceedings filed against Tenant; (iv) a writ of attachment or execution is levied on this Lease, or a receiver is appointed with authority to take possession of the Premises, which attachment, execution, or receiver is not released or removed within sixty (60) days of the filing, issuance, or appointment of same; (v) Tenant shall be liquidated or dissolved; (vi) Tenant shall violate Section 23 hereof; (vii) the estate or interest of Tenant in the Premises or any part thereof shall be levied upon or attached in any proceeding relating to more than One Hundred Seventy-Five Thousand and No/100 Dollars ($175,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or bonded or otherwise similarly secured for payment) within the earlier of ninety (90) days after commencement thereof or sixty (60) days after receipt by Tenant of notice thereof from Landlord or any earlier period provided by Law for obtaining any stay pending appeal or to prevent foreclosure or sale; provided, however, that such notice shall be in lieu of and not in addition to any notice required under Law; (viii) Tenant fails to maintain any insurance required by this Lease and (ix) failure by Tenant to perform any other covenant, agreement or undertaking of the Tenant contained in this Lease if the failure to perform is not cured within thirty (30) days after Xxxxxx’s receipt of Landlord’s written notice thereof; provided, however, if the breach cannot reasonably be cured within thirty (30) days, the same shall not result in an Event of Default if Tenant commences to cure the breach within thirty (30) days of receipt of Landlord’s written notice and diligently and in good faith continues to prosecute the cure of said breach to completion; provided such breach is cured within a reasonable period of time not to exceed two hundred forty
(240) days after Xxxxxx’s receipt of Landlord’s written notice thereof. Notwithstanding anything to the contrary contained herein, an Event of Default shall not be deemed to have occurred until the applicable cure period, if any, shall have expired without the required cure having been effected.
| 25. | Remedies of Landlord. |
(i) terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord; (ii) using lawful means, enter upon and take
7 The bracketed language will only be included for those leases covering properties with identified encroachments.
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possession of the Premises without terminating this Lease without being liable for prosecution or claim for damages (except to the extent arising from or caused by the gross negligence or willful misconduct of Landlord) and relet, upon reasonable terms, all or a portion of the Premises (if Landlord elects to enter and relet the Premises, Landlord may at any time thereafter elect to terminate this Lease); (iii) sue periodically to recover damages during the period corresponding to the portion of the Term for which suit is instituted, and if Landlord elects to sue and is successful in such suit, Landlord shall be entitled to recover all costs and expenses of such suit, including reasonable attorneys’ fees, together with interest at the Default Rate until paid; (iv) re-enter the Premises or any portion thereof and attempt to cure any default of Tenant, or make any such payment or perform such act for the account of and at the expense of Tenant, in which event Tenant shall, upon demand, reimburse Landlord as additional Rent for all reasonable costs and expenses which Landlord incurs to cure such default, together with interest at the Default Rate accruing from the date such costs and expenses were incurred until paid, and Tenant agrees that no such entry or action by Landlord shall constitute an actual or constructive eviction or repossession, without Landlord’s express intention to do so as expressed in writing, and no such entry shall be deemed an eviction of Tenant; (v) to the extent permitted by Law, accelerate and recover from Tenant all Rent and other monetary sums scheduled to become due and owing under this Lease after the date of such breach for the entire Term and any Renewal Term that has been exercised, provided that Landlord shall only be entitled to recover the present value of any such accelerated Rents and other monetary sums; and (vi) enforce the provisions of this Lease by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein or for the enforcement of any other appropriate legal or equitable remedy. Tenant shall reimburse Landlord for any reasonable out-of-pocket expenses which Landlord actually incurs in exercising its right to comply with the terms of this Lease on behalf of Tenant, together with interest at the Default Rate until paid.
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in each case on the basis of the rate of U.S. Treasury Bills with the closest maturity date correlating with the amount of time left in the Term had this Lease not been terminated, and (2) any damages in addition thereto, including without limitation reasonable attorneys’ fees and court costs, which Landlord sustains as a result of the breach of any of the covenants of this Lease other than for the payment of Rent, and interest at the Default Rate or (ii) the greatest amount permitted by Law.
(3) Landlord shall not be obligated to lease such Repossessed Premises to a Substitute Tenant for a rent less than the current fair market rent then prevailing for similar uses in Comparable Buildings for such Repossessed Premises, nor shall Landlord be obligated to enter into a new lease under other terms and conditions that are unacceptable to Landlord under Xxxxxxxx’s then current leasing policies for comparable space in the applicable Building or for a building belonging to Landlord in the vicinity;
(4) Landlord shall not be obligated to enter into a lease with a Substitute Tenant whose use would: (i) violate any restriction, covenant, or requirement contained in the lease of another tenant of the applicable Building; or (ii) adversely affect the reputation of the applicable Building; and (5) Landlord shall not be obligated to enter into a lease with any proposed Substitute Tenant which does not have, in Landlord’s reasonable opinion, sufficient financial resources to operate such Repossessed Premises in a manner consistent with Comparable Buildings and to fulfill all of the obligations in connection with the lease thereof as and when the same become due. No reletting shall be construed as an election on the part of Landlord to terminate this Lease unless a written notice of such intention is given to Tenant by Landlord. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous default that has not been cured during any applicable cure periods and/or exercise its rights under Section 25(a) and Section 25(b).
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| 26. | Subordination/Attornment. |
by any mortgage, deed of trust, assignment of leases and rents, financing statement or other instruments, and secured by the interest of Landlord in the Premises or any portion thereof,
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including any extensions, modifications, amendments, replacements, supplements, renewals, refinancings and consolidations thereof.
“Landlord Mortgagee” shall mean the mortgagee or beneficiary (and its successors and assigns) under any Landlord Mortgage.
| 27. | Estoppel Certificate. |
| 28. | Hazardous Materials. |
Notwithstanding anything contained herein to the contrary:
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Section 28(a) shall prohibit Tenant from using at the Premises (I) cleaning materials, pesticides, and other common household and office products that may contain Hazardous Materials, and/or (II) Hazardous Materials or other materials in connection with any fuel tanks, generators or the like on the Premises, solely to the extent, with respect to each of the preceding clauses
(I) and (II), that any such use thereof is in compliance with Environmental Laws.
(ii) causes a material and adverse effect on public health or occupational safety and health, or (iii) pollutes the environment or endangers human health; then, in any such instance described in the foregoing clauses (i)
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through (iii), Tenant shall promptly take any and all actions required by applicable Environmental Laws to bring the Premises into compliance therewith and take reasonable steps to mitigate exposure to liability arising from such presence or Release of Hazardous Materials. For the avoidance of doubt, nothing in this Section 28(e) shall prohibit Tenant from asserting a reasonable defense to liability or obligation in the event of any legal or administrative action or claim by a governmental authority or third party.
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violation, liability, or claim for which Xxxxxx is required to notify Landlord hereunder.
(iv) claims by governmental authorities or other third parties associated with Hazardous Materials or violations of or obligations under any Environmental Laws by Tenant or any third party other than Landlord or Landlord’s Representatives, or Hazardous Materials present at, on, under or about the Premises before or during the Term, including, without limitation those that were discovered during the Term but were caused prior to the Term by Tenant or any third party other than Landlord or Landlord’s Representatives; provided, however, that the foregoing indemnity shall not apply to any Losses arising from (A) any breach of this Lease by any of the Landlord Indemnified Parties, (B) any failure by any of the Landlord Indemnified Parties to comply with applicable Environmental Laws, (C) the negligence or willful misconduct of any of the Landlord Indemnified Parties, or (D) any presence, Release, placement on, in, or around the Premises, or the generation, transportation, storage, use, treatment, or disposal at or around the Premises, of any Hazardous Materials by any of the Landlord Indemnified Parties in violation of applicable Environmental Laws. The foregoing indemnity obligations shall survive the expiration or earlier termination of this Lease. For avoidance of doubt, nothing in this Section 28(g) shall prohibit Tenant from asserting a reasonable defense to liability or obligation in the event of a legal or administrative action or claim by any governmental authority or third party.
| 29. | Press Releases. |
Except for any announcement intended solely for internal distribution by Landlord or Tenant or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of the disclosing party, all media releases or public announcements (including, but not limited to, promotional or marketing material) by Landlord or Tenant or either party’s
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employees or agents relating to this Lease or its subject matter, or including the name, trade name, trade mark, or symbol of Tenant or an Affiliate of Tenant, or Landlord or an Affiliate of Landlord, shall be coordinated with and approved in writing by the other party prior to the release thereof; provided that nothing herein is intended to require Tenant’s consent to the identification of Tenant or the particulars of this Lease in connection with any marketing of the Premises or any portion thereof for sale by Landlord, subject to the confidentiality provision set forth in Section 46. Notwithstanding the foregoing or any other terms of this Lease (specifically including, without limitation, the confidentiality provision set forth in Section 46), Landlord or Tenant, or any Affiliate of such parties, may, without the prior consent of the other party, issue a press release or other public disclosure relating to this Lease or its subject matter, as the disclosing party may determine is required under the Exchange Act, the Securities Act, the rules and/or regulations of the SEC or any securities exchange, or other Laws.
| 30. | Holding Over. |
Except as set forth below, if Xxxxxx continues to occupy the Premises or any portion thereof after the expiration or other termination of this Lease or the termination of Tenant’s right of possession with respect to the Premises, such occupancy shall be that of a tenancy at sufferance. Tenant shall, throughout the entire holdover period, be subject to all the terms and provisions of this Lease (other than provisions relating to length of the Term) and shall pay for its use and occupancy an amount (on a per month basis without reduction for any partial months during any such holdover period) equal to (i) one hundred percent (100%) of the additional Rent due under this Lease for the holdover period and (ii) for the first sixty (60) days of the holdover period, the monthly Base Rent will be increased to one hundred twenty-five (125%) percent of the monthly Base Rent payable during the month immediately prior to the holdover period; and thereafter monthly Base Rent will be increased to one hundred fifty (150%) percent of the monthly Base Rent payable during the month immediately prior to the holdover period. Any other sums due under this Lease will be payable in the amount and at the times specified in this Lease. Except as set forth below, no holding over by Tenant or payments of money by Tenant to Landlord after the expiration of the Term shall be construed to extend the Term or prevent Landlord from recovery of immediate possession of the Premises by summary proceedings or otherwise. In the event that Xxxxxx continues to occupy the Premises or any portion thereof after the expiration or termination of this Lease, such occupancy shall be that of a tenancy at sufferance and Tenant shall be liable to Landlord for all direct and consequential damages which Landlord may suffer by reason of any holding over by Xxxxxx. The provisions of this Section 30 shall survive the expiration of this Lease.
| 31. | Financial Covenants. |
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so long as Guarantor is a publicly-traded company and to the extent any or all of the Financial Information otherwise required to be provided hereunder to Landlord in accordance with this Section 31 is filed with the SEC and is publicly available, Tenant shall not be required to deliver such publicly- available Financial Information to Landlord.
| 32. | Quiet Enjoyment. |
So long as Tenant is not in default under this Lease beyond the expiration of any applicable notice and cure periods, Landlord shall not take any action to disturb in any material respect Tenant’s quiet enjoyment of the Premises (subject, however, to the exceptions, reservations and conditions of this Lease). Tenant hereby waives any right or defense (including, without limitation, any offset, abatement or termination right) it may have at law or in equity relating to Tenant’s quiet enjoyment of the Premises, except for its right to file a suit against Landlord for monetary damages.
| 33. | Notices. |
Any notice, demand, request, or other communication that any party hereto may be required or may desire to give hereunder shall be in writing and shall be deemed properly given
(a) if hand delivered, when delivered; (b) if mailed by United States Certified Mail (postage prepaid, return receipt requested), three (3) business days after mailing; (c) if by Federal Express or other nationally recognized overnight courier service, on the next business day after delivered to such courier service for delivery on the next business day; or (d) if by e-mail transmission, on the day of transmission so long as receipt occurs on or before 11:59 p.m. (Pacific Time) on a business day (otherwise, such notice shall be deemed to have been received on the next succeeding business day), to the addresses set forth in Section 2 hereof, or at such other address as the party to be served with notice has furnished in writing to the party seeking or desiring to serve notice as a place for the service of notice. Attorneys for either party hereto may provide notice on behalf of such party, provided that all other requirements of this Section 33 are satisfied.
| 34. | Personal Liability. |
Notwithstanding anything to the contrary provided in this Lease, it is specifically understood and agreed, such agreement being a primary consideration for the execution of this Lease by Xxxxxxxx, that (i) there shall be absolutely no personal liability on the part of the direct and indirect members, partners, shareholders, officers, directors, employees and agents of Landlord and its successors or assigns, to Tenant with respect to any of the terms, covenants and conditions of this Lease, (ii) Tenant waives all claims, demands and causes of action against the direct and indirect members, partners, shareholders, officers, directors, employees and agents of Landlord and its successors or assigns in the event of any breach by Landlord of any of the terms, covenants and conditions of this Lease to be performed by Landlord, and (iii) Tenant shall look solely to Landlord’s interest in the Premises for the satisfaction of each and every remedy of Tenant
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in the event of any breach by Landlord of any of the terms, covenants and conditions of this Lease to be performed by Landlord, or any other matter in connection with this Lease or the Premises, such exculpation of liability to be absolute and without any exception whatsoever. No breach by Landlord of any provision of this Lease shall give rise to a right of Tenant to terminate this Lease, it being understood and agreed that Xxxxxx’s sole remedies for any such breach shall be a claim for actual damages (if any). Furthermore, Tenant and Landlord each hereby knowingly, voluntarily and intentionally waives any right it may have to seek punitive, consequential, special and indirect damages from the other party and any of such party’s direct and indirect members, partners, shareholders, officers, directors, employees and agents and its successors or assigns with respect to any matter arising out of or in connection with this Lease or any document contemplated herein or related hereto. The waiver by Xxxxxx and Landlord of any right it may have to seek punitive, consequential, special and indirect damages has been negotiated by the parties hereto and is an essential aspect of their bargain. Notwithstanding anything to the contrary provided in this Lease, except for the liability of Guarantor under the Guaranty (which shall in no way extend to Guarantor’s members, partners, shareholders, officers, directors, employees, and/or agents), it is specifically understood and agreed, such agreement being a primary consideration for the execution of this Lease by Xxxxxx, that (i) there shall be absolutely no personal liability on the part of the direct and indirect members, partners, shareholders, officers, directors, employees and agents of Tenant and its successors or assigns, to Landlord with respect to any of the terms, covenants and conditions of this Lease, (ii) Landlord waives all claims, demands and causes of action against the direct and indirect members, partners, shareholders, officers, directors, employees and agents of Tenant and its successors or assigns in the event of any breach by Tenant of any of the terms, covenants and conditions of this Lease to be performed by Xxxxxx.
| 35. | Entire Agreement. |
This Lease represents the entire agreement and understanding between Landlord and Tenant with respect to the subject matter herein, and there are no representations, understandings, stipulations, agreements or promises not incorporated in writing herein.
| 36. | Amendments. |
No amendments or modifications of this Lease shall be effective unless such amendment or modification is in writing and executed and delivered by and between Tenant and Landlord; and neither shall any custom, practice or course of dealing between the parties be construed to waive the right to require specific performance by the other party in compliance with this Lease.
| 37. | Legal Interpretation. |
Each of Landlord and Tenant hereby agree that the State of California has a substantial relationship to the parties and to the underlying transaction embodied hereby; and in all respects (including, without limiting the foregoing, matters of construction, validity and performance), this Lease and the obligations arising hereunder shall be governed by, and construed in accordance with, the laws of the State of California applicable to contracts made and performed therein and all applicable law of the United States of America. To the fullest extent permitted by law, Xxxxxx and Landlord hereby unconditionally and irrevocably waive any claim to assert that the law of any other jurisdiction governs this Lease. Words of any gender shall be construed to include any other
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gender, and words in the singular number shall be construed to include the plural, unless the context otherwise requires. The headings of the sections have been inserted for convenience only and are not to be considered in any way in the construction or interpretation of this Lease. Except as otherwise herein expressly provided, the terms of this Lease shall apply to, inure to the benefit of, and be binding upon, the parties and their respective assigns, successors and legal representatives. Any legal suit, action or proceeding against Tenant arising out of or relating to this Lease may be instituted in any federal court in the State of California or state court sitting in the district or county, respectively, in which the Premises are located; and Landlord and Tenant each waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding in such federal district or county and state, and Landlord and Tenant each hereby expressly and irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding. In this Lease, the words “include”, “includes” or “including” mean “include without limitation”, “includes without limitation” and “including without limitation”, respectively, and the words following “include”, “includes” or “including” shall not be considered to set forth an exhaustive list. As used herein, a “business day” shall mean each day of the week other than a Saturday, Sunday, or federal of State of California holiday.
| 38. | Option to Renew |
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| 39. | Authority to Enter into Lease. |
Each of Tenant and Landlord represents and warrants (a) that the individual executing this Lease on its behalf is duly authorized to execute and deliver this Lease on behalf of the corporation, limited liability company or partnership, as the case may be, and (b) that this Lease is binding on the corporation, limited liability company or partnership, as the case may be, in accordance with its terms.
| 40. | Parties Bound. |
The preparation and submission of a draft of this Lease by either party to the other party shall not constitute an offer, nor shall either party be bound to any terms of this Lease or the entirety of this Lease, until both parties have fully executed a final document. Until such time as described in the previous sentence, either party is free to terminate negotiations without penalty or any further obligation to the other party.
| 41. | Counterparts; Electronic Signatures. |
This Lease may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become a binding agreement when one or more counterparts have been signed by each of the parties and delivered to the other party. A facsimile, PDF, digital, or other electronically transmitted signature (such as via .pdf, .jpeg, .TIF, .TIFF, or similar electronic format) on this Lease, any amendment hereof, or any notice given hereunder shall be deemed an original signature and fully effective as such for all purposes. Each party agrees to deliver promptly an executed original of this Lease (and any amendment hereto) with its actual signature to the other party, but a failure to do so shall not affect the enforceability of this Lease (or any amendment hereto), it being expressly agreed that each party to this Lease shall be bound by its own electronically transmitted signature and shall accept the electronically transmitted signature of the other party to this Lease.
| 42. | Severability. |
If any term or other provision of this Lease is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all of the other conditions and provisions of this Lease will nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Lease so as to reflect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
| 43. | Waiver of Jury Trial; Consequential Damages. |
XXXXXXXX AND TENANT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS AND/OR ASSIGNS WITH RESPECT TO
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ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
| 46. | Confidentiality; Public Offering Information. |
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Confidential Information and such parties agree to be bound by the confidentiality provisions hereof. Further, in connection with any securitization, syndication or participation of any Landlord Mortgage, Landlord Mortgagee may disclose such Confidential Information as is customary in connection with such securitization, syndication or participation so long as (x) such Confidential Information is identified as being confidential, (y) the recipients of such Confidential Information are informed of the confidential nature of such Confidential Information, and
(z) Landlord shall be responsible for any disclosure of such Confidential Information by those persons or entities to whom the Landlord Mortgagee disclosed such Confidential Information. Landlord and Tenant shall each be responsible for any disclosure of Confidential Information by their respective advisors, consultants, accountants, counsel, employees, agents, investors, potential investors, lenders, and potential lenders. Notwithstanding any contrary terms contained herein, in the event that a party or any of its representatives is requested or becomes legally compelled (pursuant to any legal, governmental, judicial, administrative or regulatory order, authority or process) to disclose any Confidential Information of the other party, it will, to the extent reasonably practicable and not prohibited by law, provide the party to whom such Confidential Information belongs prompt written notice of the existence, terms or circumstances of such event so that the party to whom such Confidential Information belongs may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Section 46(a). In the event that such protective order or other remedy is not obtained prior to the time required for disclosure pursuant to the foregoing sentence or the party to whom such Confidential Information belongs waives compliance with this Section 46(a), the party compelled to disclose such Confidential Information will furnish only that portion of the Confidential Information or take only such action as, based upon the advice of its legal counsel, is legally required and, to the extent reasonably practicable without being required to take affirmative action in court or any other proceeding, will use commercially reasonable efforts to obtain reasonable assurance that confidential treatment will be accorded any Confidential Information so furnished. The party compelled to disclose the Confidential Information shall cooperate with any action reasonably requested by the party to whom such Confidential Information belongs (at the sole cost and expense of the party to whom such Confidential Information belongs) to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
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or prospectuses or confidential information memoranda, or similar publications or marketing materials, rating agency presentations, investor presentations or disclosure documents in connection with syndications, private placements or public offerings of Landlord’s securities or loans or securities or loans of any direct or indirect parent entity of Landlord (provided that such information, memoranda, publications, materials, documents, presentations, or other items relate to the Premises) and any other reporting requirements under applicable federal and state laws, including those of any successor to Landlord; provided that, with respect to matters permitted to be disclosed solely under this clause (3), the recipients thereof shall be obligated to maintain the confidentiality thereof pursuant to Section 46(a) or pursuant to confidentiality provisions substantially similar thereto and to comply with all federal, state and other securities laws applicable with respect to such information. Unless otherwise agreed by Tenant, Landlord shall not revise or change the wording of information previously publicly disclosed by Tenant and furnished to Landlord (or any direct or indirect parent entity of Landlord) pursuant to this Lease for publication in the Landlord’s Form 10-Q or Form 10-K (or supplemental report filed in connection therewith); provided, further, Landlord, has the right to disclose its operational results with respect to the Premises, if consistent with its historical practices and SEC disclosure requirements, prior to Tenant’s parent’s, Tenant’s or its Affiliate’s public disclosure thereof. Tenant agrees to provide at no material additional cost to Tenant such other reasonable information requested by Landlord that is in Tenant’s possession or control or otherwise readily available to Tenant with respect to Tenant and its Premises to facilitate a public or private debt or equity offering or syndication by Landlord or any direct or indirect parent entity of Landlord or to satisfy Landlord’s SEC disclosure requirements or the SEC disclosure requirements of any direct or indirect parent entity of Landlord. In this regard, Landlord shall provide to Tenant a copy of any information prepared by Landlord to be published, and Tenant shall have a reasonable period of time (not to exceed three (3) business days) after receipt of such information to notify Landlord of any corrections.
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of the Code, or any similar or successor provision thereto and this Lease shall be interpreted consistent with this intent.
(ii) furnish or render any services to the subtenant, assignee or manager or manage or operate the Premises so subleased, assigned or managed; (iii) sublet, assign or enter into a management arrangement for the Premises to any person or entity (other than a “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code) of BOREC) in which Landlord or BOREC owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Code); or (iv) sublet, assign or enter into a management arrangement for the Premises in any other manner, in each case of clauses (i) through (iv), which could reasonably be expected to cause any portion of the amounts received by Landlord pursuant to this Lease or any sublease to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto, or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Code. The requirements of this Section 48(a) shall likewise apply to any further subleasing by any subtenant.
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information as may be in Tenant’s possession or under Xxxxxx’s control and otherwise readily available to Tenant as shall be reasonably requested by Landlord in connection with verification of BOREC’s “real estate investment trust” (within the meaning of Section 856(a) of the Code) compliance requirements. Anything contained in this Lease to the contrary notwithstanding, Tenant shall take such reasonable action as may be requested by Landlord from time to time in order to ensure compliance with the Internal Revenue Service requirement that Rent allocable for purposes of Section 856 of the Code to personal property, if any, at the beginning and end of a calendar year does not exceed fifteen percent (15%) of the total Rent due hereunder as long as such compliance does not (i) increase Tenant’s monetary obligations under this Lease or (ii) materially and adversely increase Tenant’s nonmonetary obligations under this Lease or
(iii) materially diminish Tenant’s rights under this Lease or (iv) result in the imposition of any additional material obligation upon Tenant under any Laws.
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Records for any purpose. The obligations contained in this Section 50 shall survive the expiration or sooner termination of this Lease.
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any such installations shall comply with Laws. There will be no additional charge to Tenant for any Communications Equipment located at or on the Premises as of the Commencement Date, and Landlord hereby approves of any such Communications Equipment and acknowledges that such Communications Equipment constitutes part of Tenant’s Personal Property. Except to the extent required under Section 14, Tenant shall not be required to obtain Landlord’s consent or approval with respect to any installation of Communications Equipment on or at the Premises. Tenant agrees to repair any damage arising out of the installation, operation, or removal of such Communications Equipment, and Tenant shall be solely liable for any loss of any warranty that may arise as a result of such installation, operation, or removal. Subject to the provisions of this Section 53, Tenant shall also have the right to use the roof riser space of any Building for the purposes set forth herein.
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conflict between the terms of this Section 55 and Section 14 of this Lease, the terms of this Section 55 shall govern and control.
| 57. | Local Law Provisions. |
[Signatures on following page]
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IT WITNESS WHEREOF, the undersigned have executed this Lease Agreement effective as of the date first written above.
LANDLORD:
BOTS OWNER LLC,
a Delaware limited liability company
By: Name: Xxxxxxx Xxxxxx
Title: Authorized Representative
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TENANT:
BANK OF THE SIERRA,
a California corporation
By: Name: Title:
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EXHIBITS TO FORM OF LEASE AGREEMENT
Exhibit A - Base Rent Schedule *
Exhibit B - Legal Description *
Exhibit C - General Requirements and Conditions
Exhibit D - Form Estoppel Certificate *
Exhibit E - Form of Memorandum of Lease *
Exhibit F - Form of Landlord Estoppel
Exhibit G - Required Repairs *
Exhibit H - Form of Guaranty *
Exhibit I - Description of Encroachment [if applicable] *
Exhibit A - Base Rent Schedule *
*Omitted pursuant to Item 601(a)(5). The registrant hereby agrees to furnish a copy of any omitted schedule or similar attachment to the SEC upon request.
EXHIBIT C TO
LEASE AGREEMENT
GENERAL REQUIREMENTS AND CONDITIONS
All provisions of this Exhibit are expressly subject to the provisions in the Lease above governing any work performed by Xxxxxx (or an Affiliate of Tenant, as the case may be) on its own behalf. The additional terms and provisions of this Exhibit “C” shall only apply to Alterations that require the consent of Landlord or any casualty or condemnation restoration (“Tenant’s Work”). In the event of any conflict between the Lease and this Exhibit, the Lease shall control.
Tenant’s Work will be performed by Xxxxxx in substantial accordance with the final Plans for said work that have been approved by Landlord (where such approval is required in the Lease). Tenant or Tenant’s Contractor(s), if applicable, shall secure and pay for all necessary permits, inspections, certificates, legal approvals, certificates of occupancy and/or fees required by Law and/or utility companies with respect to Tenant’s Work.
| A. | General Requirements |
| 1. | All Tenant’s Work shall be completed in a good and workmanlike manner and in accordance with any applicable Plans, as approved by Landlord if required under the Lease, the terms of any applicable Construction Contract, and Tenant’s proposed budget applicable to such Tenant’s Work (subject to customary adjustments as may be necessary over the course of completion thereof). |
| 2. | Tenant and Tenant’s Contractor, if applicable, shall provide all insurance required by Landlord as set forth in this Lease, or as is otherwise maintained in the ordinary course by prudent and reputable contractors and/or property owners, prior to the start of any construction work within the Premises. Landlord and Landlord Mortgagee shall each be named as an additional insured in all such insurance. |
| 3. | Tenant shall, at all times, keep or cause to be kept the Premises and the surrounding area free from accumulations of waste materials and/or rubbish caused by it or its contractors’ employees or workers. Tenant and/or its contractors shall provide dumpsters and maintenance of said dumpsters during the construction period in a secure, neat and orderly condition and shall remove and empty the same on a regular basis to avoid unsightly, obstructive or hazardous accumulations or conditions. |
| B. | Construction Procedures |
| 1. | When submitting construction Plans (preliminary, completed or final) to Landlord, Tenant or Xxxxxx’s appointed representative shall issue Tenant’s Plans and supporting documents electronically via emails to Landlord’s construction coordinator (at such e-mail address as Landlord shall provide to Tenant), to the extent readily available on electronic media and reasonably capable of being transmitted via e-mail. If said Plans are not readily available on electronic media |
or not reasonably capable of being transmitted via e-mail, Tenant shall provide a paper copy of such Plans to Landlord at the Landlord Notice Address or otherwise provide a copy of such Plans to Landlord in such format and by such means as Landlord shall reasonably accept (as confirmed by Landlord via e-mail or other writing).
| 2. | Once the applicable Plans are approved by Landlord, if required under the Lease, with the exception of (A) changes required by governmental authorities having jurisdiction over the Premises or (B) interior changes requested by Tenant, and in each case which would not lessen the value of the Premises; Tenant shall not amend, modify or supplement the applicable Construction Contract in any respect, except pursuant to change orders approved by Landlord, and shall not attempt to terminate, whether by legal proceedings or otherwise, the applicable Construction Contract without the prior written consent of Landlord, which shall not be unreasonably withheld, conditioned or delayed. |
| 3. | Not later than ninety (90) days after the final completion of the applicable Tenant’s Work, Tenant shall deliver or cause to be delivered to Landlord (with a copy to Landlord’s consultant) each of the following (1) a certificate addressed to Landlord, signed by Xxxxxx and the applicable Architect or Contractor, stating that the Tenant’s Work (and any equipment therein), including all “punch list” items, have been completed and installed in accordance with the applicable Plans therefor; (2) a complete release of liens for the Premises signed by the Contractor and all subcontractors of the Tenant’s Work (provided that if a release is not obtainable, Tenant shall, in lieu of such release, cause such lien to be removed of record by bond or otherwise so that such lienor has no recourse for recovery from or collection out of the Premises); (3) evidence of receipt of a certificate of occupancy, if available and as applicable, or comparable instruments, by all governmental authorities whose approval is required of the applicable completed Tenant’s Work for the occupancy thereof and the intended uses thereof; (4) if applicable, a binder containing, or other compilation of, all warranties and indemnities from the applicable Contractor or manufacturer for the applicable Tenant’s Work and/or any major equipment therein (excepting therefrom any of Tenant’s Personal Property) each of which shall be in customary form for the jurisdiction in which the Premises is situated; (5) final as-built Plans and, in the event that the Tenant’s Work has modified the footprint of the Building, an as-built ALTA-ACSM Land Title Survey for the Premises indicating the applicable Tenant’s Work thereon, together with a surveyor’s certification in a customary form as reasonably satisfactory to Landlord and (6) evidence reasonably satisfactory to Landlord that there are no mechanics’ liens affecting the Property (which evidence may be a title commitment dated no earlier than the date that is thirty (30) days after Final Completion and which title commitment shall not disclose any mechanics’ liens affecting the Property), except that with respect to any bona fide dispute with the applicable Contractor or any such subcontractor that has resulted in a lien, Tenant shall, if a release is not obtainable, in lieu of such release cause such lien to be removed of record by bond or otherwise so that such lienor has no recourse for recovery from or collection out of the Premises. |
| 4. | Tenant hereby agrees to indemnify, save harmless, pay, protect and defend Landlord from and against any and all Losses of any nature whatsoever under this Lease or Landlord’s ownership of the Premises arising from or in connection with |
(a) any Construction Contract, if any, and any and all construction contracts or architect’s agreement or resulting from the failure of Tenant to discharge Tenant’s obligations thereunder or resulting from the failure of Tenant to perform its obligations under this Lease with respect to any instance of Tenant’s Work, and (b) construction and completion of Tenant’s Work, whether by reason of any act or omission of Tenant, the Contractor, Architect or by any other contractor, subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable.
| 5. | Tenant’s Work shall comply in all respects with Law. |
