Tri Commercial
STANDARD OFFICE LEASE - FULL SERVICE
THIS LEASE is made and entered into this 26th day of July, 2000, by and between
Eureka Corporate Plaza., Ltd., L.P (hereinafter "Lessor") and Feather River
State Bank, a California corporation (hereinafter "Lessee").
For and in consideration of the rental and of the covenants and agreements
hereinafter set forth to be kept and performed by the Lessee, Lessor hereby
leases to Lessee and Lessee hereby leases from Lessor the Premises herein
described for the term, at the rental and subject to and upon all of the terms,
covenants and agreements hereinafter set forth.
1. PREMISES
1.1 Description. Lessor hereby leases to Lessee and Lessee hereby rents
from Lessor those certain Premises (hereinafter "Premises") crosshatched
on Exhibit A containing approximately 3,816 rentable square feet on the
first floor of that certain office building (hereinafter "Building")
located in the City of Roseville, County of Placer, California, commonly
known as, 0000 Xxxxxx Xx., and more particularly described as Suite 101.
The above square footage contains a twelve percent (12%) load factor. 1.2
Work of Improvement. The obligations of' Lessor and Lessee to perform the
work and supply the necessary materials and labor to prepare the Premises
for occupancy are set forth in detail in Exhibit "D". Lessor and Lessee
shall expend all funds and do all acts required of them in Exhibit "D" and
shall have the work performed promptly and diligently in a first class
workmanlike manner. Upon mutual approval of a space plan for the Premises,
said space plan shall be attached hereto as Exhibit "B".
2. TERM
2.1 Term. The term of this Lease shall be for sixty two (62) months
commencing October 1, 2000 and ending on November 30, 2005 unless sooner
terminated pursuant to this Lease.
2.2 Delay in Commencement. Lessee agrees that in the event of the
inability of Lessor for any reason to deliver possession of the Premises
to Lessee on the commencement date set forth in Section 2.1, Lessor shall
not be liable for any damage thereby nor shall such inability affect the
validity of this Lease or the obligations of Lessee hereunder, but in such
case Lessee shall not be obligated to pay rent or other monetary sums
until possession of the Premises is tendered to Lessee. In the event of a
delay in commencement, the lease expiration shall be adjusted to reflect a
five (5) year term from the date possession of the lease space is tendered
to Lessee. In the event Lessor shall not have delivered possession of the
Premises within three (3) months from the scheduled commencement date,
then Lessee may terminate this Lease and upon Lessor's return of any
monies previously deposited by Lessee, the parties shall have no further
rights or liabilities toward each other.
2.3 Acknowledgement of Commencement Date. In the event the commencement
date of the term of the Lease is other than as provided in Section 2.1,
then Lessor shall provide Lessee with written notice establishing the date
of Tender of Possession as defined below. Tender of Possession, or actual
taking of possession by Lessee, whichever first occurs, shall be
conclusive as the establishment of the Commencement Date for Section 2.1.
77
"Tender of Possession"-defined. See Exhibit "D".
2.4 Early Possession. In the event that Lessor shall permit Lessee to
occupy the Premises prior to the commencement date of the term, such
occupancy shall be subject to all the provisions of this Lease. Said early
possession shall not advance the termination date hereinabove provided.
3. BASE RENT. Lessee shall pay to Lessor as base rent for the Premises in
advance on the first day of each calendar month of the term of this Lease
without deduction, offset, prior notice or demand, in lawful money of the
United States, the sum of (See Addendum Paragraph 20) (subject to
additional rental as provided in paragraph 5). If the commencement date is
not the first day of a month, or if the Lease termination date is not the
last day of a month, a prorated monthly installment shall be paid at the
then current rate for the fractional month during which the Lease
commences and/or terminates. Concurrently with Lessee's execution of this
Lease, Lessee shall pay to Lessor the sum of' Six Thousand Two Hundred
Ninety Six and 40/100ths Dollars ($6,296.40) as rent for the third month
of the Lease term. Lessee acknowledges that the above Base Rent amount is
based on the square footage of the lease space and is therefore subject to
adjustment based on a final, mutually approved space plan.
4. SECURITY DEPOSIT. Concurrently with Lessee's execution of this Lease,
Lessee shall deposit with Lessor the sum of Six Thousand Two Hundred
Ninety Six and 40/100ths Dollars ($6,296.40). Said sum shall be held by
Lessor as a Security Deposit for the faithful performance by Lessee of all
of the terms, covenants, and conditions of this Lease to be kept and
performed by Lessee during the term hereof. If Lessee defaults with
respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of rent and any of the monetary sums
due herewith, Lessor may (but shall not be required to) use, apply or
retain all or any part of this Security Deposit for the payment of any
other amount which Lessor may spend by reason of Lessee's default or to
compensate Lessor for any other loss or damage which Lessor may suffer by
reason of Lessee's default. If any portion of said Deposit is so used or
applied, Lessee shall, within ten (10) days after written demand therefor,
deposit cash with Lessor in an amount sufficient to restore the Security
Deposit to its original amount; Lessee's failure to do so shall be
material breach of this Lease. Lessor shall not be required to keep this
Security Deposit separate from its general funds, and Lessee shall not be
entitled to interest on such deposit. If Lessee shall fully and faithfully
perform every provision of this Lease to be performed by it, the Security
Deposit or any balance thereof' shall be returned to Lessee (or, at
Lessor's option, to the last assignee of Lessee's interests hereunder) at
the expiration of the Lease term and after Lessee has vacated the
Premises. In the event of termination of Lessor's interest in this lease,
Lessor shall transfer said Deposit to Lessor's successor in interest
whereupon Lessee agrees to release Lessor from liability for the return
of' such Deposit or the accounting therefor. Lessee agrees that the amount
of the Security Deposit is based on the square footage of the lease space
and is therefore subject to adjustment based on a final, mutually approved
space plan.
5. TAX AND BUILDING OPERATING COST INCREASES
5.1 Definitions. For purposes of this Section, the following terms are
herein defined:
78
(a) Base Year: 2000.
(b) Project: Eureka Xxxxxxxxx Xxxxx, Xxxxx 0, Xxxxx XX xxx Xxxxx
XXX, consisting of approximately 90,350 gross square feet of building area
along with landscaping and parking areas ("Common Area"). Said square
footage is subject to change as additional phases of the project are
completed.
(c) Building Operating Costs: All reasonable costs and expenses of
ownership, operation maintenance, of the Building (excluding depreciation
on the Building, all amounts paid on loans of Lessor and expenses
capitalized for federal income tax purposes) including by way of
illustration but not limited to; real and personal property taxes and
assessments, and any tax in addition to or in lieu thereof, other than
taxes covered by Section 5.4, whether assessed against Lessor or Lessee or
collected by Lessor or both; repairs, replacements and general maintenance
of and for the Building and public common areas and facilities of and
comprising the Building, the roof and roof membrane, windows, elevators,
restrooms, lobbies, mezzanines, balconies, mechanical rooms, building
exteriors, alarm systems, pest extermination, landscaped areas, parking
and service areas, driveways, sidewalks, loading areas, fire sprinklers
systems, sanitary and storm sewer lines, utility services,
heating/ventilation/air conditioning systems, electrical, mechanical or
other systems, Building telephone equipment, and wiring servicing,
plumbing, lighting, and any other items or areas which affect the
operation or appearance of the Building, (but excluding persons performing
services not uniformly available or performed for substantially all
Building Tenants), and rental expense or a reasonable allowance for
depreciation of personal property used in the maintenance, operation and
repair of the Building.
In addition, the Building Operating Costs shall include the
Building's proportionate share of the Owner's Association dues connected
with day-to-day operating, maintenance and repair of the common area of
the Project, its equipment the adjacent walks, malls and landscaped areas,
including by way of illustration but not limited to scavenger, gardening,
security, striping, sealing, asphalt repair or replacement, and the cost
of compensation (including employment taxes and fringe benefits) of all
persons who perform regular and recurring duties connected with the above
duties. The Building's proportionate share of the Owner's Association dues
shall be computed on the basis of the ratio between the Gross Building
square footage and the total Project square footage, as may be adjusted
from time to time as other phases of the project are completed.
(d) Gross-Up. If the rentable area of the Building is less than
ninety-five percent (95%) occupied during any calendar year of the term as
determined by Lessor, Lessor shall make an appropriate adjustment to the
variable components of Building Operating Costs (e.g., utilities,
janitorial services and other component expenses that are affected by
variations in occupancy levels) for such year so that Tenant pays an
equitable portion of the increases in all variable items of Building
Operating Costs, as reasonably determined by Lessor; provided, however,
that in no event shall Lessor be entitled to collect in excess of one
hundred percent (100%) of the total Building Operating Cost increases from
all of the tenants in the Building.
(e) Net Rentable Area: The net rentable area is computed by
measuring to the window glass of outer building walls, to the middle of'
the Premises side of' public corridors and/or other permanent partitions
and to the center of partitions which separate the adjoining rentable
areas with no deduction for columns and projections necessary to the
Building structure. On multi-tenant floors, common corridors and toilets,
air conditioning rooms, fan rooms, janitorial closets, electrical and
telephone closets and any other areas within and
79
exclusively serving that floor are considered common area and for purposes
of this Section shall be allocated prorata to the Tenants on the floor.
5.2 Lessee's Share. In the event the Building Operating Costs incurred by
Lessor during any calendar year following the Base Year shall exceed
Building Operating Costs incurred by Lessor during the Base Year, Lessee
shall pay to Lessor an amount equal to twenty-five and 61/100ths percent
(25.61%) of such increase, which share is computed on the basis of the
ratio between Net Rentable Area in the Premises and Net Rentable Area in
the Building. Lessee acknowledges that Lessee's proportionate share is
based on the square footage of the lease space and is therefore subject to
adjustment based on a final, mutually approved space plan.
5.3 Payment. Within ninety (90) days after the end of each calendar year
following the Base Year, Lessor shall furnish Lessee a written statement
showing in reasonable detail Lessor's Building Operating Costs for the
preceding calendar year and the Base Year, and showing the amount, it'
any, of any increase or decrease in the sums due from Lessee taking into
account prior increases paid by Lessee (if any). However, the failure of
Lessor to supply such statement within said ninety (90) day period shall
not constitute a waiver of Lessor's right to collect for any current or
past due Building Operating Cost overages during the term of this Lease.
Lessor and Lessee intend that the obligations of the preceding sentence
shall survive the expiration or earlier termination of this Lease.
Concurrent with the monthly rent payment next due following Lessee's
receipt of such statement, Lessee shall pay to Lessor (in the case of an
increase), or Lessor shall credit against the next rent due from Lessee
(in the case of a decrease), all amount equal to the sum of (1) the
difference between Building Operating Costs for the preceding calendar
year and the Base Year less increases paid by Lessee (if any); and (2)
one-twelfth (1/12th) of said increases for the current calendar year
multiplied by the number of rent payments (including the current one) then
elapsed in such calendar year. Thereafter the one twelfth (1/12th) shall
be paid monthly with the rent until the adjustment the following year
pursuant hereto. In no event shall the adjustment entitled Lessee to
receive the benefit of a reduction in Building Operating Costs below the
level of the initial Base Year during the term hereof.
5.4 New Taxes. In addition to rent and other charges to be paid by Lessee
hereunder, Lessee shall reimburse to Lessor, within thirty (30) days of
receipt of a demand therefor, any and all taxes payable by Lessor (other
than net income taxes) whether or not now customary or within the
contemplation of the parties hereto; (a) upon, allocable to, or measured
by the area of the Premises or on the rent payable hereunder, including
without limitation any gross income tax or excise tax levied by the State,
any political subdivision thereof, City or Federal Government with respect
to the receipt of such rent; or (b) upon or with respect to the
possession, leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Lessee of the Premises or any portion thereof;
or (c) upon or measured by the value of Lessee's personal property,
equipment or fixtures located in the Premises; or (d) upon this
transaction or any document to which Lessee is a party creating or
transferring an interest or an estate in the Premises. Lessee agrees to
pay, before delinquency, any and all taxes levied or assessed and which
become payable during the term hereof upon Lessee's equipment, furniture,
fixtures and other personal property located in the Premises. For the
purpose of determining said amount, figures supplied by the County
Assessor as to the amount so assessed shall be conclusive. Lessee shall
comply with the provisions of any law, ordinance or rule of the taxing
authorities which require Lessee to file a report of Lessee's property
located in the Premises.
80
6. USE
6.1 Use. The Premises shall be used and occupied by Lessee for bank retail
and loan office purpose and for no other purpose without the prior written
consent of Lessor,
6.2 Suitability. Lessee acknowledges that neither Lessor nor any agent of
Lessor has made any representation or warranty with respect to the
Premises or the Building or with respect to the suitability of either for
the conduct of Lessee's business, nor has Lessor agreed to undertake any
modification, alteration or improvement to the Premises except as provided
in this Lease.
6.3 Uses Prohibited.
(a) Lessee shall not do or permit anything to be done in or about
the Premises nor bring or keep anything therein which will in any way
increase the existing rate or affect any fire or other insurance upon the
Building or any of its contents (unless Lessee shall pay any increased
premium as a result of such use or acts), or cause a cancellation of any
insurance policy covering said Building or any part thereof or any of its
contents, nor shall Lessee sell or permit to be kept, used or sold in or
about said Premises any articles which may be prohibited by a standard
form policy of fire insurance.
(b) Lessee shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights
of other Tenants or occupants of the Building or injure or annoy them or
use or allow the Premises to be used for any unlawful or objectionable
purpose, nor shall Lessee cause, maintain or permit any nuisance in or
about the Premises. Lessee shall not commit or suffer to be committed any
waste in or upon the Premises.
(c) Lessee shall not use the Premises or permit anything to be done
in or about the Premises which will in any way conflict with any law,
statute, ordinance or governmental rule or regulation or requirement of
duly constituted public authorities now in force or which may hereafter be
enacted or promulgated. Lessee shall at its sole cost and expense promptly
comply with all laws, statutes, ordinances and governmental rules,
regulations or requirements now in force or which may hereafter be in
force and with the requirements of any board of fire underwriters or other
similar body now or hereafter constituted relating to or affecting the
condition, use or occupancy of the Premises, excluding structural changes
not relating to or affecting the condition, use or occupancy of the
premises, or not related or afforded by Lessee's improvements or acts. The
judgment of any court of competent jurisdiction or the admission of Lessee
in any action against Lessee, whether Lessor be a party thereto or not,
that Lessee his violated any law, statute, or ordinance or governmental
rule, regulation or requirement, shall be conclusive of the fact as
between Lessor and Lessee.
7. SERVICE AND UTILITIES
7.1 Lessor's Obligations. Lessor agrees to furnish to the Premises twenty
four (24) hours a day (Monday through Friday) and 9:00 a.m. to 1:00 p.m.
(Saturday), and subject to the Rules and Regulations of the Building
(which are attached hereto as Exhibit "C") water, gas and electricity
suitable for the intended use of the Premises, heat and air conditioning
required in Lessor's judgment for the comfortable use and occupancy of the
Premises, scavenger, janitorial and window washing service and elevator
service, and security customary in similar buildings in the competing
geographical areas. Lessor shall also maintain and keep lighted the common
stairs, entries and toilet rooms in the Building. Any extra HVAC beyond
these hours to be at Lessee's cost.
81
7.2 Lessee's Obligation. Lessee shall pay for, prior to delinquency, all
telephone and all other materials and services, not expressly required to
be paid by Lessor, which may be furnished to or used in, on or about the
Premises during the term of this Lease.
7.3 Lessee's Additional Requirements.
(a) Lessee will not, without the written consent of Lessor, use any
apparatus or device in the Premises, including but without limitation
thereto, electronic data processing machines, punch card machines and
machines using current in excess of I 10 volts, which will in any way
increase the amount of electricity or water usually furnished or supplied
for use of the Premises as general office space; nor connect with electric
current, except through existing electrical outlets in the Premises, or
water pipes, any apparatus or device, for the purposes of using electric
current or water.
(b) If Lessee shall require water or electric current in excess of
that usually furnished or supplied for use of the Premises as general
office space, Lessee shall first procure the consent of Lessor for the use
thereof, which consent Lessor may refuse and Lessor may cause a water
meter or electric current meter to be installed in the Premises, so as to
measure he amount of water and electric current consumed for any such
other use. The cost of such meters and of installation, maintenance and
repair thereof shall be paid for by Lessee and Lessee agrees to pay Lessor
promptly upon demand by Lessor for all such water and electric current
consumed as shown by said meters, at the rates charged for such services
by the City in which the Building is located or the local public utility,
as the case may be, furnishing the same, plus any additional expense
incurred in keeping account of the water and electric current so consumed.
(c) Wherever heat generating machines or equipment are used in the
Premises which affect the temperature otherwise maintained by the air
conditioning system, Lessor reserves the right to install supplementary
air conditioning units in the Premises and the cost thereof, including the
cost of installation, operation, and maintenance thereof, shall be paid by
Lessee to Lessor.
7.4 Non-Liability. Lessor shall not be liable for, and Lessee shall
not be entitled to, any abatement or reduction of rent by reason or
Lessor's failure to furnish any of the foregoing when such failure is
caused by accidents, breakage, repairs, strikes, lockouts or other labor
disturbances or labor disputes of any character, or by any other cause
similar or dissimilar, beyond the reasonable control of Lessor. Lessor
shall not be liable under any circumstances, except for instances of
Lessor's negligence, for loss of or injury to property, however occurring,
through or in connection with or incidental to failure to furnish any of
the foregoing.
8. MAINTENANCE AND REPAIRS; ALTERATIONS AND ADDITIONS
8.1 Maintenance and Repairs.
(a) Lessor's Obligations. Lessor shall maintain in good order,
condition and repair the Building and all other portions of the Premises
not the obligation of Lessee or any other tenant in the Building.
(b) Lessee's Obligations.
(i) Lessee at Lessee's sole cost and expense, except for
services furnished by Lessor pursuant to Section 7 hereof, shall maintain
the Premises in good order, condition and repair including the interior
surfaces of the ceilings, walls and floors, all doors, interior windows,
exterior windows at or below street level, all plumbing pipes, electrical
wiring,
82
switches, fixtures and special items in excess of building standard
furnishings, and equipment installed by or at the expense of Lessee.
(ii) Upon the expiration or earlier termination of this Lease,
Lessee shall surrender the Premises in the same condition as received,
ordinary wear and tear and damage by fire, earthquake, act of God or the
elements alone excepted, and shall promptly remove or cause to be removed
at Lessee's expense from the Premises and the Building any signs, notices
and displays placed by Lessee.
(iii) Lessee agrees to repair any damage to the Premises or
the Building caused by or in connection with the removal of any articles
of personal property, business or trade fixtures, machinery, equipment,
cabinetwork, furniture, movable partition or permanent improvements or
additions, including without limitation thereto, repairing the floor and
patching and painting the walls where required by Lessor to Lessor's
reasonable satisfaction, all at Lessee's sole cost and expense. Lessee
shall indemnify the Lessor against any loss or liability resulting from
decay by Lessee in so surrendering the Premises, including without
limitation any claims made by any succeeding tenant founded on such delay.
(iv) In the event Lessee fails to maintain the Premises in
good order, condition and repair, Lessor shall give Lessee notice to do
such acts as are reasonably required to so maintain the Premises. In the
event Lessee fails to promptly commence such work and diligently prosecute
it to completion, then Lessor shall have the right to do such acts and
expend such funds at the expense of Lessee as are reasonably required to
perform such work. Any amount so expended by Lessor shall be paid by
Lessee promptly after demand with interest at ten percent (10%) per annum
from the date of such work. Lessor shall have no liability to Lessee for
any damage, inconvenience or interference with the use of the Premises by
Lessee as a result of performing any such work.
(c) Compliance with Law. Lessor and Lessee shall each do all acts
required to comply with all applicable laws, ordinances, regulations and
rules of any public authority relating to their respective maintenance
obligations as set forth herein.
8.2 Alterations and Additions.
(a) Lessee shall make no alterations, additions or improvements to
the Premises or any part thereof without obtaining the prior written
consent of Lessor.
(b) Lessor may impose as a condition to the aforesaid consent such
requirements as Lessor may deem necessary in its sole discretion,
including without limitation thereto, the manner in which the work is
done, a right of approval of the contractor by whom the work is to be
performed, the times during which is to be accomplished, and the
requirement that upon written request of Lessor prior to the expiration or
earlier termination of the Lease, Lessee will remove any and all permanent
improvements or additions to the Premises installed at Lessee's expense
and all movable partitions, counters, personal property, equipment,
fixtures and furniture.
(c) All such alterations, additions or improvements shall at the
expiration or earlier termination of the Lease become the property of
Lessor and remain upon and surrendered with the Premises, unless specified
pursuant to Section 8.2(b) above.
83
(d) All articles of personal property and all business and trade
fixtures, machinery and equipment, cabinetwork, furniture and movable
partitions owned by Lessee or installed by Lessee at its expense in the
Premises shall be and remain the property of Lessee and may be removed by
Lessee at any time during the Lease term when Lessee is not in default
hereunder.
9. ENTRY BY LESSOR. Lessor reserves and shall at any and all times have the
right to enter the Premises to inspect the same, to supply janitor service
and any other service to be provided by Lessor to Lessee hereunder, to
submit said Premises to prospective purchasers or Lessees, to post notices
of non-responsibility and "for lease" signs, and to alter, improve or
repair the Premises and any portion of the Building without abatement of
rent, and may for that purpose erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, always providing the entrance to the Premises shall not be
blocked thereby, and further providing that the business of Lessee shall
not be interfered with unreasonably. Lessee hereby waives any claim for
damages for any injury or inconvenience to or interference with Lessee's
business, any loss of occupancy or quiet enjoyment of the Premises, and
any other loss occasioned thereby. For each of the aforesaid purposes,
Lessor shall at all times have and retain a key with which to unlock all
of the doors in, upon and about the Premises, excluding Lessee's vaults
and safes, and Lessor shall have the right to use any and all means which
Lessor may deem proper to open said doors in an emergency, in order to
obtain entry to the Premises and any entry to the Premises obtained by
Lessor by any of said means, or otherwise, shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction of Lessee from the
Premises or any portion thereof. Any entry of Premises by Lessor shall be
without liability to Lessee except for any failure to exercise due care
for Lessee's property.
10. LIENS. Lessee shall keep the Premises and any building of which the
Premises are a part free from any liens arising out of work performed,
materials furnished, or obligations incurred by Lessee and shall
indemnify, hold harmless and defend Lessor from any liens and encumbrances
arising out of any work performed or materials furnished by or at the
direction of Lessee. In the event that Lessee shall not, within twenty
(20) days following the imposition of any such lien, cause such lien to be
released of record by payment or posting of a proper bond, Lessor shall
have, in addition to all other remedies provided herein and by law, the
right, but no obligation, to cause the same to be released by such means
as it shall deem proper, including payment of the claim giving rise to
such lien. All such sums paid by Lessor and all expenses incurred by it in
connection therewith including attorney's fees and costs shall be payable
to Lessor by Lessee on demand with interest at the rate of ten percent
(10%) per annum. Lessor shall have the right at all times to post and keep
posted on the Premises any notices permitted or required by law or which
Lessor shall deem proper, for the protection of Lessor and the Premises,
and any other party having an interest therein, from mechanics' and
materialmen's liens, and Lessee shall give to Lessor at least ten (10)
business days prior written notice of the expected date of commencement of
any work relating to alterations or additions to the Premises.
84
11. INDEMNITY.
11.1 Indemnity. Lessee shall indemnity and hold Lessor harmless from and
defend Lessor against any and all claims of liability for any injury or
damage to any person or property whatsoever; (1) occurring in, on or about
the Premises or any part thereof; and (2) occurring in, on or about any
facilities (including, without prejudice to the generality of the term
"facilities," elevators, stairways, passageways, hallways, and parking
areas), the use of which Lessee may have in conjunction with other tenants
of the Building, when such injury or damage is caused in part or in whole
by the act, neglect, fault or omission of any duty with respect to the same
by Lessee, its agents, contractors, employees or invitees. Lessee shall
further indemnify and hold Lessor harmless from and against any and all
claims arising from any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of this Lease,
or arising from any act or negligence of Lessee, or any of its agents,
contractors, employees and from and against all costs, attorney's fees,
expenses and liabilities incurred in the defense of any such claim or any
action or proceeding brought thereon. In case any action or proceeding be
brought against Lessor by reason of any such claim, Lessee, upon notice
from Lessor, shall defend the same at Lessee's expense by counsel
reasonably satisfactory to Lessor, provided, however, that Lessee shall not
be liable for damage or injury occasioned by the negligence or intentional
acts of Lessor and its designated agents or employees unless covered by
insurance Lessee is required to provide. Lessee, as a material part of the
consideration to Lessor, hereby assumes all risk of damage to property or
injury to persons in, upon or about the Premises from any cause and
Lessee's hereby waives all claims in respect thereof against Lessor, except
in instances where such damage or injury is caused by Lessors negligence.
Lessor shall indemnify and hold Lessee harmless of all losses due to
Lessor's negligence.
11.2 Exemption of Lessor from Liability. Lessor shall not be liable for
injury or damage which may be sustained by the person, goods, wares,
merchandise or property of Lessee, its employees, invitees or customers, or
any other person in or about the Premises caused by or resulting from fire,
steam, electricity, gas, water or rain, which may leak or flow from or into
any part of the Premises, or from the breakage, leakage, obstruction or
other defects of the pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures of the same, whether the damage or injury
results from conditions arising upon the Premises or upon other portions of
the Building of which the Premises are a part, or from other sources.
Lessor shall not be liable for any damages arising from any act or neglect
of any other tenant of the Building.
12. INSURANCE
12.1 Coverage. Lessee shall, at all times during the term of this Lease,
and at its own cost and expense procure and continue in force the
following insurance coverage:
(a) Bodily Injury and Property Damage Liability insurance with a
combined single limit for bodily injury and property damage of not less
than $1,000,000.
(b) Fire and Extended Coverage Insurance, including vandalism and
malicious mischief coverage, in an amount equal to the full replacement
value of all fixtures, furniture and improvements.
12.2 Insurance Policies. The aforementioned minimum limits of policies
shall in no event limit the liability of Lessee hereunder. The aforesaid
insurance shall name Lessor as an additional insured. Said insurance shall
be with companies having a rating of not less
85
than AA in "Best's Insurance Guide." Lessee shall furnish from the
insurance companies or cause the insurance companies to furnish
certificates of coverage. No such policy shall be cancelable or subject to
reduction of coverage or other modification or cancellation except after
thirty (30) days prior written notice to Lessor by the insurer. All such
policies shall be written as primary policies, not contributing with and
not in excess of the coverage which Lessor may carry. Lessee shall, at
least twenty (20) days prior to the expiration of such policies, furnish
Lessor with renewals or binders. Lessee agrees that if Lessee does not
take out and maintain such insurance, Lessor may (but shall not be
required to) procure said insurance on Lessee's behalf and charge Lessee
the premiums together with a twenty-five percent (25%) handling charge,
payable upon demand. Lessee shall have the right to provide such insurance
coverage pursuant to blanket policies obtained by Lessee provided such
blanket policies expressly afford coverage to the Premises and to Lessee
as required by this Lease. Lessee must provide certificate of insurance
prior to initial occupancy of premises or Lessee shall be in default of
Lease.
12.3 Waiver of Subrogation. Lessor and Lessee each hereby waive any and
all rights of recovery against the other or against the officers,
employees, agents and representatives of the other, on account of loss or
damage occasioned to such waiving party or its property or the property of
others under its control to the extent that such loss or damage is insured
against under any fire and extended coverage insurance policy which either
may have in force at the time of such loss or damage. Lessee shall, upon
obtaining the policies of insurance required under this Lease, give notice
to the insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
13. DAMAGE OR DESTRUCTION
13.1 Partial Damage - Insured. In the event the Premises or the Building
are damaged by any casualty which is covered under fire and extended
coverage insurance carried by Lessor, then Lessor shall restore such
damage provided insurance proceeds are available to pay eighty percent
(80%) or more of the cost of restoration and provided such restoration can
be completed within sixty (60) days after the commencement of the work in
the opinion of a registered architect or engineer appointed by Lessor. In
such event this Lease shall continue in full force and effect, except that
Lessee shall be entitled to proportionate reduction of rent while such
restoration takes place, such proportionate reduction to be based upon the
extent to which the restoration efforts interfere with Lessee's business
in the Premises.
13.2 Partial Damage - Uninsured. In the event the Premises or the Building
are damaged by a risk not covered by Lessor's insurance or the proceeds of
available insurance are less than eighty percent (80%) of the cost of
restoration, or if the restoration cannot be completed within sixty (60)
days after the commencement of work in the opinion of the registered
architect or engineer appointed by Lessor, then Lessor shall have the
option either to (1) repair or restore such damage, this Lease continuing
in full force and effect, but the rent to be proportionately abated as
hereinabove provided, or (2) give notice to Lessee at any time within
thirty (30) days after such damage terminating this Lease as of a date to
be specified in such notice, which date shall be not less than thirty (30)
nor more than sixty (60) days after giving such notice. In the event of
the giving of such notice, this Lease shall expire and all interest of
Lessee in the Premises shall terminate on such date so specified in such
notice and the rent, reduced by any proportionate reduction based upon the
extent, if any, to which said damage interfered with the use and occupancy
of Lessee, shall be paid to the date of such termination; Lessor agrees to
86
refund to the Lessee any rent theretofore paid in advance for any period
of time subsequent to such date.
13.3 Total Destruction. In the event the Premises are totally destroyed or
the Premises cannot be restored as required herein under applicable laws
and regulations, not withstanding the availability of insurance proceeds,
this Lease shall be terminated effective the date of the damage.
13.4 Damage Near End of the Term. Notwithstanding anything to the contrary
contained in Section 13, Lessor shall not have any obligation whatsoever
to repair, reconstruct or restore the Premises when the damage resulting
from any causality covered under this Section 13 occurs during the last
twelve (12) months of the terms of this Lease or, any extension thereof.
13.5 Lessor's Obligations. The Lessor shall not be required to repair any
injury or damage by fire or other cause, or to make any restoration or
replacement of any paneling, decorations, partitions, railings, floor
covering, office fixtures or any other improvements or property installed
in the Premises by Lessee or at the direct or indirect expense of Lessee.
Lessee shall be required to restore or replace same in the event of
damage. Except for abatement of rent, if any, Lessee shall have no claim
against Lessor for any damage suffered by reason of any such damage,
destruction, repair or restoration.
14. CONDEMNATION. If all or any part of the Premises shall be taken or
appropriated for public or quasi-public use by right of eminent domain
with or without litigation or transferred by agreement in connection with
such public or quasi-public use, either party hereto shall have the right
at its option exercisable within thirty (30) days of receipt of notice of
such taking to terminate this Lease as of the date possession is taken by
the condemning authority, provided, however, that before Lessee may
terminate this Lease by reason of taking or appropriation as provided
hereinabove, such taking or appropriation shall be of such an extent and
nature as to substantially handicap, impede or impair Lessee's use of the
Premises. If any part of the Building other than the Premises shall be so
taken or appropriated, Lessor shall have the right at its option to
terminate this Lease. No award for any partial or entire taking shall be
apportioned, and Lessee hereby assigns to Lessor any award which may be
made in such taking or condemnation, together with any and all rights of
Lessee now or hereafter arising in or to the same or any part thereof;
provided, however, that nothing contained herein shall be deemed to give
Lessor any interest in or to require Lessee to assign to Lessor any award
made to Lessee for the taking of personal property and fixtures belonging
to Lessee and/or for the interruption of or damage to Lessee's business
and/or for Lessee's unamortized cost of leasehold improvements. In the
event of a partial taking which does not result in a termination of this
Lease, rent shall be abated in the proportion which the part of the
premises so made unusable bears to the rented area of the Premises
immediately prior to the taking. No temporary taking of the Premises
and/or of Lessee's rights therein or under this Lease shall terminate this
Lease or give Lessee any right to any abatement of rent thereunder; any
award made to Lessee by reason of any such temporary taking shall belong
entirely to Lessee and Lessor shall not be entitled to share therein.
87
15. ASSIGNMENT AND SUBLETTING
15.1 Lessor's Consent Required. Lessee shall not assign, transfer,
mortgage, pledge, hypothecate or encumber this Lease or any interest
therein, and shall not sublet the Premises or any part thereof, without
the prior written consent of Lessor and any attempt to do so without such
consent being first had and obtained shall be wholly void and shall
constitute a breach of this Lease.
15.2 Reasonable Consent. If Lessee complies with the following conditions,
Lessor shall not unreasonably withhold its consent to the subletting of
the Premises or any portion thereof or the assignment of this Lease.
Lessee shall submit in writing to Lessor (a) the name and legal
composition of the proposed sublessee or assignee; (b) the nature of the
business proposed to be carried on in the Premises; (c) the terms and
provisions of the proposed sublease; (d) such reasonable financial
information as Lessor may request concerning the proposed sublessee or
assignee.
15.3 No Release of Lessee. No consent by Lessor to any assignment or
subletting by Lessee shall relieve Lessee of any obligation to be
performed by Lessee under this Lease, whether occurring before or after
such consent, assignment or subletting. The consent by Lessor to any
assignment or subletting shall not relieve Lessee from the obligation to
obtain Lessor's express written consent to any other assignment or
subletting. The acceptance of rent by Lessor from any other person shall
not be deemed to be a waiver by Lessor of any provision of this Lease or
to be a consent to any assignment, subletting or other transfer. Consent
to one assignment, subletting or other transfer shall not be deemed to
constitute consent to any subsequent assignment, subletting or other
transfer.
15.4 Attorney's Fees. In the event Lessor shall consent to a sublease or
assignment under this Section 15, Lessee shall pay Lessor's reasonable
attorney's fees not to exceed $500 incurred in connection with giving such
consent.
15.5 Excess Rent. In the event Lessee sublets the entire Premises or any
part thereof, Lessee shall deliver to Lessor any "excess rent" (as such
term is herein defined) within thirty (30) days of Lessee's receipt
thereof. As used herein, "excess rent" shall mean any sums or economic
consideration received by Lessee pursuant to such subletting in excess of
the amount of the rent payable by Tenant under this Lease applicable to
the part or parts of the Premises so sublet.
16. SUBORDINATION
16.1 Subordination. This Lease at Lessor's option shall be subject and
subordinate to all ground or underlying leases which now exist or may
hereafter be executed affecting the Premises or the land upon which the
Premises are situated or both, and to the lien of any mortgages or deeds
of trust in any amount or amounts whatsoever now or hereafter placed on or
against the land or improvements or either thereof, of which the Premises
are a part, or on or against Lessor's interest or estate therein, or on or
against any ground or underlying lease without the necessity of the
execution and delivery of any further instruments on the part of Lessee to
effectuate such subordination. Such subordination is subject to and any
agreement executed evidencing such subordination shall reflect that the
Lessee's possession of the premises shall not be diminished or interfered
with provided Lessee complies with the terms of this agreement and is not
in default in the payment of rent. If any mortgagee, trustee or ground
lessor shall elect to have this Lease prior to the lien of its mortgage,
deed of trust or ground lease, and shall give written notice thereof to
Lessee, this Lease shall be deemed prior to such
88
mortgage, deed of trust or ground lease, whether this Lease is dated prior
or subsequent to the date of said mortgage, deed of trust, or ground lease
or the date of the recording thereof.
16.2 Subordination Agreements. Lessee covenants and agrees to execute and
deliver upon demand without charge therefore, such further instruments
evidencing such subordination of this Lease to such ground or underlying
leases and to the lien of any such mortgages or deeds of trust as may be
required by Lessor. Lessee hereby appoints Lessor as Lessee's
attorney-in-fact, irrevocably, to execute and deliver any such agreements,
instruments, releases or other documents.
16.3 Quiet Enjoyment. Lessor covenants and agrees with Lessee that upon
Lessee paying rent and other monetary sums due under the Lease, performing
its covenants and conditions under the Lease and upon recognizing
purchaser as Lessor pursuant hereto, Lessee shall and may peaceably and
quietly have, hold and enjoy the premises for the term subject, however,
to the terms of the Lease and of any of the aforesaid ground leases,
mortgages or deeds of trust described above.
16.4 Attornment. In the event any proceedings are brought for default
under ground or any underlying lease or in the event of foreclosure or the
exercise of the power of sale under any mortgage or deed of trust made by
the Lessor covering the Premises, the Lessee shall attorn to the purchaser
upon any such foreclosure or sale and recognize such purchaser as the
Lessor under this Lease, provided said purchaser expressly agrees in
writing to be bound by the terms of the Lease.
17. DEFAULTS; REMEDIES
17.1 Default. The occurrence of any of the following shall constitute a
material default and breach of this Lease by Lessee:
(a) Any failure by Lessee to pay the rent or any other monetary sums
required to be paid hereunder;
(b) The abandonment or vacation of the Premises by Lessee,
(c) A failure by Lessee to observe and perform any other provision
of this Lease to be observed or performed by Lessee;
(d) The making by Lessee of any general assignment or general
arrangement for the benefit of creditors; the filing by or against Lessee
of a petition to have Lessee adjudged a bankrupt or of a petition for
reorganization or arrangement under any law relating to bankruptcy unless,
in the case of a petition filed against Lessee, the same is dismissed
within sixty (60) days, the appointment of a trustee or receiver to take
possession of substantially all of Lessee's assets located at the Premises
or of Lessee's interest in this Lease, where possession is not restored to
Lessee within thirty (30) days; or the attachment, execution or other
judicial seizure of substantially all of Lessee's assets located at the
Premises or of Lessee's interest in this Lease, where such seizure is not
discharged within thirty (30) days.
17.2 Remedies. In the event of any such material default or breach by
Lessee, Lessor may, at any time thereafter without limiting Lessor in the
exercise of any right or remedy at law or in equity which Lessor may have
by reasons of such default or breach:
(a) Maintain this Lease in full force and effect and recover the
rent and other monetary charges as they become due, without terminating
Lessee's right to possession irrespective of whether Lessee shall have
abandoned the Premises. In the event Lessor elects not to terminate the
Lease, Lessor shall have the right to attempt to re-let the Premises at
such rent and upon such conditions and for such a term, and to do all acts
necessary to
89
maintain or preserve the Premises as Lessor deems reasonable and necessary
without being deemed to have elected to terminate the lease, including
removal of all persons and property from the Premises; such property may
be removed and stored in a public warehouse or elsewhere at the cost of
and for the account of Lessee. In the event any such re-letting occurs,
this Lease shall terminate automatically upon the new Lessee taking
possession of the Premises. Notwithstanding that Lessor fails to elect to
terminate the Lease initially, Lessor at any time during the term of this
Lease, may elect to terminate this Lease by virtue of such previous
default of Lessee.
(b) Terminate Lessee's right to possession by any lawful means, in
which case this Lease shall terminate and Lessee shall immediately
surrender possession of the Premises to Lessor. In such event Lessor shall
be entitled to recover from Lessee all damages incurred by Lessor by
reason of Lessee's default, including without limitation thereto, the
following: (i) the worth at the time of award of any unpaid rent which has
been earned at the time of such termination; plus (ii) the worth at the
time of award of the amount by which the unpaid rent which would have been
earned after termination until the time of award exceeds the amount of
such rental loss that is could have been reasonably avoided; plus (iii)
the worth at the time of award of the amount by which the rent for the
balance of the term after the time of award exceeds the amount of such
rental loss that is could be reasonably avoided; plus (iv) any other
amount necessary to compensate Lessor for all the detriment proximately
caused by Lessee's failure to perform his obligations under this Lease or
which in the ordinary course of events would be likely to result
therefrom; plus (v) at Lessor's election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from time to time by
applicable State law. Upon any such re-entry Lessor shall have the right
to make any reasonable repairs, alterations or modifications to the
Premises, which Lessor in its sole discretion deems reasonable and
necessary. As used in (i) above, the "worth at the time of award" is
computed by allowing interest at the rate of ten percent (10%) per annum
from the date of default. As used in (ii) and (iii) the "worth at the time
of award" is computed by discounting such amount at the discount rate of
the U.S. Federal Reserve Bank at the time of award plus one percent (1%).
The term "rent," as used in this Section 17, shall be deemed to be and to
mean the rent to be paid pursuant to Section 3 and all other monetary sums
required to be paid by Lessee pursuant to the terms of this Lease.
17.3 Late Charges. Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited
to, processing and accounting charges, and late charges which may be
imposed on Lessor by the terms of any mortgage or trust deed covering the
Premises. Accordingly, it' any installment of rent or any other sum due
from Lessee shall not be received by Lessor or Lessor's designee within
ten (10) days after such amount shall be due, Lessee shall pay to Lessor a
late charge equal to ten percent (10%) of such overdue amount. Failure of
Lessee to pay said late fee within five (5) days of its becoming due shall
be deemed a breach of this Lease. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Lessor will
incur by reason of late payment by Lessee. Acceptance of such late charge
by Lessor shall in no event constitute a waiver of Lessee's default with
respect to such overdue amount nor prevent Lessor from exercising any of
the other rights and remedies granted hereunder.
17.4 Default by Lessor. Lessor shall not be in default unless Lessor fails
to perform obligations required of Lessor within a reasonable time, but in
no event later than thirty (30)
90
days after written notice by Lessee to Lessor and to the holder of any
first mortgage or deed of trust covering the Premises whose name and
address shall have theretofore been furnished to Lessee in writing,
specifying wherein Lessor has failed to perform such obligations,
provided, however, that if the nature of Lessor's obligation is such that
more than thirty (30) days are required for performance, then Lessor shall
not be in default if Lessor commences performance within such thirty-day
period and thereafter diligently prosecutes the same to completion.
18. MISCELLANEOUS
18.1 Estoppel Certificate.
(a) Lessee shall at any time upon not less than five (5) day's prior
written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full
force and effect) and the date to which the rent and other charges are
paid in advance, if any, and (ii) acknowledging that there are not, to
Lessee's knowledge, any uncured defaults on the part of Lessor hereunder,
or specifying such defaults if any are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of
the Premises.
(b) Lessee's failure to deliver such statement within such time
shall be conclusive upon Lessee (i) that this Lease is in full force and
effect, without modification except as may be represented by Lessor, (ii)
that there are no uncured defaults in Lessor's performance, and (iii) that
not more than one month's rent has been paid in advance.
(c) If Lessor desires to finance or refinance the Building, or any
part thereof, Lessee hereby agrees to deliver to any lender designated by
Lessor such financial statements of Lessee as may be reasonably required
by such lender. Such statements shall include the past three years'
financial statements of Lessee. All such financial statements shall be
received by Lessor in confidence and shall be used only for the purposes
herein set forth.
18.2 Transfer of Lessor's Interest. In the event of a sale or conveyance
by Lessor of Lessor's interest in the Premises or the Building other than
a transfer for security purposes only, Lessor shall be relieved from and
after the date specified in any such notice of transfer of all obligations
and liabilities accruing thereafter on the part of Lessor, provided that
any funds in the hands of Lessor at the time of transfer in which Lessee
has an interest, shall be delivered to the successor of Lessor. This Lease
shall not be affected by any such sale and Lessee agrees to attorn to the
purchaser or assignee provided all Lessor's obligations hereunder are
assumed in writing by the transferee.
18.3 Captions; Attachments; Defined Terms.
(a) The captions of the paragraphs of this Lease are for convenience
only and shall not be deemed to be relevant in resolving any question of
interpretation or construction of any section of this Lease.
(b) Exhibits attached hereto, and addendums and schedules initiated
by the parties, are deemed by attachment to constitute part of this Lease
and are incorporated herein.
(c) The words "Lessor" and "Lessee," as used herein, shall include
the plural as well as the singular. Words used in neuter gender include
the masculine and feminine and words in the masculine or feminine gender
include the neuter. If there be more than one Lessor or Lessee, the
obligations hereunder imposed upon Lessor or Lessee shall be joint and
several;
91
as to a Lessee which consists of husband and wife, the obligations shall
extend individually to their sole and separate property as well as
community property. The term "Lessor" shall mean only the owner or owners
at the time in question of the fee title or a tenant's interest in a
ground lease of the land underlying the Building. The obligations
contained in this Lease to be performed by Lessor shall be binding on
Lessor's successor's and assigns only during their respective periods of
ownership.
18.4 Entire Agreement. This instrument along with any exhibits and
attachments hereto constitutes the entire agreement between Lessor and
Lessee relative to the Premises and this Agreement and the exhibits and
attachments may be altered, amended or revoked only by an instrument in
writing signed by both Lessor and Lessee. Lessor and Lessee agree hereby
that all prior or contemporaneous oral agreements between and among
themselves and their agents or representatives relative to the leasing of
the Premises are written in or revoked by this Agreement.
18.5 Severability. If any term or provision of this Lease shall, to any
extent, be determined by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of this Lease shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforceable to the fullest extent permitted by law.
18.6 Costs of Suit.
(a) If Lessee or Lessor shall bring any action for any relief
against the other, declaratory or otherwise, arising out of this Lease,
including any suit by Lessor for the recovery of rent or possession of the
Premises, the losing party shall pay the successful party a reasonable sum
for attorney's fees which shall be deemed to have accrued on the
commencement of such action and shall be paid whether or not such action
is prosecuted to judgment.
(b) Should Lessor, without fault on Lessor's part, be made a party
to any litigation instituted by Lessee or by any third party against
Lessee, or by or against any person holding under or using the Premises by
license of Lessee, or for the foreclosure of any lien for labor or
material furnished to or for Lessee or any such other person or otherwise
arising out of or resulting from any act or transaction of Lessee or of
any such other person, Lessee covenants to save and hold Lessor harmless
from any judgment rendered against Lessor or the Premises, or any part
thereof, and all costs and expenses, including reasonable attorneys' fees,
incurred by Lessor in or in connection with such litigation.
(c) If Lessee or Lessor or their successors as assigns shall bring
an action against Broker or make Broker a party to litigation arising out
of this Lease, Broker shall be entitled to recover reasonable attorney's
fees and court costs from either Lessor or Lessee if Broker is adjudged by
a court of competent jurisdiction to be without fault in such matter.
18.7 Time; Joint and Several Liability. Time is of the essence of this
Lease and each and every provision hereof, except as to the conditions
relating to the delivery of possession of the Premises to Lessee. All the
terms, covenants and conditions contained in this Lease to be performed by
either party, if such party shall consist of more than one person or
organization, shall be deemed to be joint and several, and all rights and
remedies of the parties shall be cumulative and nonexclusive of any other
remedy at law or in equity.
18.8 Binding Effect; Choice of Law. The parties hereto agree that all
provisions hereof are to be construed as both covenants and conditions as
though the words importing such covenants and conditions were used in each
separate paragraph hereof. Subject to any provisions hereof restricting
assignment or subletting by Lessee and subject to Section 18.2,
92
all of the provisions hereof shall bind and inure to the benefit of the
parties hereto and their respective heirs, legal representatives,
successors and assigns. This lease shall be governed by the laws of the
State of California.
18.9 Waiver. No covenant, term or condition or the breach thereof shall be
deemed waived, except by written consent of the party against whom the
waiver is claimed, and any waiver or the breach of any covenant, term or
condition shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other covenant, term or condition.
Acceptance by Lessor of any performance by Lessee after the time the same
shall have become due shall not constitute a waiver by Lessor of the
breach or default of any covenant, term or condition unless otherwise
expressly agreed to by Lessor in writing.
18.10 Surrender of Premises. The voluntary or other surrender of this
Lease by Lessee, or a mutual cancellation thereof, shall not work a
merger, and shall, at the option of the Lessor, terminate all or any
existing subleases or subtenancies, or may, at the option of Lessor,
operate as an assignment to it of any or all such subleases or
subtenancies.
18.11 Holding Over. If Lessee remains in possession of all or any part of
the Premises after the expiration of the term hereof, with or without the
express or implied consent of Lessor, such tenancy shall be from month to
month only, and not a renewal hereof or an extension for any further term,
and in such case, rent and other monetary still due hereunder shall be
payable in the amount of 150% of the then current rent being paid and at
the time specified in this Lease and such month to month tenancy shall be
subject to every other term, covenant and agreement contained herein.
18.12 Signs.
(a) Lessee shall not place or permit to be placed in or upon the
Premises, where visible from outside the Premises, or outside the Premises
or any part of the Building any signs, notices, drapes, shutters, blinds
or displays of any type without the prior written consent of Lessor.
(b) Lessor reserves the right in Lessor's sole discretion to place
and locate on the roof, exterior of the Building, and in any area of the
Building not leased to Lessee such signs, notices, displays and similar
items as Lessor deems appropriate in the proper operation of the Building.
18.13 Reasonable Consent. Except as limited elsewhere in this Lease,
wherever in this Lease Lessor or Lessee is required to give its consent or
approval to any action on the part of the other, such consent or approval
shall not be unreasonably withheld. In the event of failure to give any
such consent, the other party shall be entitled to specific performance at
law and shall have such other remedies as are reserved to it under this
Lease, but in no event shall Lessor or Lessee be responsible in monetary
damages for failure to give consent unless said consent is withheld
maliciously or in bad faith.
18.14 Interest on Past Due Obligations. Except as expressly provided, any
amount due to Lessor not paid when due shall bear interest at eighteen
percent (18%) per annum from the due date. Payment of such interest shall
not excuse or cure any default by Lessee under this Lease.
18.15 Rules and Regulations; Parking. Lessee shall have the right to park
in the Project's parking facilities in common with other tenants of the
Project upon terms and conditions as may from time to time be established
by Lessor or the Project's Ownership Association. Parking for the Project
is available at no cost and is on a nonexclusive, first-come, first served
basis. The Project provides parking at the ratio of four spaces per
thousand usable square feet of building area. Lessee agrees not to
overburden the parking facilities and
93
agrees to cooperate with Lessor and other Lessees in the use of the
parking facilities. The term "overburden" shall mean any parking facility
use in excess of the ratio provided above. In the event Lessee
consistently overburdens the parking facilities, and is notified of such
by Lessor, and Lessee does not comply with measures to alleviate said
overburdening, Lessee shall be deemed in default of this Lease and shall
be subject to any Lessor remedies provided for in this Lease.
18.16 Notices. All Notices or demands of any kind required or desired to
be given by Lessor or Lessee hereunder shall be in writing and shall be
deemed delivered forty-eight (48) hours after depositing the notice or
demand in the United States mail, certified or registered, postage
prepaid, addressed to the Lessor or Lessee respectively at the addresses
set forth after their signatures at the end of this Lease.
18.17 Corporate Authority. If Lessee is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants
that he is duly authorized to execute and deliver this Lease on behalf of
said corporation in accordance with the duly adopted resolution of the
Board of Directors of said corporation or in accordance with the By-laws
of said corporation, and that this Lease is binding upon said corporation
in accordance with its terms. If Lessee is a corporation Lessee shall,
within thirty (30) days after execution of this Lease, deliver to Lessor a
certified copy of a resolution of the Board of Directors of said
corporation authorizing or ratifying the execution of this Lease.
18.18 Recordation. Neither Lessor nor Lessee shall record this Lease or a
short form memorandum hereof without the prior written consent of the
other party.
18.19 Inability to Perform. This Lease and the obligations of the Lessee
hereunder shall not be affected or impaired because the Lessor is unable
to fulfill any of its obligations hereunder or is delayed in doing so, if
such inability or delay is caused by reason of strike, labor troubles,
acts of God, or any other cause beyond the reasonable control of the
Lessor.
18.20 Americans with Disabilities Act. Any other provision of this Lease
notwithstanding, the parties hereby agree that the demised premises may be
subject to the terms and conditions of the Americans with Disabilities Act
of 1990 (hereinafter the "ADA"). The parties further agree and acknowledge
that it shall be the sole responsibility of the Lessee to comply with any
and all provisions of the ADA, as such compliance may be required to
operate the demised premises. The Lessee further agrees to indemnify and
hold the Lessor harmless against any claims which may arise out of
Lessee's failure to comply with the ADA. Such indemnification shall
include, but not necessarily be limited to reasonable attorney's fees,
court costs and judgments as a result of said claims.
19. Additional Paragraphs 20 through 24 are attached hereto and made a part of
the Lease.
In Witness Whereof, Lessor and Lessee have executed this Lease the date and year
first above written.
LESSOR: LESSEE:
Eureka Corporate Plaza Ltd., P.P. Feather River State
0000 Xxxxxx Xxxx, Xxxxx 000 0000 Xxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000 Xxxx Xxxx, XX 00000
By: Xxxxxx X. Xxxxxxxx, General Partner By: Xxxxx Xxxxxxx
Dated: 7/31/00 Dated: 7/28/00
94
ADDENDUM TO THAT CERTAIN LEASE DATED JULY 26,2000
BY AND BETWEEN
EUREKA CORPORATE PLAZA, LTD., LP., "LESSOR"
AND
FEATHER RIVER STATE BANK, A CALIFORNIA CORPORATION, "LESSEE"
20. RENT SCHEDULE.
Months: Rate/SF: Base Monthly Rent on a Fully Serviced Basis:
01-02 $0.00 $0.00
03-14 $1.65 Six Thousand Two Hundred Ninety Six and 40/100ths Dollars ($6,296 40)
15-26 $1.65 Six Thousand Two Hundred Ninety Six and 40/100ths Dollars ($6,296.40).
27-38 $1.75 Six Thousand Six Hundred Seventy Eight and no/ 100ths Dollars ($6,678.00).
39-50 $1.75 Six Thousand Six Hundred Seventy Eight and no/ 100ths Dollars ($6,678.00).
51-62 $1.85 Seven Thousand Fifty Nine and 60/100ths Dollars ($7,059.60).
Lessee acknowledges that the above Base Rent amount is based on the square
footage of the lease space and is therefore subject to adjustment based on
a final, mutually approved space plan.
21. OPTION TO RENEW: Lessor hereby grants to Lessee the option to renew this
Lease for an additional term of five (5) years upon the same terms and
conditions as herein contained, except as modified by this paragraph
provided that Lessee not be in material default under this lease at the
time the option is exercised. This option must be exercised by written
notice to Lessor no later than ninety (90) days prior to the expiration of
the existing lease. The total rent for the Premises in the event this
lease is so extended shall be negotiated by the parties at the then
current Fair Market Value, provided however, that the negotiated rent
shall in no event be less than the then current rent being paid by Lessee.
In the event that the parties hereto are not able to mutually agree upon a
rental figure within ten (10) days after Lessee notifies Lessor of its
election to extend the terms of this Lease, then Lessor and Lessee shall
individually appoint in writing one real estate broker each with at least
five (5) years experience in the Commercial Real Estate market. The two
brokers so appointed shall select and appoint a third similarly qualified
broker. The brokers shall, within (15) days of appointment, submit their
opinions of Fair Market Value. Fair Market Value shall be the average of
the two appraisal figures, which are the closest together. Each of the
parties hereto shall pay for the services of its respective appointee and
shall equally split the cost of the third. The fair market value opinions
of the brokers shall be conclusive and binding on the parties. The maximum
lease rate at the start of the initial renewal period shall be "capped" at
$ 1.90 per square foot with $.05 per square foot per month annual
increases.
22. SIGNAGE: Landlord shall grant Lessee the right to place two (2) signs on
the building. The locations of the signs are to be discussed. The signage
shall conform to all City of Roseville signage criteria and shall be
subject to Landlord's review and approval. The cost of the signs,
installation, maintenance and removal shall be at Tenant's sole cost. The
interior directory signage shall be paid for and installed by Landlord.
Upon expiration of Lease or vacation of premises, Lessee shall return
building back to its original condition that it was prior to the
installment of the sign.
Additionally, Lessee shall have the right to install a monument with
Lessee's signage in accordance with the City of Roseville's signage
criteria and subject to Landlord's review and approval.
23. KEYS: Lessor shall provide Lessee with one key per lock. Lessee shall be
entitled to have additional keys made with Lessor's approval.
24. BROKERAGE FEE: Landlord shall pay a brokerage fee equal to five percent
(5%) of the total rental consideration over the initial Lease term to be
paid to TRI Commercial (Xxxxx Xxxxxx-Listing and Xxxx Xxxxxx-Procuring).
The first half of the commission shall be paid upon the execution of the
Lease, and the second half upon commencement of rent.
95
This Agreement has been prepared for submission to your attorney for his
approval. No representation or recommendation is made by the real estate
Broker(s) or their agents or employees as to the legal sufficiency, legal
effect, or tax consequences of this Agreement or the transaction involved
herein.
AGREED TO AND ACCEPTED
Eureka Corporate Plaza Ltd., P.P. Feather River State
0000 Xxxxxx Xxxx, Xxxxx 000 0000 Xxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000 Xxxx Xxxx, XX 00000
By: Xxxxxx X. Xxxxxxxx, General Partner By: Xxxxx Xxxxxxx
Dated: 7/31/00 Dated: 7/28/00
EXHIBIT "A"
(Site Plan - not include in this document)
EXHIBIT "B"
(Floor Plan - not include in this document)
EXHIBIT "C"
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the
outside or inside of the Building or the Premises without the written
consent of Lessor first hand and obtained and Lessor shall have the right
to remove any such sign, placard, picture, advertisement, name or notice
without notice to and at the expense of Lessee. Lessee shall not place
anything or allow anything to be placed near the glass of any window,
door, partition or wall which may appear unsightly from outside "the
Premises"; provided, however, the Lessor is to furnish and install a
building standard window drapery at all exterior windows.
2. The bulletin board or directory of the Building will be provided
exclusively for the display of the name and location of Lessee only and
Lessor reserves the right to exclude any other names therefrom.
3. The sidewalks, halls, passages, exits, entrances and stairways shall not
be obstructed by any of the tenants or used by them for any purpose other
than for ingress to and egress from their respective Premises. The halls,
passages, exits, entrances, stairways, balconies and roof are not for the
use of the general public, and the Lessor shall in all cases retain the
right to control and prevent access thereto by all persons whose presence
in the judgment of the Lessor shall be prejudicial to the safety,
character, reputation and interests of the Building and its tenants,
provided that nothing herein contained shall be construed to prevent such
access to persons with whom the Lessee normally deals in the ordinary
course of Lessee's business unless such persons are engaged in illegal
activities. No tenant and no employees or invitees of any tenant shall go
upon the roof of the Building.
4. Lessee still not alter any lock or install any new or additional locks or
any bolts on any door of the Premises without the written consent of
Lessor.
5. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein and
the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Lessee who, or whose
employees or invitees shall have caused it.
6. Lessee shall not overload the floor of the Premises or xxxx, drive nails,
screw or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof. No boring, cutting or stringing
of wires or laying of linoleum or other similar floor coverings shall he
permitted except with the prior written consent of the Lessor and as the
Lessor may direct.
7. No furniture, freight or equipment of any kind shall he brought into the
Building without the consent of Lessor and all moving of the same into or
out of the Building shall be done at such time and in such manner as
Lessor shall designate. Lessor shall have the right to prescribe the
weight, size and position of all safes and other heavy equipment brought
into
96
the building and also the times and manner of moving the same in and out
of the Building. Safes or other heavy objects shall, if considered
necessary by Lessor, stand on wood strips of such thickness as is
necessary to properly distribute the weight. Lessor will not be
responsible for loss of or damage to any such sale or property from any
cause and all damage done to the Building by moving or maintaining any
such safe or other property shall be repaired at the expense of Lessee.
There shall not be used in any space, or in the public halls of the
Building, either by any tenant or others, any hand trucks except those
equipped with rubber tires and side guards.
8. Except with the written consent of Lessor, no person or persons other than
those approved by Lessor shall be permitted to enter the building for the
purpose of cleaning the same. Lessee shall not cause an unnecessary labor
by reason of Lessee's carelessness or indifference in the preservation of
good order and cleanliness. Lessor shall in no way be responsible to any
Lessee for any loss of property on the Premises, however occurring, or for
any damage done to the effects of any Lessee by the janitor or any other
employee or any other person.
9. Lessee shall not use, keep or permit to be used or kept any food or
noxious gas or substance in the Premises, or permit or suffer the Premises
to be occupied or used in a manner offensive or objectionable to the
Lessor or other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having
business therein, nor shall any animals or birds be brought in or kept in
or about the Premises or the Building. No Lessee shall make or permit to
be made any unseemly or disturbing noises or disturb or interfere with
occupants of this or neighboring Buildings or premises or those having
business with them whether by the use of any musical instrument, radio,
phonograph, unusual noise, or in any other way. No Lessee shall throw
anything out of doors or down the passageways.
10. The Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the use of the
Premises for general office purposes. No Lessee shall occupy or permit any
portion of his treatises to be occupied as an office for a public
stenographer or typist, or for the manufacture or sale of liquor, or
tobacco in any form, or as a xxxxxx shop or manicure shop. No Lessee shall
advertise for laborers giving an address at the Premises. The Premises
shall not be used for lodging or sleeping or for any illegal purposes.
11. Lessee shall not use or keep in the Premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by Lessor.
12. Lessor will direct electricians as to where and how telephone and
telegraph wires are to he introduced. No boring or cutting for wires will
he allowed without the consent of Lessor. The location of telephones, call
boxes and other office equipment affixed to the Premises shall be subject
to the approval of Lessor.
13. All keys to offices, rooms and toilet rooms shall be obtained from
Lessor's Office and Lessee shall not from any other source duplicate,
obtain keys or have keys made without Lessor's approval. The Lessee, upon
termination of the tenancy, shall deliver to the Lessor the keys of the
offices, rooms and toilet rooms which shall have been furnished or shall
pay the Lessor the cost of replacing same or changing the lock or locks
opened by such lost key if Lessor deems it necessary to make such change.
14. No Lessee shall lay linoleum, tile, carpet or other similar floor covering
so that the same shall be affixed to the floor of the Premises in any
manner except as approved by the Lessor. The expense of repairing any
damage resulting from a violation of this rule or removal of any floor
covering shall be borne by the Lessee by whom, or by whose contractors,
employees or invitees, the damage shall have been caused.
15. No furniture, packages, supplies, equipment or merchandise will be
received in the Building, except between such hours as shall be designated
by Lessor.
16. On Sundays, legal Holidays and on Saturday commencing at 12:00 noon, and
on other days between the hours of 7:00 P.M. and 7:00 A.M. the following
day, access to the building, or to the halls, corridors, or stairways in
the Building, or to the Premises may be refused unless the person seeking
access is known to the person or employee of the building in charge and
has a pass or is properly identified. The Lessor shall in no case be
liable for damages for any error with regard to the admission to or
exclusion of Building of any person. The Lessor reserves the right to
prevent access to the Building for the safety of the tenants and
protection of property in the Building and the Building. Lessor reserves
the right to close and keep locked all entrance and exit doors of the
Building on Sundays, legal Holidays, and on Saturdays commencing at 12:00
noon, and on other days between the hours of 7:00 P.M. and 7:00 A.M., and
during such further hours as Lessor may deem advisable for the adequate
protection of said Building and the property of its tenants.
97
17. Lessee shall see that the doors of the Premises are closed and securely
locked before leaving the Building and must observe strict care and
caution that all water faucets or water apparatus are entirely shut off
before Lessee or Lessee's employees leave the building, and that all
electricity shall likewise be carefully shut off, so as to prevent waste
or damage, and for any default or carelessness Lessee shall make good all
injuries sustained by other tenants or occupants of the Building.
18. Lessor reserves the right to exclude or expel from the Building any person
who, in the judgment of Lessor, is intoxicated or under the influence of
liquor or drugs, or who shall in any manner do any act in violation of any
of the rules and regulations, of the Building.
19. The requirements of Lessee will be attended to only upon application at
the Office of the Building. Employees of Lessor shall not perform any work
or do anything outside of their regular duties unless under special
instructions from the Lessor, and no employee will admit any person
(Lessee or otherwise) to any office without specific instructions from the
Lessor.
20. No vending machine or machines of any description shall be installed,
maintained, or operated upon the Premises without the written consent of
the Lessor.
21. Lessor shall have the right, exercisable without notice and without
liability to Lessee, to change the name and the street address of the
Building of which the Premises are a part.
22. Lessee agrees that it shall comply with all fire and security regulations
that may be issued from time to time by Lessor and Lessee also shall
provide Lessor with the name of a designated responsible employee to
represent Lessee in all matters pertaining to such fire or security
regulations.
23. Lessor reserves the right by written notice to Lessee, to rescind, alter
or waive any rule or regulation at any time prescribed for the Building
when, in Lessor's judgement, it is necessary, desirable or proper for the
best interest of the Building and its tenants.
24. Lessees shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
25. Without the written consent of Lessor, Lessee shall not use the name of
the Building and shall cooperate to prevent same.
26. Lessor shall furnish heating and air conditioning during the hours of 7:00
A.M. to 7:00 P.M. Monday through Friday and 9:00 A.M. to 1:00 P.M. on
Saturday, except for Holidays (or to common areas only if Lease is
Modified Gross).
27. Lessee shall have the right to park in the Project's parking facilities in
common with other tenants of the Project upon terms and conditions as may
from time to time be established by Lessor or the Project's Ownership
Association. Parking for the Project is available at no cost and is on a
non-exclusive, first-come, first served basis. The Project provides
parking at the ratio of four spaces per thousand usable square feet of
building area. Lessee agrees not to overburden the parking facilities and
agrees to cooperate with Lessor and other Lessees in the use of the
parking facilities. The term "overburden" shall mean any parking facility
use in excess of the ratio provided above. In the event Lessee
consistently overburdens the parking facilities, and is notified of such
by Lessor, and Lessee does not comply with measures to alleviate said
overburdening, Lessee shall be deemed in default of this Lease and shall
be subject to any Lessor remedies provided for in this Lease.
28. Keys shall not be changed without out the Lessor's knowledge and written
approval.
EXHIBIT D
AGREEMENT FOR THE COMPLETION OF PREMISES
TENANT IMPROVEMENTS:
In consideration of Lessee's execution of this Lease, Lessor, at Lessor's sole
cost and expense, shall provide Lessee with building standard improvements in a
turn-key buildout per the office floor plan attached in "Exhibit B".
Lessor and Lessee acknowledge that any change orders to Exhibit "B" shall be at
Lessee's sole cost and expense. The improvements shall be in accordance with the
following specifications:
98
BUILDING STANDARD SPECIFICATIONS
WALLS: Knock down textured and painted with flat wall paint. Selected
from standard colors.
DOORS: Paint grade doors with metal jams (all painted one color),
selected from standard colors. Size is 3080.
HARDWARE. Falcon (B101D) commercial latch sets. All passage except entry
is lock set. Brushed aluminum finish.
CEILING: 2 x 2 5/8 grid white regular the.
BLINDS: Standard color PVC vertical blinds. Selected from standard
colors.
FLOOR COVERING: A. Carpet is to be selected from building standard samples.
Allowance is based on $1 5.00 per square yard installed,
including base.
B. Vinyl is to be selected from building standards.
C. Base is rubber, standard color, selected from building
standards.
LIGHT FIXTURES: A. 2 x 4 "Lithonia" 2 PMGB340 ESB3-34W.
B. Fluorescent down light "Halo" H-274-400 1-F13DTT.
TELEPHONE & DATA: Lessee shall provide its own telephone and data cable and
installation and Lessor shall provide the "ring and (pull)
string" to each mutually agreed upon location.
SECURITY: Should Lessee elect to have a security system, the cost to
supply and install the system shall be borne by Lessee.
Lessor and Lessee acknowledge that any change orders to the above specifications
or to the attached Exhibit "B" shall be at Lessee's sole cost and expense.
Tender of Possession: Possession of the Premises shall be deemed tendered to
Lessee ("Tender of Possession") when (1) the improvements to be provided by
Lessor under this Lease are substantially completed, and (2) full access to the
Premises has been granted to Lessee and keys have been provided to Lessee's
suite and common areas by Lessor, and (3) a punch list of items needing repair
or replacement has been created by Lessor and Lessee. Upon Tender of Possession,
Lessor and Lessee shall evaluate the Premises and create a punch list of items
considered to be defective or not complete. Once items are agreed upon by Lessor
and Lessee, no other items will be added to the list. Damages to the Premises
after move in shall be the responsibility of Lessee. When all items noted
therein are completed, the Premises shall be deemed complete. Items on the punch
list DO NOT constitute the abatement of rent and it is agreed that rent shall
commence on the date shown therein. With respect to matters not reasonably
apparent upon visual inspection, Tenant shall have a period of fifteen (15) days
following Tender of Possession to notify Lessor of any defects and Lessor shall
correct same.
This Agreement has been prepared for submission to your attorney for his
approval. No representation or recommendation is made by the real estate
Broker(s) or their agents or employees as to the legal sufficiency, legal
effect, or tax consequences of this Agreement or the transaction involved
herein.
AGREED TO AND ACCEPTED
Eureka Corporate Plaza Ltd., P.P. Feather River State
0000 Xxxxxx Xxxx, Xxxxx 000 0000 Xxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000 Xxxx Xxxx, XX 00000
By: Xxxxxx X. Xxxxxxxx, General Partner By: Xxxxx Xxxxxxx
Dated: 7/31/00 Dated: 7/28/00
99
