LEASE
THIS LEASE is made as of the 1st day of October 1996, by and between Oakmont
Investments, a California General Partnership ("Landlord"), whose address is
0000 Xxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000, and Northern Empire Bancshares, a
Corporation ("Tenant"), whose address is 000 0xx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx.
This Lease is made with reference to the following facts and objectives:
A. Landlord is the owner of the premises at 0000 Xxxxxxx Xxxxx,
Xxxxx Xxxx, XX 00000, consisting of approximately 4,737 square
feet commercial office space. In addition, Landlord occupies
the premises known as 0000 Xxxxxxx Xxxxx, Xxxxx Xxxx, XX
00000, consisting of approximately 4,493 square feet.
B. Tenant is willing to lease approximately 3,692 square feet of
the space located at 0000 Xxxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxx from Landlord pursuant to the provisions stated in
this Lease for the purposes of operating a bank.
C. Tenant has examined the premises and is fully informed of
their condition.
THE PARTIES HERETO AGREE AS FOLLOWS:
1. Premises. Landlord hereby leases to Tenant and Tenant hereby
hires and takes from Landlord, upon the terms and conditions
herein set forth, 3,692 square feet of the building located at
0000 Xxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx, together with a
proportionate share of the parking and grounds determined on a
square footage basis based upon the total square footage of the
6637 and 0000 Xxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx buildings
("Premises").
2. Term.
A. The term of this Lease shall be ten (10) years and shall
commence on the 1st day of October 1996, and end on the
30th day of September 2006, inclusive.
B. Tenant is given the option to extend the term on all the
provisions contained in this Lease, except for rent, for
two (2) five (5) year periods ("extended terms") following
expiration of the initial term and the first extended term,
by giving notice of exercise of the option ("option
notice") to Landlord at least six (6) months, but not more
than one (1) year before the expiration of the term, or the
first extended term, as the case may be, provided that, if
Tenant is in default on the date of giving the option
notice, the option notice shall be totally ineffective, or
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if Tenant is in default on the date an extended term is to
commence, the extended term shall not commence and this Lease
shall expire at the end of the existing term. The rent for the
extended term or terms shall be the base rent then in effect
for the last year of the prior term increased effective on the
beginning date of the extended term and each year thereafter
during the balance of the extended term or terms to reflect
any annual increases in the cost of living as provided in
Paragraph 4(B) below.
Tenant shall have no other right to extend the term beyond the
two extended terms set forth above.
3. Preparation and Acceptance of Premises.
A. On commencement of the term, the Premises shall be in good
condition.
B. Tenant's taking possession of the Premises on commencement
of the term shall constitute Tenant's acknowledgment that
it has inspected the Premises and that they are in good
condition.
4. Rent.
A. Tenant shall pay to Landlord, as minimum monthly base rent,
without deduction, setoff, prior notice, or demand, the sum of
Four Thousand Eight Hundred Dollars ($4,800.00), in advance on
the first day of each month, commencing on the date the term
commences, and continuing during the term.
All rent shall be paid to Landlord at the address to which
notices to Landlord are given.
B. The minimum monthly base rent provided for in Paragraph 4
(A) shall be subject to adjustment at the commencement of
the second year of the term and each year thereafter,
including the extended term or terms. (the "adjustment
date"), as follows:
The base for computing the adjustment is the Consumer Price
Index for the San Francisco Bay Area, published by the United
States Department of Labor, Bureau of Labor Statistics
("Index"), which is published for the month nearest the date
of commencement of the term ("Beginning Index"). If the index
published nearest the adjustment date ("Extension Index") has
increased over the Beginning Index, the minimum monthly base
rent for the following year shall be set by multiplying the
minimum monthly base rent set forth in Paragraph 4.A., by a
fraction, the numerator of which is the Extension Index and
the denominator of which is the Beginning Index. In no case
shall the minimum
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monthly base rent be less than the minimum monthly base rent
set forth in Paragraph 4.A. On adjustment of the minimum
monthly base rent as provided in this Lease, the parties shall
immediately execute an amendment to the Lease stating the new
minimum monthly base rent.
If the Index is changed so that the base year differs from
that used as of the month immediately preceding the month in
which the term commences, the Index shall be converted in
accordance with the conversion factor published by the United
States Department of Labor, Bureau of Labor Statistics. If the
Index is discontinued or revised during the term, such other
government index or computation with which it is replaced
shall be used in order to obtain substantially the same result
as would be obtained if the Index had not been discontinued or
revised.
C. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent and other sums due hereunder will cause
Landlord 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 Landlord by the terms of any mortgage or
trust deed covering the Premises. Accordingly, if any
installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within
ten (10) days after such amount shall be due, then, without
any requirement for notice to Tenant, Tenant shall pay to
Landlord a late charge equal to Six Percent (6%) of such
overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the
costs Landlord will incur by reason of late payment by
Tenant.
5. Interest on Past-due Obligations. Any amount due to Landlord not
paid when due shall bear interest at the maximum annual interest
rate then allowable by law from the date due.
6. Security Deposit. On execution of this Lease, Tenant shall
deposit with Landlord Five Thousand Five Hundred Thirty- eight
Dollars ($5,538.00) as a security deposit for the performance by
Tenant of the provisions of this Lease. If Tenant is in default,
Landlord can use the security deposit, or any portion of it, to
cure the default or to compensate Landlord for all damage
sustained by Landlord resulting from Tenant's default. Tenant
shall immediately, on demand, pay to Landlord a sum equal to the
portion of the security deposit expended or applied by Landlord
as provided in this paragraph so as to maintain the security
deposit in the sum initially deposited with Landlord. If Tenant
is not in default at the expiration or termination of this
Lease, Landlord shall return the security deposit to Tenant.
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Landlord's obligations with respect to the security deposit are those
of a debtor and not a trustee. Landlord can maintain the security
deposit separate and apart from Landlord's general funds or can
commingle the security deposit with Landlord's general and other funds.
Landlord shall not be required to pay Tenant interest on the security
deposit.
7. Personal Property Taxes. Tenant shall pay before delinquency all taxes,
assessments, license fees, and other charges ("taxes") that are levied
and assessed on Tenant's personal property installed or located in or
on the Premises, and that become payable during the term. On demand by
Landlord, Tenant shall furnish Landlord satisfactory evidence of these
payments.
8. Real Property Taxes.
A. Real Property Taxes. Tenant shall pay all real property
taxes and general and special assessments ("real property
taxes") levied and assessed against the Premises, prorated
to reflect Tenant's proportionate interest in the 6637 and
0000 Xxxxxxx Xxxxx property determined on the basis of the
square footage of the improvements thereon. Each year,
Landlord shall notify Tenant of the real property taxes and
immediately upon receipt of the tax xxxx, shall furnish
Tenant with a copy of the tax xxxx. Tenant shall pay the
real property taxes semi-annually, not later than ten (10)
days before the taxing authority's delinquency date or ten
(10) days after receipt of the tax xxxx, whichever is
later.
If Landlord's lender requires Landlord to impound real
property taxes on a periodic basis during the term, Tenant, on
notice from Landlord indicating this requirement, shall pay a
sum of money toward its liability under this paragraph to
Landlord on a periodic basis in accordance with the lender's
requirements. Landlord shall impound the tax payments received
from Tenant in accordance with the requirements of the lender.
B. New Assessments. If any general or special assessment is
levied and assessed against the Premises, Landlord can
elect to either pay the assessment in full or allow the
assessment to go to bond. If Landlord pays the assessment
in full, Tenant shall pay to Landlord, each time a payment
of real property taxes is made, a sum equal to that which
would have been payable (as both principal and interest)
had Landlord allowed the assessment to go to bond.
C. Proration of Tenant's Tax Liability. Tenant's liability to
pay real property taxes shall be prorated on the basis of
a 365-day year to account for any fractional portion of a
fiscal tax year included in the term at its commencement
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and expiration.
D. Tenant's Right to Contest Real Property Taxes. Tenant, at
its cost, shall have the right, at any time, to seek a
reduction in the assessed valuation of the Premises or to
contest any real property taxes that are to be paid by
Tenant. If Tenant seeks a reduction or contests the real
property taxes, the failure on Tenant's part to pay the
real property taxes shall not constitute a default as long
as Tenant complies with the provisions of this paragraph.
Landlord shall not be required to join in any proceeding or
contest brought by Tenant unless the provisions of any law
require that the proceeding or contest be brought by or in
the name of Landlord or any owner of the Premises. In that
case, Landlord shall join in the proceeding or contest or
permit it to be brought in Landlord's name as long as
Landlord is not required to bear any cost. Tenant, on final
determination of the proceeding or contest shall
immediately pay or discharge any decision or judgment
rendered, together with all costs, charges, interest, and
penalties incidental to the decision or judgment.
If Tenant does not pay the real property taxes, when due, and
Tenant seeks a reduction or contests them as provided in this
paragraph, before the commencement of the proceeding or
contest, Tenant shall furnish to Landlord a surety bond issued
by an insurance company qualified to do business in
California. The amount of the bond shall equal One Hundred
Twenty-Five Percent (125%) of the total amount of real
property taxes in dispute. The bond shall hold Landlord and
the Premises harmless from any damage arising out of the
proceeding or contest and shall insure the payment of any
judgment that may be rendered.
E. Substitute Taxes. Tenant shall not be required to pay any
municipal county, state or federal income or franchise
taxes of Landlord, or any municipal, county, state or
federal estate, succession, inheritance, or transfer taxes
of Landlord. If, at any time during the term, the laws
concerning the methods of real property taxation prevailing
at the commencement of the term are changed so that a tax
or excise on rents or any other such tax, however
described, is levied or assessed against Landlord as a
direct substitution, in whole or in part, for any real
property taxes, Tenant shall pay before delinquency (but
only to the extent that it can be ascertained that there
has been a substitution and that as a result Tenant has
been relieved from the payment of real property taxes it
would otherwise have been obligated to pay) the substitute
tax or excise on rents. Tenant's share of any tax or excise
on rent shall be substantially the same as, and a
substitute for, the payment of such real property taxes as
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provided in this Lease.
9. Use. The Premises are to be used as bank, and for bank related
activities and for no other business or purpose without the
prior written consent of Landlord. No use shall be made or
permitted to be made of the Premises, nor acts done in or about
the Premises, which will in any way conflict with any law,
ordinance, rule or regulation affecting the occupancy or use of
the Premises which has been or is subsequently enacted or
promulgated by any public authority, or which will increase the
existing rate of insurance upon the building, or cause a
cancellation of any insurance policy covering the building or
any part thereof, nor shall Tenant sell, or permit to be kept,
used or sold in or about the Premises, any article which may be
prohibited by the standard form of fire insurance policy. Tenant
shall not commit, or suffer to be committed, any waste upon the
Premises or, any public or private nuisance, or other act or
thing which may disturb the quiet enjoyment of any other tenant
in the building, nor use any apparatus, machinery or device in
or about the Premises which shall cause any substantial noise or
vibration, or which shall substantially increase the amount of
electricity or water, if any, agreed to be furnished or supplied
under this Lease. Tenant further agrees not to connect with
electric wires or water or other pipes any apparatus, machinery
or device without the consent of Landlord.
10. Maintenance and Repairs: Common Expenses. Landlord shall
maintain at its own expense the sidewalk, roof, and structural
aspects of the Premises. Landlord shall be responsible for
administering the maintenance of the parking lot, remaining
exterior grounds, landscaping, and the exterior of the building
such as painting, glass, etc. (other than structural
maintenance) in which the Premises are located, and Tenant shall
pay its proportionate share of all such costs determined on a
square footage basis based on the total square footage of the
6637 and 0000 Xxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx building.
Tenant waives the provisions of Civil Code Sections 1941 and
1942, with respect to Landlord's obligations for tenantability
of the Premises and Tenant's right to make repairs and deduct
the expenses of such repairs from rent. Tenant shall maintain,
at its sole cost, the entire remainder of the Premises in good
condition and repair, ordinary wear and tear excepted. All
maintenance and repair work undertaken by Tenant shall be done
in a workmanlike manner.
11. Alterations. Except as provided in Paragraph 12, Tenant shall not make
any alterations to the Premises without Landlord's prior written
consent. All alterations shall remain on and be surrendered with the
Premises on expiration or termination of the term; provided, however,
that at Landlord's option, Tenant shall, at Tenant's expense, when
surrendering the Premises, restore the same to their original
condition.
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If Tenant makes any alterations to the Premises, as provided in this
paragraph, the alterations shall not be commenced until two (2) days
after Landlord has received notice from Tenant stating the date the
installation of the alterations is to commence, so that Landlord can
post and record an appropriate notice of non- responsibility.
12. Trade Fixtures. Subject to the provisions of Paragraphs 11 and
13 hereof, Tenant may install and maintain its trade fixtures on
the Premises, provided that such fixtures, by reason of the
manner in which they are affixed, do not become an integral part
of the building or Premises. Tenant, if not in default
hereunder, may at any time or from time to time during the term
hereof, or upon the expiration or termination of this Lease,
alter or remove any such trade fixtures so installed by Tenant.
If not so removed by Tenant on or before the expiration or
termination of this Lease, Tenant, upon the request of Landlord
so to do, shall thereupon remove the same. Any damage to the
Premises caused by any such installation, alteration or removal
of such trade fixtures shall be promptly repaired at the expense
of the Tenant.
13. Mechanics' Liens. Tenant shall pay all costs for construction
done by it, or caused to be done by it, on the Premises, as
permitted by this Lease. Tenant shall keep the Premises free
and clear of all mechanics' liens resulting from construction
done by or for Tenant. Tenant shall have the right to contest
the correctness or validity of any such lien if, immediately on
demand by Landlord, Tenant procures and records a lien release
bond issued by a corporation authorized to issue surety bonds in
California in an amount equal to one and one-half (1-1/2) times
the amount of the claim of the lien. The bond shall meet the
requirements of Civil Code Section 3143 and shall provide for
the payment of any sum that the claimant may recover on the
claim (together with costs of suit, if it recovers in the
action).
14. Utilities. Tenant shall make all arrangements for, and pay for all
utilities and services furnished to or use by it, including, without
limitation, gas, electricity, water, and trash collection, and for all
connection charges. Tenant shall share such expenses on a square
footage basis with any other tenants using the building in which the
Premises are located.
15. Indemnity and Hold Harmless. Each party agrees to indemnify and hold
the other harmless against all claims, and the expense of defending
against such claims, for injury or damage to persons or property
occurring in or about the Premises or occurring outside the Premises to
the extent they result from the act, failure to act, negligence or
other fault of a party or its agents, employees or invitees.
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16. Insurance.
A. Tenant, at its cost, shall maintain public liability and
property damage insurance with liability limits of not less
than Five Hundred Thousand Dollars ($500,000.00) per person
and One Million Dollars ($1,000,000.00) per occurrence, and
property damage limits of not less than One Hundred
Thousand Dollars ($100,000.00) per occurrence, with an
aggregate coverage of Two Hundred Thousand Dollars
($200,000.00), insuring against all liability of Tenant and
its authorized representatives arising out of and in
connection with Tenant's use or occupancy of the Premises.
All public liability insurance, and property damage
insurance shall insure performance by Tenant of the
indemnity provisions of Paragraph 16. Both parties shall be
named as additional insureds, and the policy shall contain
cross-liability endorsements.
B. Not more frequently than three (3) years, if, in the
opinion of Landlord's lender or of the insurance broker
retained by Landlord, the amount of public liability and
property damage insurance coverage at that time is not
adequate, Tenant shall increase the insurance coverage as
required by either Landlord's lender or Landlord's
insurance broker, provided such request is reasonable under
the circumstances.
C. Tenant, at its cost, shall maintain on all its personal
property, Tenant's improvements, and alterations, in, on,
or about the Premises, a policy of standard fire and
extended coverage insurance, with vandalism and malicious
mischief endorsements, to the extent of at least Eighty
Percent (80%) of their full replacement value. The proceeds
from any such policy shall be used by Tenant for the
replacement of personal property or the restoration of
Tenant's improvements or alterations.
D. Tenant shall pay its proportionate share (determined on a
square footage basis) of maintenance on the building and other
improvements that are a part of the Premises, a policy of
standard fire and extended coverage insurance with vandalism
and malicious mischief endorsements, to the extent of at least
full replacement value.
The insurance policy shall be issued in the names of Landlord
and Tenant and any other tenants of the building in which the
Premises are located. Tenant shall reimburse Landlord for its
proportionate share of any premiums paid by Landlord for
maintaining the insurance required by this Paragraph.
Reimbursement shall be made by Tenant within ten (10) days
after Tenant receives a copy of the premium notice.
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E. Tenant's obligation to pay the insurance costs, and to
reimburse Landlord for any premiums paid by Landlord, shall
be prorated for any partial year, at the commencement and
expiration or termination of the term.
F. All insurance policies maintained by Tenant, under this
paragraph, shall contain a provision requiring thirty (30)
days' written notice from the insurance company to both
parties and Landlord's lender, before cancellation or
change in the coverage, scope, or amount of any policy.
Each policy, or a certificate of the policy, together with
evidence of payment of premiums, shall be deposited with
the other party at the commencement of the term, and on
renewal of the policy, not less than twenty (20) days
before expiration of the term of the policy.
17. Previous period rent overage amortization payment. On the first
day of each month of the 120 month term of this lease, tenant
shall pay $1500.00 to landlord in consideration of prior
unamortized previous period rent overage amortization. This
payment will remain constant during the 120 month lease term and
is not subject to rent increases during the lease term and this
payment does not extend to lease term extensions for periods
beyond September 30, 2006.
18. Waiver of Subrogation. The parties release each other, and their
respective authorized representatives, from any claims for
damage to any person, or to the Premises and to the fixtures,
personal property, Tenant's improvements and alterations of
either Landlord or Tenant in or on the Premises that are caused
by or result from the risks insured against under any insurance
policies carried by the parties and enforced at the time of any
such damage.
Each party shall cause each insurance policy obtained by it to provide
that the insurance company waives all right of recovery by way of
subrogation against either party in connection with any damage covered
by any policy. Neither party shall be liable to the other for any
damage caused by fire or any of the risks insured against under any
insurance policy required by this Lease. If any insurance policy cannot
be obtained with a waiver of subrogation, or is obtainable only by the
payment of an additional premium charge above that charged by insurance
companies issuing policies without waiver of subrogation, the party
undertaking to obtain the insurance shall notify the other party of
this fact. The other party shall have a period of ten (10) days after
receiving the notice either to place the insurance with a company that
is reasonably satisfactory to the other party and that will carry the
insurance with a waiver of subrogation, or to agree to pay the
additional premium if such policy is obtainable at additional cost. If
the insurance cannot be obtained or the party in whose favor a waiver
of subrogation
9
is desired refuses to pay the additional premium charged, the other
party is relieved of the obligation to obtain a waiver of subrogation
rights with respect to the particular insurance involved.
19. Destruction. If the whole or any part of the Premises shall be
destroyed by fire or other cause, or be so damaged thereby that
they are untenantable and cannot be rendered tenantable within
one hundred twenty (120) days from the date of such destruction
or damage, this Lease may be terminated by Landlord or Tenant by
written notice. Within forty-five (45) days from date of such
destruction or damage, Landlord shall give written notice to
Tenant as to whether or not the Premises will be rendered
tenantable within one hundred twenty (120) days from the date of
such destruction or damage. In case the damage or destruction be
not such as to permit termination of the Lease as above
provided, or neither Landlord nor Tenant elects to terminate the
Lease as above provided, Landlord shall within a reasonable
time, render said Premises tenantable, and a proportionate
reduction shall be made in the rent herein reserved
corresponding to the time during which and to the portion of the
Premises of which Tenant shall be deprived of possession. The
provisions of Subdivision 2 of Section 1932 of the California
Civil Code, and of Subdivision 4 of Section 1933 of that Code,
shall not apply to this Lease, and Tenant waives the benefit of
such provisions.
20. Condemnation. Should the whole or any part of the Premises be
condemned and taken by any competent authority for any public or
quasi-public use or purpose, all awards payable on account of
such condemnation and taking shall be payable to Landlord, and
Tenant hereby waives all interest in or claim to said awards, or
any part thereof. If the whole of the Premises shall be so
condemned and taken, then this Lease shall terminate. If a part
only of the Premises is condemned and taken and the remaining
portion thereof is not suitable for the purposes for which
Tenant has leased said Premises, this Lease shall terminate. If
a part only of the Premises is condemned and taken and the
remaining portion thereof is suitable for the purposes for which
Tenant has leased said Premises, this Lease shall continue
provided it is still feasible to operate Tenant's business, but
the rental shall be reduced in an amount proportionate to the
value of the portion taken as it related to the total value of
the Premises.
21. Assignment and Subletting.
A. Tenant shall not assign, mortgage or pledge this Lease, or any
interest therein, and shall not sublet the Premises or any
part thereof, or any right or privilege appurtenant thereto,
or allow any other person (the agents and servants of Tenant
excepted) to occupy or use the Premises, or any
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portion thereof, without the written consent of Landlord first
had and obtained, which consent Landlord agrees not to
unreasonably withhold. A consent to one assignment, mortgage,
pledge, subletting, occupation or use by any other person
shall not relieve the Tenant from any obligation under this
Lease, and shall not be deemed to be a consent to any
subsequent assignment, mortgage, pledge, subletting,
occupation or use by another person. Any assignment, mortgage,
subletting, occupation or use without such consent shall be
void, and shall, at the option of Landlord, terminate this
Lease.
B. The provisions of this Paragraph 22 shall be binding on any
subtenant or assignee who desires to sub-sublet or sub-
assign their interest, and Landlord's actions with respect
to one assignment, mortgage, pledge, sublease, occupation
or use shall not be deemed to limit the Landlord's options
under this Lease with respect to a subsequent assignment,
mortgage, pledge, sublease, occupation or use. Landlord's
rights under this Paragraph 22 shall prevail over any
inconsistent language in any sublease or assignment to
which the Landlord consents and are reserved by the
Landlord from the grant of the Tenant's leasehold estate.
Nothing herein shall be construed to require the Landlord's
consent to any assignment, mortgage, pledge, subletting,
occupation or use referred to in Paragraph (so long as the
Landlord's consent is not unreasonably withheld). Any
exercise of the Landlord's rights under this Paragraph 22
shall be deemed to be reasonable.
Failure of any subtenant or assignee to make any payments to
Tenant shall not affect the obligation of the Tenant to pay
the lease rent or any other obligation under the Lease owing
to the Landlord. The provisions of any sublease or assignment
cannot be modified, nor may the sublease or assignment be
terminated other than in accordance with its terms, without
the written consent of the Landlord.
22. Insolvency and Receivership. Either the appointment of a receiver to
take possession of all, or substantially all, of the assets of Tenant
or a general assignment by Tenant for the benefit of creditors, or any
action taken or suffered by Tenant under any insolvency or bankruptcy
act, shall constitute a breach of this Lease by Tenant.
23. Default and Re-Entry. In the event of any breach of the terms and
provisions of this Lease by Tenant, or if Tenant's interest herein, or
any part thereof, be assigned or transferred without the written
consent of Landlord, either voluntarily or by operation of law, whether
by judgment, execution, death, receivership or any other means, or if
Tenant vacates or abandons the Premises, which shall be conclusively
presumed if
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Tenant leaves the Premises closed or unoccupied continuously for twenty
(20) days, then in any such event, Landlord, besides other rights or
remedies it may have, shall have the immediate right of re-entry and
may remove all persons and property from the Premises and may store
such property at the cost of and for the account and risk of Tenant.
Should Landlord elect to re-enter as herein provided, or should
Landlord take possession pursuant to legal proceedings or pursuant to
any notice provided for by law, it may either terminate this Lease or,
pursuant to Section 1951.4 of the California Civil Code, and even
though Tenant has breached this Lease and abandoned the Premises,
continue the Lease in effect for so long as the Landlord does not
terminate the Tenant's right to possession, and the Landlord may
enforce all its rights and remedies under the lease, including the
right to recover the rent as it becomes due. If Landlord elects to
continue the Lease in effect, it may re-let the Premises, or any part
thereof, for such term or terms (which may be for a term extending
beyond the term of this Lease) and at such rental or rentals and upon
such other terms and conditions as Landlord, in its sole discretion,
may deem advisable and shall have the right to make alterations and
repairs to the Premises.
Rents received by such Landlord from such re-letting shall be applied:
first, to the payment of any costs and expenses of such re-letting,
including a reasonable attorney's fee and any real estate commission
actually paid, and any costs and expenses of such alterations and
repairs; second, to the payment of any indebtedness, other than rent,
due hereunder from Tenant to Landlord; third, to the payment of rent
due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of future rent or other obligations as
the same may become due and payable hereunder. If the net rent from
such re-letting during any month after first applying the rent received
to such fees, costs, expenses and other indebtedness, is less than that
to be paid during that month by Tenant hereunder, Tenant shall pay any
such deficiency to Landlord, and such deficiency shall be calculated
and paid monthly.
No such re-entry or taking possession of said Premises by Landlord
shall be construed as an election on its part to terminate this Lease
unless a written notice of such intention be given to Tenant or unless
the termination thereof be decreed by a court of competent
jurisdiction. Notwithstanding any such re-letting without termination,
Landlord may, at any time thereafter, elect to terminate this Lease for
such previous breach.
Should Landlord at any time terminate this Lease for any breach, and
thereafter seek relief pursuant to Section 1951.2 of the
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California Civil Code, interest shall be allowed upon unpaid rent for
the purposes of Section 1951.2(b) at Ten Percent (10%) per annum or the
maximum rate permitted by law (as opposed to the legal rate), if
greater. Landlord shall be entitled to recover at the time of an award
of damages for default the worth of the amount by which the unpaid rent
for the balance of the term after the time of award exceeds the amount
of the rental loss that the Tenant proves could reasonably be avoided.
Unless otherwise agreed between the parties, any proof by Tenant under
Subparagraphs (2) or (3) of Subdivision (a) or Subparagraph (1) of
Subdivision (c) of Section 1951.2 of the California Civil Code, or any
successor statutes, as to the amount of rental loss that could be
reasonably avoided, shall be made in the following manner: Landlord and
Tenant shall each select a licensed real estate broker in the business
of renting property of the same type and use as the leased Premises and
in the same geographic vicinity, they shall select a third licensed
real estate broker, and the three so selected shall determine the
amount of the rental loss that could be reasonably avoided for the
balance of the term of this Lease after the time of award. The decision
of the majority of said brokers shall be final and binding upon the
parties hereto.
The foregoing rights and remedies shall be in addition to and
cumulative with any other rights and remedies available to Landlord
under the terms of this Lease or any applicable laws, statutes or
regulations.
24. Waiver. The waiver by Landlord of any breach of any term,
covenant, or condition herein contained shall not be deemed to
be a waiver of such term, covenant or condition or of any
subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of
this Lease, other than the failure of Tenant to pay the
particular rental so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of
such rent.
25. Removal of Property. Whenever Landlord shall remove any property
of Tenant from the Premises and store the same elsewhere for the
account, and at the expense and risk, of Tenant, as provided in
Paragraph 24, hereof, and Tenant shall fail to pay the cost of
storing any such property after it has been stored for a period
of ninety (90) days or more, Landlord may sell any or all such
property at public or private sale, in such manner and at such
times and places as Landlord in its sole discretion, may deem
proper, without notice to or demand upon Tenant, for the payment
of any part of such charges or the removal of any such property,
and shall apply the proceeds of such sale: first, to the cost
and expenses of such sale, including reasonable attorney's fees
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actually incurred; second, to the payment of the cost of or charges for
storing any such property; third, to the payment of any other sums of
money which may then or thereafter be due to Landlord from Tenant under
any of the terms hereof; and fourth, the balance, if any, to Tenant.
26. Waiver of Damages For Re-Entry. Tenant hereby waives all claims
for damages that may be caused by Landlord's re-entering and
taking possession of the Premises or removing and storing the
property of Tenant as herein provided, and will save Landlord
harmless from loss, costs or damages occasioned thereby, and no
such re-entry shall be considered or construed to be a forcible
entry provided Landlord's actions are reasonable under the
circumstances.
27. Attorney's Fees and Costs of Suit. If Tenant or Landlord shall
bring any action for any relief against the other, declaratory
or otherwise, arising out of this Lease, including any suit by
Landlord 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 in such suit, and such attorney's fees 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.
28. Litigation Against Tenant. Should Landlord, without fault on
Landlord's part, be made a party to any litigation instituted by
or against Tenant, or by or against any person holding under or
using the Premises by license of Tenant, or for the foreclosure
of any lien for labor or material furnished to or for Tenant or
any such other person or otherwise arising out of or resulting
from any act or transaction of Tenant or of any such other
person, Tenant covenants to pay to Landlord the amount of any
judgment rendered against Landlord or the Premises or any part
thereof, and all costs and expenses, including all attorney's
fees, incurred by Landlord in or in connection with such
litigation.
29. Subordination.
A. This Lease, at Landlord's option, shall be subordinate to
any ground lease, mortgage, deed of trust, or any other
hypothecation for security now or hereafter placed upon the
Premises and to any and all advances made on the security
thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such
subordination, Tenant's right to quiet possession of the
Premises shall not be disturbed if Tenant is not in default
and so long as Tenant shall pay the rent and observe and
perform all of the provisions of this Lease, unless this
Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have
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this Lease prior to the lien of its mortgage, deed of trust,
or ground lease, and shall give written notice thereof to
Tenant, this Lease shall be deemed prior to such 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 or recording thereof.
B. Tenant agrees to execute any documents required to
effectuate such subordination or to make this Lease prior
to the lien of any mortgage, deed of trust or ground lease,
as the case may be, and failing to do so within ten (10)
days after written demand, does hereby make, constitute and
irrevocably appoint Landlord as Tenant's attorney-in-fact
and in Tenant's name, place and stead, to do so. Tenant
acknowledges that Tenant's failure to deliver documents
referred to above may cause the Landlord serious financial
damage by causing the failure of a financing or sale
transaction. Tenant shall be liable for consequential
damages in the event of such failures.
30. Waiver of Redemption By Tenant, Holding Over. Tenant hereby
waives for Tenant and all those claiming under Tenant, all
rights now or hereafter existing to redeem the leased Premises
after termination of Tenant's right of occupancy by order or
judgment of any court or by any legal process or writ. If Tenant
holds over after the term hereof, with or without the express or
implied consent of Landlord, 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 rental shall be payable in the
amount and at the time specified in Paragraph 4 hereof, and such
month to month tenancy shall be subject to every other term,
covenant and agreement contained herein.
31. Entry and Inspection. Tenant will permit Landlord and its agents
to enter into and upon the Premises at all reasonable times for
the purpose of inspecting the same, or for the purpose of
protecting the interest therein of Landlord or the Owner, or to
post notices of non-responsibility, or to make alterations or
additions to the Premises, including the erection of
scaffolding, props or other mechanical devices, or to provide
any service provided by Landlord to Tenant hereunder, without
any rebate of rent to Tenant for any loss of occupancy or quiet
enjoyment of the Premises, or damage, injury or inconvenience
thereby occasioned, and Tenant will permit Landlord, at any time
within one hundred eighty (180) days prior to the expiration of
this Lease, to bring upon the Premises, for purposes of
inspection or display, prospective tenants thereof.
32. Successors and Assigns. Subject to the provisions hereof
relating to assignment, mortgaging, pledging and subletting,
this Lease is intended to and does bind the heirs, executors,
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administrators, successors and assigns of any and all of the
parties hereto.
33. Time. Time is of the essence of this Lease.
34. Notices. All notices which Landlord or Tenant may be required,
or may desire, to serve on the other may be served, as an
alternative to personal service, by mailing the same, postage
prepaid, addressed to Landlord at 0000 Xxxxxxx Xxxxx, Xxxxx
Xxxx, XX 00000, and to Tenant at the Premises, whether or not
Tenant has departed from, abandoned or vacated the Premises, or
addressed to such other address or addresses as either Landlord
or Tenant may from time to time designate to the other in
writing.
35. Complete Agreement. It is expressly agreed by the parties, as a
material consideration for the execution of this Lease, that
there are, and were, no verbal representation, understandings,
stipulations, agreements or promises pertaining thereto, not
incorporated in writing herein, and it is likewise agreed that
this Lease should not be altered, waived, amended or extended
otherwise than as provided herein, except by writing signed by
both parties.
36. Estoppel Certificate. The Tenant, within ten (10) days of
written notice, shall sign and deliver to the Landlord a
certificate stating the lease/rental agreement is in full force
and its material terms. Failure to deliver a certificate within
the time specified shall be conclusive as to the truth of the
information contained therein.
37. Signs. Tenant may erect only such sign or signs at or upon the Demised
Premises as are approved by Landlord, which approval shall not be
unreasonably withheld, and Tenant shall keep the same in presentable
condition and repair and shall remove the same upon the expiration or
prior termination of the term of this Lease, and repair any damage
caused by such removal.
38. Paragraph Headings. The paragraph headings and numbers appearing
in this Lease are inserted only as a matter of convenience and
in no way define, limit, construe or describe the scope or
intent of such paragraphs of this Lease not in any way affect
this Lease.
39. Recording. Tenant shall not record this Lease without the
written consent of Landlord.
40. Comptroller of the Currency. Notwithstanding any other provisions of
this Lease, in the event that the Comptroller of the Currency appoints,
pursuant to law, a conservator or receiver for Northern Empire
Bancshares, or should Northern Empire Bancshares be required, pursuant
to law, to merge with
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any other banking institution as a result of any insolvency, said
receivership, conservatorship, or merger shall be deemed, without
requiring the consent of Landlord, to effect an assignment of this
Lease to the receiver or conservator or the successor institution, as
the case may be, upon the delivery to Landlord of written notice of
such receivership, conservatorship, or merger, which notice shall
include an undertaking on the part of the receiver, conservator, or
successor institution, as the case may be, to perform all of the terms,
covenants, and conditions on the part of Northern Empire Bancshares to
be performed hereunder.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the day and
year first written above.
"LANDLORD" "TENANT"
OAKMONT INVESTMENTS, a SONOMA NATIONAL BANK, a
California General National Banking Association
Partnership
By______________________ By__________________________
Xxxxxxx X. Xxxxxxxx,Partner Xxxxxxx X. Xxxxxxx,President
