STANDARD FORM
OFFICE LEASE
(BASE YEAR)
LANDLORD: Realty Advisors, Inc., A Delaware Corporation
TENANT: Truckee River Bank, a California Corporation
PROJECT: 1651 Response Road
CITY, STATE: Sacramento, California 95815
DATE: June 15, 1995
STANDARD FORM OFFICE LEASE
(BASE YEAR)
TABLE OF CONTENTS
Page
1. Basic Lease Terms. . . . . . . . . . . . . . 1
2. Premises . . . . . . . . . . . . . . . . . . 2
3. Lease Term . . . . . . . . . . . . . . . . . 4
4. Possession . . . . . . . . . . . . . . . . . 4
5. Rent . . . . . . . . . . . . . . . . . . . . 5
6. Additional Rent. . . . . . . . . . . . . . . 6
7. Prepaid Rent . . . . . . . . . . . . . . . . 7
8. Security Deposit . . . . . . . . . . . . . . 8
9. Use of Premises and Project Facilities . . . 8
10. Surrender of Premises; Holding Over. . . . . 9
11. Signage. . . . . . . . . . . . . . . . . . . 9
12. Personal Property Taxes. . . . . . . . . . .11
13. Parking. . . . . . . . . . . . . . . . . . .11
14. Utilities. . . . . . . . . . . . . . . . .12
15. Maintenance. . . . . . . . . . . . . . . . .12
16. Alterations. . . . . . . . . . . . . . . .12
17. Release and Indemnity. . . . . . . . . . . .13
18. Insurance. . . . . . . . . . . . . . . . . .14
19. Destruction. . . . . . . . . . . . . . . . .15
20. Condemnation . . . . . . . . . . . . . . . .15
21. Assignment or Sublease . . . . . . . . . . .16
22. Default. . . . . . . . . . . . . . . . . . .17
23. Landlord's Remedies. . . . . . . . . . . . .18
24. Default by Landlord. . . . . . . . . . . . .18
25. Entry of Premises and Performance by Tenant.19
26. Subordination. . . . . . . . . . . . . . . .19
27. Notice . . . . . . . . . . . . . . . . . . .20
28. Waiver . . . . . . . . . . . . . . . . . . .20
29. Limitation of Liability. . . . . . . . . . .20
30. Force Majeure. . . . . . . . . . . . . . . .21
31. Professional Fees. . . . . . . . . . . . . .21
32. Examination of Lease . . . . . . . . . . . .21
33. Estoppel Certificate . . . . . . . . . . . .22
34. Rules and Regulations. . . . . . . . . . . .22
35. Project Planning . . . . . . . . . . . . . .22
36. Liens. . . . . . . . . . . . . . . . . . . .22
37. Miscellaneous Provisions . . . . . . . . . .23
EXHIBITS
A. Building Floor Plan Showing Premises . . . . . . . . . . A-1
B. Project Site Plan. . . . . . . . . . . . . . . . . . . . B-1
C. Work Letter Agreement. . . . . . . . . . . . . . . . . . C-1
D. Notice of Lease Term Dates . . . . . . . . . . . . . . . D-1
E. Tenant Estoppel Certificate. . . . . . . . . . . . . . . E-1
F. Rules and Regulations. . . . . . . . . . . . . . . . . . F-1
G. Project Signage Criteria . . . . . . . . . . . . . . . . G-1
H. Standard for Utilities and Services. . . . . . . . . . . H-1
I. Parking Rules and Regulations. . . . . . . . . . . . . . I-1
J. Early Entry Rider. . . . . . . . . . . . . . . . . . . . J-1
STANDARD FORM OFFICE LEASE
(BASE YEAR)
1. BASIC LEASE TERMS.
a. DATE OF LEASE EXECUTION: June 15, 1995
b. TENANT: Truckee River Bank , a California Corporation
Trade Name: N/A
Address (Leased Premises): 1651 Response Road, Sac.,CA
Suite Number : Suite 100 Floor(s): 1st -
c. LANDLORD: Realty Advisors, Inc., a Delaware Corp.
Address (FOR RENT AND NOTICES): 501 "S" Street,
Sacramento, CA 95814
Copy To:
d. TENANT'S PERMITTED USE OF PREMISES: See Ref. #38
e. PREMISES:
Those Certain Premises Defined in PARAGRAPH 2 Below.
f. PREMISES AREA: Approximately 13,504 Rentable Sq. Feet
g. PROJECT AREA: Approximately 47,146 Rentable Sq. Feet
h. PREMISES PERCENT OF PROJECT: 28.64 % on a Rentable Sq. Feet
Basis
i. TERM AND COMMENCEMENT: Term: 120 Lease Months
Commencement Date: July 1, 1995.
Commencement Date: July 1, 1995
Expiration Date: June 30, 2005
j. MONTHLY BASIC RENT: See 1 (2) 1 (2)
Dollars ($ )
k. ANNUAL BASIC RENT:
Dollars ($ )
l. RENT ADJUSTMENT (Initial One):
(1) Cost of Living. If this provision is initialed, the cost of
living provisions of Subparagraph 5(c) apply using the Consumer
Price Index, Urban Wage Earners and Clerical Workers (
), all items, Base 1982 84 (Index).
(2) Step Increase. If this provision is initialed, the step
adjustment provisions of Subparagraph 5(d) apply as follows:
Effective Date of New Base
Rent Increase Monthly Rent
July 1, 1995 $ 0.00
October 1, 1995 $14,900.00
July 1, 1996 $22,957.00
July 1, 1998 $25,388.00
July 1, 2000 $26,063.00
July 1, 2002 $26,738.00
July 1, 2004 $27,414.00
m. BASE YEAR: The twelve month period commencing January 1,
1996, and ending December 31 , 1996.
n. PREPAID RENT (For Last Month of Term): None required
Dollars
($ )
o. TOTAL SECURITY DEPOSIT: $None Required including $_____ non-
refundable cleaning fee.
p. BROKER(S): Bruce Hohenhaus-Colliers Iliff Thorn-Lessee
Doug Barnett, CCIM, SIOR-Colliers Iliff Thorn-Lessor
q. GUARANTOR(S): None Required
r. TENANT IMPROVEMENTS:
All work performed by Landlord to prepare the Premises for
occupancy pursuant to the terms of the Work Letter Agreement
attached hereto as Exhibit C.
s. TENANT IMPROVEMENT ALLOWANCE:
Landlord grants to Tenant a Tenant Improvement Allowance
pursuant to Paragraph 39 of first Addendum.
t. PARKING: See Paragraph 40 of first Addendum.
u. ADDITIONAL SECTIONS:
Additional sections of this Lease, contained in the
"Addendum to the Lease" numbered 38 through _ 49 are
attached hereto and made a part hereof.
v. Riders numbered 1 through are attached hereto and
made a part hereof. If none, so state in the following
space .
w. EXHIBITS:
Exhibits lettered A through J are attached and made a part
hereof. Exhibits C and G have purposely been omitted.
This Paragraph 1 represents a summary of the basic terms of this
Lease. In the event of any inconsistency between the terms
contained in this Paragraph I and any specific provision of this
Lease, the terms of the more specific provision shall prevail.
2. PREMISES.
(a) Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, the Premises contained within the suite
designated in Subparagraph l(b) and outlined on the Floor Plan
attached hereto and marked Exhibit A and incorporated herein by
this reference. The Premises are situated in that certain
building which is located at the address designated in
Subparagraph l(b) (the "Building"), on the parcel or parcels of
real property (the"Site") outlined on the Site Plan attached
hereto as Exhibit B and incorporated herein by this reference
(the Building and the Site together with all other buildings,
parking facilities and any and all other improvements situated
on the Site are herein collectively referred to as the
"Project"). The premises are improved or to be improved with
certain tenant improvements (the Tenant Improvements)
described in the Work Letter Agreement, a copy of which is
attached hereto and marked Exhibit C and incorporated herein by
this reference, said Premises being agreed, for purposes of this
Lease, to have an area of approximately the number of Usable
Square Feet designated in Subparagraph 1 (f) and being situated
on the floors) designated in Subparagraph 1 (b).
(b) The parties agree that the letting and hiring of the
Premises is upon and subject to the terms, covenants and
conditions herein set forth and Tenant covenants as a material
part of the consideration for this Lease to keep and perform
each and all of said terms, covenants and conditions by it to be
kept and performed and that this Lease is made upon the
condition of such performance.
(c) The term "Usable Square Feet" as used in this Lease means
the area of the Premises (or other area being measured) as
determined by measuring the area within the bounds of the inside
surface of the glass or other material in the outer wall of the
Building and the surface facing the Premises of all partitions
separating the Premises from the Building core, adjoining tenant
space and public corridors and other Common Areas of the
Project. No deductions shall be made for space occupied by
structural or functional columns or other projections. For
purposes of establishing the initial Tenant's Percentage, Tenant
Annual Base year Expense Allowance and Annual Basic Rent as show
in Paragraph 1 of this Lease, the number of Usable Square Feet
of the Project is deemed to be as set forth in Subparagraph
1(g).
(d) Tenant shall have the nonexclusive right to use in common with
the Landlord and all persons, firms and corporations conducting
business in the Project and their respective customers, guests,
licensees, invitees, subtenants, employees and agents, subject
to the terms of this Lease, the Rules and Regulations referred
to in Paragraph 34 and all covenants, conditions and
restrictions affecting the Project, the following areas ("Common
Areas") appurtenant to the Premises: (i) the Project's common
entrances, hallways, lobbies, restrooms not located within the
premises of any tenant, elevators, stairways and access ways,
drives and platforms and any passageways and service ways
thereto, and the common pipes, conduits, wires and appurtenant
equipment serving the Premises; and (ii) outside parking areas,
loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, driveways and landscaped areas and similar
areas and facilities within the Project which are for the common
use of the owners, tenants and occupants of buildings within the
Project and their respective employees, customers and invitees.
(e) Landlord reserves the right from time to time without
unreasonable interference with Tenant's use: (i) to install,
use, maintain, repair and replace pipes, ducts, conduits, wires
and appurtenant meters and equipment for service to other parts
of the Building above the ceiling surfaces, below the floor
surfaces, within the walls and in the central core areas, and to
relocate any pipes, ducts, conduits, wires and appurtenant
meters and equipment included in the Premises which are located
in the Premises or located elsewhere outside the Premises, and
to expand the Building;(ii) to make changes to the design of the
Project including changes to the Common Areas, including,
without limitation, changes in the location, size, shape and
number of buildings driveways, entrances, parking space, parking
areas, loading and unloading areas, ingress, egress, direction
of traffic, landscape areas and walkways; (iii) to close
temporarily any of the Common Areas for maintenance purposes so
long as reasonable access to the Premises remains available;
(iv) to designate other land outside the boundaries of the
Building or Project to be a part of the Common Areas; (v) to add
additional buildings or improvements to the Common Areas; (vi)
to use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Building or Project,
or any portion thereof; and (vii) to do and perform such other
acts and make such other changes in, to or with respect to the
Common Areas, the Building or the Project as Landlord may, in
the exercise of sound business judgement, deem to be
appropriate.
3. LEASE TERM.
The term of this Lease shall be for the period designated in
Subparagraph l(i) commencing on the Commencement Date, and
ending on the Expiration Date as set forth in said Subparagraph
l (i), unless the term hereby demised shall be sooner terminated
as herein provided ("Term"). Notwithstanding the foregoing, if
the Commencement Date falls on any other day other than the
first day of a calendar month then the Term of this Lease shall
be measured from the first day of the month following the month
in which the Commencement Date occurs.
4. POSSESSION.
(a) Delivery of Possession. Except as provided in paragraph 39 of
the first Addendum, Landlord agrees to deliver possession of
Premises to Tenant is an "as is" condition in accordance with
the terms of this Lease and attached hereto as Exhibit C.
Notwithstanding the foregoing, Landlord shall not be obligated
to deliver possession of the Premises to Tenant until Landlord
has received from Tenant all of the following: (i) The first
monthly installment of Annual Basic Rent; (ii) executed copies
of policies of insurance or certificates thereof as required
under Paragraph 18 of this Lease; and (iii) copies of all
governmental permits and authorizations required in connection
with Tenant's operation of its business upon the Premises.
Should Tenant desire to enter the Premises early for purposes of
installing trade fixtures and equipment and to commence
construction of any improvements within the Premises which are
to be constructed at Tenant's sole cost and expense, Tenant
shall provide Landlord with no less than seven (7) days prior
notice of such intended early entry and shall execute and
deliver to Landlord concurrently with such notice the Early
Entry Rider attached hereto as Exhibit J.
(b) Late Delivery. Tenant agrees that if Landlord is unable to
deliver possession of the Premises to Tenant on or prior to the
Estimated Commencement Date specified in Subparagraph l(i), this
Lease shall not be void or voidable, nor shall Landlord be
liable to Tenant for any loss or damage resulting therefrom, nor
shall the Expiration Date of the Term be in any way extended,
unless such late delivery shall be due solely to the gross
negligence or willful misconduct of Landlord, in which event, as
Tenant's sole remedy, the Commencement Date and the Expiration
Date of the Term shall be extended one (1) day for each day
Landlord delays in delivering possession of the Premises to
Tenant due solely to Landlord's gross negligence or willful
misconduct.
(c) Condition of Premises. Except as provided in Paragraph 39 of the
First Addendum, Tenant agrees to lease said Premises in an "as
is" condition. Landlord grants no warranties to Tenant
whatsoever as to the condition of said Premises. Tenant shall
be responsible and pay for all repairs, improvements or
remodeling, including any repair work or replacement required by
wear and tear, obsolescence, building code, or other regulations
affecting the use and occupancy of the Premises. Furthermore,
any required and/or desired repairs, improvements and
maintenance within the interior of the Premises shall be at the
sole cost of Tenant and subject to the prior approval of
Landlord. By taking possession of the Premises, Tenant will be
deemed to have accepted the Premises and the Building in their
condition on the date of delivery of possession. Tenant
acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the
Premises, the Building, the Project or any portions thereof or
with respect to the suitability of same for the conduct of
Tenant's business. Without limiting the foregoing, if the
Building is newly constructed or recently renovated, Tenant's
execution of the Notice attached hereto as Exhibit D shall
constitute a specific knowledge and acceptance of the various
start-up inconveniences that may be associated with the use of
the Project and the Common Areas such as certain construction
obstacles including scaffolding, uneven air conditioning
services and other typical conditions incident to recently
constructed or renovated buildings.
5. RENT.
(a) Basic Rent. Tenant agrees to pay Landlord as Annual Basic Rent
for the Premises, in equal monthly installments as designated in
Subparagraph 1.1(2) each in advance on the first day of each and
every calendar month during the Term, except that the first
month's rent shall be paid upon the execution of this Lease. If
the Term of this Lease commences on a day other than the first
day of a calendar month or ends on a day other than the last day
of a calendar month, then the rent for such periods shall be
prorated in the proportion that the number of days this Lease is
in effect during such periods bears to thirty (30), and such
rent shall be paid at the commencement of such period. In
addition to the Annual Basic Rent, Tenant agrees to pay
additional rent as provided in Paragraph 6 and the amount of all
rental adjustments as and when hereinafter provided in this
Lease. The Annual Basic Rent, any additional rent payable
pursuant to the provisions of this Lease, and any rental
adjustments shall be paid to Landlord, without any prior demand
therefore, and without any deduction or offset, whatsoever in
lawful money of the United States of America, which shall be
legal tender at the time of payment, at the address of Landlord
designated in Subparagraph l(c) or to such other person or at
such other place as Landlord may from time to time designate in
writing. Further, all charges to be paid by Tenant hereunder,
including, without limitation, payments for real property taxes,
insurance, repairs and parking, if any, shall be considered
additional rent for the purposes of this Lease, and the word
"rent" in this Lease shall include such additional rent unless
the context specifically or clearly implies that only the Annual
Basic Rent is referenced. Annual Basic Rent shall be adjusted
as provided in Subparagraph l(l).
(b) Late Payment. Tenant acknowledges that late payment by Tenant
to Landlord of any rent or other sums due under this Lease will
cause Landlord to incur costs not contemplated by this Lease,
the exact amount of such costs being extremely difficult and
impracticable to ascertain. Such costs include, without
limitation, processing and accounting charges and late charges
that may be imposed on Landlord by the terms of any encumbrance
or note secured by the Premises. Therefore, if any rent or
other sum due from Tenant is not received within ten (10) days
of the first of each month, Tenant shall pay to Landlord an
additional sum equal to 10% of such overdue payment. Landlord
and Tenant hereby agree that such late charge represents a fair
and reasonable estimate of the costs that Landlord will incur by
reason of any such late payment. Additionally, all such
delinquent rent or other sums, plus this late charge, shall bear
interest at the then maximum lawful rate permitted to be charged
by Landlord. Any payments of any kind returned for insufficient
funds will be subject to an additional charge of $25.00 for
years 1-5, $60 for years 6-10, and thereafter
(c) Cost of living Rent Adjustment. If Subparagraph 1 (1) 1 is
initialed, Annual Basic Rent, including all prior adjustments,
shall be increased (but never decreased) annually effective each
anniversary of the Commencement Date of this Lease or each
anniversary of the first day of the month immediately following
the month in which the Commencement Date occurs if the
Commencement Date occurs other than on the first day of the
month ("Adjustment Date"), in accordance with the percentage
increase, if any, in the Index described in Subparagraph l(l) 1
as published by the United States Department of Labor, Bureau of
Labor Statistics ( "Bureau"). The Index most recently published
prior to the Adjustment Date shall be compared with the Index
for the same month of the preceding year and the Annual Basic
Rent shall be increased in accordance with the percentage
increase, if any, between such Indices. Should the Bureau
discontinue the publication of the Index, or publish the same
less frequently, or alter the same in some other manner,
Landlord, in its discretion, shall adopt a substitute index or
procedure which reasonably reflects and monitors consumer
prices.
(d) Step Increase. If Subparagraph l(l) 2 is initialed, Annual
Basic Rent shall be increased periodically to the amounts and at
the times set forth in Subparagraph l(l) 2.
6. ADDITIONAL RENT.
In addition to Annual Basic Rent, Tenant shall pay to Landlord
additional rent in accordance with the terms of this Paragraph 6.
The purpose of this Paragraph 6 is to ensure that Tenant bears a
share of all Expenses related to the use, maintenance, management,
ownership, repair or replacement, and insurance of the Project which
are in excess of all such Expenses incurred during the Base Year.
Accordingly, during each year of the Lease Term, commencing 1997,
Tenant shall pay to Landlord on a monthly basis additional rent in
accordance with that portion of Tenant's share of Expenses related
to the Project which is in excess of Tenant's share of Expenses
related to the Project established for the Base Year shown in
Subparagraph 1(m) prorated on a monthly basis.
(a) Expenses Defined. The term "Expenses" shall mean all direct
costs and expenses of the ownership, operation, management,
maintenance, repair or replacement, and insurance of the
Project, as determined by standard accounting practices,
calculated assuming the Project is fully occupied, including,
without limitation, the following costs:
1. All supplies, materials, labor, equipment and, utilities
used in or related to the operation and maintenance of the
Project;
2. Except to the extent such costs are for the sole benefit of
another Tenant (i.e. Eviction, special services required by
another Tenant), all maintenance, management, janitorial,
legal, accounting, insurance and service agreement costs
related to the Project, including project management office
rental costs and a management administration fee in an
amount equal to ten percent (10%) of the Expenses;
3. All reasonable and necessary maintenance, replacement and
repair costs relating to the areas within or around the
Project including, without limitation, air conditioning
systems, sidewalks, landscaping, service areas, driveways,
parking areas (including resurfacing and restriping parking
areas), walkways, building exteriors (including painting),
signs and directories, repairing and replacing roof, walls,
etc. These costs may be included either based on actual
expenditures or the use of an accounting reserve based on
past cost experience for the Project or based on Landlord's
projected cost of replacement.
4. Amortization (along with reasonable financing charges) of
capital improvements made to the Project which may be
required by any government authority or which will improve
the operating efficiency of the Project or which are
required to keep the Project in good condition and repair
provided such costs shall be amortized on a straight line
basis together with interest on the unamortized balance of
such costs at the prime rate over a period equal to the
lesser of (i) the useful life of the capital improvements or
(ii) ten years. The annual amortized amount shall be
included in the Project operating expenses.
5. Real Property Taxes including all taxes, assessments
(general and special) and other impositions or charges which
may be taxed, charged, levied, assessed or imposed with
respect to any calendar year or part thereof included within
the term upon all or any portion of or in relation to the
Project or any portion thereof, any leasehold estate in the
Premises or measured by rent from the Premises, including
any increase caused by the transfer, sale or encumbrance of
the Project or any portion thereof. "Real Property Taxes"
shall also include any form of assessment, levy, penalty,
charge or tax (other than estate, inheritance, net income or
franchise taxes) imposed by any authority having a direct or
indirect power to tax or charge, including, without
limitation, any city, county, state, federal or any
improvement or other district, whether such tax is: (1)
determined by the area of the Project or the rent or other
sums payable under this Lease; (2) upon or with respect to
any legal or equitable interest of Landlord in the Project
or any part thereof; (3) upon this transaction or any
document to which Tenant is a party creating a transfer in
any interest in the Project; (4) in lieu of or as a direct
substitute in whole or in part of or in addition to any real
property taxes on the Project; (5) based on any parking
spaces or parking facilities provided in the Project; or (6)
in consideration for services, such as police protection,
fire protection, street, sidewalk and roadway maintenance,
refuse removal or other services that may be provided by any
governmental or quasi-governmental agency from time to time
which were formerly provided without charge or with less
charge to property owners or occupants.
(b) Annual Estimate of Expenses. At the commencement of each
calendar year, Landlord shall estimate Tenant's share of
Expenses for the coming year based on the Premises Percent of
the Project set forth in Subparagraph 1(h). Within ninety (90)
days following the expiration of the Base Year, Landlord shall
endeavor to provide tenant with a written statement setting
forth the actual Expenses for the Project for the Base Year and
Tenant's share thereof based on the Premises Percent of Project
set forth in Subparagraph 1(h).
(c) Monthly Payment of Expenses. If Tenant's portion of said
estimate of Expenses for the forthcoming calendar year is
greater than Tenant's portion of the Expenses established for
the Base Year shown in Subparagraph 1(m), Tenant shall pay to
Landlord, as additional rent, such estimated excess in monthly
installments of one-twelfth (1/12) of such total excess amount
beginning on January 1 of the forthcoming calendar year, and
one-twelfth (1/12) of such total excess amount on the first day
of each succeeding calendar month. As soon as practical
following each calendar year, Landlord shall prepare an
accounting of actual Expenses incurred during the prior calendar
year and such accounting shall reflect Tenant's share of
Expenses. If the additional rent paid by Tenant under this
Subparagraph 6 (c) during the preceding calendar year was less
than the actual amount of Tenant's share of Expenses, Landlord
shall so notify Tenant and Tenant shall pay such amount to
Landlord within 30 days of receipt of such notice. Such amount
shall be deemed to have accrued during the prior calendar year
and shall be due and payable from Tenant even though the Term of
this Lease has expired or this Lease has been terminated prior
to Tenant's receipt of this notice. Tenant shall have ninety
(90) days from receipt of such notice to contest the amount due;
failure to so notify Landlord shall represent final
determination of Tenant's share of Expenses. If Tenant's
payments were greater than the actual amount, then such
overpayment shall be credited by Landlord to all present rent
due under this Lease.
7 PREPAID RENT.
Upon execution of this Lease, Tenant shall pay to Landlord the
Prepaid Rent set forth in Subparagraph 1 (n), and if Tenant is not
in default of any provisions of this Lease, such Prepaid Rent shall
be applied toward the rent due for the last month of the Term.
Landlord's obligations with respect to the Prepaid Rent are those of
a debtor and not of a trustee, and Landlord can commingle the
Prepaid Rent. Landlord shall not be required to pay Tenant interest
on the Prepaid Rent. Landlord shall be entitled to immediately
endorse and cash Tenant's Prepaid Rent; however, such endorsement
and cashing shall not constitute Landlord's acceptance of this
Lease. In the event Landlord does not accept this lease, Landlord
shall return said Prepaid Rent. If Landlord sells the Premises and
deposits with the Purchaser the Prepaid Rent, Landlord shall be
discharged from any further liability with respect to the Prepaid
Rent.
8. SECURITY DEPOSIT
Upon execution of this Lease, Tenant shall deposit the Security
Deposit set forth in Subparagraph l(o) with Landlord, in part as
security for the performance by Tenant of the provisions of this
Lease and in part as a cleaning fee. If Tenant is in default,
regardless if such default is monetary or non-monetary, Landlord can
use the Security Deposit or any portion of it to cure the default or
to compensate Land lord for any damages sustained by Landlord
resulting from Tenant's default. Upon demand Tenant shall
immediately pay to Landlord a sum equal to the portion of the
Security Deposit expended or applied by Landlord to maintain the
Security Deposit initially deposited with Landlord. If Tenant is not
in default at the expiration or termination of this Lease, Landlord
shall return the entire Security Deposit to Tenant, except for 10%
of first month's rent or $125.00 whichever is greater, which
Landlord shall retain as a non-refundable cleaning fee. Landlord's
obligations with respect to the Security Deposit are those of a
debtor and not of a trustee, and Landlord can commingle the Security
Deposit with Landlord's general funds. Landlord shall not be
required to pay Tenant interest on the Security Deposit. Landlord
shall be entitled to immediately endorse and cash Tenant's Security
Deposit; however, such endorsement and cashing shall not constitute
Landlord's acceptance of this Lease. In the event Landlord does not
accept this Lease, Landlord shall return said Security Deposit. If
Landlord sells the Premises and deposits with the Purchaser the then
amount of the Security Deposit, Landlord shall be discharged from
any further liability with respect to the Security Deposit.
9. USE OF PREMISES AND PROJECT FACILITIES.
(a) Tenant's Use of the Premises. Tenant shall use the Premises for
the use or uses set forth in Subparagraph l(d) above, and
Paragraph 38 of the first Addendum and shall not use or permit
the Premises to be used for any other purpose without the prior
written consent of Landlord, which consent Landlord may not
unreasonably withhold. Except as agreed in Paragraph 42 of the
first Addendum, nothing contained herein shall be deemed to give
Tenant any exclusive right to such use in the Project.
Compliance. At Tenant's sole cost and expense, Tenant shall
procure, maintain and hold available for Landlord's inspection,
all governmental licenses and permits required for the proper
and lawful conduct of Tenant's business from the Premises.
Tenant shall maintain the Premises in compliance with all laws,
statutes, zoning restrictions, ordinances or governmental laws,
rules, regulations or requirements of any duly constituted
public authority having jurisdiction over the Premises now or
hereafter in force, the requirements of the Board of Fire
Underwriters or any other similar body now or hereafter
constituted, or of the Certificate of occupancy issued for the
Building. Tenant shall not use or occupy the Premises in
violation of any of the foregoing. Tenant shall, upon written
notice from Landlord, discontinue any use of the Premises which
is declared by any authority having jurisdiction over the
Premises, governmental or otherwise, to be a violation of law or
of said Certificate of Occupancy. Tenant shall comply with all
rules, orders, regulations and requirements of any insurance
authority having jurisdiction over the Project or any present or
future insurer relating to the Premises or the Project. Tenant
shall promptly, upon demand, reimburse Landlord for any
additional premium charged for any existing insurance policy or
endorsement required by reason of Tenant's failure to comply
with the provisions of this Paragraph 9. Tenant shall not do
or permit anything to be done in or about the premises which
will in any manner obstruct or interfere with the rights of
other tenants or occupants of the Project, or injure or annoy
them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the
Premises. Tenant shall comply with all restrictive covenants
and obligations created by private contracts which affect the
use and operation of the Premises, the Common Areas or the
Project including, without limitation, the Rules and Regulations
referred to in Paragraph 34 and attached hereto as Exhibit F.
Tenant shall not commit or suffer to be committed any waste in
or upon the Premises and shall keep the Premises in first class
repair and appearance. Further, Tenant's business machines and
mechanical equipment which cause vibration or noise that may be
transmitted to the Building structure or to any other space in
the Building shall be so installed, maintained and used by the
Tenant as to eliminate or minimize such vibration or noise.
Tenant shall be responsible for all structural engineering
required to determine structural load, as well as the expense
thereof.
(c) Hazardous Materials. Tenant shall not cause or permit any
Hazardous Materials to be brought upon, stored, used, generated,
released into the environment or disposed of it, on, under or
about the Premises, the Building, the Common Areas or any other
portion of the Project by Tenant, its agents, employees,
contractors or invitees, without the prior written consent of
Landlord, which consent Landlord may withhold at its sole and
absolute discretion. Landlord, in its sole and absolute
discretion, may consent to Tenant's generation, storage or use
of Hazardous Materials on or in the Premises provided Tenant
demonstrates to Landlord, in its sole and absolute judgment,
that such Hazardous Materials (in incidental quantities) are
necessary to or required as part of Tenant's business and will
be generated, used, kept, stored and/or disposed of in a manner
that complies with all laws regulating any such Hazardous
Materials and with good business practices, and provided that
Tenant first obtains the written consent of Landlord, and
provided further that Tenant indemnifies Landlord from any and
all liability with respect to such Hazardous Materials as more
particularly described below. Upon the expiration or sooner
termination of this Lease, Tenant covenants to remove from the
Premises, the Building and/or the Project, at its sole coast and
expense, any and all Hazardous Materials, including any
equipment or systems containing Hazardous Materials, which are
brought upon, stored, used, generated or released into the
environment by Tenant, its agents, employees, contractors or
invitees. To the fullest extent permitted by law, Tenant hereby
indemnifies Landlord and agrees to hold Landlord, the Premises,
the Building and the Project free and harmless from and against
any and all claims, judgments, damages, penalties, fines, costs,
liabilities and losses (including, without limitation,
diminution in the value of the Premises, the Building, the
Common Areas or any other portion of the Project, damages for
the loss or restriction of use of rentable or usable space or of
any amenity of the Premises, the Building, the Common Areas or
any other portion of the Project, and sums paid in settlement of
claims, attorneys' fees, consultant fees and expert fees) which
arise during or after the Lease Term directly or indirectly from
the presence of Hazardous Materials on, in or about the
Premises, the Building or any other portion of the Project,
which is caused or permitted by Tenant, its agents, employees,
contractors or invitees. This indemnification by Tenant of
Landlord includes, without limitation, any and all costs
incurred in connection with any investigation of site conditions
or any clean up, remedial, removal or restoration work required
by any federal, state or local governmental agency or political
subdivision because of the presence of such Hazardous Materials
in, on or about the Premises, the Building, the Common Areas or
the soil or ground water on or under the Project or any portion
thereof. Tenant shall promptly notify Landlord of any release of
Hazardous Materials in, on or about the Premises or any other
portion of the Project which Tenant becomes aware of during the
Term of this Lease, whether caused by Tenant or any other
persons or entities. As used in this Lease, the term "Hazardous
Materials" shall mean and include any hazardous or toxic
materials, substances or wastes including (A) those materials
identified in Sections 66680 through 66685 and Sections 66693
through 66740 of Title 22 of the California Administrative Code,
Division 4, Chapter 30 as amended from time to time, (B) those
materials defined in Section 2550 (j) of the California Health
and Safety Code, (C) any materials, substances or wastes which
are toxic, ignitable, corrosive or reactive and which are
regulated by any local governmental authority, any agency of the
State of California or any agency of the United States
Government, (D) asbestos, (E) petroleum and petroleum based
products, (F) urea formaldehyde foam insulation, (G)
polychlorinated biphenyls ("PCBs"), and (H) Freon and other
chlorofluorocarbons.
(d) Survival. The provisions of this Paragraph 9 shall survive
any termination of this Lease.
10. SURRENDER OF PREMISES; HOLDING OVER.
Upon expiration of the Term of this Lease, Tenant shall surrender to
Landlord the Premises and all Tenant Improvements and alterations in
good condition, except for ordinary wear and tear and alterations
Tenant has the right or is obligated to remove under the provisions
of Paragraph 16 herein. Tenant shall remove all personal property
installed by Tenant including, without limitation, decorative
improvements or fixtures and shall perform all restoration made
necessary by the removal of any alterations or Tenant's personal
property before the expiration of the Term. Landlord can elect to
retain or dispose of in any manner Tenant's personal property not
removed from the Premises by Tenant prior to the expiration of the
Term. Tenant waives all claims against Landlord for any damage to
Tenant resulting from Landlord's retention or disposition of
Tenant's personal property. Tenant shall be liable to Landlord for
Landlord's costs for storage, removal or disposal of Tenant's
personal property.
If Tenant, with Landlord's consent, remains in possession of the
Premises after expiration or termination of the Term, or after the
date in any notice given by Landlord to Tenant terminating this
Lease, such possession by Tenant shall be deemed to be a month-to-
month tenancy terminable on written 30-day notice at any time, by
either party. All provisions of this Lease, except those pertaining
to Term and rent, shall apply to the month-to-month tenancy. Tenant
shall pay monthly rent in an amount equal to 150% of Monthly Basic
Rent, subject to increases as provided in Subparagraph 5(c), if
applicable, for the last full calendar month during the regular Term
plus 100% of said last month's estimate of Tenant's share of
Expenses pursuant to Paragraph 6, subject to increase as provided
therein. If Tenant fails to surrender the Premises after
expiration or termination of the Term, Tenant shall indemnify,
defend and hold harmless from all loss or liability, including,
without limitation, any loss or liability resulting from any claim
against Landlord made by any succeeding Tenant founded on or
resulting from Tenant's failure to surrender and losses to Landlord
due to lost opportunities to lease any portion of the Premises to
succeeding tenants, together with, in each case, actual attorney's
fees and costs.
11. SIGNAGE.
Landlord shall designate the location at or adjacent to the Premises
and within the Building lobby, if any, for one or more Tenant
identification sign(s). Tenant shall install and maintain its
identification sign(s) in such designated locations in accordance
with this Paragraph 11. The size, design, color and other physical
aspects of permitted sign(s) shall be subject to: (i) Landlord's
written approval prior to installation, which approval shall not be
unreasonably withheld, (ii) any covenants, conditions or
restrictions encumbering the Premises, and (iii) any applicable
municipal or governmental permits and approvals. The cost of the
sign(s), including the installation, maintenance and removal thereof
shall be at Tenant's sole cost and expense. If Tenant fails to
install or maintain its sign(s), or if Tenant fails to remove same
upon termination of this Lease and repair any damage caused by such
removal including, without limitation, repainting the Building (if
required by Landlord, in Landlord's sole but reasonable judgement),
Landlord may do so at Tenant's expense. Tenant shall reimburse
Landlord for all costs incurred by Landlord to effect such
installation, maintenance or removal, which amount shall be deemed
additional rent, and shall include, without limitation, all sums
disbursed, incurred or deposited by Landlord including Landlord's
costs, expenses and actual attorney's fees with interest thereon at
the maximum interest rate permitted by law from the date of
Landlord's demand until payment. Any sign rights granted to Tenant
under this Lease are personal to Tenant and may not be assigned,
transferred or otherwise conveyed to any assignee or subtenant of
Tenant without Landlord's prior written consent, which consent
Landlord may withhold in its sole and absolute discretion. See
Paragraph 41 of the first Addendum.
12. PERSONAL PROPERTY TAXES.
Tenant shall pay before delinquency all taxes, assessments, license
fees and public charges levied, assessed or imposed upon its
business operations as well as upon all trade fixtures, leasehold
improvements, merchandise and other personal property in or about
the Premises.
13. PARKING.
(a) Unless Tenant is in default hereunder, Tenant shall be entitled
to the number and type of parking spaces indicated in Paragraph
40 of the first Addendum subject to a monthly parking fee for
such spaces with Landlord reserving the right to set and
increase monthly rates for such spaces from time to time during
the Term of this Lease. Tenant shall not use more parking
spaces then said number. If at any time during the Term hereof
Tenant does not choose to pay for the full number of parking
spaces, at Landlord's option, Tenant shall not thereafter have
the right to recommence the use of the spaces not paid for if
Landlord has made commitments for those spaces in the interim.
Such spaces shall be located in those portions of the Common
Areas designated by Landlord for parking. Landlord may assign
any unreserved and unassigned parking spaces and/or make all or
a portion of such spaces reserved, if it determines in its sole
discretion that it is necessary for orderly and efficient
parking. In the event Landlord has not assigned specific spaces
to Tenant, Tenant shall not use any spaces which have been so
specifically assigned by Landlord to other tenants or for such
other uses as visitor parking or which have been designated by
governmental entities with competent jurisdiction as being
restricted to certain uses. Parking within the Common Area
shall be limited to striped parking stalls, and no parking shall
be permitted in any driveways, accessways and/or in any area
which would prohibit or impede the free flow of traffic within
the Common Area.
(b) The use by Tenant, and its employees and invitees, of the
parking facilities of the Project shall be on the terms and
conditions set forth herein, as well as in Exhibit I attached
hereto and by this nondiscriminatory modifications thereof and
additions thereto from time to time put into effect by Landlord.
Landlord shall not be responsible to Tenant for the violation or
non-performance by any other tenant or occupant of the Project
of any of the established parking rules and procedures. Tenant
shall not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, suppliers, shippers,
customers or invitees to be loaded, unloaded or parked in areas
other than those designated by Landlord for such activities.
There shall be no overnight parking of any vehicles of any kind
within the Project. If Tenant permits or allows any of the
prohibited activities described herein or in Exhibit I, then
Landlord shall have the right, without notice, in addition to
other such rights and remedies that it may have, to remove or
tow away the vehicle involved and charge the cost to Tenant,
which cost shall be immediately payable upon demand by Landlord.
(c) Landlord reserves the right at any time to substitute for the
parking spaces allotted to Tenant pursuant to this Lease, if
any, an equivalent number of parking spaces in a parking
structure or subterranean parking facility or in a surface
parking area within a reasonable distance of the Premises.
14. UTILITIES.
Provided Tenant is not in default under this Lease, Landlord agrees
to furnish or cause to be furnished to the Premises the utilities
and services described in the Standards for Utilities and Services
attached hereto as Exhibit H and incorporated herein by this
reference, subject to the conditions and in accordance with the
standards set forth therein. Landlord's failure to furnish any of
such utilities and services when such failure is caused by (i)
accident, breakage or repairs; (ii) strikes, lockouts or other
labor disturbances or labor disputes of any such character; (iii)
governmental regulation, moratorium or other governmental action;
(iv) inability despite the exercise of reasonable diligence to
obtain electricity, water or fuel; or (v) any other cause beyond
Landlord's reasonable control, shall not result in any liability to
Landlord. In addition, Tenant shall not be entitled to any
abatement or reduction of rent, no eviction of Tenant shall result,
and Tenant shall not be relieved from the performance of any
covenant or agreement in this Lease because of any such failure. In
the event of any stoppage or interruption of services or utilities,
Landlord shall diligently attempt to resume such services or
utilities promptly. If Tenant requires or utilizes more water or
electrical power than is considered reasonable or normal by
Landlord, Landlord may, at its option, require Tenant to pay, as
additional rent, the cost, as fairly determined by Landlord,
incurred by such extraordinary usage. in addition, Landlord may
install separate meter(s) for the Premises, at Tenant's sole
expense, and Tenant thereafter shall pay all charges of the utility
providing services. See paragraph 49 of the first Addendum.
15. MAINTENANCE.
By entry hereunder, Tenant accepts the Premises as being in good and
sanitary order, condition and repair. Tenant shall, when and if
needed or whenever requested by Landlord to do so, at Tenant's sole
cost and expense, make all repairs to the interior of the Premises
including the ATM, drive thru, and the area of the building
immediately surrounding the ATM and drive-thru and every part
thereof, including all windows and doors, to keep, maintain and
preserve the Premises in first class condition and repair. Tenant
shall, upon the expiration or sooner termination of the Term hereof,
surrender the Premises to Landlord in the same condition as when
received, ordinary wear and tear excepted. Landlord shall have no
obligation to alter, remodel, improve, repair, decorate or paint the
Premises or any part thereof and the parties hereto affirm that
Landlord has made no representations to Tenant respecting the
condition of the Premises or the Building except as specifically
herein set forth.
Anything contained in this Paragraph 15 to the contrary
notwithstanding, Landlord shall repair and maintain the structural
portions of the Building, including the basic plumbing, heating,
ventilating, air conditioning and electrical systems installed or
furnished by Landlord; provided, however, the cost of all such
maintenance shall be considered "Expenses" for the purposes of
Subparagraph 6(a), unless such maintenance and repairs are caused in
whole or in part by the act, neglect, fault of or omission of any
duty by Tenant, its agents, servants, employees or invitees in which
case Tenant shall pay to Landlord, as additional rent, the
reasonable cost of such maintenance and repairs. Landlord shall not
be liable for any failure to make any such repairs or any
maintenance unless such failure shall persist for an unreasonable
time after written notice of the need of such repairs or maintenance
is given to Landlord by Tenant. Except as provided in Paragraph 19
hereof there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's
business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or
in or to fixtures, appurtenances and equipment therein. Tenant
waives the right to make repairs at Landlord's expense under
Sections 1941 and 1942 of the California Civil Code or any similar
law, statute or ordinance now or hereafter in effect.
16. ALTERATIONS.
Tenant shall not make any alterations to the Premises, or to the
Project, including any changes to the existing landscaping, without
Landlord's prior written consent. If Landlord gives its consent to
such alterations, Landlord may post notices in accordance with the
laws of the state in which the Premises are located. Any
alterations made shall remain on and be surrendered with the
Premises upon expiration of the Term, except that Landlord may,
within 30 days before or 30 days after expiration of the Term, elect
to require Tenant to remove any alterations which Tenant may have
made to the Premises. If Landlord so elects, Tenant shall, at its
own cost, restore the Premises to the condition designated by
Landlord at its election, before the last day of the Term or within
30 days after notice of its election is given, whichever is later.
Should Landlord consent in writing to Tenant's alteration of the
Premises, Tenant shall contract with a contractor approved by
Landlord for the construction of such alterations, shall secure all
appropriate governmental approvals and permits, and shall complete
such alterations with due diligence in compliance with plans and
specifications approved by Landlord, and in compliance with all
applicable laws, statutes and regulations including ADA and Title
24. All such construction shall be performed in a manner which will
not interfere with the quiet enjoyment of other tenants of the
Project. Tenant shall pay all costs for such construction and shall
keep the Premises and the Project free and clear of all mechanics'
liens which may result from construction by Tenant.
17. RELEASE AND INDEMNITY.
Except to the extent such claim for damages or liability is caused
by the gross negligence of the Landlord or its agents or employees,
as material consideration to Landlord, Tenant agrees that Landlord
and its agents and employees shall not be liable to Tenant, its
agents, employees, invitees, licensees and other persons claiming
under Tenant for: (i) any damage to any property entrusted to
employees of the Project, (ii) loss or damage to any property by
theft or otherwise, (iii) consequential damages arising out of any
loss of the use of the Premises or any equipment or facilities
therein; or (iv) any injury or damage to person or property
resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the
Project or from pipes, appliances or plumbing work therein or from
the roof, street, sub-surface or from any other place or resulting
from dampness or any other cause whatsoever. Landlord or its agents
shall not be liable for interference with light or other incorporeal
hereditaments, nor shall Landlord be liable for any latent defects
in the Premises or the Project. Tenant shall give prompt notice to
Landlord in case of fire or accidents in the Premises or in the
Project, and of defects therein or in the fixtures or equipment
located therein.
Except to the extent such claim for damage or liability is caused by
the gross negligence of Landlord or its agents or employees, to the
fullest extent permitted by law, Tenant agrees to indemnify, defend
(with counsel satisfactory to Landlord) and hold harmless Landlord,
its agents, successors in interest with respect to the Building and
their directors, officers, partners, employees, shareholders, agents
and representatives and the directors, officers, partners,
employees, shareholders, agents and representatives of the partners
of Landlord from (i) all claims, actions, liabilities, and
proceedings arising from Tenant's use of the Premises or the conduct
of its business or from any activity, work or thing done, permitted
or suffered by Tenant, its agents, contractors, employees or
invitees, in or about the Premises, the Building, or the Project and
any breach or default in the performance of any obligation to be
performed by Tenant under the terms of this Lease, or arising from
any act, neglect, fault or omission of Tenant, or of its agents,
contractors, employees or invitees, and (ii) any and all costs,
attorneys' fees, expenses and liabilities incurred with respect to
any such claims, actions, liabilities, or proceedings, and in the
event any actions or proceedings shall be brought against Landlord
by reason of any such claims, Tenant, upon notice from Landlord,
shall defend the same at Tenant's expense by counsel approved in
writing by Landlord. Tenant hereby assumes all risk of damage to
property or injury to person in, upon or about the Premises from any
cause whatsoever except that which is caused by the failure of
Landlord to observe any of the terms and conditions of this Lease.
Where such failure has persisted for an unreasonable period of time
after Landlord receives written notice of such, and Tenant hereby
waives all its claims in respect thereof against Landlord. As used
herein, the term "liabilities" shall include all suits, actions,
claims and demands and all expenses (including attorneys' fees and
costs of defense) incurred in or about any such liability and any
action or proceeding brought thereon. If any claim shall be made or
any action or proceeding brought against Landlord on the basis of
any liability described in this Paragraph, Tenant shall, upon notice
from Landlord defend the same at Tenant's expense by counsel
reasonably satisfactory to Landlord. It is understood that payment
shall not be a condition precedent to recovery upon the foregoing
indemnity.
18. INSURANCE.
Tenant, at its cost, shall pay for and keep in full force and
effect:
(a) COMPREHENSIVE GENERAL LIABILITY OR COMMERCIAL GENERAL LIABILITY
insurance with respect to the Premises and the operations on or
on behalf of Tenant, in, on or about the Premises, including,
but not limited to, personal injury, product liability (if
applicable), blanket contractual, owner's protective, broad form
property damage liability, liquor liability (if applicable) and
owned and non-owned automobile liability in an amount not less
than $1,000,000 per occurrence. The insurance policy or
policies shall contain the following provisions (1) severability
of interest, (2) cross liability, (3) an endorsement naming
Landlord, Landlord's Mortgagees and any other parties in
interest designated by Landlord as additional insureds, (4) an
endorsement stating "such insurance as is afforded by this
policy for the benefit of the Landlord and any other additional
insured shall be primary as respects any liability or claims
arising out of the occupancy of the Premises by the Tenant, or
Tenant's operations and any insurance carried by Landlord, or
any other additional insured shall be non-contributory," (5)
with respect to improvements or alterations permitted under this
Lease, contingent liability and builder's risk insurance, (6) an
endorsement allocating to the Premises the full amount of
liability limits required by this Lease, and (7) coverage must
be on an "occurrence basis", "Claims-Made" forms are not
acceptable.
(b) WORKERS COMPENSATION COVERAGE as required by law, together with
Employers Liability coverage with a limit of not less than
$1,000,000.
(c) TENANT'S PROPERTY INSURANCE: Tenant shall at all times during
the Term hereof and at its cost and expense, maintain in effect
policies of insurance covering (1) all Tenant Improvements on
the Premises installed by Tenant, (2) all personal property of
Tenant located in or at the Premises including, but not limited
to, fixtures, furnishing, equipment and furniture, in an amount
not less than their full replacement value, and (3) loss of
income or business interruption insurance. These policies shall
provide protection against any peril included within the
classification "All Risk" including, but not limited to,
insurance against sprinkler leakage, vandalism and malicious
mischief. The proceeds of such insurance shall be used to
repair or replace the tenant improvements and personal property
so insured. Tenant shall, at its cost, maintain rental
abatement insurance assuring that the rental payable hereunder
will be paid to Landlord for a period of not less than twelve
(12) months if rent is to abate under any provision of this
Lease or applicable law. Such coverage shall include a sixty-day
extended period of indemnity endorsement.
All policies of insurance required hereunder shall include a clause
or endorsement denying the insurer of any rights of subrogation
against the other party to the extent rights have been waived by the
insured before the occurrence of injury or loss, if same are
obtainable without unreasonable cost. Landlord and Tenant each
hereby waive any rights of recovery against the other for injury or
loss to such waiving party or to its property or the property of
others under its control, arising from any cause insured against
under any policy of insurance required to be carried by such waiving
party under this Lease. The foregoing waiver shall be effective
whether or not the waiving party shall actually obtain and maintain
the insurance which such waiving party is obligated to obtain and
maintain under this Lease.
All insurance required to be provided by Tenant under this Lease:
(a) shall be issued by insurance companies authorized to do business
in the state in which the Premises are located and holding a General
Policyholders rating of "A" and a Financial Rating of "X" or better,
as set forth in the most recent edition of Best's Insurance Reports;
(b) shall contain an endorsement requiring at least 30 days prior
written notice to Landlord and Landlord's lender, before
cancellation or change in coverage, scope or amount of any policy.
Tenant shall deliver a certificate or copy of such policy together
with evidence of payment of all current premiums to Landlord within
30 days of execution of this Lease and within fifteen (15) days of
expiration of each policy. Tenant's failure to provide evidence of
such coverage to Landlord may, in Landlord's sole discretion,
constitute a default under this Lease.
Landlord shall insure the Building (excluding all property which
tenants of the Building are obligated to insure) against damage with
"All Risk" insurance and public liability insurance, all in such
amounts and with such deductibles as Landlord considers appropriate.
The cost of any insurance required to be maintained by Landlord
hereunder shall be included as part of "Expenses" under Subparagraph
6(a). Notwithstanding any contribution by Tenant to the cost of
insurance premiums as provided herein, Tenant acknowledges that it
has no right to receive any proceeds from any insurance policies
carried by Landlord.
19. DESTRUCTION.
If during the Term of this Lease, any portion of the Premises,
access to the Premises or any part of the Building which is
essential to the use of the Premises is damaged or destroyed and
such damage or destruction can, in Landlord's reasonable estimation,
be repaired within 180 days following such damage or destruction,
this Lease shall remain in full force and effect and Landlord shall
promptly commence to repair and restore the damage or destruction to
substantially the same condition as existed prior to such damage and
shall complete such repair and restoration with due diligence in
compliance with all then existing laws. If (1) such damage or
destruction cannot, in Landlord's reasonable estimation, be repaired
within 180 days following such damage or destruction; or (2) more
than forty percent (40%) of the Building is damaged or destroyed
(regardless of its impact on the Premises); or (3) any mortgagee of
the Building will not allow the application of insurance proceeds
for repair and restoration; or (4) the damage or destruction is not
covered in full by Landlord's insurance required by Paragraph 18, or
(5) the damage or destruction occurs within the last twelve (12)
months of the Term of this Lease or any extension hereof, then
Landlord may, in its sole discretion, terminate this Lease by
delivery of notice to Tenant within 30 days of the date Landlord
learns of the damage.
In the event of repair, reconstruction and restoration by Landlord
as herein provided, the rent payable under this Lease shall be
abated proportionately with the degree to which Tenant's use of the
Premises is impaired during the period of such repair,
reconstruction or restoration; provided that there shall be no
abatement of rent if such damage is the result of Tenant's
negligence or intentional wrongdoing. Tenant shall not be entitled
to any compensation or damages for loss in the use of the whole or
any part of the Premises, damage to Tenant's Personal Property
and/or any inconvenience or annoyance occasioned by such damage,
repair, reconstruction or restoration.
If Landlord is obligated to or elects to repair or restore as herein
provided, Landlord shall be obligated to make repair or restoration
only to those portions of the Building and the Premises which were
originally provided at Landlord's expense, and the repair and
restoration of items not provided at Landlord's expense shall be the
obligation of the Tenant. Tenant agrees to coordinate the
restoration and repair of those items it is required to restore or
repair with Landlord's repair and restoration work in coordination
with a work schedule prepared by Landlord, or Landlord's contractor.
Further, Tenant's work shall be performed in accordance with the
terms, standards and conditions contained in Paragraph 16 above.
The provisions of California Civil Code Section 1932, Subsection 2,
and Section 1933, Subsection 4, and any other similarly enacted
statute or court decision relating to the abatement or termination
of a lease upon destruction of the leased premises, are hereby
waived by Tenant; and the provisions of this Paragraph 19 shall
govern in case of such destruction.
20. CONDEMNATION.
(a) Definitions. The following definitions shall apply: (1)
"Condemnation" means (a) the exercise of any governmental power
of eminent domain, whether by legal proceedings or otherwise by
condemnor and (b) the voluntary sale or transfer by Landlord to
any condemnor either under threat of condemnation or while legal
proceedings for condemnation are proceeding; (2) "Date of
Taking" means the date the condemnor has the right to possession
of the property being condemned; (3) "Award" means all
compensation, sums or anything of value awarded, paid or
received on a total or partial condemnation; and (4) "Condemnor"
means any public or quasi-public authority, or private
corporation or individual, having a power of condemnation.
(b) Obligations to be Governed by Lease. If during the Term of this
Lease there is any taking of all or any part of the Premises or
the Project, the rights and obligations of the parties shall be
determined pursuant to this Lease.
(c) Total or Partial Taking. If the Premises are totally taken by
condemnation, this Lease shall terminate on the date of taking.
If any portion of the Premises is taken by condemnation, this
Lease shall remain in effect, except that Tenant can elect to
terminate this Lease if the remaining portion of the Premises is
rendered unsuitable for Tenant's continued use of the Premises.
If Tenant elects to terminate this Lease, Tenant must exercise
its right to terminate by giving notice to Landlord within 30
days after the nature and extent of the taking have been finally
determined. If Tenant elects to terminate this Lease, Tenant
shall also notify Landlord of the date of termination, which
date shall not be earlier than 30 days nor later than 90 days
after Tenant has notified Landlord of its election to terminate;
except that this Lease shall terminate on the date of taking if
the date of taking falls on a date before the date of
termination as designated by Tenant. If any portion of the
Premises is taken by condemnation and this Lease remains in full
force and effect, on the date of taking the rent shall be
reduced by an amount in the same ratio as the total number of
rentable square feet in the portion of the Premises taken bears
to the total number of rentable square feet in the Premises
immediately before the date of taking. In the case where a
portion of the Premises is taken and the Lease remains in full
force and effect, Landlord shall, at its own cost and expense,
make all alterations or repairs to the Premises so as to make
the portion of the Premises not taken a complete architectural
unit. Such work shall not, however, exceed the scope of work
done by Landlord in originally constructing the Premises. If
any portion of the Building other than the Premises is taken and
in Landlord's reasonable opinion the Building should be restored
in a manner that materially alters the Premises, or if severance
damages from the condemning authority are not available to
Landlord in sufficient amounts to permit such restoration,
Landlord may terminate this Lease upon written notice to Tenant.
Monthly Basic Rent due and payable hereunder shall be
temporarily abated during such restoration period in proportion
to the degree to which there is substantial interference with
Tenant's use of Premises, as reasonably determined by Landlord
and Landlord's architect. Each party hereby waives the
provisions of Section 1265.130 of the California Code of Civil
Procedure and any present or future law allowing either party to
petition the Superior Court to terminate this Lease in the event
of a partial taking of the Building or Premises.
If the Premises are totally or partially taken by condemnation,
Tenant shall not assert any claim against Landlord or the taking
authority for any compensation because of such taking, and
Landlord shall be entitled to receive the entire amount of the
award without any deduction for any estate or interest of
Tenant.
21. ASSIGNMENT OR SUBLEASE.
Tenant shall not assign or encumber its interest in this Lease or
the Premises or sublease all or any part of the Premises or allow
any other person or entity (except Tenant's authorized
representatives, employees, invitees or guests) to occupy or use all
or any part of the Premises without first obtaining Landlord's
written consent which Landlord shall not unreasonably withhold.
Landlord shall be deemed reasonable in withholding its consent if it
determines in its sole discretion that: (i) the financial net worth
of the proposed assignee or sublessee is not equal to or greater
than Tenant's financial net worth as of the date of this Lease as
increased by the increase in the Consumer Price Index, if any,
between the date of this Lease and the date of the assignment or
sublease; (ii) the intended use of the Premises by the proposed
assignee or sublessee is inconsistent, incompatible or competes with
other uses in the Project; @iii) the intended use of the Premises by
the proposed assignee or sublessee will require more than
insignificant alteration of the Premises; (iv) the intended use of
the Premises by the proposed assignee or sublessee will constitute
a violation of this Lease or any governmental law, rule, ordinance
or regulation governing the Premises or would involve the storage,
use or keeping of Hazardous Materials in, on or about the Premises,
the Common Areas or any other portion of the Project; or if (v) the
proposed rent for the proposed assignee or sublessee is less than
the Rent than in effect under the Lease; or (vi) the proposed
assignee or sublessee is a tenant in the Project or has negotiated
to be a tenant in the Project any time in the three (3) month just
preceding Tenant's request for Landlord's consent. Any assignment,
encumbrance or sublease without Landlord's written consent shall be
voidable and at Landlord's election, shall constitute a default.
Landlord's waiver or consent to any assignment or subletting shall
not relieve Tenant or any assignee or sublessee from any obligation
under this Lease whether or not accrued.
If Tenant is a partnership, a withdrawal or change, voluntary,
involuntary or by operation of law of any partner, or the
dissolution of the partnership, shall be deemed a voluntary
assignment. If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or sale or other
transfer of a controlling percentage of the capital stock of Tenant,
or the sale of at lease 25% of the value of the assets of Tenant
shall be deemed a voluntary assignment. The phrase "controlling
percentage" means ownership of and right to vote stock possessing at
least 25% of the total combined voting power of all classes of
Tenant's capital stock issued, outstanding and entitled to vote for
election of directors. The preceding two sentences of this
paragraph shall not apply to corporations the stock of which is
traded through a public exchange. If Landlord shall consent to any
assignment or sublease of this Lease, three-quarters (3/4) of all
sums and other consideration payable to or for the benefit of the
Tenant from its assignees or subtenants in excess of the rent
payable by Tenant to Landlord under this Lease shall be paid to
Landlord, as and when such sums are due and payable. if Tenant
requests Landlord to consent to a proposed assignment or subletting
Tenant shall pay to Landlord, whether or not consent is ultimately
given, $100 or Landlord's reasonable attorneys' fees incurred in
connection with such request, whichever is greater.
No interest of Tenant in this Lease shall be assignable by
involuntary assignment through operation of law (including, without
limitation, the transfer of this Lease by testacy or intestacy).
Each of the following acts shall be considered an involuntary
assignment: (a) If Tenant is or becomes bankrupt or insolvent, makes
an assignment for the benefit of creditors, or institutes
proceedings under the Bankruptcy Act in which Tenant is the
bankrupt; or if Tenant is a partnership or consists of more than one
person or entity, if any partner of the partnership or other person
or entity is or becomes bankrupt or insolvent, or makes an
assignment for the benefit of creditors; or (b) if a writ of
attachment or execution is levied on this Lease; or (c) if any
proceeding or action to which the Tenant is a party, a receiver is
appointed with authority to take possession of the Premises. An
involuntary assignment shall constitute a default by Tenant and
Landlord shall have the right to elect to terminate this Lease, in
which case this Lease shall not be treated as an asset of Tenant.
22. DEFAULT.
The occurrence of any of the following shall constitute a default by
Tenant: (a) A failure to pay rent or any other charge when due; (b)
Abandonment of the Premises (failure to occupy and operate the
Premises for ten consecutive days shall be deemed an abandonment);
(c) The making by Tenant or any guarantor of this Lease
("Guarantor") of any general assignment for the benefit of
creditors; the filing by or against Tenant or any Guarantor of a
petition to have Tenant or such Guarantor adjudged a bankrupt or
petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Tenant
or a Guarantor, the same is dismissed within thirty (30) days); the
appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, or of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this
Lease, or of substantially all of Guarantor's assets, where
possession is not restored to Tenant or such Guarantor, as the case
may be, within thirty (30) days; the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at
the Premises or of Tenant's interest in this Lease where such
seizure is not discharged within (30) days; or if this Lease shall,
by operation of law or otherwise, pass to any person or persons
other than Tenant except as provided in Paragraph 21 herein; (d) The
failure of Tenant to timely comply with the provisions of Paragraph
26 or Paragraph 33 of this Lease regarding, respectively,
Subordination and Estoppel Certificates; or (e) The failure of
Tenant to perform any other provision of this Lease.
23. LANDLORD'S REMEDIES.
Landlord shall have the remedies described in this Paragraph 23 if
Tenant is in default. These remedies are not exclusive; they are
cumulative and in addition to any remedies now or later allowed by
law. The remedies available to Landlord in the event Tenant is in
default are: Landlord may terminate Tenant's right to possession of
the Premises at any time. No act by Landlord other than giving
notice to Tenant shall terminate this Lease. Acts of maintenance,
efforts to relet the Premises, or the appointment of a receiver on
Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to
possession. Upon termination of Tenant's right to possession,
Landlord has the right to recover from Tenant: (1) The worth at the
time of award of any unpaid rent which had been earned at the time
of termination of Tenant's right to possession; (2) The worth at the
time of award of the amount by which the unpaid rent which would
have been earned after the date of termination of Tenant's right of
possession until the time of award exceeds the amount of such rental
loss that Tenant proves could have reasonably been avoided; (3) The
worth at the time of award of the amount by which the unpaid rent
for the balance of the Term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably
avoided; (4) Any other amount, including court, attorney and
collection costs, necessary to compensate Landlord for all detriment
proximately caused by Tenant's default. "The worth", as used for
items (1) and (2) in this Paragraph 23 is to be computed by allowing
interest at the lesser of 12% or the maximum rate an individual is
permitted to charge by law. "The worth" as used for item (3) in
this Paragraph 23 is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San Francisco at the
time of termination plus one percent (1%).
In the event of any default by Tenant, Landlord shall also have the
right, with or without terminating this Lease, to re-enter the
Premises and remove 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 Tenant or disposed
of in a reasonable manner by Landlord. No re-entry or taking
possession of the Premises by Landlord pursuant to this Paragraph 23
shall be construed as an election to terminate this Lease unless a
written notice of such intention is given to Tenant or unless the
termination thereof is decreed by a court of competent jurisdiction.
24. DEFAULT BY LANDLORD.
Landlord shall not be in default hereunder unless Landlord fails to
perform the obligations required of Landlord within a reasonable
time, but in no event later than forty-five (45) days after written
notice by Tenant to Landlord and to the holder of any first mortgage
or deed of trust covering the Premises, in writing specifying
wherein Landlord has failed o perform such obligation; provided,
however, that if the nature of Landlord's obligation is such that
more than forty-five (45) days is required for performance, then
Landlord shall not be in default if Landlord commences performance
within such forty-five (45) day period and thereafter diligently
prosecutes the same to completion. In no event shall Tenant have
the right to terminate this Lease as a result of Landlord's default;
Tenant's remedies shall be limited to any other remedy available at
law or in equity. Nothing herein contained shall be interpreted to
mean that Tenant is excused from paying rent due hereunder as a
result of any default by Landlord during the above notice period.
25. ENTRY OF PREMISES AND PERFORMANCE BY TENANT.
Landlord and its authorized representatives shall have the right to
enter the Premises only during regular business hours for any of the
following purposes: (a) To determine whether the Premises are in
good condition and whether Tenant is complying with its obligations
under this Lease; (b) To do any necessary maintenance and to make
any restoration to the Premises or the Project that Landlord has the
right or obligation to perform; (c) To show the Premises to
prospective brokers, agents, buyers, tenants or persons interested
in an exchange, at any time during the Term; (d) To repair, maintain
or improve the Project and to erect scaffolding and protective
barricades around and about the Premises but not so as to prevent
entry to the Premises and to do any other act or thing necessary for
the safety or preservation of the Premises or the Project; or (e) To
discharge Tenant's obligations hereunder when Tenant has failed to
do so in accordance with the terms of this Lease. Landlord shall
not be liable in any manner for any inconvenience, disturbance, loss
of business, nuisance or other damage arising out of Landlord's
entry onto the Premises as provided in this Paragraph 25. Tenant
shall not be entitled to an abatement or reduction of rent if
Landlord exercises any rights reserved in this Paragraph 25.
Landlord shall reasonably attempt to conduct his activities on the
Premises as provided herein in a manner that will cause the least
inconvenience, annoyance or disturbance to Tenant. Tenant shall not
alter any lock or install a new or additional lock or bolt any door
of the Premises without the prior consent of Landlord. Landlord
shall not retain a key to the premises and shall obtain Tenant's
prior consent for entry other than regular business hours except
emergencies requiring access by Landlord or emergency personnel.
All covenants and agreements to be performed by Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's
sole cost and expense without any abatement of rent. if Tenant shall
fail to pay any sum of money, other than Monthly Basic Rent,
required to be paid by it hereunder or shall fail to perform any
other act on its part to be performed hereunder, and such failure
shall continue for ten (10) days after notice thereof by Landlord
(or such other period as specifically provided herein), Landlord
may, without waiving or releasing Tenant from any obligations of
Tenant, but shall not be obligated to, make any such payment or
perform any such other act on Tenant's part to be made or performed
in this Lease; provided, however, all sums so paid by Landlord and
all necessary incidental costs together with interest thereon at the
lesser of 12% or the maximum rate an individual is permitted to
charge by law, from the date of such payment by Landlord, shall be
payable to Landlord on demand. Tenant covenants to pay any such
sums, and Landlord shall have (in addition to all other rights or
remedies of Landlord) the same rights and remedies in the event of
the nonpayment thereof by Tenant as in the case of default by Tenant
in the payment of rent.
26. SUBORDINATION.
Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, and unless
otherwise elected by Landlord or any mortgagee or any beneficiary of
a Deed of Trust with a lien on the Project this Lease shall be
subject and subordinate at all times to (a) all ground leases or
underlying leases which may now exist or hereafter be executed
affecting the Project, or the land upon which the Project is
situated, or both, and (b) the lien of any mortgage or deed of trust
which may now exist or hereafter be executed in any amount for which
the Project, ground leases or underlying leases, or Landlord's
interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Tenant acknowledges that Landlord
shall have the right to subordinate or cause to be subordinated this
Lease to any such ground leases or underlying leases or any such
liens to this Lease. In the event that any ground lease or
underlying lease terminates for any reason or any mortgage or Deed
of Trust is foreclosed or a conveyance in lieu of foreclosure is
made for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the tenant of the successor in
interest to Landlord, at the option of such successor in interest.
Tenant covenants and agrees to execute and deliver, upon demand by
Landlord and in the form requested by Landlord any additional
documents evidencing the priority or subordination of this Lease
with respect to any such ground lease or underlying leases or the
lien of any such mortgage or Deed of Trust.
27. NOTICE.
Any notice, demand, request, consent, approval or communication
desired by either party or required to be given, shall be in writing
and served either personally or sent by prepaid certificate first
class mail, return receipt requested, addressed as set forth in
Subparagraph l(b) and l(c). Either party may change its address by
notification of the other party. Notice shall be deemed to be
communicated 48 hours from the time of mailing, or at the time of
service as provided in this Paragraph 27.
28. WAIVER.
No delay or omission in the exercise of any right or remedy by
Landlord shall impair such right or remedy or be construed as a
waiver. No act or conduct of Landlord, including, without
limitation, acceptance of the keys to the Premises, shall constitute
acceptance of the surrender of the Premises by Tenant before the
expiration of the Term. Only written notice from Landlord to Tenant
shall constitute acceptance of the surrender of the Premises and
accomplish termination of this Lease. Landlord's consent to or
approval of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall
not be a waiver of any other default concerning the same or any
other provision of this Lease.
29. LIMITATION OF LIABILITY.
In consideration of the benefits accruing hereunder, Tenant and all
successors and assigns of Tenant covenant and agree that, in the
event of any actual or alleged failure, breach or default hereunder
by Landlord: (as may be applicable)
(a) The sole and exclusive remedy against Landlord shall be against
Landlord's interest in the Building;
(b) No partner of Landlord shall be sued or named as a party in any
suit or action (except as may be necessary to secure
jurisdiction of the partnership);
(c) No service of process shall be made against any partner of
Landlord (except as may be necessary to secure jurisdiction of
the partnership);
(d) No partner of Landlord shall be required to answer or otherwise
plead to any service of process;
(e) No judgment shall be taken against any partner of Landlord;
(f) Any judgment taken against any partner of Landlord may be
vacated and set aside at any time after the fact;
(g) No writ of execution will ever be levied against the assets of
any partner of Landlord;
(h) The obligations under this Lease do not constitute personal
obligations of the individual partners, directors, officers or
shareholders of Landlord, or the partners, directors, officers
or shareholders of the partners of Landlord, and Tenant shall
not seek recourse against any such partners or entities of
Landlord or any of their personal assets for satisfaction of
any liability in respect to this Lease; and
(i) These covenants and agreements are enforceable both by Landlord
and also by any partner of Landlord.
Tenant agrees that each of the foregoing provisions shall be
applicable to any covenant or agreement either expressly contained
in this Lease or imposed by statue or at common law.
30. FORCE MAJEURE.
Landlord shall have no liability whatsoever to Tenant on account of
(a) the inability or delay of Landlord in fulfilling any of
Landlord's obligations under this Lease by reason of strike, other
labor trouble, governmental controls in connection with a national
or other public emergency, or shortages of fuel, supplies or labor
resulting therefrom or from any other cause, whether similar or
dissimilar to the above, beyond Landlord's reasonable control; or
(b) any failure or defect in the supply, quantity or character of
electricity or water furnished to the Premises, by reason of any
requirement, act or omission of the public utility or others
furnishing the Project with electricity or water, or for any reason,
whether similar or dissimilar to the above, beyond Landlord's
reasonable control. If this Lease specifies a time period for the
performance of an obligation of Landlord, that time period shall be
extended by the period of any delay in Landlord's performance caused
by any of the events of force majeure described above.
31. PROFESSIONAL FEES.
(a) If Landlord should engage any professional including, without
limitation, attorneys, appraisers, accountants or environmental
or other consultants for the purpose of bringing suit for
possession of the Premises, for the recovery of any sum due
under this Lease, or because of the breach of any provisions of
this Lease, or for any other relief against Tenant hereunder,
or in the event of any other litigation between the parties
with respect to this Lease, then all costs and expenses
including, without limitation, actual professional fees such as
appraisers, accountants', attorneys and other consultants'
fees, incurred by the prevailing party therein shall be paid by
the other party, which obligation on the part of the other
party shall be deemed to have accrued on the date of the
commencement of such action and shall be enforceable whether or
not the action is prosecuted to judgement. If Landlord employs
a collection agency to recover delinquent charges, Tenant
agrees to pay all collection agency fees charged to Landlord in
addition to rent, late charges, interest and other sums payable
under this Lease.
(b) Except as set forth in Paragraph 17, if Landlord is named as a
defendant in any suit brought against Tenant in connection with
or arising out of Tenant's occupancy hereunder, Tenant shall
pay to Landlord its costs and expenses incurred in such suit
including, without limitation, its actual professional fees
such as appraisers, accountants' and attorneys' fees.
32. EXAMINATION OF LEASE.
Submission of this instrument for examination or signature by Tenant
shall not create a binding agreement between Landlord and Tenant nor
shall it constitute a reservation or option to lease on the part of
Tenant and this instrument shall not be effective as a lease and
shall not create any obligations on the part of Landlord or Tenant
until this Lease has been validly executed by, and delivered to,
both Landlord and Tenant.
33. ESTOPPEL CERTIFICATE.
(a) Within ten (10) days following any written request which
Landlord may make from time to time, Tenant shall execute and
deliver to Landlord a statement ("Estoppel Certificate"), in a
form substantially similar to the form of Exhibit E attached
hereto or in such other form as Landlord's lender or purchaser
may require, certifying: (i) the date of commencement of this
Lease; (ii) the fact that this Lease is unmodified and in full
force and effect (or, if there have been modifications, stating
the nature and date of such modifications), (iii) the date to
which the rent and other sums payable under this Lease have
been paid; (iv) that there are no current defaults under this
Lease by either Landlord or Tenant except as specified in
Tenant's statement; and (v) such other matters requested by
Landlord. Landlord and Tenant intend that any statement
delivered pursuant to this Paragraph 33 may be relied upon by
any mortgagee, beneficiary, purchaser or prospective purchaser
of the Project or any interest therein.
(b) Tenant's failure to deliver such statement within such time
shall be conclusive upon Tenant (i) that this Lease is in full
force and effect, without modification except as may be
represented by Landlord, (ii) that there are no uncured
defaults on Landlord's performance, and (iii) that not more
than one (1) month's rent has been paid in advance. Tenant's
failure to deliver said statement to Landlord within ten (10)
days of receipt shall constitute a default under this Lease and
Landlord may, at Landlord's option, terminate this lease.
34. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with the "Rules and
Regulations", a copy of which is attached hereto and marked Exhibit
F, and all reasonable and nondiscriminatory modifications thereof
and additions thereto from time to time put into effect by Landlord.
Landlord shall not be responsible to Tenant for the violation or
non-performance by any other tenant or occupant of the Project of
any of said Rules and Regulations.
35. PROJECT PLANNING.
In the event Landlord requires the Premises for use in conjunction
with another suite or for other reasons connected with Project
planning, upon notifying Tenant in writing, Landlord shall have the
right to move Tenant to another space in the Project of which the
Premises forms a part, at Landlord's sole cost and expense, and the
terms of the original Lease shall remain in full force and effect,
save and excepting that a revised Exhibit A shall become part of
this Lease and shall reflect the location of the new space and
Paragraph 1 of this Lease shall be amended to include and state all
correct data as to the new space. However, if the new space does
not meet with Tenant's approval, Tenant shall have the right to
cancel this lease upon giving Landlord thirty (30) days' prior
written notice within ten (10) days of receipt of Landlord's
notification. If Tenant cancels this Lease pursuant to this
Paragraph 35, Tenant shall vacate the Building and the Premises
within thirty (30) days of its delivery to Landlord of the notice of
cancellation.
36. LIENS.
Tenant shall, within ten (10) days after receiving notice of the
filing of any mechanic's lien for material or work claimed to have
been furnished to the Premises on Tenant's behalf or at Tenant's
request, discharge the lien or post a bond equal to the amount of
the disputed claim with a bonding company reasonably satisfactory to
Landlord. if Tenant posts a bond, it shall contest the validity of
the lien with all due diligence. Tenant shall indemnify, defend and
hold Landlord harmless from any and all losses and costs incurred by
Landlord as a result of any such liens attributable to Tenant. If
Tenant does not discharge any lien or post a bond for such lien
within such ten (10) day period, Landlord may discharge such lien at
Tenant's expense and Tenant shall promptly reimburse Landlord for
all costs incurred by Landlord in discharging such lien including,
without limitation, attorney's fees and costs and interest on all
sums expended at the maximum interest rate permitted by law. Tenant
shall provide Landlord with not less than ten (10) days written
notice of its intention to have work performed at or materials
furnished to the Premises so that Landlord may post appropriate
notices of non-responsibility.
37. MISCELLANEOUS PROVISIONS
(a) Time of Essence. Time is of the essence of each provision of
this Lease.
(b) Successors. This Lease shall be binding on and inure to the
benefit of the parties and their successors, except as provided
in Paragraph 21 herein.
(c) Landlord's Consent. Any consent required by Landlord under
this Lease must be granted in writing and may be withheld by
Landlord in its sole and absolute discretion, unless otherwise
expressly provided herein.
(d) Commissions. Each party represents that it has not had
dealings with any real estate broker, finder or other person
with respect to this Lease in any manner, except for the broker
identified in Subparagraph l(p). If Tenant has dealt with any
other person or real estate broker with respect to leasing or
renting space in the Project, Tenant shall be solely
responsible for the payment of any fees due said person or firm
and Tenant shall hold Landlord free and harmless and indemnify
and defend Landlord from any liabilities, damages or claims
with respect thereto, including attorney's fees and costs.
Landlord shall be responsible for the payment of commissions to
the broker identified in l(p).
(e) Landlord's Successors. In the event of a sale or conveyance by
Landlord of the Building on the Project, the same shall operate
to release Landlord from any liability under this Lease, and in
such event Landlord's successor in interest shall be solely
responsible for all obligations of Landlord under this Lease.
(f) Prior Agreement or Amendments. This Lease contains all of the
agreements of the parties hereto with respect to any matter
covered or mentioned in this Lease, and no prior agreement or
understanding pertaining to any such matter shall be effective
for any purpose. No provisions of this Lease may be amended or
added to except by an agreement in writing signed by the
parties hereto or their respective successors-in-interest.
(g) Recording. Tenant shall not record this Lease nor a short form
memorandum thereof without the consent of Landlord. Landlord
may record a short form memorandum of this Lease and Tenant
shall execute and acknowledge such form if requested to do so
by Landlord.
(h) Separability. Any provision of this Lease which shall prove to
be invalid, void or illegal shall in no way affect, impair or
invalidate any other provision hereof, and all other provisions
of this Lease shall remain in full force and effect.
(i) No Partnership or Joint Venture. Nothing in this Lease shall
be deemed to constitute Landlord and Tenant as partners or
joint venturers. It is the express intent of the parties
hereto that their relationship with regard to this Lease and
the Premises be and remain that of lessor and lessee.
(j) Interpretation. This Lease shall be construed and interpreted
in accordance with the laws of the state in which the Premises
are located. This Lease constitutes the entire agreement
between the s with respect to the Premises and the Project,
except for such guarantees or modifications as may be executed
in writing by parties from time to time. When required by the
context of this Lease, the singular shall include the plural
and the masculine shall include the feminine and/or neuter.
"Party" shall mean Landlord or Tenant. If more than one person
or entity constitutes Landlord or Tenant, the obligations
imposed upon that party shall be joint and several as to all
persons or entities comprising such party. The enforceability
invalidity or illegality of any provision shall not render the
other provisions unenforceable, invalid or illegal.
(k) No Light, Air or View Easement. Any diminution or blocking of
light, air or view by any structure which may be erected on
lands adjacent to the Building shall in no way affect this
Lease or impose any liability on Landlord.
(1) Governing Law. This Lease shall be governed by and construed
pursuant to the laws of the State of California.
(m) Mortgagee Protection. In the event of any default on the part
of Landlord, Tenant will give notice by registered or certified
mail to any beneficiary of a deed of trust, mortgagee, or
ground lessor covering the Premises, and shall offer such
beneficiary, mortgagee, or ground lessor, a reasonable
opportunity to cure the default, including time to obtain
possession of Premises by power of sale or a judicial
foreclosure, or in the event of a ground lessor, by appropriate
judicial action, if such should prove necessary to effect a
cure.
This Office Lease is subject to a First Addendum.
IN WITNESS WHEREOF, the parties have executed this Lease as of the
date first above written.
TENANT: LANDLORD:
TRUCKEE RIVER BANK, a REALTY ADVISORS, INC.
California Corporation
By:/s/ Martin Sorensen By: /s/
Title: President/CEO Title:
Date: 6/28/95 Date: 6/29/95
ADDENDUM TO LEASE
Addendum to that Lease dated June 15, 1995, by and between Realty
Advisors, Inc., a Delaware Corporation, as "Landlord" and Truckee
River Bank, a California Corporation, as "Tenant" for the premises
located at 1651 Response Road, Sacramento, California. In the case
of any inconsistencies between this Addendum and the basic lease,
this Addendum shall prevail.
38. USE
Landlord acknowledges and agrees to the acceptability of Tenant's
use of the premises as a retail banking facility and third party
investment services with typical banking floor operations as well as
general and administrative office uses, loan services, bankcard
services, and mortgage loans.
39. TENANT IMPROVEMENT ALLOWANCE - ADA Compliance, No Liens
Landlord will provide Tenant a credit for tenant improvements of
$120,000. Tenant may draw upon this credit by submitting to
Landlord invoices and conditional lien releases from valid licensed
contractors which have been approved by Tenant in writing for the
tenant improvement work which has been completed. Within thirty
(30) days of receipt, Landlord shall remit to Tenant the amount
requested on the invoices. Any unused portion of the allowance
shall be maintained by Landlord as a credit until the entire amount
of the credit has been utilized. This allowance is given in lieu of
any work to be performed by Landlord as the Tenant is taking the
Premises in its "as is" condition. Tenant may select its own
licensed contractor, subject to the Landlord's reasonable approval,
to complete these improvements. All work shall be done in a workman
like manner in accordance to building code, including Title 24 and
ADA, and any permits or fees shall be the responsibility of Tenant.
Tenant shall accept the Premises in an "as is" condition except that
Landlord shall warrant that the HVAC, common area electrical and
plumbing shall be in working order.
40. PARKING
As indicated in Exhibit B, Landlord shall provide six parking spaces
for the exclusive use of Truckee River Bank for visitor parking.
Tenant has the sole responsibility to regulate use of its visitor
parking spaces, but no vehicles shall be towed from such spaces
without prior notice to Landlord. Additionally, Tenant shall have
12 secured underground parking stalls. The rent for the secured
underground parking stalls shall be $45.00 per stall per month in
the first year of this Lease. Tenant is entitled to a total of 54
total parking spaces comprised of 12 secured, 6 visitor and 36
unreserved. There will be an additional $10.00, one time charge
for the security entry cards for each secured stall. Replacement
cards shall cost $10.00 each.
41. SIGNAGE
Subject to all necessary government approvals, Tenant shall have the
right to install and maintain one sign on the building's upper most
exterior surface, with the location of the sign to be selected by
Tenant prior to July 31, 1995. The sign shall consist of the
Tenant's name with the size, placement, color and style of lettering
to be approved in advance by both parties. The size of the sign
shall not be larger than 1/2 of the total amount of square footage
allocated for the building Signage. Tenant shall also be entitled
to utilize the existing monument sign with the location, lettering
and size of this sign shall also be approved by both parties. After
the second building sign is approved by the City of Sacramento,
Landlord grants its approval to Tenant to submit an application for
a variance to install a sign on the facia directly over the covered
drive-thru area. If however, the City of Sacramento grants
approval of this sign subject to the elimination of any other
building identification, the Landlord shall not allow this sign to
be placed on the building. Tenant shall obtain at its own cost any
necessary governmental approvals or special permits for these signs;
however, Landlord shall cooperate with Tenant's efforts in that
regard. All costs of obtaining approval, installation and
maintenance of the signs including electricity shall be paid by
Tenant. If a sign is removed, Tenant is responsible for having the
building surface restored to its original condition, ordinary wear
and tear excepted. If a sign falls into disrepair, Tenant shall
have thirty (30) days to effect repairs following Landlord's notice
to Tenant to do so. If repairs are not completed within such
period, Landlord has a right to have repairs made and charge Tenant
for the same. Subject to Landlord's approval, Tenant shall be
allowed a temporary sign until such time a permanent sign is
installed for a period not to exceed six months.
42. RESTRICTION ON OTHER BANKS AND SIGNS
So long as this lease remains in effect and Tenant is not in default
hereunder, Landlord agrees that it will not lease any other space in
the building for use as a retail bank doing full service banking
business with the public. This restriction shall not apply to any
bank not offering full service banking to the public at this
location. Additionally, Landlord agrees it shall not allow any
other bank tenant in the Project exterior building signage.
43. CONDITIONS TO THE LEASE
Landlord acknowledges that Tenant cannot occupy and operate the
Premises for banking, purposes without the prior approval of the
Federal Deposit Insurance Corporation. Tenant, at its own cost has
applied for and is diligently pursuing the necessary approvals. If
Tenant is unable, prior to June 27, 1995, to obtain regulatory
approvals, Tenant or Landlord may terminate this lease upon written
notice to Tenant or Landlord to be received before 5:00 p.m.,
Tuesday, June 27, 1995. If Tenant has not given written notice to
Owner's agent on or before such time, the condition stated herein is
deemed to have been waived. If Landlord or Tenant does give notice
of termination by the above referenced date, all further rights and
liabilities of both parties hereunder shall terminate as of the date
of the notice. This lease is also contingent upon Buyer closing
escrow to purchase the building, which is anticipated to be June 25,
1995.
44. OPTION TO EXTEND
In the event that Tenant has performed under the terms of this
lease, and provided Tenant has not been in any material default
under the terms of this Lease within the 24 months preceding
Tenant's exercise of this option, the Tenant shall have and are
hereby granted the right and option to renew the term of this Lease
for two additional periods of five (5) years each. If Tenant is in
default with respect to any covenant, condition or term of this
Lease on the date of giving the option notice, the option notice
shall be totally ineffective, or if Tenant is in material default
with respect to any covenant, condition or term of this Lease on the
date the extended term is to commence, the extended term shall not
commence and this Lease shall expire at the end of the initial term.
In order to exercise the five (5) year options, Tenant shall give
Landlord written notice of its intention to exercise said option
between eight (8) months and twelve (12) full calendar months prior
to the expiration date of said Lease or expiration of said first
option period as the case may be. All lease terms and conditions
shall be subject to renegotiation for the renewed period and the
rental shall be in the amount satisfactory to Landlord and in an
amount equal to prevailing market rentals at said time. Within
fifteen (I 5) days of Tenant's notification, Landlord shall provide
Tenant the terms and conditions for the option period. Unless a
fully executed lease or extension thereof including the rental rate
is settled and finalized within sixty (60) days from the date
written notice of intention to exercise is received by the Landlord,
the Lease option shall terminate and become void and the Lease and
all rights thereunder on the part of the Tenant shall expire at the
initial term of the Lease or the first extended term of the Lease as
the case may be. If Landlord has not delivered to Tenant the terms
and conditions within the fifteen (I 5) day period, the
aforementioned sixty (60) day period shall be extended by the equal
number of days after the fifteen (15) days Landlord delivered the
terms and conditions to Tenant.
45. TENANT IDENTIFICATION
Landlord acknowledges that the Tenant may be considering a possible
name change. So long as this name change does not adversely effect
Tenant's balance sheet, Landlord shall grant approval. All costs
involved in this possible name change shall be borne by Tenant. The
foregoing shall apply if Tenant is purchased by another bank.
46. ATM AND DRIVE-THRU
Subject to appropriate governmental approvals, Landlord consents to
the installation and exclusive operation of a automatic teller
machine and a night depository at the exterior of the building, in
the location previously utilized by Sacramento Savings & Loan.
Tenant shall also have exclusive use of the existing drive-thru
facility for banking purposes. Tenant shall be responsible for all
costs of maintenance, repair, improvements or alterations to the
ATM, drive-thru facility and its related areas.
47. DUAL AGENCY
Landlord and Tenant acknowledge that Bruce Hohenhaus of Colliers
Iliff Thorn represents Tenant and Doug Barnett of Colliers Iliff
Thorn represents Landlord. Although the individuals representing
Landlord and Tenant are currently considered independent contractors
and each are representing the needs of their respective client,
California Real Estate Law currently recognizes Colliers Iliff Thorn
as representing both parties in this transaction, commonly known as
Dual Agency. With the execution this lease contract, Landlord and
Tenant acknowledge and accept this Dual Agency.
48. CONFIDENTIALITY
Except as required by law, no party hereto shall disclose to third
parties any of the terms of the lease referenced above or of the
lease in any form fully executed, or of related agreements which may
eventually be consummated, unless such disclosure shall be
specifically consented to by the other parties; provided, however,
that each may disclose on a strictly confidential basis any such
information to its attorney's accountants, lenders loaning on the
leased property, property manager of the leaded property and brokers
engaged to sell the leased property.
49. AFTER HOUR UTILITIES:
It is acknowledged that Tenant will may, from time-to-time, be open
for business on Saturdays from 9:00 a.m. to 3:00 p.m. Landlord
shall provide the utilities as outlined in Paragraph 14 and Exhibit
H, and the additional cost for such utilities shall be $270.00 per
month and shall be increased by 5% annually in addition to the Basic
Rent. Should Tenant discontinue Saturday operations, then Tenant
shall provide written notice and there shall be no further charges.
All other terms and conditions of this lease dated June 15, 1995
shall remain unchanged.
LANDLORD: REALTY ADVISORS, INC. TENANT: TRUCKEE RIVER BANK
a Delaware Corporation A California Corporation
By: /s/ By: /s/ Martin Sorensen
Dated: 6/29/95 Dated: 6/28/95
EXHIBIT A
This Exhibit is a graphic of the floor plan for the first floor of
the Project.
EXHIBIT B
This Exhibit is a graphic of the parking area for the Project.
SAMPLE
Exhibit D
NOTICE OF LEASE TERM DATES
To: ________________________
________________________
________________________
Date: _______________________
Re: Lease dated _____________________, 19___, by and between ______________, a
Landlord, and_______________________________________, a ____________________ ,
Tenant, concerning Suite ___________Located at ______________________________
________________________________________.
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or
confirm as follows:
1. That the Premises have been accepted herewith by the
Tenant as being substantially complete in accordance with
the subject Lease and that there is no deficiency in
construction.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject
Lease the Term of the Lease shall commence as of
________________________for a term of___________________,
ending on _____________________.
3. That in accordance with the subject Lease, rent commenced
to accrue on ____________________.
4. If the Commencement Date of the subject Lease is other
than the first day of the month, the first billing will
contain a pro rata adjustment. Each billing thereafter
shall be for the full amount of the monthly installment as
provided for in said Lease.
5. Rent is due and payable in advance on the first day of
each and every month during the term of said lease. Your
rent checks should be made payable to __________________
at _______________________.
6. Tenant's obligation to pay monthly installments of Annual
Basic Rent will be waived for a period of________________
( ) months beginning on _______________________________
And ending on _________________________ In accordance
with that certain Rent Waiver Agreement executed by
Landlord and Tenant.
7. The number of Rentable Square Feet contained within the
Premises for all purposes of this Lease is ____________
square feet.
8. Tenant's Percentage, based upon the number of Rentable
Square Feet contained within the Premises and the
Building, is _____%.
AGREED AND ACCEPTED
LANDLORD:
______________________________________, a
_______________________________________
By: __________________________________
Print Name: ____________________________
Its: ___________________________________
TENANT:
__________________________________________________,a
__________________________________________________
By: ______________________________________________
Print Name: ____________________________
Its: ___________________________________
By: ______________________________________________
Print Name:______________________________
Its: ____________________________________
SAMPLE
Exhibit E
TENANT ESTOPPEL CERTIFICATE
The undersigned, ____________________________________, a
("Landlord"), with a mailing address c/o ___________________________
___________________________and______________________________________, a
_______________________("Tenant"), hereby certify to ______________________, a
________________________________, as follows:
1. Attached hereto is a true, correct and complete copy of that
certain lease dated ___________, 19__, between Landlord and Tenant
(the "Lease"), which demises premises located ____________________
______________(The "Premises").
The Lease is now in full force and effect and has not been
amended, modified or supplemented, except as set forth in
Paragraph 4 below.
2. The term of the Lease commenced on ____________________
__________, 19___.
3. The Term of the Lease shall expire on ___________________, 19___.
4. The Lease has: (Initial one)
(_______) not been amended, modified, supplemented,
extended, renewed or assigned.
(_______) been amended, modified, supplemented, extended,
renewed or assigned by the following described agreements,
copies of which are attached hereto:
__________________________________________________________
__________________________________________________________
5. Tenant has accepted and is now in possession of the Premises.
6. Tenant and Landlord acknowledge that the Lease will be assigned
to ___________________________________________________________
______________________ And that no modification, adjustment,
revision or cancellation of the Lease or amendments thereto
shall be effective unless written consent of______________________
is obtained, and that until further notice, payments under the Lease
may continue as heretofore.
7. The amount of fixed monthly rent is $________________.
8. The amount of security deposits (if any) is $______________________.
No other security deposits have been made.
9. Tenant is paying the full lease rental which has been paid in
full as of the date hereof. No rent or other charges under the
Lease have been paid for more than thirty (30) days in advance
of its due date.
10. All work required to be performed by Landlord under the Lease
has been completed.
11. There are no defaults on the part of the Landlord or Tenant
under the Lease.
12. Tenant has no defense as to its obligations under the Lease and
claims no set-off or counterclaim against Landlord.
13. Tenant has no right to any concession (rental or otherwise) or
similar compensation in connection with renting the space it
occupies except as provided in the Lease. All provisions of
the Lease and the amendments thereto (if any) referred to above
are hereby ratified.
The foregoing certification is made with the knowledge that _________________
____________________________________is about to fund a loan to Landlord or
is about to purchase the project (or part thereof) from Landlord and that
_______________________________is relying upon the representations herein
made in funding such loan or in purchasing the Project (or part thereof).
IN WITNESS THEREOF, this certificate has been duly executed and
delivered by the authorized officers of the undersigned as of
_______________________, 19___.
TENANT:
____________________________, a
____________________________
By:________________________
Print Name:________________
Its:_______________________
By:_______________________
Print Name:_______________
Its:______________________
Exhibit F
RULES AND REGULATIONS
1. Except as specifically provided in the Lease to which these
Rules and Regulations are attached, no sign, placard, picture,
advertisement, name or notice shall be installed or displayed
on any part of the outside or inside of the Building or Project
without the prior written consent of Landlord, which consent
Landlord may withhold in its sole and absolute discretion.
Landlord shall have the right to remove, at Tenant's expense
and without notice, any sign installed or displayed in
violation of this rule. All approved signs or lettering on
doors and walls shall be printed, painted, affixed or inscribed
at the expense of Tenant by a person approved by Landlord.
2. If Landlord objects In writing to any curtains, blinds, shades,
screens or hanging plants or other similar objects attached to
or used In connection with any window or door of the Premises,
or placed on any windowsill, which is visible from the
exterior of the Premises, Tenant shall immediately discontinue
such use. Tenant shall not place anything against or near
glass partitions or doors or windows which may appear unsightly
from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages,
exits, entrances, stairways, elevators or escalators (if any)
of the Project. The halls, passages, exits, entrances,
shopping malls, elevators, escalators and stairways are not
open to the general public, but are open, subject to reasonable
regulations, to Tenant's business lnvitees. Landlord shall in
all cases retain the right to control and prevent access
thereto of all persons whose presence in the judgment of
Landlord would be prejudicial to the safety, character,
reputation and interest of the Project and its tenants;
provided that nothing herein contained shall be construed to
prevent such access to persons with whom any tenant normally
deals in the ordinary course of its business, unless such
persons are engaged in illegal or unlawful activities. No
tenant and no employee or invitee of any tenant shall go upon
the roof(s) of the Project.
4. The directory of the Building or Project will be provided
exclusively for the display of the name and location of tenants
only and Landlord reserves the right to exclude any other names
therefrom.
5. All cleaning and janitorial services for the Project and the
Premises Shall be provided exclusively through Landlord, and
except with the written consent of Landlord, no person or
persons other than those approved by Landlord shall be employed
by Tenant or permitted to enter the Project for the purpose of
cleaning the same. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and
cleanliness of the Premises.
6. Landlord will furnish Tenant, free of charge, with two keys to
each door locking the Premises. Landlord may make a reasonable
charge for any additional keys. Tenant shall not make or have
made additional keys, and Tenant shall not alter existing locks
or install any new additional locks or bolts on any door of the
Premises. Tenant, upon the termination of its tenancy, shall
deliver to Landlord the keys to all doors which have been
furnished to Tenant, and in the event of any loss of any keys
so furnished, shall pay Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain, and comply with
Landlord's instructions in their Installation.
8. Freight elevator(s), if any, shall be available for use by all
tenants in the Building, subject to such reasonable scheduling
as Landlord, in its discretion, shall deem appropriate. No
equipment, materials, furniture, packages, supplies,
merchandise or other property will be received in the Building
or carried in the elevators except between such hours and in
such elevators as may be designated by Landlord. Tenant's
initial move in and subsequent deliveries of bulky items, such
as furniture, sales and similar items shall, unless otherwise
agreed in writing by Landlord, be made during the hours of 6:00
p.m. to 6:00 a.m. or on Saturday or Sunday. Deliveries during
normal office hours shall be limited to normal office supplies
and other small items. No deliveries shall be made which
impede or interfere with other tenants or the operation of the
Building.
9. Tenant shall not place a load upon any floor of tho Premises
which exceeds the load per square foot which such floor was
designed lo carry and which is allowed by law. Landlord shall
have the right lo prescribe the weight, size and position of
all equipment, materials, furniture or other property brought
into the Building. Heavy objects shall, if considered
necessary by Landlord, stand on such platforms as determined by
Landlord to be necessary to properly distribute the weight,
which platforms shall be provided at Tenant's expense.
Business machines and mechanical equipment belonging to Tenant,
which cause noise or vibration that may be transmitted to the
structure of the building or to any space therein to such a
degree as to be objectionable to Landlord or to any tenants in
the Building, shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devises
sufficient to eliminate noise or vibration. The persons
employed to move such equipment in or out of the Building must
be acceptable to Landlord. Landlord will not be responsible
for loss of, or damage to, any such equipment or other property
from any cause, and all damage done to the Building by
maintaining or moving such equipment or other property shall be
repaired at the expense of Tenant.
10. Tenant shall not use or keep in the Premises any kerosene,
gasoline or inflammable or combustible fluid or material other
than those limited quantities necessary for the operation or
maintenance of office equipment. Tenant shall not use or
permit to be used in the Premises any foul or noxious gas or
substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors or
vibrations, nor shall Tenant bring into or keep in or about the
Premises any birds or animals.
11. Tenant shall not use any method of heating or air conditioning
other than that supplied by Landlord.
12. Tenant shall not waste electricity, water or air conditioning
and agrees to cooperate fully with Landlord to assure the most
effective operation of the Building's heating and air
conditioning and to comply with any governmental energy-saving
rules, laws or regulations of which Tenant has actual notice,
and shall refrain from attempting to adjust controls. Tenant
shall keep corridor doors closed, and shall close window
coverings at the end of each business day.
13. Landlord reserves the right, exercisable without notice and
without liability to Tenant, to change the name and street
address of the Building.
14. Landlord reserves the right to exclude from the Building
between the hours of 6 p.m. and 7 a.m. the following day, or
such other hours as may be established from time to time by
Landlord, and on Sundays and legal holidays, any person unless
that person is known to the person or employee in charge of the
Building or has a pass or is properly identified. Tenant shall
be responsible for all persons for whom it request passes and
shall be liable to Landlord for all acts of such persons.
Landlord shall not be liable for damages for any error with
regard to the admission to or exclusion from the Building of
any person. Landlord reserves the right to prevent access to
the Building in case of invasion, mob, riot, public excitement
or other commotion by closing the doors or by other appropriate
action.
15. Tenant shall close and lock the doors of its Premises and
entirely shut off all water faucets or other water apparatus,
and electricity, gas or air outlets before Tenant and its
employees leave the Premises. Tenant shall be responsible for
any damage or injuries sustained by other tenants or occupants
of the Building or by Landlord for noncompliance with this
rule.
16. Tenant shall not obtain for use on the Premises ice, drinking
water, food, beverage, towel or other similar services or
accept barbering or bootblacking service upon the Premises,
except at such hours and under such regulations as may be fixed
by Landlord.
17. The toilet rooms, toilets, 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. The expense of any
breakage, stoppage or damage resulting from the violation of
this rule shall be borne by the tenant who, or whose employees
or invitees, shall have caused it.
18. Tenant shall not sell, or permit the sale at retail of
newspapers, magazines, periodicals, theater tickets or any
other goods or merchandise to the general public in or on the
Premises. Tenant shall not make any room-to-room solicitation
of business from other tenants in the Project. Tenant shall not
use the Premises for any business or activity other than that
specifically provided for in this Lease.
19. Tenant shall not install any radio or television antenna,
loudspeaker or other devices on the roof(s) or exterior walls
of the Building or Project. Tenant shall not interfere with
radio or television broadcasting or reception from or in the
Project or elsewhere.
20. Tenant shall not mark, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the
Premises or any part thereof, except in accordance with the
provisions of the Lease pertaining to alterations. Landlord
reserves the right to direct electricians as to where and how
telephone and telegraph wires are to be introduced to the
Premises. Tenant shall not cut or bore holes for wires. Tenant
shall not affix any floor covering to the floor of the Premises
in any manner except as approved by Landlord. Tenant shall
repair any damage resulting from noncompliance with this rule.
21. Tenant shall not install, maintain or operate upon the Premises
any vending machines without the written consent of Landlord.
22. Canvassing, soliciting and distribution of handbills or any
other written material, and peddling in the Project are
prohibited, and Tenant shall cooperate to prevent such
activities.
23. Landlord reserves the right to exclude or expel from the
Project any person who, in Landlord's judgment, is intoxicated
or under the influence of liquor or drugs or who is in
violation of any of the Rules and Regulations of the Building.
24. Tenant shall store all its trash and garbage within its
Premises or in other facilities provided by Landlord. Tenant
shall not place in any trash box or receptacle any material
which cannot be disposed of in the ordinary and customary
manner of trash and garbage disposal. All garbage and refuse
disposal shall be made in accordance with directions issued
from time t time by Landlord.
25. The Premises shall not be used for the storage of merchandise
held for sale to the general public, or for lodging or for
manufacturing of any king, nor shall the Premises be used for
any improper, immoral or objectional purpose. No cooking shall
be done or permitted on the Premises without Landlord's
consent, except the use by Tenant of Underwriters' Laboratory
approved equipment for brewing coffee, tea, hot chocolate and
similar beverages shall be permitted, and the use of a
microwave oven for employees use shall be permitted, provided
that such equipment and use is in accordance with all
applicable federal, state, county and city laws, codes,
ordinances, rules and regulations.
26. Tenant shall not use in any space or in the public halls of the
Project any hand truck except those equipped with rubber tires
and side guards or such other material-handling equipment as
Landlord may approve. Tenant shall not bring any other
vehicles of any kind into the Building or Project.
27. Without the written consent to Landlord, Tenant shall not use
the name of the Building or Project in connection with or in
promoting or advertising the business of Tenant except as
Tenant's address.
28. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord
or any governmental agency.
29. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes
keeping doors locked and other means of entry to the Premises
closed.
30. To the extent Landlord reasonably deems it necessary to
exercise exclusive control over any portions of the Common
Areas for the mutual benefit of the tenants in the Project,
Landlord may do so subject to non-discriminatory additional
Rules and Regulations.
31. Tenant's requirements will be attended to only upon appropriate
application to the Project management office by an authorized
individual. Employees of Landlord shall not perform any work
or do anything outside of their regular duties unless under
special instructions from Landlord, and no employee of Landlord
will admit any person (Tenant or otherwise) to any office
without specific instructions from Landlord.
32. Landlord may waive any one or more of these Rules and
Regulations for the benefit of Tenant or any other tenant, but
no such waiver by Landlord shall be construed as a waiver of
such Rules and Regulations in favor of Tenant or any other
tenant, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the
Project.
33. These Rules and Regulations are in addition to, and shall not
be construed to in any way modify or amend, in whole or in
part, the terms, covenants, agreements and conditions of the
Lease.
34. Landlord reserves the right to make such other and reasonable
Rules and Regulations as, in its judgment, may from time to
time be needed for safety and security, for care and
cleanliness of the Project and for the preservation of good
order therein. Upon written notice, Tenant agrees to abide by
all such Rules and Regulations herein above stated and any
additional rules and regulations which are adopted.
35. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients,
customers, invitees and guests.
Exhibit H
STANDARDS FOR UTILITIES AND SERVICES
The following standards for utilities and services are in effect.
Landlord reserves the right to adopt nondiscriminatory modifications
and additions hereto.
As long as Tenant is not in default under any of the terms,
conditions, provisions, or agreements of this Lease, Landlord shall:
1. On Monday through Friday, except holidays, from 8 a.m. to 8
p.m. and on Saturdays from 9 a.m. to 3 p.m. (and other times
for a reasonable additional charge to be fixed by Landlord)
ventilate the Premises and furnish air conditioning or heating
on such days and hours, when in the reasonable judgment of
Landlord. It may be required for the comfortable occupancy of
the Premises. The air conditioning system achieves maximum
cooling when the window coverings are closed. Landlord shall
not be responsible for room temperatures if Tenant does not
keep all window coverings in the Premises closed whenever the
system is in operation. Tenant agrees to cooperate fully at
all times with Landlord, and to abide by all reasonable
regulations and requirements which Landlord may prescribe for
the proper function and protection of said air conditioning
system. Tenant agrees not to connect any apparatus, device,
conduit or pipe to the Building chilled and hot water air
conditioning supply lines. Tenant further agrees that neither
Tenant nor his servants, employees, agents, visitors, licensees
or contractors shall at any time enter mechanical installations
or facilities of the Building or Project or adjust, tamper
with, touch or otherwise in any manner affect said
installations or facilities. The cost of maintenance and
service calls to adjust and regulate the air conditioning
system shall be charged to Tenant if the need for maintenance
work results from either Tenant's adjustment of room
thermostats or Tenant's failure to comply with its obligations
under this Exhibit, including keeping window coverings closed
as needed. Such work shall be charged at hourly rates equal to
then current journeyman's wages for air conditioning mechanics.
2. Furnish to the Premises, during the usual business hours on
business days, electric current as required by the Building
standard office lighting and fractional horsepower office
business machines in an amount not to exceed .025 KWH per
square foot per normal business day. Tenant agrees, should its
electrical installation or electrical consumption be in excess
of the aforesaid quantity or extend beyond normal business
hours, to reimburse Landlord monthly for the measured
consumption at the average cost per kilowatt hour charged to
the Building during the period. If a separate meter is not
installed at Tenant's cost, such excess cost will be
established by an estimate agreed upon by Landlord and Tenant,
and if the parties fail to agree, such cost shall be
established by an independent licensed engineer selected in
Landlord's reasonable discretion. Tenant agrees not to use any
apparatus or device in, upon or about the Premises which may in
any way increase the amount of such services usually furnished
or supplied to said Premises, and Tenant further agrees not to
connect any apparatus or device with wires, conduits or pipes,
or other means by which such services are supplied, for the
purpose of using additional or unusual amounts of such services
without the written consent of Landlord. Should Tenant use the
same to excess, the refusal on the part of Tenant to pay upon
demand of Landlord the amount established by Landlord for such
excess charge shall constitute a breach of the obligation to
pay rent under this Lease and shall entitle Landlord to the
rights therein granted for such breach. Tenant's use of
electric current shall never exceed the capacity of the feeders
to the Building, or the risers or wiring installation and
Tenants shall not install or use or permit the installation or
use of any computer or electronic data processing equipment in
the Premises without the prior written consent of Landlord.
3. Make water available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water
for any purpose in addition to ordinary drinking and lavatory
purposes, of which fact Tenant constitutes Landlord to be the
sole judge, Landlord may install a water meter and thereby
measure Tenant's water consumption for all purposes. Tenant
shall pay Landlord for the cost of the meter and the cost of
the installation thereof and throughout the duration of
Tenant's occupancy. Tenant shall keep said meter and
installation equipment in good working order and repair at
Tenant's own cost and expense, in default of which Landlord may
cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant. Tenant agrees to pay for
water consumed, as shown on said meter, as and when bills are
rendered, and on default in making such payment, Landlord may
pay such charges and collect the same from Tenant. Any such
costs or expenses incurred, or payments made by Landlord for
any of the reasons or purposes hereinabove stated shall be
deemed to be additional rent payable by Tenant, and collectible
by Landlord as such.
4. Provide janitor service to the Premises, provided the same are
used exclusively as offices, and are kept reasonably in order
by Tenant, and unless otherwise agreed to by Landlord and
Tenant no one other than persons approved by Landlord shall be
permitted to enter the Premises for such purposes. If the
Premises are not used exclusively as offices, they shall be
kept clean and in order by Tenant, at Tenant's expense, and to
the satisfaction of Landlord, and by persons approved by
Landlord. Tenant shall pay to Landlord the cost of removal of
any of Tenant's refuse and rubbish to the extent that the same
exceeds the refuse and rubbish usually attendant upon the use
of the Premises as offices.
Landlord reserves the right to stop service of the elevator, if
any, plumbing, ventilation, air conditioning and electrical
systems, when necessary, by reason of accident or emergency or
for repairs, alterations or improvements, when in the judgment
of Landlord such actions are desirable or necessary to be made,
until said repairs, alterations or improvements shall have been
completed, and Landlord shall have no responsibility or
liability for failure to supply elevator facilities, plumbing,
ventilating, air conditioning or electric service, when
prevented from so doing by strike or accident or by any cause
beyond Landlord's reasonable control, or by laws, rules,
orders, ordinances, directions, regulations or by reason of the
requirements of any federal, state, county or municipal
authority or failure of gas, oil or other suitable fuel supply
or inability by exercise of reasonable diligence to obtain gas,
oil or other suitable fuel supply. It is expressly understood
and agreed that any covenants on Landlord's part to furnish any
services pursuant to any of the terms, covenants, conditions,
provisions or agreements of this Lease, or to perform any act
or thing for the benefit of Tenant, shall not be deemed
breached if Landlord is unstable to furnish or perform the
same by virtue of a strike or labor trouble or any other
cause whatsoever beyond Landlord's control.
30. To the extent Landlord reasonable deems it necessary to
exercise exclusive control over any portions of the Common
Areas for the mutual benefit of the tenants in the Project,
Landlord may do so subject to non-discriminatory additional
Rules and Regulations.
31. Tenant's requirements will be attended to only upon appropriate
application to the Project management office by an authorized
individual. Employees of Landlord shall not perform any work
or do anything outside of their regular duties unless under
special instructions form Landlord, and no employee of Landlord
will admit any person (Tenant or otherwise) to any office
without Instructions from Landlord.
32. Landlord may waive any one or more of these Rules and
Regulations for the benefit of Tenant or any other tenant, but
no such waiver by Landlord shall be construed as a wavier of
such Rules and Regulations against any or all of the tenants of
the Project.
33. These Rules and Regulations are in addition to, and shall not
be construed to in any way modify or amend, in whole or in
part, the terms, covenants, agreements and conditions of the
Lease.
34. Landlord reserves the right to make such other and reasonable
Rules and Regulations as, in its judgment, may from time to
time be needed for safety and security, for care and
cleanliness of the Project and for the preservation of good
order therein, provided Tenant receivers prior written notice.
Tenant agrees to abide by all such Rules and Regulations herein
above stated and any additional rules and regulations which are
adopted.
35. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients,
customers, invitees and guests.
Exhibit I
Subject to Paragraph 40 of the First Addendum, the following rules
and regulations shall govern the use of the parking facilities which
are appurtenant to the Project.
1. All claimed damage or loss must be reported, itemized in
writing and delivered to the Management Office located within
the Project within ten (10) business days after any claimed
damage or loss occurs. Any claim not so made is waived.
Landlord is not responsible for damage by water, fire, or
defective brakes, or parts or for the act or omissions of
others, or for articles left in vehicles. In any event, the
total liability of Landlord, if any, is limited to Two Hundred
Fifty Dollars ($250.00) for all damages or loss to any car.
Landlord is not responsible for loss of use.
2. Tenant shall not park or permit its employees to park in any
parking areas designated by Landlord as areas for parking by
visitors to the Project. Tenant shall not leave vehicles in
the parking areas overnight nor park any vehicles in the
parking areas other than automobiles, motorcycles, motor driven
or non-motor driven bicycles or for wheeled trucks.
3. Parking stickers or any other device or form of identification
supplied by Landlord as a condition of use of the parking
facilities shall remain the property of Landlord. Such parking
identification device must be displayed as requested and may
not be mutilated in any manner. The serial number of the
parking identification may not be obliterated. Devices are not
transferable and any device in the possession of an
unauthorized holder will be void.
4. No overnight or extended term storage of vehicles shall be
permitted.
5. Vehicles must be parked entirely within painted stall lines of
a single parking stall.
6. All directional signs and arrows must be observed.
7. The speed limit within all parking areas shall be five (5)
miles per hour.
8. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross-hatched areas; and
(f) in such other areas as may be designated by Landlord or
Landlord's parking operator.
9. Every parker is required to park and lock his own vehicle. All
responsibility for damage to vehicles is assumed by the parker.
10. Loss or theft of parking identification devices must be
reported to the Management Office immediately, and a lost or
stolen report must be filed by the Tenant or user of such
parking identification device at the time. Landlord has the
right to exclude any car from the parking facilities that does
not have an identification device.
11. Any parking identification devices reported lost or stolen
found on any unauthorized car will be confiscated and the
illegal holder will be subject to prosecution.
12. Washing, waxing, cleaning or servicing any vehicle in any area
not specifically reserved for such purposes is prohibited.
13. The parking operators, managers or attendants are not
authorized to make or allow any exceptions to these rules and
regulations.
14. Tenant's continued right to use any parking spaces in the
parking facilities is conditioned upon Tenant abiding by these
rules and regulations and those contained in this Lease.
Further, if this Lease terminates for any reason whatsoever,
Tenant's right to use the parking spaces in the parking
facilities shall terminate concurrently therewith.
15. Tenant agrees to sign a parking agreement with Landlord or
Landlord's parking operator within five (5) days of the
request, which agreement shall provide the manner of payment or
monthly parking fees and otherwise be consistent with this
Lease and these rules and regulations.
16. Landlord reserves the right to refuse the sale of monthly
stickers or other parking identification devices to any tenant
or person and/or his agents or representatives who willfully
refuse to comply with these rules and regulations and all
unposted city, state or federal ordinances, laws or agreements.
17. Landlord reserves the right to establish and change parking
fees and to modify and/or adopt such other reasonable and non-
discriminatory rules and regulations for the parking facilities
as it deems necessary to the operation of the parking
facilities. Landlord may refuse to permit any person who
violates these rules to park in the parking facilities, and any
violation of the rules shall subject the car to removal, at
such car owner's expense.
EXHIBIT J
EARLY ENTRY
This Lease Rider is attached to and made a part of that certain
lease dated June 15, 1995 (the "Lease") between Realty Advisors,
Inc. ("Landlord") and Truckee River Bank ("Tenant").
Notwithstanding the fact that the Term of this Lease has not
commenced, Landlord hereby agrees that from and after the date
hereof and until the commencement of the Term of this Lease and
prior to the completion of Landlord's work of construction, if any
portion of the premises may be occupied by Tenant without
interfering with Landlord's work or construction, upon written
request by Tenant to Landlord, Tenant may elect to enter upon the
premises following not less than seven (7) days proper written
notice to Landlord in order to install trade fixtures and equipment
and to commence construction of any improvements within the Premises
which are to be constructed by Tenant at Tenant's sole cost and
expense (collectively, "Tenant's Finishing Work"). Such entry by
Tenant for the purposes of construction of Tenant's Fishing Work
shall be subject to all of the conditions set forth in the Rider.
(i) Landlord's Direction. Tenant, together with its
employees, agents, independent contractors, suppliers and any other
personnel under Tenant's control ("Tenants' Personnel") installing
Tenant's Finishing Work on the Premises, shall be subject to and
shall work under the direction of Landlord and Landlord's general
contractor. If, in the sole judgment of Landlord, Tenant's
Personnel and/or the work that is being performed by Tenant's
Personnel shall interfere with Landlord's construction work or shall
detrimentally affect Landlord's ability to comply with its
commitments for completing its improvements on the Premises or cause
labor difficulties, Landlord shall have the right to order Tenant's
early entry to cease on twenty-four (24) hours written notice to
Tenant, and if Landlord so requires in connection therewith because
such items are interfering with Landlord's work of construction,
Tenant shall have Tenant's Personnel remove all tools, equipment and
materials form the Premises.
(ii) Lease Terms Apply. Tenant agrees that any such early
entry shall be subject to all of the terms and conditions of this
Lease except for those relating to the payment of rent and other
monetary obligations which have a specific commencement time, which
provisions shall become applicable in accordance with the terms of
this Lease.
(iii) Utility Charges. Tenant agrees to pay to Landlord on
request all utility charges reasonably allocated to Tenant by
Landlord as a result of Tenant's early entry on the Premises.
(iv) Rent. Notwithstanding Subparagraph (ii) above, if Tenant
shall use a portion of the Premises for the operation of its regular
business prior to the Commencement Date, then Tenant shall advise
Landlord of such use and shall be charged rent of a pro rata basis
for the portion(s) of the Premises so utilized.
(v) No Possession. Tenant's only entry to carry out Tenant's
Finishing Work shall not be deemed a taking of possession of the
Premises by Tenant for the purposes of either setting the
Commencement Date or signaling the substantial completion of the
Tenant improvements which are to be constructed by Landlord.
(vi) Laws. Tenant and Tenant's Personnel shall comply with
all applicable laws, regulations, permits and other approvals
required to perform Tenant's Finishing Work or by Tenant's early
entry on the Premises.
(vii) Indemnity. Except for claims arising from the
gross negligence of Landlord, its employees or agents, Tenant
shall indemnify and save Landlord and the Premises harmless from
and against any and all liens, liabilities, losses, damages,
costs, expenses, demands, actions, causes of action and claims
(including without limitation attorney's fees and legal costs)
arising out of the use, construction or occupancy of the Premises
by Tenant or Tenant's Personnel arising form or relating to such
early entry.