EXHIBIT 10.31
PORTOLA/FOWLER PROPERTIES
LEASE AGREEMENT
ARTICLE ONE: BASIC TERMS
Section 1.01. Date of Lease: July 1, 1999
Section.1.02. Landlord: Michael J. Flynn, Gail S. Flynn,
Alan Burns, Carol Burns
c/o Michael Miyagishima, CCIM
P.O. Box 225098
San Francisco, CA 94122-5098
Section 1.03. Tenant: Sequoia National Bank
65 Post Street
San Francisco, CA 94101
Section. 1.04. Property: The Property is part of Landlord's
multi-tenant building located on the comer of Portola Drive and Fowler Avenue in
San Francisco, California. The Leased property is 1325 square feet and is
described in Exhibit A and commonly known as 699 Portola Drive, San Francisco,
California.
Section 1.05. Lease Term: 5 years and 0 months beginning on July 1,
1999, and ending on June 30, 2004. The Tenant has an option to extend for an
additional 5 years as specified in Section 2.03.
Section 1.06. Permitted Uses: (See Article Five) Retail Banking.
Section 1.07. Initial Security Deposit: Seven Thousand and no/100
Dollars. ($7,000.00)
Section 1.08. Rent and Other Charges Payable by Tenant:
(a) BASE RENT: Five thousand Dollars and zero cents ($5,000.00) per
month.
(b) OTHER PERIODIC PAYMENTS: (i) Utilities (See Section 4.02); (ii)
Maintenance, Repairs, and Alterations (See Article Six); (iii) Personal Property
Taxes {See section 4.01 (b)); (iv) Liability insurance (See section 4.03 (a)).
Section 1.09. Costs and Charges Payable by Landlord: (a) Real Property
Taxes (See Section 4.01); (b) Insurance Premiums (See Section 4.03(b)): (c)
Maintenance and Repair (See Article Six}.
Section 1.10. Riders: The following Riders are attached to and made a
part of this Lease:
(a) Map of leased premises Exhibit A
(b) Landlord's Rules and Regulations. Exhibit B
ARTICLE TWO: LEASE TERM
Section 2.01. Lease of Property For Lease Term. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.05 above, unless the
beginning or end of the Lease Term is changed under any provision of this Lease.
Section 2.02. Holding Over. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse Landlord
for, and indemnify Landlord against, all damages which Landlord incurs from
Tenant's delay in vacating the Property. If Tenant does not vacate the property
upon the expiration or earlier termination of the Lease and Landlord thereafter
accepts rent from Tenant, Tenant's occupancy of the Property shall be a
"month-to-month" tenancy, subject to all of the terms of this Lease applicable
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to a "month-to-month" tenancy, except that the Base Rent then if effect shall be
increased by twenty-five percent (25%).
Section 2.03. Option to Extend. Landlord hereby grants Tenant an option
to extend the term of the Lease for one (1) additional period of five (5) years,
commencing immediately after the expiration of the term of the Lease, upon the
same terms and conditions contained therein, except that (i) the Base Rent for
the Premises shall be the greater of (a) the then current monthly rental rate
increased by the CPI or (b) the fair market value of the Property determined
pursuant to Section 2.04 (ii) Tenant shal1 accept the Premises in an ''as is"
condition without any obligation of Landlord to repaint, remodel, repair,
improve or alter the Premises, and (iii) there shall be no further options to
extend the term of the Lease. Tenant's election to exercise the option granted
herein must be given to Landlord in writing no less than six (6) months prior to
the expiration of the term. If Tenant properly exercises the option granted
herein, references in the Lease to the term of the Lease shall be deemed to mean
the option term unless the context clearly provides otherwise. Notwithstanding,
anything to the contrary contained herein, all option rights of Tenant pursuant
to this Paragraph shall automatically terminate without notice and shall be of
no further force and effect, whether or not Tenant has timely exercised the
option granted herein, if (a) a default on the part of Tenant exists under the
Lease at the time of exercise of tile option or at the time of commencement of
the option term, or (b) Tenant has assigned its interest in the Lease or
subleased in aggregate greater than fifty percent (50%) of the floor area of the
Premises.
Section 2.04. Determination of Fair Value. At any time within six (6)
months of the expiration or the initial term of this lease, Tenant may request
the Landlord's opinion of fair market value for the option period. Landlord
shall provide that opinion in writing to Tenant within 15days of receipt of
Tenant's request. If Tenant agrees with Landlord's opinion in writing, Tenant
shall notify the Landlord in writing. If Tenant disagrees, Tenant shall submit
its opinion within 10 days of receipt of Landlords request. In the event of
disagreement the Landlord and Tenant shall meet and try in good faith to resolve
any difference within 10 days of receipt of Tenant's notice of disagreement. If
the Landlord and Tenant cannot agree, the issue shall be determined by a
rea1estate broker selected by the Landlord and Tenant who is familiar with the
rental market in San Francisco. If the parties cannot agree, upon a petition
from either party, the Superior Court shall select a broker who has never had
any personal of business dealings with either of the parties. The decision of
that single broker shall be given in writing, and shall be binding on the
parties. If the Tenant's written opinion of fair market value is closer to the
decision of the broker, than the written opinion of the Landlord, then tile
Landlord shall pay all attorneys and court costs as well as the costs of the
broker arbitrator. Otherwise, the Tenant shall pay for those costs (including
attorneys fees).
Section 2.05. Tenant's right to Early Termination. Tenant shall, as
soon as possible, apply for and pursue, in good faith, an application to the
Office of the Controller of the Currency to maintain a retail bank at the
premises. In the event that despite the Tenant's good faith efforts, Tenant is
unable to obtain the required permission within 120 days from the execution of
this Lease then Tenant shall have the right to provide written notice to the
Landlord within that 120 day period that Tenant wished to terminate this lease.
In the event that Tenant does not obtain the permit from the Office of the
Controller of the Currency and exercises this option and provided the required
written notice to landlord, this lease will automatically terminate on June 30,
2000.
ARTICLE THREE: BASE RENT
Section 3.01. Time and Manner of Payment. Tenant has paid to Landlord
the base rent in the amount stated in Paragraph 1.08(a) above for the first
month of the Lease Term. On the first day of the second month of the Lease Term
and each month thereafter, Tenant shall pay Landlord the Base Rent, in advance,
without offset, deduction or prior demand. The Base Rent shall be payable at
Landlord's address or at such other place as Landlord may designate in writing.
Section 3.02. Cost of Living Increases. The Base Rent shall be
increased on the first day of the July 2000, and each anniversary thereafter
(the "Rental Adjustment Date") stated above in accordance with the increase in
the United States Department of Labor, Bureau of Labor Statistics Consumer Price
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Index for All Urban Consumers (all items for the geographical Statistical Area
in which the Property is located on the basis of 1982-1984 = 100(the "index") as
fo1lows:
(a) The Base Rent (the "Comparison Base Rent") in effect immediately
before each Rental Adjustment Date shall be increased by the percentage that the
Index has increased from the date (the "Comparison Date") on which payment of
the Comparison Base Rent began through the month in which the applicable Rental
Adjustment Date occurs. The Base Rent shall not be reduced by reason of such
computation. Landlord shall notify Tenant of each increase by a written
statement which shall include the Index for the applicable Comparison Date, the
Index for the applicable Rental Adjustment Date, the percentage Increase between
those two indices, and the new Base Rent.
(b) Notwithstanding any other provision in the Article Three shall the
Comparison Price Index increase be less than 3.0% nor more than 7% on any
Rental. Adjustment Date.
ARTICLE FOUR: PROPERTY EXPENSES
Section 4.01. Property Taxes.
(a) Real Property Taxes. Landlord shall pay the real property taxes on
the Property during Lease Term.
(b) Personal Property Taxes. Tenant shall pay all taxes charged against
trade fixtures furnishings, equipment or any other personal property belonging
to Tenant.
Section 4.02. Utilities. Tenant shall pay directly to the appropriate
supplier the cost of all natural gas, heat, light, power, sewer, service,
telephone, water, refuse disposal and other utilities and services supplied to
the Property. If any services or utilities are jointly metered with other
Tenants Landlord shall make a reasonable determination of Tenant's proportionate
share of the cost of such utilities and services and Tenant shall pay such share
to Landlord within fifteen (15) days after receipt of Landlord's written
statement.
Section 4.03. Insurance Policies.
(a) Liability Insurance. During the Lease Term, Tenant shall maintain a
policy of commercial general liability insurance (sometimes known as broad form
comprehensive general liability insurance) insuring Tenant against liability for
bodily injury, property damage, (including loss of use of property) and personal
injury arising out of the operation, use or occupancy of the Property. Tenant
shall name Landlord as an additional insured under such policy. The initial
amount of such insurance shall be One Million Dollars ($1,000,000) per
occurrence and shall be subject to periodic increase based upon inflation,
increased liability awards, recommendation of Landlord's professional insurance
advisers and other relevant factors. The liability insurance obtained by Tenant
under this Paragraph 4.03(a) shall (i) be primary and non-contributing; (ii)
contain cross-liability endorsements; and (iii) insure Landlord against Tenant's
performance under Section 5.05 resulting from the actions of Tenant. The amount
and coverage of such insurance shall not 1imit tenant's liability nor relieve
Tenant of any other obligation under this Lease. Landlord may also obtain
comprehensive public liability insurance in an amount and with coverage
determined by Landlord insuring Landlord against liability arising out of
ownership, operation, use or occupancy of the Property. The policy obtained by
Landlord shall not be contributory and shall not provide primary insurance.
(b) Property and Rental Income Insurance. During the Lease Term,
Landlord shall maintain policies of insurance covering loss of or damage to the
Property in the full amount of its replacement value. Such policy shall provide
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, sprinkler leakage and any
other perils which Landlord deems reasonably necessary. Landlord shall not
obtain insurance for Tenant's fixture's or equipment or building improvements
installed by Tenant on the Property. During the Lease Term, Tenant shall also
maintain an income disruption insurance policy, with loss payable to Landlord,
in an amount equal to one year's Base Rent.
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(c) General Insurance Provisions.
(i) Any insurance which Tenant is required to maintain under
this Lease shall include a provision which requires the
insurance carrier to give Landlord not less than thirty (30)
days written notice prior to any cancellation or modification
of such coverage.
(ii) If Tenant fails to deliver any policy, certificate or
renewal to Landlord required under this Lease within the
prescribed time period or if any such policy is canceled or
modified during the Lease Term without Landlord's consent,
Landlord may obtain such insurance, in which case Tenant shall
reimburse Landlord for the cost of such insurance within
fifteen (15) days after receipt of a statement that indicates
the cost of such insurance.
(iii) Tenant shall maintain all insurance required under this
Lease with companies holding a "General Policy Rating" of A-12
or better, as set forth in the most current issue of "Best Key
Rating Guide". Landlord and Tenant acknowledge the insurance
markets are rapidly changing and that insurance in the form
and amounts described in this Section 4.03 may not be
available in the future. Tenant acknowledges that the
insurance described in this Section 4.03 is for the primary
benefit of Landlord. if at any time during the Lease Term,
Tenant is unable to maintain the insurance required under the
Lease, Tenant shall nevertheless maintain insurance coverage
which is customary and commercially reasonable in the
insurance industry for Tenant's type of business, as that
coverage may change from time to time. Landlord makes no
representation as to the adequacy of such insurance to protect
Landlord's or tenant's interests. Therefore, Tenant shall
obtain any such additional property or liability insurance
which Tenant deems necessary to protect Landlord and Tenant.
(iv) Unless prohibited under any applicable insurance policies
maintained. Landlord and Tenant each hereby waive any and all
rights of recovery against the other, or against the officers,
employees, agents or representatives of the other, for loss or
damage to its property or the property of others under its
control, if such loss or damage is covered by any insurance
policy in force (whether or not described in this Lease) at
the time of such loss or damage. Upon obtaining the required
policies of insurance, Landlord and Tenant shall give notice
to the insurance carriers of this mutual waiver of
subrogation.
Section 4.04. Late Charges. Tenant's failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by any mortgage or trust deed encumbering the Property.
Therefore, if Landlord does not receive an rent payment within ten (10) days
after it becomes due, Tenant shall pay Landlord a late charge equal to ten
percent (10%) of the overdue amount. The parties agree that such late charge
represents a fair and reasonable estimate of the cost Landlord will incur by
reason of such late payment.
Section 4.05. Interest on Past Due Obligations. Any amount owed by
Tenant to Landlord which is not paid when due shall bear interest at the rate of
fifteen percent (15%) per annum from the due date of such amount. However,
interest shall not be payable on late charges to be paid by tenant under this
Lease. The payment of interest on such amounts shall not excuse or cure any
default by Tenant under this Lease. If the interest rate specified in this Lease
is higher than the rate permitted by law, the interest rate is hereby decreased
to the maximum legal interest rate permitted by law.
ARTICLE FIVE: USE OF PROPERTY
Section 5.01. Permitted Uses. Tenant may use the Property only for the
Permitted Uses set forth in Section 1.06 above, or such other purpose as
Landlord may approve which approval shall not be unreasonably withheld.
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Section 5.02. Manner of Use. Tenant shall not cause or permit the
Property to be used in any way which constitutes a violation of any law,
ordinance, or governmental regulation or order, which annoys or interferes with
the rights of tenants of the Project, or which constitutes a nuisance or waste.
Tenant shall obtain and pay for all permits, including a certificate of
Occupancy, required for Tenant's occupancy of the Property and shall promptly
take all actions necessary to comply with all applicable statutes, ordinances,
rules, regulations, orders and requirements regulating the use by Tenant of the
Property, including the Occupational Safety and Health Act.
Section 5.03. Hazardous Materials. As used in this Lease, the term
"Hazardous Materials" means any flammable items, explosives, radioactive
materials, hazardous or toxic substances, material or waste or related
materials, including any substances defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials" or "toxic
substances" now or subsequently regulated under any applicable federal, state or
local laws or regulations, including without limitation petroleum-based
products, paints, solvents, lead, cyanide, DDT; printing inks, acids,
pesticides, ammonia compounds and other chemical products, asbestos, PCBs and
similar compounds, and including any different products and materials which are
subsequently found to have adverse effects on the environment or the health and
safety of persons. Tenant shall not cause or permit any Hazardous Material to be
generated, produced, brought upon, used, stored, treated or disposed of in or
about the Property by Tenant, its agents, employees, contractors. sublessees or
invitees without the prior written consent of Landlord. Landlord shall be
entitled to take into account such other factors or facts as Landlord may
reasonably determine to be relevant in determining whether to grant or withhold
consent to Tenant's proposed activity, with respect to Hazardous Material. In no
event, however, shall Landlord be required to consent to the installation or use
of any storage tanks on the Property.
Section 5.04. Signs and Auctions. Tenant shall not be permitted to
place any sign, signage or advertising in the window or on the Property without
the Landlord's written consent which consent shall not be unreasonably withheld.
Tenant shall not conduct or permit any auctions or sheriffs sales at the
Property.
Section 5.05. Indemnity. Tenant shall Indemnify Landlord against land
hold Landlord harmless from any and all costs, claims or liability arising from:
(a) Tenant's use of tile Property; (b) the conduct of Tenant's business or
anything else done or permitted by Tenant to be done in or about the Property,
including any contamination of the Property resulting from the presence or use
of Hazardous Materials caused or permitted by the Tenant; (c) any breach or
default in the performance of Tenant's obligations under this Lease; (d) any
misrepresentation or breach of warranty by Tenant under this Lease; (e) other
acts or omissions of Tenant; or (f) any act caused by its banking activities.
Tenant shall defend Landlord against any such cost, claim or liability at
Tenant's expense with counsel reasonably acceptable to Landlord or, at
Landlord's election, Tenant shall reimburse Landlord for any legal fees or costs
incurred by Landlord in connection with any such claim. As a material part of
the consideration to Landlord, Tenant assumes all risk of damage to property or
injury to persons in or about the Property arising from any cause, and Tenant
hereby waives all claims in respect thereof against Landlord, except for any
claim arising out of Landlord's gross negligence or willful misconduct. As used
in this Section the term "Tenant" shall include employees, agents, contractors
and invitees, if applicable.
Section 5.06. Landlord's Access. Landlord or its agents may enter the
Property at all reasonable times upon 24 hour prior notice to show the Property
to potential buyers, investors or tenants or other parties; to do any other act
or to inspect and conduct tests in order to monitor Tenant's compliance with all
applicable environmental laws and all laws governing the presence and use of
Hazardous Material; or for any other purpose Landlord deems necessary. Landlord
shall give Tenant prior notice of such entry, except in the case of emergency.
Landlord may place customary "For Sale" or "For Lease" signs on the Property,
only after tenant has exercised its right to early termination or during the
last 6 months of the lease.
Section 5.07. Quiet Possession. If Tenant pays the rent and complies
with all other terms of this Lease, tenant may occupy and enjoy the Property for
the full Lease Term, subject to the provisions of this Lease.
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ARTICLE SIX:
CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS.
Section 6.01. Existing Conditions. Tenant has inspected the Property
and accepts the condition of the Property in its "AS-IS" condition. Tenants
acceptance of the property shall preclude Tenant from thereafter claiming that
there is any defect in the condition of the property, if such deficiency would
be apparent by a careful inspection, Tenant's possessions shall thereafter be
subject to all recorded matters, laws, ordinances, and governmental regulations
and orders. Except as provided herein, Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation as to the condition of the
Property or the suitability of the Property for Tenant's intended use. Tenant
represents and warrants that Tenant has made its own inspection of and inquiry
regarding the condition of the Property and is not relying on any
representations of Landlord or any Broker with respect thereto.
Section 6.02. Exemption of Landlord from Liability. Landlord shall not
be liable for any damage or injury to the person, business (or any loss of
income therefrom), goods, wares, merchandise or other property of Tenant,
Tenant's employees, invitees, customers or any other person in or about the
Property, whether such damage or injury is caused by or results from: (a) fire,
steam, electricity, water, gas or rain; (b) the breakage, leakage, obstruction
or other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning, or lighting fixtures or any other cause; (c) conditions arising in
or about the Property or upon other portions of the Project, or from other
sources or places; or (d) any act or omission of any other Tenant of the
Project. Landlord shall not be liable for any such damage or injury even though
the cause of or the means of repairing such; damage or injury are not accessible
to Tenant. The provisions of Section 6.02 shall not, however, exempt Landlord
from liability for Landlord's gross negligence or willful misconduct.
Section 6.03. Landlord's Obligations. Subject to provisions of Article
Seven (Damage or Destruction} and Article Eight (Condemnation); and except for
damage caused by any act or omission of Tenant or Tenant's employees, agents,
contractors or invitees. Landlord shall keep the foundation, roof and structural
portions of exterior wall of the improvements on the Property in good order,
condition and repair. However, Landlord shall not be obligated to maintain the
interior of the premise Property. Landlord shall not be obligated to make any
repairs under this Section 6.03 until a reasonable time after receipt of a
written notice from Tenant of the need for such repairs. Tenant waives the
benefit of any present or future law which might give Tenant the right to repair
the Property at Landlord's expense or to terminate the right to repair the
Property at Landlord's expense or to terminate the Lease because of the
condition of the Property.
Section 6.04. Tenant's Obligations.
(a) Except as provided in Section 6.03, Article Seven (Damage or
Destruction) and Article Eight (Condemnation), Tenant shall keep all portions of
the Property (including structural, nonstructural, interior, systems and
equipment) in good order, condition, and repair (including interior repainting
and refinishing, as needed), Tenant shall, at Tenant's expense, repair, any
damage to the Property caused by Tenant or Tenant's agents or invitees acts or
omissions.
(b) Tenant shall fulfill all of Tenant's obligations under this Section
6.04 at Tenant's sole expense. If Tenant fails to maintain, repair or replace
tile Property as required by this Section 6.04, Landlord may, upon ten (10) days
prior notice to Tenant (except that no notice shall be required in the case of
an emergency), enter the Property and perform such maintenance or repair
(including replacement, as needed) on behalf of Tenant. In such case, Tenant
shall reimburse Landlord for all costs incurred in performing such maintenance
or repair immediately upon demand.
Section 6.05. Alterations, Additions, and Improvements.
(a) Tenant shall not make any alterations, additions, or improvements
to the Property without Landlord's prior written consent, except for
non-structural alterations which do not exceed Ten Thousand Dollars ($10,000) in
cost cumulatively over the Lease Term and which are not visible from the outside
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of any building of which the Property is part. Landlord may require Tenant to
provide demolition and/or lien and completion bonds in form and amount
satisfactory to Landlord. Tenant shall promptly remove any alterations,
additions, or improvements constructed in violation of this Paragraph 6.05(a)
upon Landlord's written request. All alterations, additions, and improvements
shall be done in a good and workmanlike manner, in confoffi1ity with all
applicable laws and regulations, and by a contractor approved by Landlord. Upon
completion of any such work Tenant shall provide Landlord with ''as built"
plans, copies of all construction contracts, and proof of payment for all labor
and materials.
(b) Tenant shall pay when due all claims for labor and materials
furnished to the Property. Tenant shall give Landlord at least twenty (20) days'
prior written notice of the commencement of any work on the Property, regardless
of whether Landlord's consent to such work is required. Landlord may elect to
record and post notices of non-responsibility on the Property.
Section 6.06. Condition Upon Termination. Upon the termination of the
Lease, Tenant shall surrender the Property to Landlord, broom clean and in the
same condition as received except for ordinary wear and tear which Tenant was
not otherwise obligated to remedy under any provision of Lease. In addition,
Landlord may require Tenant to remove any alterations, additions or improvements
(whether or not made with Landlord's consent) prior to the expiration of the
Lease and to restore the Property to its prior-condition, al1 at Tenant's
expense. All alterations, additions improvements which Landlord has not-required
Tenant to remove shall become Landlord's property and shall be surrendered to
Landlord upon the expiration or earlier termination of the Lease, except that
Tenant may remove any of Tenant's machinery or equipment which can be removed
without material damage to the Property. Tenant shall repair, at Tenant's
expense, any damage to the Property caused by the removal of any such machinery
or equipment. In no event, however, shall Tenant remove any of the following
materials or equipment (which shal1 be deemed Landlord's property) without
Landlord's prior written consent: any power wiring or power panels; lighting or
lighting fixtures; wall coverings; drapes, blinds or other window coverings:
carpets or other floor coverings; heaters, air conditioners or any other heating
or air conditioning equipment; fencing or security gates; or other similar
building operating equipment and decoration.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.01. Partial Damage to Property.
(a) Tenant shall notify Landlord in writing immediately upon the
occurrence of any damage to the Property. If the Property is only partially
damaged (i.e., less than fifty percent (50%) of the Property is untenantable as
a result of such damage or less than fifty percent (50%) of Tenant's operations
are materially impaired) and if the proceeds received by Landlord from the
insurance policies described in Paragraph 4.03 are sufficient to pay for the
necessary repairs, this Lease shall remain in effect and Landlord shall repair
the damage as soon as reasonably possible. Landlord may elect (but is not
required) to repair any damage to Tenant's fixtures, equipment, or improvements.
(b) If the insurance proceeds received by Landlord are not sufficient
to pay the entire cost of repair, or if the cause of the damage is not covered
by the insurance policies which Landlord maintains under Paragraph 4.03,
Landlord may elect either to (i) repair the damage as soon as reasonably
possible, in which case this Lease shall remain in full force and effect, or
(ii) terminate this Lease as of the date the damage occurred. Landlord shall
notify Tenant within thirty (30) days after receipt of notice of the occurrence
of the damage whether Landlord elects to repair the damage or terminate the
Lease. If the damage was due to an act or omission of Tenant, or Tenant's
employees, agents, contractors or invitees, Tenant shall pay the difference
between the actual cost of repair and all other damages incurred by Landlord and
any insurance proceeds received by Landlord. If LaJ1dlord elects to terminate
the Lease, Tenant may elect to continue this Lease in full and effect, in which
case Tenant shall repair any damage to the Property and any building in which
the Property is located. Tenant shall pay the cost of such repairs, except that
upon satisfactory completion of such repairs, Landlord shall deliver to Tenant
any insurance proceeds received by Landlord for the damage repaired by Tenant.
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Tenant shall give Landlord written notice of such n within ten (10) days after
receiving Landlord's termination notice.
(c) If the damage to the Properly occurs during the last six (6) months
of the Lease Term and such damage will require more than thirty (30) days to
repair, either Landlord or Tenant may elect to terminate this Lease as of the
date the damage occurred, regardless of the sufficiency of any insurance
proceeds. The party electing to terminate this Lease shall give written
notification to the other party of such election within thirty (30) days after
Tenant's notice to Landlord of the occurrence of the damage.
Section 7.02. Substantial or Total Destruction. If the Property is
substantially or totally destroyed by any cause whatsoever (i.e., the damage to
the Property is greater than partial damage as described in Section 7.01), and
regardless of whether Landlord receives any insurance proceeds, this Lease shall
terminate as of the date the destruction occurred. Notwithstanding the preceding
sentence, if the Property can be rebuilt within 6 (six) months after the date of
destruction, Landlord may elect to rebuild the Property at Landlord's own
expense, in which case this Lease shall remain in full force and effect.
Landlord shall notify Tenant of such election within 30 (thirty) days after
Tenants notice of the occurrence of total or substantial destruction. If
Landlord so elects, Landlord shall rebuild the Property at Landlord's sole
expense. Notwithstanding any other provision in this Lease to the contrary, if
the destruction was caused by an actor omission of Tenant, Tenant shall pay
Landlord the difference between the actual cost of rebuilding and all other
damages and any insurance proceeds received by Landlord.
Section 7.03. Temporary Reduction of Rent. If the Property is destroyed
or damaged and Landlord or Tenant repairs or restores the Property pursuant to
the provisions of this Article Seven. Any rent payable during the period of such
damage repair and/or restoration shall be reduced according to the degree if
any, to which Tenant's use of the Property is impaired. Except for such possible
reduction, Tenant shall not be entitled to any compensation, reduction, or
reimbursement from Landlord as a result of any damage, destruction, repair, or
restoration of or to the Property.
Section 7.04. Waiver Tenant waives the protection of any statute code
or judicial decision which grants a tenant the right to terminate a lease in the
event of the substantial or total destruction of the Leased property. Tenant
agrees that the provisions of this Article Seven above shall govern the rights
and obligations of Landlord and Tenant in the event of any substantial or total
destruction to the property.
ARTICLE EIGHT: CONDEMNATION
If all or an portion of the Property is taken under the power of
eminent domain or sold under the threat of that power (all of which are called
"Condemnation", this Lease shall terminate as to the part taken or sold on the
date on the condemning authority takes title or possession, whichever occurs
first. If more than twenty percent (20%) of the floor area of the building in
which the Property is located, or which is located on the Property, is taken,
either Landlord or Tenant may terminate this Lease as of the date the condemning
authority takes title or possession, by delivering written notice to the other
within ten (10) days after receipt of written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
takes title or possession). If neither Landlord or Tenant terminates the Lease,
this Lease shall remain in effect as to the portion of the Property not taken,
except that the rent and shall be reduced in proportion to the reduction in the
floor area of the Property. Any Condemnation award or payment shall be
distributed in the following order: (a) first, to any ground lessor, mortgagee
or beneficiary under a deed of trust encumbering the Property, the amount of its
interest in the Property; (b) second, to Tenant, only the amount of any award
specifically designated for loss of or damage to Tenant's trade fixtures or
removable personal property; and (c) third, to Landlord, the remainder of such
award, whether as compensation for reduction in the value of the leasehold, the
taking of the fee, or otherwise. If this Lease is not terminated, Landlord shall
repair any damage in the value of the leasehold, the taking of the fee or
otherwise.
8
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. Landlord's Consent Required. No portion of the Property
or of Tenant's interest in this Lease may be acquired by any other person or
entity, whether by sale, assignment, mortgage, sublease, transfer, operation of
law, or act of Tenant, without Landlord's prior written consent, which shall not
be unreasonably withheld or delayed except as provided in Section 9.02 below.
Any attempted transfer without consent shall be void and shall constitute a
non-curable' breach of this Lease. If Tenant is a partnership, any cumulative
transfer of more than twenty percent (20%) of the partnership interests shall
require Landlord's consent.
Section 9.02. Tenant Affiliate. Tenant may assign this Lease or
sublease the Property, without Landlord's consent, to any corporation which
controls, is controlled by or is under common control with Tenant, or to any
corporation resulting from the merger, of or consolidation with Tenant ("Tenant
Affiliate"). In such case, any Tenant's Affiliate shall assume in writing all of
Tenant's obligations under this Lease.
Section 9.03. No Release of Tenant. No transfer permitted by the
Article Nine, whether with or without Landlord's consent, shall release Tenant
or change Tenant's primary liability to pay the rent and to perform all other
obligations of Tenant under this Lease. Landlord's acceptance of rent form any
other person is not a waiver of any provision of this Article Nine. Consent to
one transfer is not a consent to any subsequent transfer. If Tenant's transferee
defaults under this Lease, Landlord may proceed directly against Tenant without
pursuing remedies against the transferee. Landlord may consent to subsequent
assignments or modification of this Lease by Tenant's transferee, without
notifying Tenant or obtaining its consent. Such action shall not relieve
Tenant's liability under this Lease.
Section 9.04. Offer to Terminate. If Tenant desires to assign the Lease
or sublease the Property, Tenant shall first offer to the Landlord a right to
offer, in writing, to terminate the Lease as of the date in the proposed
sublease or assignment. This offer shall be in writing and given at least 30
days in advance. If Landlord elects in writing to accept the offer to terminate
within twenty (20) days after notice of the offer, the Lease shall terminate as
of the date specified and all the terms and provisions of the Lease governing
termination shall apply. If Landlord does not so elect, the Lease shall continue
in effect until otherwise terminated and the provisions of Section 9.0.5 with
respect to any proposed transfer shall continue to apply.
Section 9.05. Landlord's Consent.
(a)Tenant's request for consent to any transfer described in Section
9.01 shall set forth in writing the details of the proposed transfer, including
the name, business and financial condition of the prospective transferee,
financial details of the proposed transfer (e.g., the term of and the rent and
security deposit payable under any proposed assignment or sublease), and any
other information Landlord deems relevant. Landlord shall have the right to
withhold consent, if reasonable, or to grant consent based on the following
factors: (i) the business of the proposed assignee or subtenant and the proposed
use of the Property; (ii) the net worth and financial reputation of the proposed
assignee or subtenant; (iii) Tenant's compliance with all of its obligations
under the Lease; and (iv) such other factors as Landlord may reasonably deem
relevant.
Section 9.06. No Merger. No merger shall result from Tenant's sublease
of the Property under this article Nine, Tenant's surrender of this Lease or the
termination of this Lease in any other manner. In any such event, Landlord may
terminate any or all subtenancies or succeed to the interest of Tenant as
sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. Covenants and Conditions. Tenant's performance of each
of Tenant's obligations under this Lease is a condition as well as a covenant.
Tenant's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants and
conditions.
9
Section 10.02. Defaults. Tenant shall be in material default under this
Lease:
(a) If Tenant abandons the Property or if Tenant's vacation of the
Property results in the cancellation of any insurance described in Section 4.03;
(b) If Tenant fails to pay rent or any other charge when due;
(c) If Tenant fails to perform any of Tenant's non monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than thirty (30) days are required to complete
such performance, Tenant shall not be in default if Tenant commences such
performance within the thirty (30) day period and thereafter diligently pursues
its completion. However, Landlord shall not be required to give such notice if
Tenant's failure to perform constitutes a non-curable breach of this Lease. The
notice required by this Paragraph is intended to satisfy any and all notice
requirements imposed by law on Landlord and is not in addition to any such
requirement.
(d) (i) If Tenant makes a general assignment or general arrangement for
the benefit of creditors: (ii) if a petition for adjudication of bankruptcy or
for reorganization or rearrangement is filed by or against Tenant and is not
dismissed within thirty (30) days: (iii) if a trustee or receiver is appointed
to take possession of substantially all of Tenant's assets located at the
Property or of Tenant's interest in this Lease and possession is not restored to
Tenant within thirty (30) days; or (iv) if substantially all of Tenant's assets
located at the Property or of Tenant's interest in this Lease is subjected to
attachment, execution or other judicial seizure which is not discharged within
thirty (30) days. If a court of competent jurisdiction determines that any of
the acts described in this subparagraph (d) is not a default under this Lease,
and a trustee is appointed to take possession (or if Tenant remains a debtor in
possession) and such trustee or Tenant transfers Tenant's interest hereunder
then Landlord shall receive as Additional Rent, the excess, if any, of the rent
(or any other consideration) paid in connection with such assignment or sublease
over the rent payable by Tenant under this Lease.
(e) If any guarantor of the Lease revokes or otherwise terminates, or
purports to revoke or otherwise terminate, any guaranty of all or any portion of
Tenant's obligations under the Lease. Unless otherwise expressly provided no
guaranty of the Lease is revocable.
Section 10.03. Remedies. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter will or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have:
(a) Terminate. Tenant's right to possession of the Property by any lawful means,
in which case this Lease shall terminate and Tenant shall immediately surrender
possession of the Property to Landlord. In such event, Landlord shall be
entitled to recover from Tenant all damages incurred by Landlord by reason of
Tenant's default, including (i) the work at the time of the award of the unpaid
Base Rent, Additional rent and other charges which Landlord had earned at the
time of the termination; (ii) the worth at the time of the award of the amount
by which the unpaid Base Rent, Additional Rent and other charges which Landlord
would have earned after termination until the time of the award exceeds the
amount of such rental loss that Tenant proves Landlord could have reasonably
avoided; (iii) the work at the time of the award of the amount by which the
unpaid Base Rent, Additional Rent and other charges which Tenant would have paid
for the balance of the Lease Term after the time of award exceeds the amount of
such rental loss that Tenant proves Landlord could have reasonably avoided; and
(iv) any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform its obligations under the
Lease or which in the ordinary course of things would be likely to result
therefrom, including, but not limited to any costs or expenses Landlord incurs
in maintaining or preserving the Property after such default, the cost of
recovering possession of the Property, expenses of reletting, including
necessary renovation or alteration of the Property, Landlord's reasonable
attorneys' fees incurred in connection therewith. and any real estate commission
paid or payable. As used in subparts (i) and (ii) above, the "worth at the time
of the award" is computed by allowing interest on unpaid amounts at the rate of
fifteen percent (15%) per annum, or such lessor amount as may then be the
maximum lawful rate.
10
As used in subpart (iii) above, the "worth at the time of the award" is computed
by discounting such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of the award, plus one percent (1 %). If Tenant has
abandoned the Property, Landlord shall have the option of {i) retaking
possession of the Property and recovering from Tenant the amount specified in
this Paragraph 10.03 (a), or (ii) proceeding under Paragraph 10.03 (b).
(b) Maintain Tenant's right to possession, in which case this lease
shall continue in effect whether or not Tenant has abandoned the Property. In
such event, Landlord shall be entitled all of Landlord's rights and remedies
under this Lease, including the right to recover the rent as it becomes due;
{c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Property is
located.
Cumulative Remedies. Landlord exercising any other right or remedy
shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01: Subordination. Landlord shall have the right to
subordinate this Lease to any ground lease, deed of trust or mortgage
encumbering the Property, any advances made on the security thereof and any
renewals, modifications, consolidations, replacements or extensions thereof,
whenever made or recorded. Tenant shall cooperate with Landlord and any lender
which is acquiring. a security interest in the Property or the Lease. Tenant
shall execute such further documents and assurances as such lender may require,
provided that Tenant's obligations under this Lease shall not be increased in
any material way (the performance of ministerial acts shall not be deemed
material), and Tenant shall not be deprived of its rights under this Lease.
Tenant's right to quiet possession of the Property during the Lease Term shall
not be disturbed if Tenant pays the rent and performs all of Tenant's
obligations under this Lease and is not otherwise in default. If any ground
lessor, beneficiary or mortgagee elects to have this Lease prior to the lien of
its ground lease, deed of trust or mortgage and gives written notice thereof to
Tenant, this Lease shall be deemed prior to such ground lease, deed of trust or
mortgage whether this Lease is dated prior or subsequent to the date of said
ground lease, deed or trust or mortgage or the date of recording thereof,
Section 11.02: Attornment. If Landlord's interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, Tenant shall attorn to the transferee of or
successor to Landlord's interest in the Property and recognize such transferee
or successor as Landlord under this Lease. Tenant waives the protection of any
statute or rule of law which gives or purports to give Tenant any right to
terminate this Lease or surrender possession of the Property upon the transfer
of Landlord's interest.
Section 11.03. Signing of Documents. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so. If Tenant fails to do so Within ten (10)
days after written request, Tenant hereby makes, constitutes and irrevocably
appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
Section 11.04. Estoppel Certificates.
(a) Upon Landlord's written request. Tenant shall execute, acknowledge
and deliver to Landlord a written statement certifying: (I) that none of the
terms or provisions of this Lease have been changed (or if they have been
changed, stating how they have been changed); (ii) that this lease has not been
canceled or terminated; (iii) the last date of payment of the Base Rent and
other charges and the time period covered by such payment; (iv) that Landlord is
not in default under this Lease or, if Landlord is claimed to be in default,
stating why; and (v) such other representations or infom1ation with respect to
Tenant or the Lease as Landlord may reasonably request or which any prospective
purchaser or encumbrancer of the Property may require. Tenant shall deliver such
statement to Landlord within ten (10) days after Landlord's request. Landlord
may give any such statement by Tenant to any prospective purchaser or
11
encumbrancer of the Property. Such purchaser or encumbrancer may rely
conclusively upon such statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such
ten (10) day period, Landlord, and any prospective purchaser or encumbrancer,
may conclusively presume and rely upon the following facts: (i) that the terms
and provisions of this Lease have not been changed except as otherwise
represented by Landlord; (ii) that this Lease has not been canceled or
terminated except as otherwise represented by Landlord; (iii) that not more than
one month's Base Rent or other charges have been paid in advance; and (iv) that
Landlord is not in default under the Lease. In such event, Tenant shall be
estopped from denying the truth of such facts.
Section 11.05. Tenant's Financial Condition. Within (10)days after
written request from Landlord, Tenant shal1 deliver to Landlord its most current
public annual report.
ARTICLE TWELVE: LEGAL COSTS
Section 12.01. Legal Proceedings. If Tenant or Landlord shall be in
breach or default under this Lease, such party (the "Defaulting Party") shall
reimburse the other party (the "Nondefaulting Party") upon demand for any costs
or expenses that the Nondefaulting Party incurs in connection with any breach or
default of the Defaulting Party under this Lease, whether or not suit is
commenced, the court in such action shall award to the party in whose favor a
judgment is entered, a reasonable sum as attorneys' fees and costs. The losing
party in such action shall pay such attorneys' fees and costs. Tenant shall also
indemnify Landlord against and hold Landlord harmless from all costs, expenses;
demands and liability Landlord may incur if Landlord becomes or is made a party
to any claim or action (a) instituted by Tenant against any third party, or by
an third party against Tenant, or by or against any person holding any interest
under or using the Property by license of or agreement with Tenant; (b) for
foreclosure of any lien for labor or material furnished to or for Tenant or such
other person; (c) otherwise arising out of or resulting from any act or
transaction of Tenant or such other person: or (d) necessary to protect
Landlord's interest under this Lease in a bankruptcy proceeding, or other
proceeding, or other proceeding under Title II of the United States Code, as
amended. Tenant shall defend Landlord against any such claim or action at
Tenant's expense with counsel reasonably acceptable to Landlord or, at
Landlord's election, Tenant shall reimburse Landlord for any legal fees or costs
Landlord incurs in any such claim or action.
Section 12.02. Landlord's Consent. Tenant shall pay Landlord's
reasonable attorneys' fees incurred in connection with Tenant's request for
Landlord's consent under Article Nine (Assignment and Subletting), or in
connection with any other act which Tenant proposes to do and which requires
Landlord's consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. Non-Discrimination. Tenant promises, and it is a
condition to the continuance of this Lease, that there will be no discrimination
against, or segregation of, any person or group of persons on the basis of race,
color, sex, creed, national origin or ancestry in the leasing, subleasing,
transferring, occupancy, tenure or use of the Property or any portion thereof.
Section 13.02. Landlord's Liability; Certain Duties.
(a) As used in this Lease, the term "Landlord" means only the current
owner or owners of the fee title to the Property or Projector the leasehold
estate under a ground lease of the Property or Project at the time in question.
Each Landlord is obligated to perform the obligations of Landlord under this
Lease only during the time such Landlord owns such interest or title. Any
Landlord who transfers its title or interest is relieved of all liability with
respect to the obligations of Landlord under this Lease to be performed on or
after the date of transfer. However, each Landlord shall deliver to its
transferee all funds that Tenant previously paid if such funds have not yet been
applied under the terms of this Lease.
12
(b) Tenant shall give written notice of any failure by Landlord to
perform any of its obligations under this Lease to Landlord and to any ground
lessor, mortgagee or beneficiary under any deed of trust encumbering the
Property whose name and address have been furnished to Tenant in writing.
Landlord shall not be in default under this lease unless Landlord (or such
ground lessor mortgagee or beneficiary) fails to cure such non-performance
within thirty (30) days to cure, Landlord shall not be in default if such cure
is commenced within such thirty (30) day period and thereafter diligently
pursued to completion. ...
(c) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations under
this Lease is limited to Landlord's interest in the Property, and neither the
Landlord nor its partners, shareholders, officers or other principal shall have
any personal liability under this Lease.
Section 13.03. Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.
Section 13.04. Interpretation. The captions of the Articles or Sections
of this Lease are to assist the parties in reading this Lease and are not a part
of the terms or provisions of this Lease. Whenever required by the context of
this Lease, the singular shall include the plural and the plural shall include
the singular. The masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term "Tenant" shall include Tenant's agents, employees, contractors;
invitees, successors or others using the Property with Tenant's express or
implied permission.
Section 13.05. Incorporation of Prior Agreements; Modifications. This
Lease is the only agreement between the parties pertaining to the lease of the
Property and not other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 13.06. Notices. All notices required or permitted under this
Lease shall be in writing and shall be personally delivered or sent by certified
mail, return receipt requested, postage prepaid. Notices to Tenant shall be
delivered to the address specified in Section 1.03 above. Notices to Landlord
shall be delivered to the address specified in Section 1.02 above. All notices
shall be effective upon delivery. Either party may change its notice address
upon written notice to the other party.
Section 13.07. Waivers. All waivers must be in writing and signed by
the waiving party. Landlord's failure to enforce any provision of this Lease or
its acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
statement on a payment check from Tenant or in a letter accompanying payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound to the conditions of such
statement.
Section 13.08. No Recordation. Tenant shall not record this Lease
without prior written consent from Landlord. However, either Landlord or Tenant
may require that a "Short Form" memorandum of this Lease executed by both
parties be recorded. The party requiring such recording shall pay all transfer
taxes and recording fees.
Section 13.09. Binding Effect; Choice of Law. This Lease binds any
party who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However. Landlord shall have no obligation to Tenant's successor unless
the rights or interests of Tenant's successor are acquired in accordance with
the terms of this Lease. The laws of the state in which the Property is located
shall govern this Lease.
Section 13.10. Corporate Authority; Partnership Authority. If Tenant is
a corporation, each person signing this Lease on behalf of Tenant represents and
warrants that he has full authority to do so and that this Lease binds the
corporation. Within thirty (30) days after this Lease is signed, Tenant shall
13
deliver to Landlord a certified copy of a resolution of Tenant's Board of
Directors authorizing the execution of this Lease or other evidence of such
authority reasonably acceptable to Landlord. If Tenant is a partnership, each
person or entity signing this Lease for Tenant represents and warrants that he
or it is a general partner of the partnership, that he or it has full authority
to sign for the partnership and that this Lease binds the partnership and all
general partners of the partnership. Tenant shall give written notice to
Landlord of any general partner's withdrawal or addition. Within thirty (30)
days after this Lease is signed, Tenant shall deliver to Landlord a copy of
Tenant's recorded statement of partnership or certificate of limited
partnership.
Section 13.11. Joint and Several Liability. All parties signing this
leas as Tenant shall be jointly and severally liable for all obligations of
Tenant.
Section 13.12. Force Majeure. If Landlord cannot perform any of its
obligations due to events beyond Landlord's control, the time provided for
performing such obligations shall be extended by a period of time equal to the
duration of such events. Events beyond Landlord's control include, but are not
limited to, acts of God, war, civil commotion, labor disputes, strikes, fire,
flood or other casualty, shortages of labor or material, government regulation
or restriction and weather conditions.
Section 13.13. Execution of Lease. This Lease may be executed in
counterparts and, when all counterparts and, when all counterpart documents are
executed, the counterparts shall constitute a single binding instrument.
Landlord's delivery of this Lease to Tenant shall not be deemed to be an offer
to lease and shall not be binding upon either party until executed and delivered
by both parties.
Section 13.14. Survival. All representatives and warranties of Landlord
and Tenant shall survive the termination of this Lease.
Landlord and Tenant have signed this Lease at the place and on the dates
specified adjacent to their signatures below and have initialed all Riders which
are attached to or incorporated by reference in this Lease.
'LANDLORD'
Signed on April 26 , 1999 at San Francisco, Ca
-------- ---- ------------------------------------
/s/ MICHAEL L. FLYNN
------------------------------------
Michael L. Flynn
/s/ GAIL S. FLYNN
------------------------------------
Gail S. Flynn
/s/ ALAN BURNS
------------------------------------
Alan Burns
/s/ JAMES M. FLACK
------------------------------------
Carol Burns
Signed on April 27 , 1999 at San Francisco, Ca
-------- ---- ------------------------------------
Sequoia National Bank
By: /s/ JOHN F. HENTZ
-------------------------------------
John F. Hentz
Its: Acting Chief Operating Officer
14
EXHIBIT A
[GRAPHIC OMITTED]
PORTOLA FOWLER PROPERTIES
1ST FLOOR
699 PORTOLA DR.
SAN FRANCISCO, CALIFORNIA
15
EXHIBIT B
---------
Rules and Regulations
---------------------
1. Common Areas. The sidewalks, parking areas, driveways, exits and
entrances of the Project shall not be obstructed by Tenant or used for any
purpose other than for ingress to and egress from the Project and/or Property.
Landlord shall in all cases have the right to control and prevent access to the
common areas.
2. Signs. No sign, placard, picture, name, advertisement or notice
visible from the exterior of the Property shall be inscribed, painted, affixed
or otherwise displayed by Tenant on any pan of the Project or the Property
without the prior written consent of Landlord. Landlord will adopt and furnish
to Tenants general guidelines relating to signs. Tenant agrees to conform to
such guidelines. All approved signs pr lettering shall be primed, painted,
affixed or inscribed at the expense of Tenant by a person approved by Landlord.
3. Prohibited Uses. The Property shall not be used for lodging or
cooking except that private use by Tenant of microwave ovens and Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate and similar
beverages will be permitted, provided that such use is in accordance with all
applicable federal, state and municipal laws., codes, ordinances, rules and
regulations Tenant shall not use electricity for lighting, machines or equipment
in excess of four (4) watts per square foot.
4. No Nuisances. Tenant shall not use or keep in the Premises or the
Building any kerosene, gasoline or inflammable or reasonably necessary for the
operation or maintenance of office equipment. Tenant shall not use any method of
heating or air conditioning other than that supplied by Landlord. Tenant shall
not use or keep or permit to be used or kept any foul or noxious gas or
substance in the premises, or permit or suffer the premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants of
the Building by reason of noise, odors or vibrations, or interfere in any way
with other tenants or those having business in the Building, nor shall any
animals be brought or kept in the Premises or the Building.
5. Change of Address. Landlord shall have the right, exercisable
without notice and without liability to Tenant, to change the name or street
address of the Building or the room or suite number of the Premises.
6. Procedures when Leaving. Tenant shall ensure that the doors of the
Premises are closed and locked and that all water faucets, water apparatus and
utilities are shut off before Tenant and its employees leave the Property so as
to prevent \\'aste or damage. For any default or carelessness in this regard,
Tenant shall be liable and pay for all damage and injuries sustained by Landlord
or other tenants or occupants of the Project.
7. No Antenna. Tenant shall not install any radio or television
antenna, loudspeaker, or other device on the rood or exterior walls of the
Building. No television or radio recorder shall be played in such a manner as to
cause a nuisance to any other tenant.
8. Waiver. Landlord may waive anyone or more of these Rules and
Regulations for the benefit of any particular tenant or tenants, but no such
waiver by Landlord shall be construed as a waiver of such Rules and Regulations
in favor of any other tenant or tenants, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against any or all of the tenants of
the Building.
9. Supplemental to Lease. These Rules and regulations are in addition
to, and shall not be construed to in anyway modify or amend, in whole or in
part, the covenants of this Lease.
10 Amendments and Additions. Landlord reserves the right to make such
other rules al1d regulations, and to amend or repeal these Rules and
Regulations, as in Landlord's judgment may from time to time be desirable for
the safety, care and cleanliness of the Building and for the preservation of
good order therein.
16
ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT ("Agreement") is made
and entered into to be effective as of April 30, 2005 ("Effective Date"), by and
among PORTOLA PROPERTIES, a California corporation ("Landlord"), SEQUOIA
NATIONAL BANK, a California corporation ("Assignor") and FIRST NATIONAL BANK OF
NORTHERN CALIFORNIA, a California corporation ("Assignee"), with reference to
the following facts.
RECITALS
A. Assignor is the existing tenant under that certain Lease
Agreement dated July 1, 1999, by and between Landlord's predecessor-in-interest
Michael J. Flynn, Gail S. Flynn, Alan Burns and Carol Burns, as landlord, and
Assignor, as tenant, as subsequently amended pursuant to that certain Extension
of Lease dated as of July 1, 2004 (collectively, the "Lease") pursuant to which
Landlord leased to Assignor, and Assignor leased from Landlord, those certain
premises located at 699 Portola Drive, San Francisco, California, as more
particularly described in the Lease (the "Property"). All capitalized terms used
in this Agreement and not defined in this Agreement will have the respective
meanings ascribed to such terms in the Lease.
B. Assignor desires to assign all of its right, title and
interest in, and obligations under, the Lease to Assignee, and Assignee desires
to accept such assignment and assume such obligations, all on the terms and
conditions set forth below.
C. Landlord agrees to consent to the proposed assignment on the
conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing recitals, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Assignment. Effective as of the Effective Date, Assignor
hereby grants, transfers and assigns to Assignee all of its right, title and
interest in, and delegates to Assignee all of its obligations under, the Lease.
A true, correct and complete copy of the Lease is attached hereto as Exhibit A.
2. Assumption. Assignee accepts such assignment and delegation,
assumes the Lease, agrees to pay all rent and other charges accruing under the
Lease from and after the Effective Date, and agrees to observe and perform all
of the other covenants, agreements and obligations to be observed and/or
performed by the tenant under the Lease from and after the Effective Date.
3. Consent. Landlord hereby consents to this Agreement and to the
assignment and assumption made herein; provided, that such consent is limited to
the assignment and assumption made herein and shall not relieve Assignee from
1
the obligation to obtain the consent of Landlord to any future assignment of the
Lease or sublease of the Premises, or any portion thereof or interest thereof.
Notwithstanding Section 9.04 of the Lease, Landlord hereby waives any obligation
of Assignor to offer to the Landlord a right to terminate in connection with
this Agreement and to the assignment and assumption made herein.
4. Security Deposit. The parties acknowledge that Landlord now
holds the sum of Seven Thousand Dollars ($7,000.00) to be applied subject to the
provisions of the Lease. Assignor releases all claims to that sum, and agrees
that the sum shall be held by Landlord for the benefit of Assignee, subject to
the provisions of the Lease.
5. General Provisions.
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a. Time is of the essence in the performance of the
parties' respective obligations set forth in this Agreement.
b. Assignee's address for notices shall be as follows
unless changed in'\ ' accordance with the Lease:
Jim D. Black
President
First National Bank of Northern California
975 El Camino Real
South San Francisco, CA 94080
Telephone: (650) 588-6800
Facsimile: (650) 588-9695
Email: jblack@familybank.com
c. This Agreement shall inure to the benefit of and be
binding upon the parties to this Agreement and their respective successors and
assigns.
d. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
e. This Agreement expresses the entire agreement of the
parties and supersedes any previous agreements between the parties with regard
to its subject matter. Any amendment to this Agreement will be effective only if
it is in writing and signed by the parties hereto.
f. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which taken
together shall constitute but one agreement
g. The following Exhibit is attached to this Agreement
and by this reference made a part hereof:
Exhibit A Lease Agreement dated July 1,1999
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
ASSIGNOR: ASSIGNEE:
SEQUOIA NATIONAL BANK, FIRST NATIONAL BANK OF NORTHERN
a California corporation CALIFORNIA,
a California corporation
By: /s/ PETER PAUL By: /s/ JIM D. BLACK
---------------------------- -----------------------------------
Name: Peter Paul Name: Jim D. Black
---------------------------- -----------------------------------
Its: CEO Its: President
---------------------------- -----------------------------------
LANDLORD:
PORTOLA PROPERTIES
a California corporation
By: /s/ LEYLA PENG
----------------------------
Name: Leyla Peng
----------------------------
Its: Owner
----------------------------
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EXHIBIT A
Lease Agreement dated July 1, 1999