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BRANCH AND OFFICE LEASE
[Stockton, CA – 303 North El Dorado Street] (BE #199560)
KEY PROVISIONS SUMMARY
Lease Date: The date this Lease is executed by the last to sign of Landlord and Tenant as shown on the signature page attached hereto.
Landlord: City of Stockton, a municipal corporation
Tenant: Wells Fargo Bank, N.A., a national banking association Premises: Approximately 19,008 rentable square feet, comprised of (i) approximately 7,867 rentable square feet located on the 1 st floor of the Building (as defined below), together with the ATMs located on the exterior of the Building, (ii) approximately 8,141 rentable square feet located on the 2 nd floor of the Building, and (iii) approximately 3,000 rentable square feet located on the 3rd floor of the Building, all as more particularly depicted (including by cross -hatching with respect to the portion of the Premises located on the 3 rd floor of the Building) in Exhibit A-1 (Section 2.1)
Development: That certain development, containing approximately 1.41 acres , including the building thereon (the “Building”), having a street address of 303 North El Dorado Street, Stockton, California , as more particularly described in Exhibit A-2 and as shown in Exhibit A-3
Notice Addresses
(Section 35):
Landlord: Tenant:
City of Stockton
Attn: Carrie Wright
Director of Economic Development
400 East Main Street, 4th Floor
Stockton, CA 95202
E: [email protected]
Wells Fargo Bank, N.A.
Corporate Properties Group
Attn: Property Admin (BE #199560)
MAC D1116-L10
1525 West W.T. Harris Blvd.
Charlotte, NC 28262
E: [email protected]
Lease Commencement Date: The date escrow closes on the sale of the Development by Tenant, as seller, to Landlord, as buyer (Section 3)
This Lease shall automatically terminate if the purchase and sale agreement between Tenant and Landlord for the sale of the Development terminates.
Expiration Date: 11:59 p.m. on the last day of the last full calendar month four (4) months after the Lease Commencement Date (Section 3)
Lease Term: From Lease Commencement Date to Expiration Date (Section 3.1) Rent: N/A
Tenant Early Termination
Rights:
Tenant shall have the right to terminate the Lease at any time by giving Landlord not less than ten (10) days’ prior written notice (Section 3.2) Permitted Use: The operation of a financial services center and all the uses associated with such a business, general office use, and any other lawful use (Section 8.1) Mortgage Holder(s): None (Section 29)
Broker(s): None (Section 34)
Exhibits: Exhibit A-1 – Depiction of Premises
Exhibit A-2 – Development Legal
Description
Exhibit A-3 – Development Site Plan
Exhibit B – Form of Commencement
Date Agreement
Exhibit C – Tenant’s Signage
Exhibit D – Decommission Scope
Exhibit E – Landlord’s Self-Insurance
EXHIBIT 1
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TABLE OF CONTENTS
Page
1. Key Provisions Summary; Enumeration of Exhibits; Consent. ....................................................... 1
2. Premises; Development; Common Areas; ATMs; Parking; Telecom. ............................................. 1
3. Lease Term; Option to Terminate. .................................................................................................... 3
4. Consideration. .................................................................................................................................. 3
5. Landlord’s Representations. ............................................................................................................. 3
6. Delivery of Possession; Commencement Date Agreement. ............................................................. 3
7. Intentionally Deleted. ....................................................................................................................... 4
8. Use; Go Dark. .................................................................................................................................. 4
9. Compliance with Laws; Uses Prohibited. ........................................................................................ 4
10. Real Estate Taxes; Personal Property Taxes. ................................................................................... 4
11. Maintenance & Liens. ...................................................................................................................... 4
12. Intentionally Deleted. ....................................................................................................................... 5
13. Utilities & Services. ......................................................................................................................... 5
14. Intentionally Deleted. ....................................................................................................................... 5
15. Intentionally Deleted. ....................................................................................................................... 5
16. Intentionally Deleted. ....................................................................................................................... 5
17. Surrender. ......................................................................................................................................... 5
18. Signage. ............................................................................................................................................ 6
19. Alterations. ....................................................................................................................................... 6
20. Assignment & Subletting. ................................................................................................................ 7
21. Indemnification. ............................................................................................................................... 8
22. Insurance. ......................................................................................................................................... 8
23. Default. ............................................................................................................................................ 9
24. Landlord Bankruptcy Proceeding. ................................................. Error! Bookmark not defined.
25. Damage by Fire or Other Casualty. ................................................................................................ 10
26. Condemnation/Eminent Domain. .................................................................................................. 10
27. Intentionally Deleted. ..................................................................................................................... 11
28. Environmental/Hazardous Materials.............................................................................................. 11
29. No Subordination of Lease. ........................................................................................................... 11
30. Estoppel Certificate. ....................................................................................................................... 11
31. Access to Premises. ........................................................................................................................ 12
32. Holding Over. ................................................................................................................................. 12
33. Quiet Enjoyment. ........................................................................................................................... 12
34. Brokerage Commissions. ............................................................................................................... 13
35. Notices. .......................................................................................................................................... 13
36. Force Majeure. ............................................................................................................................... 13
37. Additional Terms............................................................................................................................ 14
38. Waiver of Jury Trial. ...................................................................................................................... 18 EXHIBIT 1
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BRANCH AND OFFICE LEASE
THIS BRANCH AND OFFICE LEASE (“Lease”) is entered into as of the Lease Date by Landlord and Tenant. The parties agree as follows:
1. Key Provisions Summary; Enumeration of Exhibits; Consent.
References in the body of this Lease to a portion of the Key Provisions Summary (e.g., the defined terms in the left -hand column of the Key Provisions Summary) are deemed and construed to incorporate all the terms provided under each such referenced portion of the Key Provisions Summary. References in the Key Provisions Summary to a portion of the body of this Lease (e.g., Section references in the right - hand column of the Key Provisions Summary) are deemed and construed to incorporate all the terms provided under each such referenced portion of the body of the Lease. Notwithstanding the foregoing, if there is any inconsistency between the Key Provisions Summary and another portion of this Lease, the terms of the Key Provisions Summary control. The Exhibits enumerated in the Key Provisions Summary and attached to this Lease are incorporated in this Lease by reference and are to be construed as a part of this Lease. Each party shall perform all obligations on its part as set forth in any Exhibit. Except where expressly provided otherwise in this Lease, any consent or approval required under this Lease will not be unreasonably withheld, delayed, or conditioned. Whenever this Lease grants either party the right to take action, exercise discretion, establish rules and regulations, or make an allocation or other determination, such party shall act reasonably and in good faith and take no action which might result i n the frustration of the other party’s reasonable expectations concerning the benefits to be enjoyed under this Lease. If a party withholds its consent or approval, such party shall, upon request, promptly deliver to the other a written statement specifying in detail the reason or reasons why such consent or approval was withheld or refused.
2. Premises; Development; Common Areas; ATMs; Parking; Telecom.
2.1. Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Land- lord the Premises, as depicted in Exhibit A-1.
2.2. Development. The Development is depicted in Exhibit A-3. Tenant has only such obligations to the Development as are specifically set forth herein. Landlord shall not place or install or permit the placement or installation of any equipment or obstructions on the sidewalk (s) adjacent to the Premises without Tenant ’s express written consent, which consent may be withheld in Tenant ’s sole discretion without considering the interests of Landlord or any third -party. Landlord and other occupants of the Development are not permitted to advertise merchandise or solicit on the sidewalks or any other Common Area adjacent to the Premises. Landlord shall not, without Tenant ’s express written approval, allow changes to the access to the Premises , the Building or the Development , the visibility (including landscaping) of the Premises, or reduce, restrict, or in any way modify the parking available to the Premises.
Landlord shall not make any changes to the Development (including the Building) that would adversely impact Tenant’s use of the Development or the Premises. In connection with any changes by Landlord to the Development or the Building , Landlord shall use commercially reasonable efforts to minimize interference by such work with the conduct of Tenant’s business in the Premises and access to the Premises, which commercially reasonable efforts shall include performing any portion of such work that is reasonably anticipated to create unreasonable levels of noise, dust or vibrations, including without limitation, concrete sawing, coring or jack hammering (the “ Disruptive Work”) outside of Tenant’s normal business hours .
Landlord will provide Tenant with reasonable advance notice of not less than thirty (30) days prior to the commencement of any such work that may constitute Disruptive Work and the anticipated schedule and work program for the Disruptive Work. Landlord agrees to meet with Tenant no later than three (3) days before the performance of any Disruptive Work and reasonably address Tenant’s ongoing concerns, and to agree upon a mutually and reasonably agreed schedule for the completion of such Disruptive Work in order to minimize any disruption to Tenant’s use of and access to the Premises. Before starting any Disruptive EXHIBIT 1
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Work, Landlord shall take appropriate measures to insulate the Premises from any portion of the Building or Development in which the Disruptive Work is to be performed and protect the Premises from noise, dust and damage caused by the construction of Landlord’s Work. Tenant has no obligation to make any alterations or improvements to the Premises to conform to any alterations or improvements made by Landlord to the Development.
2.3. Common Areas. “Common Areas” (or sometimes “Common Area”) means all areas, improvements, space, and special services at the Development that are now or hereafter made available for the common or joint use and benefit of all tenants, customers, employees, contractors, licensees and invitees of the Development, including parking areas, driveways, exterior lighting, sidewalks, landscaped and planted areas, washrooms, lounges, shelters, utilities, service areas (including loading and unloading areas), retention basins (both on -site and off -site), signage, and trash disposal areas.
Notwithstanding the foregoing, no portion of the Premises is or will hereafter be Common Area. Except as otherwise specifically provided in this Lease, Tenant, its employees, agents, c ontractors, licensees, and invitees are authorized, empowered, and privileged to use the Common Areas in common with others during the Lease Term.
2.4. ATM and Night Depository. Tenant may operate the automated teller machines (“ATMs”) and night depositories located within the Premises and upon the exterior of the Building as of the Lease Commencement Date, at no charge. At the expiration or earlier termination of this Lease, Tenant at its expense shall remove the ATMs and shall cover with plywood any openings in the Building in the area where such exterior ATMs had been located in order to secure such openings from outside entry. Tenant shall have the right, but not the obligation, to maintain the lighting, landscaping, and access to, from, and around the ATMs and/or night depositories and the Common Areas adjacent thereto as Tenant desires in its sole discretion at its sole cost and expense. Landlord shall allow Tenant, at Tenant’s sole cost, to maintain, and operate around any Tenant ATM or night depository: (i) all lighting fixtures reasonably necessary to comply with all laws, regulations, and other government requirements imposed on Tenant or Landlord pertaining to the lighting of ATMs/night depositories and to comply with Tenant ’s ATM/night depository lighting policy, as each may change from time to time (collectively, “ATM/Night Depository Lighting Requirements”) and (b) other fixtures and alterations required to comply with any laws governing the operation of ATMs and night depositories. Landlord, at no out-of-pocket cost, shall cooperate with Tenant in Tenant’s efforts to comply with the ATM/Night Depository Lighting Requirements and all other laws and regulations governing the operation of ATMs and night depositories. Notwithstanding the foregoing, Tenant shall have no obligation to make any alterations or improvements to the Premises or any other portion of the Development, nor shall Tenant be responsible for correcting any conditions that existed on the Premises or the Development as of the Lease Commencement Date.
2.5. Parking. During the Lease Term, Tenant, its employees, invitees, customers, and designees, shall have the right to use all parking areas located in the Development, including the parking spaces that are labeled as of the Lease Commencement Date for customer parking only (or words to that effect).
2.6. Access to Basement . During the Lease Term (and thereafter during the removal/decommissioning period contemplated in Section 2.7.3 below), Tenant and its vendors shall have the right to access the basement of the Building to perform, at Tenant’s cost, any water mitigation measures that Tenant, in its sole discretion, elects to undertake in connection with its occupancy and use of the Premises. For the avoidance of doubt, Tenant shall have no obligation to perform any water mitigation.
Such access shall be subject to Landlord’s standard security procedures for entry to the Building by visitors of a tenant (e.g., providing suitable identification) without any such vendor being obligated to provide a separate indemnity or a separate certificate of insurance (such access being subject to Tenant ’s indemnity and insurance obligations as provided elsewhere in this Lease).
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2.7. Telecom & Cellular Systems.
2.7.1. Tenant may operate its standard telecommunication/data (“telecom”) systems installed within the Premises as of the Lease Commencement Date. Tenant has the right to use the Building’s telecom spaces and pathways (e.g., telecom rooms, cable trays, conduit, etc.) for Tenant ’s telecom systems (including to and from external facilities/telecom providers). Tenant may, if deemed necessary by a technology vendor and subject to Landlord’s reasonable approval, establish new pathways or conduit to deliver technology connectivity to the core of the Building, at Tenant’s sole cost and expense.
2.7.2. Tenant may contract directly with and use its standard installers/ vendors for telecom installations, repairs, and maintenance (e.g., carriers, conduit, cabling, etc.). Landlord shall not restrict the installers/ vendors that Tenant may use for telecom installations, repairs, or maintenance, and Tenant’s installers/vendors are hereby granted, on a 24/7 basis, access to the Building ’s telecom spaces, subject to Landlord’s standard security procedures for entry to the Building by visitors of a tenant (e.g., providing suitable identification) to install, repair, maintain, and replace Tenant ’s telecom systems without being obligated to provide a separate indemnity or a separate certificate of insurance (such access being subject to Tenant’s indemnity and insurance obligations as provided elsewhere in this Lease).
3. Lease Term; Option to Terminate.
3.1. Lease Commencement Date . This Lease is effective as of the Lease Date. The Lease Term begins on the Lease Commencement Date and expires on the Expiration Date.
3.2. Option to Terminate. Notwithstanding anything to the contrary set forth in this Lease, Tenant shall have the right to terminate this Lease at any time by delivering not less than ten (10) days’ prior written notice to Landlord.
4. Consideration.
This Lease is granted in consideration of the sale of the Development to Landlord and of the transactions, terms and conditions contemplated by and contained in the purchase agreement therefor, the adequacy of which is hereby acknowledged by Landlord and Tenant. Tenant shall not be responsible for the payment of any rent, operating expenses, taxes, insurance, utilities or other sums under this Lease except as otherwise expressly set forth in this Lease.
5. Landlord’s Representations.
Landlord represents that (i) Landlord has fee simple title to the Development and the Premises , (ii) Landlord has full right and authority to make and execute this Lease, and (iii) Landlord has not agreed to any lien or restriction, or entered into any lease or encumbrance (whether recorded or unrecorded) that would materially and adversely restrict or prevent Tenant ’s operation of a financial services center at the Premises.
6. Delivery of Possession; Commencement Date Agreement.
6.1. Delivery of Possession. Landlord shall be deemed to have delivered possession of the Premises to Tenant on the Lease Commencement Date.
6.2. Commencement Date Agreement. Concurrent with the execution of this Lease, the parties shall execute a “Commencement Date Agreement” in the form attached hereto as Exhibit B, confirming the Lease Commencement Date and the Expiration Date.
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7. Intentionally Deleted.
8. Use; Go Dark.
8.1. Permitted Use. Tenant may use the Premises for the Permitted Use.
8.2. Go Dark. Notwithstanding anything to the contrary set forth in this Lease, Tenant may cease operating at the Premises at any time during the Lease Term.
9. Compliance with Laws; Uses Prohibited.
9.1. Tenant’s Compliance . “Governmental Regulations ” means all federal, state, county, or municipal laws, ordinances, rules, regulations, directives, orders, and/or requirements now in force or which may hereafter be in force. Tenant shall comply with all applicable Governmental Regulations with respect to Tenant’s use and occupancy of the Premises during the Lease Term ; provided, however, Tenant is not required to make any repairs, alterations, additions or improvements to the Premises or the Development to comply with any Governmental Regulations or to correct any conditions that existed on the Premises or the Development as of the Lease Commencement Date. Tenant shall have no obligation to comply with Governmental Regulations with respect to any portions of the Development other than the Premises.
9.2. Uses Prohibited. Tenant shall not use or allow the Premises to be used for any unlawful purpose. Tenant shall not use the Premises as living quarters, sleeping quarters, or lodging.
10. Real Estate Taxes; Personal Property Taxes.
10.1. Landlord Payment of Real Estate Taxes. Landlord shall be responsible for the timely payment of any and all real estate taxes and assessments , if any, as may be imposed or become a lien on any portion of the Development, whether Common Areas or otherwise, during the Lease Term.
10.2. Personal Property Taxes. Tenant shall pay or cause to be paid, prior to delin- quency, all taxes which are levied during the Lease Term upon fixtures, furnishings, equipment, and all other personal property belonging to Tenant and/or placed on the Premises by Tenant. In the event any or all of Tenant's fixtures, furnishing, equipment and other personal property are taxed with Landlord's real property, Tenant shall pay to Landlord its share of such taxes within thirty (30) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of such taxes applicable to Tenant's property and a copy of the tax bill.
11. Maintenance & Liens.
11.1. Maintenance and Repair s by Landlord and Tenant. During the Lease Term, Landlord shall have no maintenance or repair or janitorial obligations with respect to the Premises or the Development, except to the extent maintenance or repairs to the Premises, the Building or the Common Areas are required due to the gross negligence or willful misconduct of Landlord or its agents, employees or contractors, in which event Landlord shall perform such maintenance or repairs at its expense promptly after receiving written notice from Tenant of the need for such maintenance or repairs. During the Lease Term, Tenant shall have the right, but not the obligation, to perform any maintenance and repair to the Premises and/or provide any janitorial services to the Premises in each case as may be desired by Tenant in its sole and absolute discretion, at its sole cost and expense . Tenant shall have no obligation to make any alterations or improvements to the Premises or any other portion of the Development, nor shall Landlord or Tenant be responsible for correcting any conditions that existed on the Premises or the Development as of the Lease Commencement Date.
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11.2. Liens. Tenant shall keep the Premises and the Development free from any lien arising on account of labor, material, supplies, or services furnished to Tenant during the Lease Term. Land- lord shall keep the Premises and the Development free from any lien arising on account of labor, material, supplies, or services furnished to Landlord during the Lease Term.
12. Intentionally Deleted.
13. Utilities & Services.
13.1.1. Lighting and Security. During the Term, Tenant shall be entitled to retain in place the lighting at the Development and any security equipment at the Development existing as of the Lease Commencement Date.
13.1.2. Utilities. Tenant shall pay directly to the utility providers, as and when due, all charges for utilities used in, upon, or about the Premises by Tenant or any of its subtenants, licensees, or concessionaires from the Lease Commencement Date and thereafter throughout the expiration of the decommissioning period set forth in Section 17 below, including but not limited to all water, gas, heat, light, power, telephone, sewer, sprinkler charges and other utilities and services used on or from the Premises .
Upon the expiration of the decommissioning period set forth in Section 17 below, Landlord shall transfer all utility services at the Development to Landlord, and Tenant shall cooperate with Landlord to transfer all such utility services to Landlord. If Landlord fails to so transfer the utility services, Landlord shall indemnify, hold harmless, pay, and reimburse Tenant, its agents, employees, and contractors, from, for, and against any and all suits, actions, claims, costs, fees, sums, amounts, losses, causes of action, damages, liabilities, and expenses (including reasonable attorneys’ fees, court costs, and alternative dispute resolution expenses) caused in whole or in part or arising directly or indirectly out of Landlord’s failure to so transfer such utilities . The foregoing indemnification obligations of Landlord survive the expiration or earlier termination of this Lease.
13.1.3. Refuse Collection. During the Lease Term, Tenant, at its cost, shall provide for collection of refuse and garbage with respect to the Premises in the manner and at such times as Tenant desires.
13.2. Interruptions. Landlord is not liable to Tenant in damages or otherwise if the util- ities or services are interrupted or terminated except to the extent caused by the gross negligence or willful misconduct of Landlord or its agents, employees or contractors.
14. Intentionally Deleted.
15. Intentionally Deleted.
16. Intentionally Deleted.
17. Surrender.
Upon the expiration or earlier termination of this Lease, Tenant shall surrender the Premises in its then “AS IS” and “WHERE IS” condition, with all improvements installed at the Premises as of the Lease Commencement Date and any improvements thereafter installed as an alteration pursuant to Section 19 below in place. To the extent Tenant has not already done so, within forty-five (45) days following the expiration or earlier termination of this Lease , Tenant shall remove from the Development the items expressly designated for removal on the decommission scope attached hereto as Exhibit D (the “Decommission Scope”). Tenant’s access to the Development and removal/decommissioning activities during the foregoing forty-five (45) day period after the expiration or earlier termination of this Lease shall not be considered a holdover under this Lease. For the avoidance of doubt, other than the items expressly EXHIBIT 1
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designated for removal from the Development on the Decommission Scope, Tenant shall have no obligation to remove from the Development at any time any alterations, improvements, trade fixtures, machinery, appliances, equipment, furniture, personal property, safe deposit boxes, under counter steel, vaults, vault doors, cabling or wiring, signs, signage structures, signage panels, telephone equipment, security systems and equipment, or any other items, including without limitation, the items designated to rema in at the Development on the Decommission Scope. In addition, and notwithstanding anything set forth in this Lease to the contrary, in no event shall any ATM (including any currency, checks, stamps, transaction records, or other contents located therein) or any proprietary or confidential items (e.g., disks, computers, hard drives, etc.) (collectively, “Banking Equipment”) be transferred to Landlord and all such Banking Equipment shall remain the property of Tenant. If any Banking Equipment remains at the Development after the expiration of such forty-five (45) day period following the expiration or earlier termination of this Lease, Landlord shall notify Tenant thereof and Tenant shall have a period of not less than thirty (30) days after receipt of such notice to remove such Banking Equipment from the Development.
18. Signage.
18.1. General. During the Lease Term, Tenant shall have the right to maintain at the Premises and the Development all of its signs which exist as of the Lease Commencement Date, including without limitation, Tenant’s exterior signage as depicted on Exhibit C attached hereto. Landlord shall not place, or allow any third-party to place, any signage or other advertisements for Landlord or any third-party on the exterior walls or roof of the Premises without Tenant’s prior written approval, which approval may be withheld in Tenant ’s sole discretion without considering the interests of Landlord or any third -party.
Tenant may change the name, logo, or coloring of Tenant’s signage without any further consent on the part of Landlord if such changes comply with applicable Governmental Regulations.
18.2. Tenant’s Interior Signs . During the Lease Term, Tenant shall have the right to maintain within the interior of the Premises and Building all signs and advertising which exist as of the Lease Commencement Date, including any interior marquee-type signage which is placed in the windows and is visible from the outside of the Premises.
18.3. Trademarks. Tenant may operate at the Premises under any trade name, logo, trademark, or service mark permitted by law (collectively, “Marks”). Each party’s Marks remain the sole property of such party. Landlord and Tenant shall not use a Mark of the other party in advertising or otherwise without the prior written consent of the party owning the Mark; provided, however, that Tenant is permitted to include t he location/ address of the Premises in Tenant ’s directories of store locations published by Tenant from time to time.
18.4. Scaffold Signage . If the visibility of Tenant ’s existing signage is materially obstructed by any construction activities on or about the Development (e.g., scaffolding, construction trailers, staging/supply storage areas, or construction equipment), Tenant may, subject to applicable Governmental Regulations and Landlord’s prior written approval, install temporary replacement signage to alleviate the temporary visibility obstruction. Landlord shall use commercially reasonable efforts to obtain for Tenant the right to install such temporary replacement signage from Landlord ’s contractors or other third-party vendors (e.g., by including such requirement in Landlord ’s contract with all contractors and third-party vendors). In addition, Landlord shall, if required, join in any signage permit application required for such temporary replacement signage.
19. Alterations.
Tenant shall not make any structural alterations, additions, or improvements to the Premises without the prior written consent of Landlord; provided, however, that Tenant may, at its own expense, and without Landlord consent, make any non-structural alterations to the Premises, including to upgrade/replace any EXHIBIT 1
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ATM or night drop, as Tenant desires. Tenant shall secure all applicable governmental permits and approvals required in connection with any such work.
20. Assignment & Subletting.
20.1. Landlord’s Consent. Except as otherwise provided in this Section 20, Tenant shall not assign this Lease or sublet the whole or any part of the Premises (collectively, “Transfer”) without the prior written consent of Landlord. Landlord’s consent to a Transfer serves to release Tenant from all further liability under this Lease arising after the effective date of such assignment.
20.2. No Assignment. The following events are not a Transfer under this Section 20:
(i) a change in ownership of Tenant as a result of a merger, consolidation, reorganization, or joint venture; (ii) the sale of Tenant’s assets (e.g., deposits, loans, this Lease, etc.) at the Premises as a going concern (a “Store Sale”); (iii) a Transfer of this Lease to any entity if a regulatory agency having jurisdiction over Tenant’s business requires that Tenant divest itself of certain deposits and banking facilities (a “Divestiture”); (iv) the Transfer of this Lease to any entity that controls, is controlled by, or is under common control with Tenant; (v) the sale, exchange, issuance, or other transfer of Tenant ’s stock on a national exchange or between any entity that controls, is controlled by, or is under common control with Tenant; or (vi) the sale or transfer of at least ten (10) locations (including the Premises and this Lease) in a bulk sale to one transferee (a “Bulk Sale”). Tenant is not required to obtain Landlord’s consent and Landlord shall not delay, alter, or impede any of the foregoing transactions or combinations thereof. Tenant has no further liability under this Lease arising after the effective date of a Store Sale, Divestiture, or Bulk Sale.
20.3. Resolution & Recovery.
20.3.1. “Resolution Event” means the filing of and pursuit of an insolvency related proceeding against Tenant or Tenant’s assets pursuant to applicable law (e.g., the Dodd-Frank Wall Street Reform and Consumer Protection Act). For purposes of this Section 20.3 only, “Affiliate” means any entity that controls, is controlled by, or is under common control with Tenant.
20.3.2. Notwithstanding anything set forth in the Lease to the contrary, if a Resolution Event occurs, and Tenant or an Affiliate continues to abide by the terms of the Lease, Landlord shall not, while a Resolution Event is pending (and, except as otherwise provided in Section 20.3.5 below, for a period of eighteen (18) months thereafter): (i) terminate or modify the Lease; (ii) recapture the Premises; (iii) prevent renewal of the Lease pursuant to a right to renew set forth in the Lease (if any); (iv) suspend any services provided to Tenant, an Affiliate, or the Premises under the Lease; or (v) otherwise exercise remedies under or in respect of the Lease arising from a Resolution Event.
20.3.3. In addition, but only in connection with a Resolution Event, Landlord hereby consents to (i) any change of control of Tenant or an Affiliate and (ii) the assignment, delegation, or transfer of any or all of Tenant’s rights and obligations under the Lease, in whole or in part, to any entity that is or becomes (or, as of immediately prior to the Resolution Event, was) an Affiliate or a successor to the whole or a part of the business of Tenant or an Affiliate.
20.3.4. For purposes of this Section 20.3.4 only, Affiliate also includes any Affiliate or entity that, in connection with a Resolution Event, is an assignee of Tenant or an entity divested by Tenant. If Tenant (or Tenant’s trustee, receiver, or debtor-in-possession) rejects, disclaims, or repudiates the Lease in connection with a Resolution Event, the Lease shall nevertheless remain in full force and effect as between any Affiliate of Tenant that is a party to or beneficiary of the Lease (e.g., a subtenant, licensee, or other occupant of the Premises) and Landlord shall not exercise any right to terminate the Lease or otherwise exercise any right or remedy under the Lease with respect to any such Affiliate to the extent that such right or remedy arose or arises from such rejection, disclaimer, or repudiation so long as such Affiliate continues to perform its own obligations, or the obligations assumed by it, under the Lease.
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20.3.5. Notwithstanding anything set forth in this Section 20.3 to the contrary, Landlord is not required, even during a Resolution Event, to allow Tenant or an Affiliate to occupy the Premises after the final expiration date of the Lease.
20.4. No Waiver. Notwithstanding anything set forth in this Lease to the contrary, Ten- ant has not waived any of its rights under California Civil Code Section 1995.310.
21. Indemnification.
21.1. Mutual Indemnification . Subject to the waiver of subrogation provisions in Section 22 below, Tenant shall indemnify, hold harmless, pay, and reimburse Landlord from and for any and all losses, damages, liability, or expenses (including reasonable attorneys’ fees, court costs, and expert witness fees) actually incurred by Landlord, arising from loss of life, personal injury and/or property damage, caused by or resulting from, in whole or in part, any negligent act or omission or intentional misconduct of Tenant, its agents, employees, or contractors on or after the Lease Commencement Date, in connection with Tenant’s use or occupancy of the Premises. Subject to the waiver of subrogation provisions in Section 22 below, Landlord shall indemnify, hold harmless, pay, and reimburse Tenant from and for any and all losses, damages, liability, or expenses (including reasonable attorneys’ fees, court costs, and expert witness fees) actually incurred by Tenant, arising from loss of life, personal injury and/or property damage, caused by or resulting from, in whole or in part, any negligent act or omission or intentional misconduct of Landlord, its agents, employees, or contractors, in connection with the management, use, or occupancy of the Development and its Common Areas.
21.2. Concurrent Negligence. Notwithstanding the provisions of Section 21.1 above, in the event of the concurrent negligence or intentional misconduct of Tenant, its agents, employees, or contractors on the one hand and that of Landlord, its agents, employees, or contractors on the other hand, a party’s (the “Indemnifying Party”) obligation to indemnify the other as set forth in this Section 21 is limited to the extent of the Indemnifying Party ’s negligence and/or intentional misconduct, and that of its agents, employees, or contractors, including the Indemnifying Party ’s proportionate share of reasonable costs, attorneys’ fees, court costs, expert witness fees, and other expenses incurred in connection with any claim, action, or proceeding brought with respect to such injury or damage.
21.3. Survival. The obligations of Tenant and Landlord under this Section 21 shall survive the expiration or earlier termination of this Lease.
22. Insurance.
22.1. Waiver of Subrogation. Except to the extent caused by the gross negligence or willful or wanton misconduct of the other party, Tenant and Landlord hereby waive any and all rights of recovery, claims, actions, or causes of action against each other, by way of subrogation or othe rwise, including their respective employees, officers, directors, subsidiaries, affiliates, agents, representatives, and assigns, for any loss or damage that may occur to the Development, Landlord’s personal property, Tenant’s betterments in and about the Premises, and Tenant’s personal property by reason of fire or other casualty, regardless of cause or origin. The above waiver of subrogation applies whether or not there are any deductibles or self-insurance and in the absence of any commercial property insurance.
22.2. Liability Insurance. During the Lease Term, Landlord and Tenant shall maintain:
(i) Commercial General Liability insurance ( “CGL Insurance ”) with limits of liability not less than $1,000,000 per occurrence with a general aggregate of not less than $2,000,000 covering liability arising from operations at the Development or Premises, as applicable, independent contractors, product-completed operations, personal injury, and advertising injury, and contractual liability that includes this Lease as an insured contract; (ii) Commercial Automobile Liability insurance ( “CAL Insurance”) with a combined single limit of liability not less than $1,000,000 covering bodily injury, including death, and property EXHIBIT 1
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damage for liability arising from use of owned, non-owned, and hired vehicles; (iii) Workers’ Compensation insurance ( “WC Insurance ”) in full compliance with applicable state or jurisdictional statutory requirements and Employers ’ Liability insurance ( “EL Insurance ”) in an amount of not less than $1,000,000 per accident for bodily injury and $1,000,000 per employee/aggregate for disease.
22.3. Additional Insureds. With respect to CGL Insurance, Tenant shall name Landlord as an additional insured and Landlord shall name Tenant as an additional insured. In addition, the CGL Insurance: (i) must be endorsed to be primary and non-contributory, rather than excess, with respect to each party’s additional insured status; (ii) endorsed to provide cross -liability coverage if they do not contain a standard ISO separation of insureds provision; (iii) must not contain any endorsement or provision that states the limits of the policy will not stack, pyramid or be in addition to any other limits provided by that insurer, and (iv) have no cross suits exclusion, or any similar exclusion that excludes coverage for claims brought by an additional insured under the policy against another insured under the policy.
22.4. Rating Requirements. All insurance policies required by this Section 22 (i) must be issued or re-insured by insurance companies having an “A” rating or better by Standard and Poor’s, and if not rated by Standard & Poor’s, then a rating of “A” by A.M. Best Company, with a minimum Financial Size Category of VIII, and (ii) may be satisfied by a primary policy or combination of primary, excess, or umbrella policies. The insurance provisions set forth in this Section 22 set forth the minimum amounts and scopes of coverage to be maintained by Landlord and Tenant and are not to be construed in any way as a limitation on each party’s liability under this Lease.
22.5. Self-Insurance. Tenant may satisfy any or all of the above insurance requirements by use of self-insurance, deductible, and/or a captive insurance company (and the rating requirements set forth in Section 22.4 above are not applicable to Tenant’s self-insurance or to policies issued by a captive insurance company). Landlord hereby represents to Tenant that Landlord’s self -insurance with respect to CGL Insurance, CAL Insurance and WC Insurance , and Tenant’s protection thereunder, is as set forth in Exhibit E attached hereto. The responsibility to fund any financial obligation for self-insurance, the election not to insure, and the amount of any deductible are assumed by, for the account of, and at the sole risk of each party. The application of coverage within this self-insurance, election not to insure, and/or deductible is deemed covered in accordance with the policy forms set forth in this Section 22.
22.6. Certificates of Insurance. Each party shall furnish certificates of insurance to the other party evidencing all of the above-described insurance policies prior to or upon execution of this Lease and annually thereafter, but not later than ten (10) business days after the expiration of each policy. Each party shall notify the other party within 30 days after receiving any Notice of Cancellation, material modification, reduction in coverage, or non -renewal from its insurer that results in non -compliance with the insurance requirements set forth in this Section 22.
23. Default.
23.1. Failure to Perform . The failure of a party to observe or perform any of the covenants, conditions, or provisions of this Lease to be observed or performed by such party, where such failure continues for more than twenty (20) days after such party’s receipt of written notice of default from the other party; provided, that if the cure of such failure reasonably requires more than twenty (20) days to complete, then such party is not in default if such party promptly commences the cure of such failure and diligently pursues such cure to completion.
23.2. Remedies in Default. Upon the occurrence of a Default ( i.e., after expiration of the applicable notice and cure period without cure), the non-defaulting party may (as such party’s sole and exclusive remedies): (a) perform, on the defaulting party’s behalf, any unperformed covenant or obligation hereunder constituting such Default (after giving the defaulting party written notice of the non-defaulting party’s intention to do so except in the case of emergency which threatens life or where there is imminent EXHIBIT 1
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danger to property), in which event the defaulting party shall reimburse the non-defaulting party for all expenses reasonably incurred by the non-defaulting party in doing so within thirty (30) days after written demand therefor; and/or (b) terminate this Lease and in the case of a Default by Tenant, pursue such other rights and remedies as may be available under applicable law with respect to removal of Tenant and repossession of the Premises . LANDLORD HEREBY WAIVES ANY RIGHT OF RE -ENTRY
WITHOUT TERMINATING THIS LEASE AND ANY LOCK -OUT REMEDIES A V AILABLE UNDER APPLICABLE GOVERNMENTAL REGULATIONS.
24. Landlord Bankruptcy Proceeding. If the obligations of Landlord under this Lease are not performed during the pendency of a bankruptcy or insolvency proceeding involving the Landlord as the debtor, or following the rejection of this Lease in accordance with Section 365 of the United Sta tes Bank- ruptcy Code, then notwithstanding any provision of this Lease to the contrary, Tenant may collect (a) any and all damages caused by such non-performance of Landlord’s obligations under this Lease by Landlord, debtor-in-possession, or the bankruptcy trustee, and (b) any and all damages caused by the non-performance of Landlord’s obligations under this Lease following any rejection of this Lease in accordance with Section 365 of the United States Bankruptcy Code.
25. Damage by Fire or Other Casualty.
25.1. Termination Rights. If fire or other casualty renders the whole or any portion of the Premises untenantable for any period of time, then either Landlord or Tenant shall have the right to terminate this Lease upon written notice to the other, effective upon a date within thirty (30) days from the date of such notice. Upon termination, neither Landlord nor Tenant shall have any other future obligations or responsibilities under this Lease (except for any that expressly survive termination of this Lease). In no event shall either party be obligated to restore the Premises following any damage or destruction.
25.2. Waiver of Statutory Provisions. The provisions of this Lease, including this Sec- tion 25, constitute an express agreement between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any part of the Premises or the Development, and any statute or regulation of the State of California, including Sections 1932(2) and 1933(4) of the California Civil Code, with respect to any rights or obligations concerning damage or destruction in the absence of an express agreement between the parties, and any other statute or regulation, now or hereafter in effect, has no application to this Lease or any damage or destruction to all or any part of the Premises or the Development.
26. Condemnation/Eminent Domain.
26.1. Total Taking or Partial Taking . “Eminent Domain ” means the taking or damaging of property by, through or under any Governmental Authority, and any purchase or acquisition in lieu thereof, whether or not the damaging or taking is by the government or any other person having the lawful right to do so . Landlord shall notify Tenant if all or any portion of the Development, or all or any portion of the Premises or Improvements, is going to be acquired for any public or quasi-public use through taking by condemnation, eminent domain, or purchase in lieu t hereof (each, a “Taking”) within five (5) business day after Landlord’s receipt of notice thereof. If all or a portion of the Premises are taken by Eminent Domain, this Lease shall terminate as of the earlier of (i) the date Tenant is required to vacate the Premises or (ii) the date title passes to the condemning authority.
26.2. Damages. Landlord reserves all rights to the entire damage award or payment for any taking by eminent domain. Tenant shall, however, have the right to claim from the condemning authority all compensation that may be recoverable by Tenant on account of any loss incu rred by Tenant, including loss due to removing Tenant’s merchandise, furniture, trade fixtures, and equipment or for damage to Tenant’s business, loss of business, and/or loss of leasehold interest; provided, however, that Tenant may claim such damages only if they are awarded separately in the eminent domain proceeding and not as part of Landlord’s damages.
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26.3. Waiver of Statutory Provisions. Tenant hereby waives any and all rights it might otherwise have pursuant to Section 1265.130 of the California Code of Civil Procedure.
27. Intentionally Deleted.
28. Environmental/Hazardous Materials.
28.1. Tenant Compliance. Commencing on the Lease Commencement Date and thereafter throughout the Lease Term, Tenant shall not cause any substances, chemicals, materials or pollutants (whether solid, liquid or gaseous) deemed to be toxic or hazardous or the manufacture, storage, transport or disposal of which is regulated, governed, restricted or prohibited by any federal, state or local agency or authority, or under any federal, state or local law, ordinance, rule or regulation related to the environment, health or safety (collectively, the “ Environmental Laws ”), including any oil, gasoline, petroleum, petroleum by-products, asbestos or asbestos containing materials (collectively, the “Hazardous Materials”), to be placed, stored, released, discharged, manufactured, treated or used on, in, under or about the Premises in violation of applicable Environmental Laws, except for office supplies, cleaning supplies, and other similar supplies and materials used in the ordinary course of Tenant’s business.
28.2. Landlord Compliance. Throughout the Lease Term, Landlord shall not cause or permit any Hazardous Materials to be placed, stored, released, discharged, manufactured, treated, or used on, in, under, or about the Development in violation of applicable Environmental Laws.
28.3. Tenant Indemnification of Landlord. Tenant shall indemnify, defend, and hold Landlord harmless from and against all Liabilities (as defined below) to the extent caused by or arising out of any Hazardous Materials released at the Premises by Tenant on or after the Lease Commencement Date in violation of applicable Environmental Laws . Tenant’s obligations and liabilities under this Section 28 survive the expiration or earlier termination of this Lease.
28.4. Landlord Indemnification of Tenant . Landlord shall indemnify, defend, and hold Tenant harmless from and against all Liabilities (as defined below) to the extent caused by or arising out of the presence, disturbance, discharge, release, removal, or cleanup of any Hazardous Materials at the Development by any person or entity (other than a release by Tenant on or after the Lease Commencement Date). Landlord’s obligations and liabilities under this Section 28 survive the expiration or earlier termination of this Lease.
28.5. “Liabilities” means any and all liabilities, expenses, demands, fees, sums, amounts, damages (excluding punitive, exemplary and consequential damages), costs, cleanup costs, response costs, losses, causes of action, claims for relief, attorneys’ fees, court costs, alternative dispute resolution expenses and other legal fees, other professional fees, penalties, fines, assessments, and charges.
29. No Subordination of Lease.
Landlord represents and warrants to Tenant that there is no mortgage or deed of trust that affects or encumbers all or any portion of the Development as of the Lease Commencement Date and that this Lease shall not at any time during the Lease Term be subordinate to the lien of any mortgage or deed of trust that hereafter affects or encumbers all or any portion of the Development.
30. Estoppel Certificate.
Landlord and Tenant shall from time to time upon request from each other, within thirty (30) days after notice from the other, execute and deliver to such persons as the requesting party shall request, a statement certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that th e same is in full force and effect as so modified), stating the commencement and EXHIBIT 1
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termination dates of the current Lease Term, stating whatever options to extend there may be in this Lease, stating that Landlord or Tenant, as applicable, is not in default hereunder to such party’s actual knowledge (or if Landlord or Tenant, as applicable, have alleged a default, stating the nature of such alleged default), and further stating such other factual matters relating to this Lease as the requesting party shall reasonably require.
31. Access to Premises.
Landlord, its agents, employees, and contractors, may enter the Premises at reasonable times with reasonable advance notice to Tenant (or to an authorized employee of Tenant at the Premises), and at any time if an emergency (which threatens life or where t here is imminent danger to property), to do the following: (i) inspect the Premises and show the Premises to prospective lenders or purchasers and, during the ninety (90) days immediately prior to the expiration of this Lease, to prospective tenants, but only if all such showings are accompanied by a representative of Tenant if so requested by Tenant; (ii) make repairs or perform maintenance if required by this Lease; (iii) comply with applicable Governmental Regulations; or (iv) post (at the Development, but not within or at the entrance to the Premises) for sale or for lease signs; provided, however, that any of the foregoing entries must cause the least practical interference to Tenant’s business and Tenant’s use of the Premises. If Landlord ’s entry (a) materially and substantially interferes with the safety or security of Tenant ’s agents, employees, contractors, or invitees at the Premises, (b) materially and substantially interferes with the conduct of Tenant’s business, or (c) causes damage to Tenant’s property, then in any such event Landlord is liable for any damage to Tenant’s property. Due to the sensitive and regulated nature of Tenant ’s business, Landlord shall not allow any person convicted of a Violent Crime (as defined below) to enter the Premises on behalf of Landlord pursuant to this Section or to provide, directly or indirectly, any service, repair, maintenance, etc., on behalf of Landlord pursuant to this Lease. “Violent Crime” means an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another (e.g., murder, non-negligent manslaughter, rape/ sexual assault, robbery, aggravated assault, harassment, stalking, etc.). In addition, Landlord, its agents, employees, and contractors, are not permitted entry to any restricted area of the Premises (i.e., the vault, behind the teller counter, or other secured area). If Landlord, its agents, employees, or contractors need access to a secured area of the Premises (e.g., an area behind the Premises badge reader), Landlord shall provide to Tenant the following information for each such agent, employee, or contractor prio r to Tenant granting such access (e.g., by issuing a badge or other access device to such agent, employee, or contractor):
full legal name and one government issued identification number (e.g., driver’s license number, passport number, or other government issued identification number).
32. Holding Over.
If Tenant holds over and remains in possession of the Premises beyond the expiration or earlier termination of this Lease, such holding over shall not be deemed or construed to be a renewal of this Lease, but rather shall constitute the creation of a month -to-month tenancy, which may be terminated by either party upon not less than thirty (30) days’ prior written notice thereof to the other party. During such holdover tenancy, Tenant shall be bound by all the terms and conditions of this Lease . The remedy set forth in this Section is Landlord’s exclusive remedy with respect to a holdover by Tenant and is in lieu of all other remedies that may be allowed by applicable Governmental Regulations for a holdover by Tenant.
33. Quiet Enjoyment.
During the Lease Term, Landlord shall, provided that Tenant performs the terms and conditions of this Lease as and when required, take all necessary steps to secure to Tenant and to maintain for the benefit of Tenant the quiet and peaceful possession and enjoyment of the Premises and all rights appurtenant thereto, without disturbance, hindrance, or molestation by Landlord or any other person claiming title to the Premises or the Development or any part thereof, and Landlord shall defend Tenant’s interest under this Lease against the claims of any and all such persons.
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34. Brokerage Commissions.
Each party represents to the other that it has had no dealings with any real estate broker, agent, or finder in connection with the negotiation of this Lease , and that it knows of no real estate broker or agent entitled to any commission or finder ’s fee in connection with this Lease. Each party shall indemnify and hold harmless the other party from and against any and all claims, demands, losses, liabilities, lawsuits, judgments, costs, and expenses (including attorneys’ fees and costs) with respect to any leasing commission, finder’s fee, or equivalent compensation alleged to be owing on account of the indemnifying party ’s dealings with any real estate broker, agent, or finder.
35. Notices.
35.1. Written Notice; Delivery Methods . Each party giving or making any notice, request, demand, consent, approval, or other communication (each, a “Notice” (but sometimes “notice”)) pursuant to this Lease shall: (i) give the Notice in writing; (ii) cause the Notice to be signed by an authorized representative of the sending party (the sending party’s attorney is authorized to sign and send a Notice on behalf of the sending party); and (iii) use one of the following methods of delivery, each of which for purposes of this Lease is a writing: (a) personal delivery; (b) Certified Mail, return receipt requested, with postage paid; (c) nationally recognized overnight courier, with all fees paid; or (d) email (but only if a party’s email address is included in its notice address in the Key Pro visions Summary or is otherwise provided to the other party by a Notice).
35.2. Addresses. Each party giving a Notice shall address the Notice to the appropriate person at the receiving party (the “Addressee”) at the address(es) listed in the Notice Addresses section of the Key Provisions Summary or to another Addressee or at another address as designated by a party in a Notice pursuant to this Section 35. Notices may not be sent to the Premises. Any notice sent to the Premises is deemed ineffective.
35.3. Effectiveness of a Notice. Except as provided elsewhere in this Lease, a Notice is effective only if (i) the party giving the Notice has complied with the two subsections set forth above and (ii) the Notice is deemed to have been received by the Addressee. A Notice is deemed to have been received by the Addressee as follows: (a) if a Notice is delivered in person, sent by Certified Mail, or sent by nationally recognized overnight courier: on the earlier of the date of delivery or the date the Notice is available for pickup, all as evidenced by the records of the delivering person or entity; (b) if a Notice is sent by email: on the date the email Notice is sent to the Addressee ’s email address; and (c) if the Addressee rejects or otherwise refuses to accept the Notice (e.g., if the Addressee does not pick up the Notice timely), or if the Notice cannot be delivered because of a change in address for which no Notice was given: upon the rejection, refusal, or inability to deliver the Notice, which shall be deemed to be the date of rejection, refusal, inability to deliver, or availability for pickup, all as evidenced by the records of the delivering person or entity. If a Notice is sent by email, the party sending the Notice also must send, unless such requirement is waived in a return email from the receiving party, a confirmation copy of the Notice by one of the other methods in the first subsection set forth above within three (3) business days after the send date of the email, but the lack of delivery of such other Notice does not negate the email Notice.
35.4. Delivery Time of Notice. Notwithstanding the foregoing, if any Notice is received after 5:00 p.m. on a Business Day where the Addressee is located, or on a day that is not a Business Day where the Addressee is located, then the Notice is deemed received at 9:00 a.m. on the next Business Day where the Addressee is located.
36. Force Majeure.
36.1.1. Definition. “Force Majeure Event” means any act or event, whether foreseen or unforeseen, that meets all three of the following tests: (a) the act or event prevents a party (the EXHIBIT 1
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“Non-Performing Party”), in whole or in part, from (i) performing its obligations under this Lease, or (ii) satisfying any conditions to the obligations of the other party (the “Performing Party”) under this Lease; (b) the act or event is beyond the reasonable control of and not the fault of the Non -Performing Party; and (c) the Non-Performing Party has been unable to avoid or overcome the act or event by the exercise of due diligence. In furtherance of the definition of Force Majeure Event and not in limit ation of that definition, each of the following acts or events is an example of an act or event that could be a Force Majeure Event if the act or event meets each of the above requirements of this Section 36.1.1: accident; fire; act of God; act of a public enemy; injunction; riot; strike; lockout; insurrection; war; terrorist attack; court order; requisition or order of governmental body or authority; epidemic, pandemic, or quarantine (such as the events connected with COVID-19); and inability to procure labor or materials from normally available sources. Notwithstanding the preceding definition of a Force Majeure Event, a Force Majeure Event excludes economic hardship, changes in market conditions, and insufficiency of funds.
36.1.2. Suspension of Performance . If a Force Majeure Event occurs, the Non-Performing Party is excused from (i) whatever performance is prevented by the Force Majeure Event to the extent prevented, and (ii) satisfying whatever conditions precedent to the Performing Party ’s obligations that cannot be satisfied, but only to the extent they cannot be satisfied due to the Force Majeure Event. Notwithstanding the preceding sentence, a Force Majeure Event does not excuse any obligation by either the Performing Party or the Non-Performing Party to make any payment required under this Lease.
36.1.3. Obligations of Non -Performing Party . Not later than five (5) business days after becoming aware of the occurrence of a Force Majeure Event, the Non - Performing Party shall send written notice to the Performing Party describing the particulars of the occurrence, including an estimate of its expected duration and probable impact on the performance of the Non-Performing Party’s obligations under this Lease. During the continuation of the Force Majeure Event, the Non-Performing Party shall (i) furnish timely, regular written reports updating the initial notice and providing any other information reasonably requested by the Performing Party; (ii) exercise commercially reasonable efforts to mitigate or limit damages to the Performing Party; (iii) exercise commercia lly reasonable due diligence to overcome the Force Majeure Event; (iv) to the extent that it is able, continue to perform its obligations under this Lease; and (v) cause the suspension of performance to be of no greater scope and no longer duration than the Force Majeure Event requires.
36.1.4. Resumption of Performance. When a Force Majeure Event no longer prevents the Non-Performing Party from (i) resuming performance of its obligations under this Lease, or (ii) satisfying the conditions precedent to the Performing Party ’s obligations, the Non -Performing Party shall immediately give the Performing Party written notice to that effect and shall resume performance under this Lease no later than two (2) business days after the notice is delivered.
36.1.5. Exclusive Remedy. Except as explicitly set forth otherwise in this Lease, the relief offered by this Force Majeure provision is the exclusive remedy available to the Non - Performing Party with respect to a Force Majeure Event. In addition, the liability of either party for an event that arose before the occurrence of the Force Majeure Event is not excused as a result of such occurrence.
37. Additional Terms.
37.1. Default Rate of Interest . The “Default Rate” of interest is the lesser of eight percent (8%) per annum or the rate per annum equal to the then current prime interest rate published in The Wall Street Journal in its “Money Rates” section.
37.2. Successors or Assigns. The terms, conditions, covenants, and agreements of this Lease extend to and are binding upon Landlord, Tenant, and their respective heirs, administrators, executors, legal representatives and permitted successors, subtenants and assigns, if any, and upon any EXHIBIT 1
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person or entity coming into ownership or possession of any interest in the Premises by operation of law or otherwise.
37.3. Severability. If any term, covenant, or condition of this Lease or the application thereof to any person or circumstance is, to any extent, invalid, illegal, or unenforceable, the remainder of this Lease, or the application of such term, covenant, or condition to parti es or circumstances other than those to which it is held invalid, illegal, or unenforceable, is not affected thereby and each term, covenant, and condition of this Lease remains valid and enforceable to the fullest extent permitted by law, but only if the essential terms and conditions of this Lease for each party remain valid, binding, and enforceable.
37.4. Recordation of Lease or Memorandum of Lease. Neither Landlord nor Tenant will permit, allow or cause this Lease, any amendment to this Lease or a Memorandum of Lease to be recorded in any public registry or office of register of deeds, including the jurisdiction in which the Premises are situated.
37.5. Waiver. The parties may waive any provision of this Lease only by a writing executed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy or in requiring the satisfaction of any condition under this Lease, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver once given is not to be construed as a waiver on any future occasion or against any other person or entity.
37.6. Amendment. The parties may amend this Lease only by a written agreement of the parties that identifies itself as an amendment to this Lease.
37.7. Headings & Interpretation. The descriptive headings/captions of the sections and subsections of this Lease are for convenience only, do not constitute a part of this Lease, and do not affect this Lease’s construction or interpretation. Whenever used in this Lease: (i) the words “herein”, “hereof”, and similar words refer to this Lease in its entirety and not solely to any specific sentence, paragraph, or section; (ii) the words “include,” “includes,” and “including” mean considered as part of a larger group, incorporate “without limitation”, and are not limited to the items recited; (iii) the word “shall” means “is obligated to”; (iv) the word “may” means “is permitted to, but is not obligated to”; and (v) unless otherwise noted reference to a specific Section or Exhibit is a reference to a Section or Exhibit in this Lease.
37.8. Choice of Law. The laws of the state, commonwealth, or jurisdiction where the Premises are located (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Lease and the transactions it contemplates, including its interpretation, construction, performance, and enforcement.
37.9. Acceptance of Keys . The acceptance of keys to the Premises by Landlord, its agents, employees, contractors, or any other person on Landlord’s behalf is not deemed an early termination of this Lease unless such early termination is evidenced in writing and signed by Landlord.
37.10. Authority to Execute . Each party represents to the other party that this Lease:
(i) resulted from an arm’s-length negotiation; (ii) has been duly authorized, executed, and delivered by and on behalf of such party; and (iii) constitutes the valid, binding, and enforceable agreement of such party in accordance with the terms of this Lease. In addition, each party represents to the other party that it has the full right, power, and authority to enter into this Lease without the necessity of obtaining any third -party approval (other than those already obtained by such party) and that the terms of this Lease do not violate any lease, loan, condition, covenant, restriction, exclusive, or any other agreement or provisions to which such party is a party that existed prior to the Lease Date.
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37.11. No Construction Against Drafting Party. Landlord and Tenant acknowledge that each of them and their respective counsel have had an opportunity to review this Lease and that this Lease will not be construed for or against either party merely because such party prepared or drafted this Lease or any particular provision thereof.
37.12. Counterparts & Digital Signatures . The parties may execute this Lease in multiple counterparts, each of which constitutes an original, and all of which, collectively, constitute only one Lease. The signatures of all parties need not appear on the same counterpart. This Lease is valid, binding, and enforceable against a party only when executed by an authorized individual on behalf of a party by means of (i) an electronic signature that complies with the federal Electronic Signatures in Global and National C ommerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signatu re or faxed, scanned, or photocopied manual signature has for all purposes the same validity, legal effect, and admissibility in evidence as an original manual signature. This Lease is effective upon delivery of one executed counterpart from each party to the other parties. In proving this Lease, a party must produce or account only for the executed counterpart of the party to be charged.
37.13. Acceptance. The submission of this Lease to Landlord by Tenant or to Tenant by Landlord does not constitute an offer to lease. This Lease becomes effective only upon the execution and delivery thereof by both Landlord and Tenant.
37.14. Damages. Notwithstanding anything set forth in this Lease to the contrary, neither party is liable to the other for any special, indirect, punitive, or consequential damages.
37.15. Time of the Essence. Time is of the essence in this Lease.
37.16. Business Days. “Business Day” (or “business day”) means, as to any party, any day that is not a Saturday, Sunday, or other day on which national banks are authorized or required to close in the state, commonwealth, or jurisdiction where the Premises are located (“Bank Holiday”). To compute a time period under this Lease when the period is stated in days or a longer unit of time: (i) exclude the day of the event that triggers the period; (ii) count every day, including intermediate Saturdays, Sundays, and Bank Holidays; and (iii) include the last day of the period, but if the last day is a Saturday, Sunday, or Bank Holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or Bank Holiday.
37.17. Attorneys’ Fees. In the event of any litigation related to this Lease, whether to enforce its terms, recover for default, or otherwise, if either party receives a judgment, settlement, or award in its favor (the “Receiving Party”) against the other party (the “Paying Party”) in such litigation, the Paying Party shall pay upon demand all of the Receiving Party ’s costs, charges, and expenses (including reasonable attorneys’ fees, court costs, and expert witness fees) arising out of such litigation (including the costs of any appeal related thereto); provided, however, that if prior to commencement of a trial in the litigation the Paying Party offers to pay an amount equal to or in excess of such judgment, settlement, or award, the Receiving Party is not entitled to any such costs, charges, expenses, or attorneys’ fees.
37.18. Confidentiality. Landlord shall hold the terms of this Lease in strict confidence and will not disclose same to any person other than to (i) Landlord’s directors, officers, employees, and partners, (ii) those brokers, consultants, lenders, or other third parties working with Landlord in connection with this Lease and who need to know such information for the purpose of consummating this transaction and who agree in writing to the terms of this Section, and (iii) members of the public to the extent required for Landlord to comply with its obligations under California’s Public Records Act (California Government Code Section 7920.000 et seq.). If Landlord receives a subpoena or other request to disclose this Lease under California’s Public Records Act, Landlord shall promptly notify Tenant thereof in order to permit EXHIBIT 1
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Tenant the opportunity to seek a protective order or take any other appropriate action to prevent disclosure of this Lease. This confidentiality obligation will not be applicable to disclosure of information required by applicable Governmental Regulations. Tenant may suffer irreparable harm in the event of a breach of this confidentiality agreement, for which Tenant has no ad equate remedy at law. Therefore, in addition to all other remedies available pursuant to the terms of this Lease or at law, Tenant shall have the right to obtain immediate injunctive or other equitable relief upon a breach of this confidentiality agreement by Landlord, without the necessity of giving any notice of such default or opportunity to cure the same.
37.19. Personal Data. If Tenant collects Personal Data (as defined below) from Landlord’s agents, employees, or contractors in connection with this Lease (e.g., Personal Data collected to issue an access badge for the Premises), Landlord shall provide such persons with the Wells Fargo privacy notice disclosure available at https://www.wellsfargo.com/privacy-security/notice-of-data-collection/ or as otherwise provided by Wells Fargo. “Personal Data” means any information that: (1) identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with an identifiable natural person or (2) is considered Personal Data as such term or concept is defined by applicable law.
37.20. Third-Party Beneficiaries. This Lease does not and is not intended to confer any rights or remedies upon any person or legal entity other than the signatories.
37.21. Survival. The provisions of this Lease that would require that they survive the expiration or earlier termination of the Lease in whole or part to give them full effect survive the expiration or termination of this Lease in whole or part for any reason, regardless of the date, cause, or manner of such expiration or termination. In addition, all rights of action arising from this Lease that accrue during the Lease Term, and any remedies for such claims, both legal and equitable, survive the expiration or ear lier termination of this Lease.
37.22. Anti-Money Laundering, Sanctions, and Anti-Corruption.
37.22.1. “AML Laws ” means all U.S. anti -money laundering laws that criminalize money laundering or any predicate crimes to money laundering. “Anti-Corruption Laws” means the U.S. Foreign Corrupt Practices Act and any similar applicable statute, rule, or regulation relating to bribery or corruption. “Sanctions” means any economic, trade, or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes, or anti -terrorism laws imposed from time to time by the United States government including but not limited to those administered or enforced by th e U.S. Department of Treasury’s Office of Foreign Assets Control. Each party represents to the other party that it is not a target of Sanctions and will not directly or indirectly transfer any of its interest in the Lease to a target of Sanctions.
At all times during the Lease Term each party shall not violate applicable Sanctions, AML Laws, or Anti- Corruption Laws to the extent that such violation results in it being unlawful for the non-violating party to transact business under the Lease with the violati ng party. If a violation occurs that results in it being unlawful for the non-violating party to transact business under the Lease with the violating party, the non- violating party may suspend, upon written notice thereof to the violating party, any moneta ry obligations under the Lease until such time as the violating party is no longer in violation. In addition, if such violation is not cured promptly, the non-violating party may terminate the Lease upon prior written notice thereof to the violating party.
37.22.2. “Sanctions Info” means (i) full legal name, (ii) TIN/SSN for an entity or individual, as applicable, that is a party to the Lease, and (iii) full current business street address. “Entity Signatory” (collectively, “Entity Signatories ”) means an entity that executes this Lease directly or indirectly for an entity party. Landlord shall, prior to execution of the Lease, deliver to Tenant a notice setting forth Sanctions Info for all entities and individuals that are a party to the Lease a nd for all Entity Signatories (e.g., if the entity executing the Lease is John Smith LLC (the entity party) by Peter Jones LLC, its sole manager (the Entity Signatory), by Jack Miller, its sole manager, then the notice must include EXHIBIT 1
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Sanctions Info for John Smith LLC and for Peter Jones LLC, but not for Jack Miller). Thereafter, each party shall, within five (5) business days after receipt of written notice thereof from the other party, deliver to the requesting party a notice setting forth the Sanctions Info (see example above) for all entities and individuals that are a party to the Lease and for all Entity Signatories.
37.23. Lease Date. The date this Lease is signed by the last party to sign it (as indicated by the date associated with that party’s signature) will be deemed the date of this Lease. If a party signs but fails to date a signature the date that the other party receives the signing party ’s signature will be deemed to be the date that the signing party signed this Lease and the other party may inscribe that date as the date associated with the signing party ’s signature; provided, however, if only one party dated this Lease, then such date is the date of this Lease.
37.24. Merger/Prior Agreements . THIS LEASE CONSTITUTES THE FINAL AGREEMENT BETWEEN THE PARTIES. IT IS THE COMPLETE AND EXCLUSIVE EXPRESSION OF THE PARTIES ’ AGREEMENT ON THE MATTERS CONTAINED IN THIS LEASE. ALL PRIOR AND CONTEMPORANEOUS NEGOTIATIONS AND AGREEMENTS
BETWEEN THE PARTIES ON THE MATTERS CONTAINED IN THIS LEASE ARE EXPRESSLY MERGED INTO AND SUPERSEDED BY THIS LEASE. THE PROVISIONS OF
THIS LEASE MAY NOT BE EXPLAINED, SUPPLEMENTED, OR QUALIFIED THROUGH EVIDENCE OF TRADE USAGE OR A PRIOR COURSE OF DEALINGS. IN ENTERING INTO
THIS LEASE, THE PARTIES HA VE NOT RELIED UPON ANY STATEMENT,
REPRESENTATION, W ARRANTY, OR AGREEMENT OF THE OTHER PARTY EXCEPT FOR THOSE EXPRESSLY CONTAINED IN THIS LEASE. THERE IS NO CONDITION PRECEDENT
TO THE EFFECTIVENESS OF THIS LEASE OTHER THAN THOSE EXPRESSLY STATED IN THIS LEASE.
38. Waiver of Jury Trial.
EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS
RIGHT TO A TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW IN ANY ACTION OR
OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS LEASE AND THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER APPLI ES TO ANY ACTION OR
OTHER LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. EACH PARTY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADVICE OF COMPETENT COUNSEL.
[Remainder of Page Left Blank Intentionally –
Signatures on Following Page]
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The parties hereby execute this Lease as of the dates set forth below.
Landlord:
CITY OF STOCKTON,
a municipal corporation
By: ____________________________________
Print Name: ______________________________
Title: ___________________________________
Date:
Tenant:
WELLS FARGO BANK, N.A.,
a national banking association
By:
Print Name:
Title:
Date:
By:
Print Name:
Title:
Date:
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EXHIBIT A-1
DEPICTION OF PREMISES
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ATM Machines (Northern Elevation)
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EXHIBIT 1
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EXHIBIT A-2
DEVELOPMENT LEGAL DESCRIPTION
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EXHIBIT A-3
DEVELOPMENT SITE PLAN
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EXHIBIT B
FORM OF COMMENCEMENT DATE AGREEMENT
COMMENCEMENT DATE AGREEMENT
[Stockton, CA – 303 North El Dorado Street] (BE #199560) THIS COMMENCEMENT DATE AGREEMENT (this “Agreement”) is entered into by CITY OF STOCKTON, a municipal corporation (“Landlord”), and WELLS FARGO BANK, N.A., a national banking association (“Tenant”) as of the date this Agreement is signed by the last to sign of Landlord and Tenant as shown on the signature page attached hereto.
Landlord and Tenant entered into that certain Branch and Office Lease of even date herewith (the “Lease”), with respect to certain premises located at 303 North El Dorado Street, Stockton, California, as more fully described in the Lease.
The parties agree as follows:
1. Capitalized terms used in this Agreement not specifically defined herein have the meanings given such terms in the Lease.
2. The Lease Commencement Date is ________________. [date of closing to be inserted ] The Expiration Date of the Lease is 11:59 p.m. on ____________ [date which is the last day of the calendar months four (4) months after the date of closing to be inserted], subject to Tenant’s early termination rights set forth in the Lease.
3. No rent is payable by Tenant during the Lease Term.
4. This Agreement shall automatically terminate if the purchase and sale agreement between Tenant and Landlord for the sale of the Development terminates.
5. The parties may execute this Agreement in multiple counterparts, each of which constitutes an original, and all of which, collectively, constitute only one Agreement. The signatures of all parties need not appear on the same counterpart. This Agreement is valid, binding, and enforceable against a party only when executed by an authorized individual on behalf of a party by means of (i) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature has for all purposes the same validity, legal effect, and admissibility in evidence as an original manual signature. This Agreement is effective upon delivery of one executed counterpart from each party to the other parties. In proving this Agreement, a party must produce or account only for the executed counterpart of the party to be charged. [signatures on next page]
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The parties hereby execute this Agreement as of the dates set forth below.
LANDLORD: CITY OF STOCKTON,
a municipal corporation
By:
Print Name:
Title:
Date:
TENANT: WELLS FARGO BANK, N.A.,
a national banking association
By:
Print Name:
Title:
Date:
By:
Name:
Title:
Date:
EXHIBIT 1
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EXHIBIT C
TENANT’S SIGNAGE
(Attached)
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EXHIBIT D
DECOMMISSION SCOPE
Stockton Main Decommission Scope
Furniture Remove all files, personal equipment and common area items - including appliances. Don't remove fixed appliances
All furniture to remain
All whiteboards and display items will be removed unless fixed to the wall by mastic Television and monitors removed - cabling to remain
Built-in millwork to remain
All permanent fixtures to remain
Cash vault, safe deposit box and vault door shall remain Technology Network cabling for furniture to remain
All network cabling will remain in IDF/MDF rooms - labeled if possible All servers and equipment that are WF property will be removed - Racks / cages to remain All wireless access point to be removed
All desktop equipment, phones, video conferencing and all other WF property/equipment will be removed cabling to remain
All WF circuits and leased equipment will be removed - cabling to remain All cabling in risers to remain
All patch panels to remain
All UPS and batteries to remain
All satellite dishes and roof top technology will be removed Security All WF equipment will be removed to include cameras, & motion sensors - keypads, cypher locks and cabling to remain
All cabling in risers to remain
Night drop to be sealed and capped but the night drop will remain. Combos set to factory setting.
Any security elements not proprietary to Wells Fargo to remain.
Signage and
branding
All interior signage and branding will be removed - Exit signage and evacuate maps to remain
Removal of exterior building signage performed by Retail Portfolio Property Manager BMS Operating system to remain - WF proprietary equipment, switches and circuits and leased items shall be removed - need owner to coordinate transition to their operating system Fire Life Safety Operating system to remain - WF proprietary equipment, switches and circuits and leased items shall be removed - need owner to coordinate transition to their operating system HVAC Operating systems to remain - including equipment in IDF/MDF rooms ATM Remove ATM and secure building per ATM closure guidelines. Holes boarded and secured.
All non-proprietary cable/power for the ATM to remain.
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EXHIBIT E
LANDLORD’S SELF-INSURANCE
EXHIBIT 1