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EXHIBIT 10.7
Xxxxx Management Systems Corp.
LEASE
FORTRESS DEVELOPMENT GROUP
a California Corporation
NEC FORTRESS STREET & CONVAIR AVENUE
CHICO, CALIFORNIA
THIS LEASE, made and entered into this Eighth, day of March, 1999, by and
between FORTRESS DEVELOPMENT GROUP, a California Corporation, hereinafter
referred to as Landlord and XXXXX MANAGEMENT SYSTEMS CORPORATION, hereinafter
referred to as Tenant, without regard to number or gender.
1. USE AND PREMISES: Landlord hereby leases to Tenant and Tenant hereby
hires from Landlord, for the purpose of conducting thereon
those certain premises described as THE MOST EASTERLY 17,470 SQUARE FEET
hereinafter referred to as the "demised premises", being the premises outlined
in red on the attached plot plan Exhibit A having an approximate floor area of
17,470 SQUARE FEET.
2. TERM: The term of this lease shall be for a period of SEVEN (7.0) YEARS
Tenant is given an option to renew this lease for UP TO TWO ADDITIONAL
CONSECUTIVE TERMS OF FIVE YEARS each at the expiration of the term of this
lease, under terms and conditions shown. An additional term can be added upon
agreement to terms and conditions by the parties. Tenant shall give Landlord
written notice of exercising this option no less than 90 day before the end of
the term preceding the option term. At no time and under no conditions will this
lease be renewed or options exercised if the Tenant is in default of this or any
other paragraph of this lease.
The term of this lease, and Tenant's obligation to pay rent, SHALL
COMMENCE WITHIN TEN DAYS OF LANDLORD RECEIVING A CERTIFICATE OF OCCUPANCY OR
WHEN TENANT OPENS FOR BUSINESS IN THE DEMISED PREMISES WHICHEVER COMES FIRST.
Should such earlier date not occur on the first day of a calendar month, the
term hereunder shall begin on the first day of the next succeeding calendar
month. In that event, however, the Tenant shall pay rent for the fractional
month on a per day basis (calculated on the basis of thirty day month) until the
first day of the month when the term hereunder commences and thereafter the
minimum rent shall be paid in equal monthly installments on the first day of
each and every month in advance.
3. BASE RENTAL: Tenant shall pay to Landlord during the term of this lease
as base monthly rental for the demised premises the sum OF ELEVEN THOUSAND THREE
HUNDRED FIFTY-FIVE AND 50/100 DOLLARS ($11,355.50) EACH calendar month, which
sum shall be paid in advance on the first day of each calendar month. All rental
to be paid BY Tenant to Landlord shall be in lawful money of the United States
of America and shall be paid without deduction or offset, prior to notice or
demand at an address to be designated by Landlord.
4. REAL ESTATE TAXES: In addition to all rentals reserved in this lease,
Tenant shall pay to Landlord an amount equal to Tenant's pro rata share of real
estate taxes and assessments levied upon the building including rentable areas,
common areas, and all other areas of the property in
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which the demised premises are located. Tenant's pro rata share of such real
estate taxes shall be determined as specified in Article 9 Pro Rata Share below.
The term "real estate taxes" as used herein shall be deemed to mean all taxes
imposed upon the real property and permanent improvements constituting the
demised premises, and all assessments levied against said premises, but shall
not include personal income tax, personal property taxes, inheritance taxes, or
franchise taxes levied against Landlord, but not directly against said property,
even though such taxes shall become a lien against said property.
5. INSURANCE-FIRE: Landlord shall maintain fire and extended coverage
insurance throughout the term of this lease in an amount equal to at least
ninety (90%) percent of the replacement value of the building which includes the
demised premises and lost rents, together with such other insurance as may be
required by Landlord's lender or by any governmental agency, Tenant hereby
waives any right of recovery from Landlord, its officers, or employees, for any
loss or damage (including consequential loss) resulting from any of the perils
insured against in the standard form fire insurance policy with extended
coverage endorsement. Tenant agrees to pay to Landlord its pro rata share of the
cost of said insurance as specified in Article 9 below.
6. INSURANCE-LIABILITY: During the entire term of this lease, the Landlord
shall maintain general public liability insurance against claims for personal
injury, death or property damage occurring in, upon, or about the demised
premises and on any sidewalks directly adjacent to the demised premises. The
limitation of liability of such insurance shall be not less than One Million and
No/100 Dollars ($1,000,000) in respect to any one accident and to the limit of
not less than Fifty Thousand and No/100 Dollars ($50,000) in respect to
property damage. Tenant agrees to pay to Landlord its pro rata share of the cost
of this insurance as specified in Article 9 below.
The Landlord will periodically review the limits on the insurance provided
for in this Article, and Landlord may, at his option, revise those limits as
required to meet reasonable needs for coverage. The Tenant will be solely
responsible for the cost of these changes.
7. UTILITIES: Tenant, from the date entry into the demised premises is
made for the purpose of preparing for occupancy, or from the date of the
commencement of the term of this lease, whichever comes first, shall pay before
delinquent for all water, burglar alarm, gas, heat, electricity, power, sewage,
telephone, janitorial, garbage, and all other services supplied to or consumed
in or on the premises. Tenant shall not allow refuse, garbage, or trash to
accumulate outside the demised premises in any open area or common area
available to the sight or access of the public, except on the date of scheduled
pickup service, and then only in areas designated for such by Landlord.
8. COMMON AREA: The Common Area shall consist of all areas, except for the
areas where buildings or areas are constructed for leasing to Tenants. Landlord
shall maintain the Common Area in good order, condition, and repair, and shall
provide adequate lighting whenever the center is open for business. Tenant shall
reimburse Landlord for Tenants proportionate share of the total maintenance cost
of the Common Area as specified in Article 9 below. Maintenance cost shall
include all costs incurred in keeping the Common Area neat, clean, orderly, and
well lighted. This shall include sweeping, striping, lighting, landscape
maintenance, janitorial, and other expenses related to the operation and
maintenance of the Common Area. The maintenance of the Common Area shall be at
the sole discretion of the Landlord.
Tenant, its employees, customers, and invitees shall have the
non-exclusive right to use the Common Area in conjunction with all other Tenants
in the Center, and their employees, customers, and invitees. Landlord shall have
the right to publish reasonable rules and regulations for the use of
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the common Area, including designating areas where Tenant and Tenant's employees
shall be required to park.
Tenant will keep Common Area free of merchandise, displays, and any other
item that could constitute a safety hazard.
9. PRO RATA SHARE: Those expenses for which Tenant is responsible under
the terms of this agreement which are separately metered, billed, or assessed
shall be paid directly by Tenant before delinquent. Those expenses which are not
metered, billed, or assessed separately will be paid for by the Landlord and the
Tenant will reimburse to the Landlord its pro rata share. Tenants pro rata share
shall be SIXTY-TWO AND NINETY-THREE ONE HUNDREDTHS PERCENT (62.93%). Tenants pro
rata share shall be payable monthly with the Base Rental as specified in Article
3 above.
10. SECURITY DEPOSIT: Upon listing below the amount, check number, date,
or other appropriate information, the Landlord acknowledges the receipt of the
following security deposit:
Until receipt of a security deposit of THIRTEEN THOUSAND FOUR HUNDRED AND 001100
DOLLARS ($13,400.00) This lease shall not be binding on the Landlord. The
security deposit is given to secure the faithful performance by the Tenant of
all of the terms, covenants, and conditions of this lease by Tenant to be kept
and performed during the term hereof. Tenant agrees that if the Tenant shall
fail to pay the rent herein reserved promptly when due, said deposit may, at the
option of the Landlord (but Landlord shall not be required to), be applied to
any rent due and unpaid, and if the Tenant violates any of the other terms,
covenants, and conditions of this lease, said deposit may be applied to any
damages suffered by Landlord as a result of Tenant's default to the extent of
the amount of damages suffered.
Nothing contained in this Article shall in any way diminish or be
construed as waiving any of Landlord's other remedies as provided in this lease
or by law or in equity. Should the entire security deposit, or any portion
thereof, be appropriated and applied by Landlord for the payment of overdue rent
or other sums due and payable to Landlord by Tenant hereunder, then Tenant
shall, on the written demand of Landlord, forthwith remit to Landlord a
sufficient amount of cash within ten (10) days after receipt of such demand, or
it shall constitute a breach of this lease. Should Tenant comply with all of the
terms and covenants and conditions of this lease and promptly pay all of the
rental herein provided for as it falls due, and all other sums payable to
Landlord by Tenant hereunder, said security deposit shall be returned in full to
Tenant after the end of the term of this lease. In no event shall Landlord be
deemed to be a trustee of the security deposit, and Tenant shall not be entitled
to interest on any sums deposited under this section.
11. LIQUIDATED DAMAGES: In addition to any breach of the lease, Tenants
slow or nonpayment of rent may cause Landlord to additionally levy the following
liquidated damages:
A) LATE PAYMENT: Any payment due from Tenant not received by the fourth
working day following its becoming due will be subject to liquidated
damages of 1.5 percent or TWENTY AND NO/100 dollars whichever is
larger each month or part of a month it remains unpaid.
B) RETURNED CHECKS: Any check returned unpaid for non-sufficient
funds, missing signature, or other reason not caused by Landlord
will be subject to liquidated damages of TWENTY AND NO/100 each and
every time it is returned.
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C) NON-PAYMENT: All liquidated damages above shall apply to non-
payment of rent until award of judgment by a court having
jurisdiction. If allowable by the court, the liquidated damages
shall continue after award of judgment until payment in full.
12. PERSONAL PROPERTY TAXES: During the term hereof Tenant shall pay prior
to delinquency all taxes assessed against and levied upon fixtures, equipment,
furnishings, and all other personal property of Tenant contained in the demised
premises, and when possible, Tenant shall cause said fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property of Landlord. In the event any or all of the Tenant's
fixtures, furnishings, equipment and other personal property is assessed with
Landlord's real property, the Tenant shall pay to Landlord its share of such
taxes within ten (10) days after delivery to Tenant by Landlord of a statement
in writing setting forth the amount of such taxes applicable to Tenant's
property.
13. INSURANCE-TENANT: Tenant shall, during the entire term of this lease,
maintain general public liability insurance against claims for personal injury,
death, or property damage occurring in, upon, or about the demised premises for
the benefit of Tenant, with limitations as set forth in Article 6. Tenant shall
be solely responsible for the cost of such policies, and policies of insurance
or copies thereof shall be delivered to the Landlord and certification made that
the policy or policies are fully paid to date and in full force. If, during the
term of this lease, the policy or policies lapse due to non-payment of premium
or any other cause and are not reinstated or replaced by a like policy or
policies, approved by the Landlord, within ten (10) days, will constitute a
breach of this lease, at the option of the Landlord.
The Landlord will periodically review the liability limits on the
insurance provided for in Article 6 of this lease and the Landlord may, at his
option revise those limits as required to meet the reasonable needs for coverage
at that time. The Tenant will be solely responsible for any cost this change in
liability limits may cause and will pay such amounts as provided above.
14. MAINTENANCE AND REPAIR: Tenant shall, subject to Landlord's
obligations hereinafter provided, at all times during the term hereof, and at
Tenant's sole cost and expense, keep maintain and repair the demised premises in
good and sanitary order and condition (except as hereinafter provided). Tenant
hereby waives all rights to make repairs at the expense of Landlord, provided
that Landlord is in substantial compliance with his obligations to repair under
the provisions of this lease. By entering into the demised premises, Tenant
shall be deemed to have accepted the demised premises as being in good and
sanitary order, condition and repair and Tenant agrees on the last day of said
term or sooner termination of this lease, to surrender the demised premises with
appurtenances, in the same condition as when received, reasonable use and wear
thereof and damage by fire, act of God or by the elements excepted.
Landlord shall maintain in good repair the exterior walls, roof,
sidewalks, and common areas. Tenant is responsible for all other item including
but not limited to the heating and air conditioning system, electrical system,
plumbing (including pluggage and stoppage of sanitary sewer system), glass,
light bulbs, fluorescent tubes, and supplemental fixtures. The provisions of
this article are in no way intended to affect Tenant's responsibility for Common
Area maintenance expense as specified by Articles 8 and 9 above. Tenant agrees
that it will not, nor will it authorize any person to go onto the roof of the
building of which the demised premises are a part, without the prior written
consent of Landlord. Landlord shall not be required to make any repairs unless
and until Tenant has notified Landlord in writing of the need for such repairs
and Landlord shall have a reasonable period of time thereafter to commence and
complete said repairs.
15. ALTERATIONS AND FIXTURES: Tenant shall not make, or suffer to be made,
any alterations of the demised premises, or any part thereof, without the prior
written consent of Landlord, and any additions to, or alterations of, said
premises, except movable furniture and trade fixtures, shall become at once a
part of the realty and belong to Landlord, and upon expiration or sooner
termination of the term of this lease, at Landlord's election, Tenant shall
remove and all damage caused by such removal shall be repaired by Tenant at its
sole cost and with due diligence,
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or the additions and alterations of the premises shall be left in good condition
and repair for the Landlord's future use. Any such alterations shall be in
conformance with requirements of all municipal, state and federal authorities.
Tenant agrees to promptly fixturize the space in a manner comparable to an
office space of similar nature.
16. WASTE: Tenant shall not commit, or suffer to be committed, any waste
upon the demised premises, or any nuisance or other act or thing which may
disturb the quiet enjoyment of any other tenant in the building or complex of
buildings in which the demised premises may be located.
17. SIGNS AND AUCTIONS: Tenant shall not place or permit to be placed any
sign upon the exterior or in the windows of the demised premises without
Landlord's prior written consent, nor shall Tenant change the color or exterior
appearance of the demised premises without the Landlord's prior written consent.
Tenant shall at its sole cost and expense prepare sign construction
drawings which shall be submitted to Landlord for Landlord's written approval.
Tenant agrees to install a sign in accordance with approved sign construction
drawings within thirty (30) days after the commencement of the term of this
lease.
Tenant will not without Landlord's prior written consent display or sell
merchandise outside the defined exterior walls and permanent doorways of the
demised premises. Tenant shall not conduct or permit to be conducted any sale by
auction in, upon or from the demised premises, whether said auction be
voluntary, involuntary, pursuant to any assignment for the payment of creditors
or pursuant to any bankruptcy or other solvency proceeding.
18. COMPLIANCE WITH LAWS: Tenant shall, at his sole cost and expense,
comply with all of the requirements of all municipal, state and federal
authorities now in force or which may hereafter be in force pertaining to the
use of said premises, and shall faithfully observe in said use all municipal
ordinances and state and federal statutes now in force or which shall
hereinafter be in force. The judgment of any court of competent jurisdiction, or
the admission of Tenant in any action or proceeding against Tenant, whether
Landlord be a party thereto or not, that Tenant has violated any such order or
statute in said use, shall be conclusive of that fact as between the Landlord
and Tenant.
19. USES PROHIBITED: Tenant shall not use, or permit said premises, or any
part thereof, to be used for any purpose or purposes other than the purpose or
purposes for which said premises are hereby leased; and no use shall be made or
permitted to be made of said premises, nor acts done, which will increase the
existing rate of insurance upon the building in which said premises may be
located once said rate is established), or cause a cancellation of any insurance
policy covering said building or any part thereof, nor shall Tenant sell or
permit to be kept, used or sold in or about said premises any article which may
be prohibited by standard form fire insurance policies. Tenant shall, at his
sole cost, comply with any and all requirements, pertaining to the use of said
premises, of any insurance organization or company necessary for the maintenance
of reasonable fire and public liability insurance covering said building and
appurtenances. Tenant will not sell or lease goods or services if Landlord has
given an exclusive right to another Tenant in the complex to sell or lease the
same goods or services.
20. ASSIGNMENT AND SUBLETTING: Tenant shall not assign this lease or any
interest herein, and shall not sublet the demised premises or any part thereof
or right or privilege appurtenant thereto, or permit any other person (the
agents and servants of Tenant excepted) to occupy or use the demised premises,
or any portion thereof, without first obtaining the written consent of Landlord
such consent not to be unreasonably witheld. Consent by Landlord to one
assignment, subletting, occupation or use by another person shall not be deemed
to be a consent to any subsequent assignment, subletting, occupation, or use by
another person. Consent to an
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assignment shall not release the original named Tenant from liability for the
continued performance of the terms and provisions on the part of Tenant to be
kept and performed, unless Landlord specifically releases the original Tenant
from said liability. Any assignment or subletting without the prior written
consent of Landlord shall be void, and shall, at the option of Landlord
terminate this lease. Neither this lease nor any interest therein shall be
assignable, as to the interest of Tenant, by operation of law, without the prior
written consent of Landlord.
21. SALE OF PREMISES BY LANDLORD: In the event of any sale of the demised
premises by Landlord, Landlord shall be and is hereby entirely freed and
relieved of all liability under and all of its covenants and obligations
contained in or derived from this lease arising out of any act, occurrence or
omission occurring after the consummation of such sale; and the purchaser, at
such sale or any subsequent sale of the demised premises shall be deemed,
without any further agreement between the parties or their successors in
interest or between the parties and by such purchaser, to have assumed and
agreed to carry out all of the covenants and obligations of the landlord under
this lease. Further, Tenant agrees to attorn to the new owner upon any such sale
and recognize such purchaser as the Landlord under this lease.
22. SUCCESSORS IN INTEREST: All the terms, covenants, and conditions
hereof shall be binding upon and inure to the benefit of the heirs, executors,
administrators, successors and assigns of the parties hereto provided that
nothing in this paragraph shall be deemed to permit any assignment, subletting,
subletting occupancy, or use contrary to the provisions of Paragraph 20. No
assignee for the benefit of creditors, trustee, receiver, or referee in
bankruptcy shall acquire any rights under this lease by virtue of this
paragraph.
23. INDEMNIFICATION OF LANDLORD: Tenant, as a material part of the
consideration to be rendered to Landlord under this lease, hereby waives all
claims against Landlord for damage to goods, wares, and merchandise in, upon, or
about said premises and for injuries to persons in or about said premises, from
any cause arising at any time except for Landlords gross negligence; and Tenant
will hold Landlord exempt and harmless from any damage or injury to any person,
or the goods, wares, and merchandise of any person arising from the use of the
premises by Tenant, or from the failure of Tenant to keep the premises in good
condition and repair, as herein provided.
24. FREE FROM LIENS: Tenant shall keep the demised premises and the
property in which the demised premises are situated free from any liens arising
out of any work performed, materials furnished, or obligation incurred by
Tenant. Fifteen days before work is performed, materials supplied, or obligation
incurred, Tenant will notify Landlord in writing to enable him to post a notice
of non-responsibility.
25. DEFAULT: If Tenant fails to make any payment required by the provisions
of this lease, when due, or fails within three (3) days after written notice
thereof to correct any breach or default of the other covenants, terms, or
conditions of this lease, or if Tenant breaches this lease and abandons the
property before the end of the term, Landlord shall have the right at any time
thereafter to elect to terminate this lease and Tenant's right of possession
thereunder. Upon such termination, Landlord shall have the right to recover
against Tenant:
A. The worth at the time of award of the unpaid rent which has been earned
at the time of termination;
B. The worth at the time of award of the amount of which the unpaid rent
which would have been earned after termination until the time of award exceeds
the amount of such rental loss that the Tenant proves could have been reasonable
avoided;
C. The worth at the time of award of the amount by which the unpaid rent
for the balance of the term after the time of award exceeds the amount of such
rental loss that the Tenant proves could have been reasonably avoided; and
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D. Any other amount necessary to compensate the 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.
E. All liquidated damages, late fees, and other charges specified by any
part of this lease.
Such efforts as Landlord may make to mitigate the damages caused by
Tenant's breach of this lease shall not constitute a waiver of Landlord's right
to recover damages against Tenant hereunder, nor shall anything herein contained
affect Landlord's right to indemnification against Tenant for any liability
arising prior to the termination of this lease for personal injuries or property
damage, and Tenant hereby agrees to indemnify and hold Landlord harmless for any
such injuries and damages, including all attorney's fees and cost incurred by
Landlord in defending any action brought against Landlord for any recovery
thereof, and in enforcing the terms and provisions against Tenant.
26. INSOLVENCY OF TENANT: Tenant agrees that in the event all or
substantially all of its assets be placed in the hands of a receiver or trustee,
and in the event such receivership or trusteeship continues for a period of ten
(110) days, or should Tenant make as assignment for the benefit of creditors,
or be adjudicated as bankrupt, or should Tenant institute any proceedings under
any state or federal bankruptcy act wherein Tenant seeks to be adjudicated as
bankrupt, or seeks to be discharged of its debts, or should any voluntary
proceeding be filed against Tenant under such bankruptcy laws and Tenant
consents thereto or acquiesces therein by pleading or default, then this lease
or any interest therein and to the demised premises shall not become as asset in
any of such proceedings and, in any such events and in addition to any and all
rights or remedies of Landlord hereunder or as provided by law, it shall be
lawful for Landlord, at his option, to declare the term hereof ended and to
re-enter the demised premises and to take possession thereof and remove all
persons therefrom and Tenant shall have no further claim therein or hereunder.
27. ABANDONMENT: Tenant shall not vacate, abandon, or not keep the demised
premises open for business for more than five (5) consecutive normal business
days (customary for like businesses in the area of the demised premises),
provided that Tenant's business is not temporarily discontinued therein on
account of strikes, lockouts, or similar causes beyond the responsibility of
Tenant, at any time during the term of this lease; and if Tenant shall abandon,
vacate or surrender the demised premises or be dispossessed by process of law or
otherwise, any personal property belonging to Tenant and left on the demised
premises shall be deemed to be abandoned, at the option of Landlord, except such
property as may be mortgaged to Landlord. Any such abandonment shall immediately
be considered a default on the lease and Landlord may at his option enforce all
applicable Articles of this lease.
28. SURRENDER: The voluntary or other surrender of this lease by Tenant,
or a mutual termination thereof between Landlord and Tenant shall not result in
a merger, but shall, at the option of Landlord, operate either as an assignment
to Landlord of any and all existing subleases and subtenancies, or as
termination of all or any existing subleases or subtenancies.
29. ENTRY AND INSPECTION: Tenant shall permit Landlord and his agents to
enter into and upon the demised premises at all reasonable times for the purpose
of inspecting the same or for the purpose of maintaining the building in which
said premises are situated, or for the purpose of making repairs, alterations,
or additions to any other portion of said building, including the erection and
maintenance of such scaffolding, canopy, fences and props as may be required or
for the purpose of posting notices of non-responsibility for alterations,
additions, or repairs. Landlord shall be permitted to do any of the above
without any rebate or rent and without any liability to Tenant for any loss of
occupation or quiet enjoyment of the premises thereby occasioned. Tenant shall
permit Landlord, at any time within thirty (30) days prior to the expiration of
this lease, to place upon said premises any usual or ordinary "For Lease" signs
and during such thirty (30) day period, Landlord or his agents may, during
normal business hours, enter upon said premises and exhibit same to prospective
tenants.
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30. DAMAGE AND DESTRUCTION OF PREMISES: In the event of (a) partial
destruction of said premises or the building containing same during the term of
this lease, which requires repairs either to demised premises or said building;
or (b) the demised premises or said building being declared unsafe or unfit for
occupancy by any authorized public authority for any reason other than Tenant's
act, use or occupation, which declaration requires to repair either the demised
premises or said building, Landlord shall forthwith make the repairs, provided
Tenant gives to Landlord thirty (30) days written notice of the necessity
thereof. No such partial destruction (including any destruction necessary in
order to make repairs required by any declaration made by any public authority)
shall in any way nullify or void this lease except that Tenant shall be entitled
to a proportionate reduction of base rental while the repairs are being made.
Such proportionate reduction to be based upon the extent to which the making of
such repairs shall interfere with the business carried on by Tenant in demised
premises. However, if during the term of this lease, the building is damaged as
a result of fire or any other insured casualty to an extent in excess of
twentyfive (25%) per cent of its then replacement cost, (excluding
foundations(s)), Landlord may within thirty (30) days following the date such
damage occurs, terminate this lease by written notice to Tenant. If Landlord,
however, elects to make said repairs, and provided Landlord uses due diligence
in making repairs, this lease shall continue in full force and effect and the
base rental shall be proportionately reduced as hereinafter provided. If
Landlord elects to terminate this lease, all rentals shall be prorated between
Landlord and Tenant as of the date of such destruction.
In respect to any partial destruction (including any destruction necessary
in order to make repairs required by any such declaration of any authorized
public authority) which Landlord is obligated to repair or may elect to repair
under the terms of this Article, Tenant waives any statutory right it may have
to cancel this lease as a result of such destruction.
31. CONDEMNATION: If the whole or any part of the premises or common areas
are taken for public or quasi-public use by the exercise or the threat of the
exercise of the right to eminent domain, with or without litigation or by
judgment or agreement, then as to the portion of the premises or common area
taken, this Lease shall terminate as of the date that title vests in the
condemning authority.
If the portion of the Premises remaining after such taking is susceptible
of occupation and use by Tenant for the purpose described in this Lease, then
Landlord shall have the option for a period of thirty (30) days after said
taking either to terminate this lease or to elect to continue this Lease in full
force and effect, in which event Landlord, at its sole expense, promptly shall
restore the Premises to an architectural unit as comparable as practicable to
the condition existing immediately prior to such taking, and Tenant shall do
likewise, at Tenant's sole expense, with respect to all exterior signs, trade
fixtures, equipment, display cases, furniture, furnishings and other
installations of Tenant. During the period said repairs are being effected, the
minimum rent payable by Tenant during said period shall be reduced equitably to
the degree the repair work interferes with the normal business conducted on the
premises. However, the obligation of Tenant to pay tax increase, and any other
additional rental shall remain in full force and effect.
If the portion of the Premises remaining after such a taking is not
susceptible of occupation and use by Tenant for the purpose described in this
lease, then this Lease shall terminate as of the date title vests in the
condemning authority.
Landlord shall receive all the proceeds of any damages, award or
settlement paid for any such taking.
In the event this Lease is terminated pursuant to any provision of this
Section 31, or in the event Tenants business is in any manner affected by reason
of repairs or restoration Landlord elects to make, then Tenant hereby waives any
and all claims or demands against Landlord arising from or related to such
condemnation, lease termination, or said repairs or restoration, except,
however, that Landlord shall make an equitable refund of any advance rent paid
by Tenant and not yet earned.
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A voluntary sale by Landlord to any public or quasi-public body, agency or
person, corporate or otherwise, having the power of eminent domain, either under
threat of condemnation or while condemnation proceedings are pending, shall be
deemed to be a taking by eminent domain.
32. ATTORNEY'S FEES: If Landlord is involuntarily made a party defendant
to any litigation concerning this lease or the demised premises by reason of any
act or omission of Tenant, then, Tenant shall hold harmless Landlord from all
liabilities by reason thereof, including reasonable attorney's fees and all
reasonable costs incurred by Landlord in such litigation.
If either Landlord or Tenant shall commence any legal proceedings against
the other with respect to any of the terms and conditions of this lease, the
non-prevailing party therein shall pay to the other all reasonable expenses of
said litigation, including a reasonable attorney's fees as may be fixed by the
court having jurisdiction over the matter. The parties hereto agree that the
State of California is the proper jurisdiction for litigation of any matters
relating to this lease and service mailed to the address of Tenant set forth
herein shall be adequate service for such litigation.
33. NOTICES: Wherever in this lease it shall be required or permitted that
notice-or demand be given by either party of this lease to or on the other, such
notice or demand shall be given or served and shall not be deemed to have been
duly given or served unless in writing and forwarded by certified mail,
addressed as follows:
TO: FORTRESS DEVELOPMENT GROUP TO: XXXXX MANAGEMENT SYSTEMS
AT: 0000 Xxxxxxxx Xxxxxx AT: Fortress Avenue
Chico, CA 95928 Xxxxx, XX 00000
Telephone: 000-000-0000 Telephone: (000) 000-0000
Either party may change such address by written notice by certified mail
to the other.
34. PARTIAL INVALIDITY: If any term, covenant, condition, or provision of
this lease is held by court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the provisions hereof shall remain in full force
and effect and shall in no way be affected, impaired or invalidated thereof,
35. MARGINAL CAPTIONS: The various headings and numbers herein and the
grouping of the provisions of this lease into separate articles and paragraphs
are for the purpose of convenience only and shall not be considered a part
hereof.
36. TIME: Time is of the essence of this lease.
37. SUBORDINATION, ATTORNMENT: This lease, at Landlord's option, shall be
subordinate to the lien of any deed of trust or mortgage now in place or
subsequently placed upon the real property of which the demised premises are a
part, and to any and all advances made on the security thereof, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
In the event any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any mortgage or deed of trust made by
the Landlord covering the demised premises, Tenant shall attorn to the purchaser
upon any such foreclosure or sale and recognize such purchaser as the Landlord
under this lease.
Within ten (10) days after request by Landlord, or in the event that upon
any sale, assignment or financing of the demised premises or any portion be
requested of Tenant, Tenant agrees to deliver such financial statement and to
deliver such estoppel certificate (in recordable form) addressed to any such
proposed mortgagee or purchaser or to the Landlord certifying the requested
information, including among other things the dates of commencement and
termination of this lease, the amounts of security deposits, and that this lease
is in full force and effect (if such be the case) and that there are no
differences, offsets or defaults of Landlord, or noting such
10
differences, offsets or defaults as actually exist. Tenant shall be liable for
any loss or liability resulting from any incorrect information certified, and
such mortgagee and purchaser shall have the right to rely on such estoppel
certificate and financial statement. All of this will be done free of charge by
Tenant.
38. NO ORAL AGREEMENTS: This lease covers in full each and every agreement
of every kind or nature whatsoever between the parties hereto concerning this
lease, and all preliminary negotiations and agreements of whatsoever kind or
nature are merged herein, and there are no oral agreements or implied covenants.
39. NO MODIFICATIONS: This lease covers in full each and every agreement
between the parties. No future modifications of terms shall be binding in any
way unless made in writing and made a part of this lease.
40. COVENANT OF FAIR DEALING: Each party to this lease agrees to cooperate
fully and in good faith and covenants to deal fairly with the other to insure
that the terms and conditions of this lease are carried out to the fullest
possible extent for the best interest of the parties.
41. CONDITIONS OF THE LEASE: This lease is conditional on the Owner
completing financing and obtaining approvals from the appropriate governmental
authorities and utility providers under terms and conditions acceptable to
Owner.
42. ADDENDA: In addition to the above numbered Articles, this lease shall
be specifically subject to the provisions of the Addenda
PERIODIC CHANGE OF BASE RENTAL
IN WITNESS WHEREOF, the parties have duly executed this lease together
with the herein referred to Exhibits and Addenda which are attached hereto, on
the day and year first written above.
LANDLORD: TENANT:
FORTRESS DEVELOPMENT GROUP XXXXX MANAGEMENT SYSTEMS CORP.
a California Corporation:
By /s/ XXXXXX X. XXXXXX By /s/ XXXXXXX XXX
------------------------------- --------------------------------------
Xxxxxx X. Xxxxxx, Pres. Xxxxxxx Xxx, C.O.O.-C.F.O.
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ADDENDA
Periodic Change of Base Rental
By mutual agreement of the parties to this lease, the Base Monthly Rental stated
in Article 3 above will change according to the schedule of consecutive periods
below:
1st 36 Months $11,335.50 Month
2nd 36 Months $12,015.00 Month
3rd 36 Months $12,735.00 Month
4th 36 Months $13,500.00 Month
5th 36 Months $14,310.00 Month
last 24 Months $15,170.00 Month
IN WITNESS WHEREOF, the parties have duly executed this Addendum and made
it a part of the above lease.
LANDLORD: TENANT:
FORTRESS DEVELOPMENT GROUP XXXXX MANAGEMENT SYSTEMS CORP.
a California Corporation
BY /s/ XXXXXX X. XXXXXX BY /s/ XXXXXXX XXX
------------------------------- ---------------------------------------
Xxxxxx X. Xxxxxx, Pres. Xxxxxxx Xxx, C.O.O. - C.F.O.
