GREATER DALLAS BOARD OF REALTORS, INC.
LEASE AGREEMENT
ARTICLE ONE: BASIC TERMS
1.01. Date of Lease: May 1, 1991
1.02. Landlord: Xxxxxx Investments
Address of Landlord: 0000 000xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxx 00000
1.03. Tenant: Sublingual Products International, Inc.
Address of Tenant: 0000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
1.04. Property (Include street address, as well as legal description and
approximate square footage): An approximate 8,482 square foot
office/service/warehouse facility situated on approximately 20,855
square feet of land and known as Xxxx 0X, Xxxxx 0, Xxxxxxxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxx.
1.05. Lease Term: Thirty-six (36) months beginning on May 1, 1991
and ending on April 30, 1994
1.06. Rent: See Addendum.
Dollars ($_________) per month.
See Addendum
1.07. Security Deposit: [the figure $3,300 is crossed out] $2,300
1.08. Permitted Use (see Section 6.01). Officing, warehousing, and
manufacturing of vitamin supplements and related products.
1.09. Principal REALTOR (if none, so state): CB Commercial Real
Estate Group, Inc.
Address: 0000 X. Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx 00000-0000
1.10. Cooperating REALTOR (if none, so state): None
Address:
1.11. REALTORS Commissions (See Article Fourteen):
A. Commissions due to the undersigned Principal REALTOR shall be
calculated and paid in accordance with paragraph (a) or (b) or Section
14.01 (Strike out inapplicable letter).
B. The percentage applicable in Sections 14.01 and 14.02 shall be four
percent (4%).
1.12. Base Year for Taxes (see Section 4.02): 1990
1.13. Party to Receive Payments from Tenant Hereunder:
Landlord ["Principal REALTOR" struck out] (strike one)
1.14. Daily Late Charge (See Section 3.03): None
Dollars ($______) per day.
1.15. Acceptance (see Section 15.13):
The number of days for acceptance shall be one (1) days.
ARTICLE TWO: LEASE AND LEASE TERM
2.01 Lease of Property for Lease Term: Landlord leases the Property
to Tenant and Tenant leases the Property from Landlord for the Lease
Term stated in Section 1.05. As used herein, the "Commencement
Date" shall be the date specified in Section 1.05 for the beginning of the
Lease Term, unless advanced or delaying under any provision of this
Lease.
2.02 Delay in Commencement. Landlord shall not be liable to Tenant if
Landlord does not deliver possession of the Property to Tenant on the
first date specified in Section 1.05 above. Landlord's non-delivery of the
Property to Tenant on that date shall not affect this Lease or the
obligations of Tenant under this Lease. However, the Commencement
Date shall be delayed until possession of the Property is delivered to
Tenant. The Lease Term shall be extended for a period equal to the
delay in delivery of possession of the Property to Tenant, plus the
number of days necessary to end the Lease Term on the last day of a
month. If Landlord does not deliver possession of the Property to
Tenant within sixty (60) days after the first date specified in Section
1.05 above, Tenant may elect to cancel this Lease by giving written
notice to Landlord within ten (10) days after the 60-day period ends. If
Tenant gives such notice, the Lease shall be cancelled effective as of the
date of its execution, and no party hereto shall have any obligations, one
to the other. If Tenant does not give such notice, Tenant's right to
cancel the Lease shall expire and the Lease Term shall commence upon
the delivery of possession of the Property to Tenant. If delivery of
possession of the Property to Tenant is delayed. Landlord and Tenant
shall, upon such delivery, execute an amendment to this Lease setting
forth the Commencement Date and expiration date of the Lease.
2.03 Early Occupancy. If Tenant occupies the Property prior to the
Commencement Date, Tenant's occupancy of the Property shall be
subject to all of the provisions of this Lease. Early occupancy of the
Property shall not advance the expiration date of this Lease. Tenant
shall pay Base Rent and all other charges specified in this Lease for the
occupancy period.
2.04. Holding Over. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse
Landlord for an indemnify Landlord against all damages incurred by
Landlord from any delay by Tenant in vacating the Property. If Tenant
does not vacate the Property upon the expiration or earlier termination
of the lease, Tenant's occupancy of the Property shall be a
"month-to-month" tenancy, subject to all of the terms of this Lease
applicable to a month-to-month tenancy, except that the Base Rent then
in effect shall be increased by fifty percent (50%).
ARTICLE THREE: RENT AND SECURITY DEPOSIT
3.01. Manner of Payment. All sums to become due hereunder by
Tenant shall be made to the party named in Section 1.13 above, at the
address stated herein for such party, unless such address is changed as
provide herein. Any and all payments made to the Principal REALTOR
for the account of Landlord shall be deemed made to Landlord when
received by the Principal REALTOR. All sums payable by Tenant
hereunder, whether or not expressly denominated as rent, shall
constitute rent for the purposes of section 502(b)(7) of the Bankruptcy
Code.
3.02. Time of Payment. Upon execution hereof, Tenant shall pay the
rent for the first month of the Lease Term. On or before the first day of
the second month of the Lease Term and of each month thereafter, a like
monthly installment shall be due and payable, in advance, without
off-set, deduction or prior demand. If the lease Term commences or
ends during a calendar month, the rent for any fractional calendar month
following the Commencement Date or preceding the end of the Lease
Term shall be prorated by days.
3.03. Late Charges. Tenant's failure to pay sums due hereunder
promptly may cause Landlord to incur unanticipated costs. The exact
amount of such costs are impractical or extremely difficult to ascertain.
Such costs may include, but are not limited to, processing and
accounting charges and late charges which may be imposed on Landlord
by an ground lease, deed of trust or mortgage encumbering the
Property. Therefore, if any sum due hereunder is not received on its due
date, Tenant shall pay the party named Section 1.13 above a late charge
equal to the sum stated Section 1.14 above for each day from its due
date until such delinquent sum is received. If any check tendered in
payment of any sum due from Tenant hereunder is returned for any
reason. Tenant shall pay a late charge for each day from said due date
until such check is made good. The parties agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur
by reason of such late payment or such returned check.
3.04. Security Deposit. Upon execution hereof, Tenant shall deposit
with the party named in Section 1.13 above a cash Security Deposit in
the sum stated in Section 1.07. Landlord may apply all or part of the
Security Deposit to any unpaid rent or other charges due from Tenant or
to cure any other defaults of Tenant. If Landlord uses any part of the
Security Deposit, Tenant shall restore the Security Deposit to its full
amount within ten (10) days after Landlord's written request. Tenant's
failure to do so shall be a material default under this Lease. No interest
shall be paid on the Security Deposit. Landlord shall not be required to
keep the Security Deposit separate from its other accounts and no trust
relationship is created with respect to the Security Deposit. Upon any
termination of this Lease not resulting from Tenant's default, and after
Tenant has vacated the Property in the manner required by this Lease,
Landlord shall refund the unused portion of the Security Deposit to
Tenant.
ARTICLE FOUR: TAXES
4.01. Payment by Landlord. Landlord shall pay the real estate taxes on
the Property during the Lease Term.
4.02. Payment by Tenant. Tenant shall pay the party named in Section
1.13 above, as additional rental, the excess, if any, of the real estate
taxes for any year during the Lease Term over the real estate taxes for
the base year stated in Section 1.12. Tenant shall make such payment
within fifteen (15) days after receipt of a statement showing the amount
and computation of such increase. Tenant shall be responsible for the
pro-rata portion of such additional rental for any fractional part of a year
preceding the end of the Lease Term, which prorated sum shall be due
and payable upon the termination of this Lease. If the termination of
this Lease occurs before the tax rate is fixed for the particular year, the
prorations shall be upon the basis of the tax rate for the preceding year
applied to the latest assessed valuation, and notwithstanding the
termination of this Lease, any difference in the actual real estate taxes
for such year shall be adjusted between the parties upon receipt of
written evidence of the payment thereof.
4.03. Improvements by Tenant. In the event the real estate taxes levied
against the Property for the real estate tax year in which the Lease Term
commences are increased as a result of any alterations, additions or
improvements made by Tenant or by Landlord at the request of Tenant,
Tenant shall pay to Landlord upon demand the amount of such increase.
For the purposes of the calculations under Section 4.02, the amount of
the real estate taxes during the real estate tax year in which the Lease
Term commences shall not be include any taxes resulting from any such
alterations, additions or improvements made in or to the property,
Landlord shall obtain from the tax assessor or assessors a written
statement of the total amount of such increase.
4.04. Joint Assessment. If the real estate taxes are assessed against the
Property jointly with other property not constituting a part of the
Property, the real estate taxes for such years shall be equal to the
amount bearing the same proportion to the aggregate assessment that
the total square feet of building area in the Property bears to the total
square feet of building areas included in the joint assessment.
4.05. Personal Property Taxes. Tenant shall pay all taxes charged
against trade fixtures, furnishings, equipment or any other personal
property belonging to Tenant. Tenant shall try to have its personal
property taxed separately from the Property, but in any of Tenant's
personal property is taxed with the Property, Tenant shall pay the taxes
for the personal property within fifteen (15) days after Tenant receives
written statement for such personal property taxes.
ARTICLE FIVE: INSURANCE AND INDEMNITY
5.01. Casualty Insurance. During the Lease Term, Landlord shall
maintain policies of insurance covering loss of or damage to the
Property in such amount or percentage of replacement value as
Landlord or its insurance advisor deems reasonable in relation to the
age, location, type of construction and physical condition of the
Property and the availability of such insurance at reasonable rates. Such
policies shall provide protection against all perils included within the
classification of fire and extended coverage and any other perils which
Landlord deems necessary. Landlord may obtain insurance coverage for
Tenant's fixtures, equipment or building improvements installed by
Tenant in or on the Property. Tenant shall, at Tenant's expense maintain
such primary or additional insurance on its fixtures, equipment and
building improvements as Tenant deems necessary to protect its interest.
Tenant shall not do or permit to be done anything which invalidates any
such insurance policies. Any casualty insurance which may be carried by
Landlord or Tenant shall be for the sole benefit of the party carrying
such insurance and under it sole control.
5.02 Increase in Premiums. Tenant shall not permit any operation or
activity to be conducted or storage or use of any volatile or any other
materials on the Property that would cause suspension or cancellation of
any fire and extended coverage insurance policy carried by Landlord, or
increase the premiums therefor, without the prior written consent of
Landlord. If Tenant's use and occupancy of the Property causes an
increase in the premiums for any fire and extended coverage insurance
policy carried by Landlord on the day before Tenant shall have first gone
into possession of the Property under this Lease, Tenant shall pay, as
additional rental, the amount of such increase to Landlord upon demand
and presentation of written evidence of the increase by Landlord.
5.03. Liability Insurance. During the Lease term, Tenant shall maintain
a policy of comprehensive public liability insurance, at Tenant's expense,
insuring Landlord against liability arising out of the ownership, use,
occupancy or maintenance of the Property. The initial amount of such
insurance shall be at least $1,000,000, and shall be subject to periodic
increase based upon inflation, increased liability awards,
recommendation of professional insurance advisors, and other relevant
factors. However, the amount of such insurance shall not limit Tenant's
liability nor relive Tenant of any obligation hereunder. The policy shall
contain cross-liability endorsements, if applicable, and shall insure
Tenant's performance of the indemnity provisions of Section 5.04. Such
policy shall contain a provision which prohibits cancellation or
modification of the policy except upon thirty (30) day's prior written
notice to Landlord.. Tenant may discharge its obligations
under this Section by naming Landlord as an additional insured under a
policy of comprehensive liability insurance maintained by Tenant and
containing the coverage and provisions described in this Section.
Tenant shall deliver a copy of such policy or certificate (or a renewal
thereof) to Landlord prior to the Commencement Date and prior t the
expiration of any such policy during the Lease Term. If Tenant fails to
maintain such policy, Landlord may elect to maintain such insurance at
Tenant's expense. Tenant shall, at Tenant's expense, maintain such other
liability insurance as Tenant deems necessary to protect Tenant.
5.04. Indemnity. Landlord shall not be liable to Tenant or to Tenant's
employees, agents or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the Property or
any adjacent area owned by Landlord caused by the negligence or
misconduct of Tenant, its employees, subtenants, licensees or
concessionaires or any other person entering the Property under express
or implied invitation of Tenant, or arising out of the use of the property
by Tenant and the conduct of its business therein, or arising out of any
breach or default by Tenant in the performance of its obligations
hereunder, and Tenant hereby agrees to indemnify Landlord and hold it
harmless from any loss, expense or claims arising out of such damage or
injury. Tenant shall not be liable for any injury or damage caused by the
negligence or misconduct of Landlord, or its employees or agents, and
Landlord agrees to indemnify Tenant and hold it harmless from any loss,
expense or damage arising out of such damage or injury.
5.05. Waiver of Subrogation. Each party hereto waives any and every
claim which arises or may arise in its favor against the other party hereto
during the term of this Lease or any renewal or extension thereof for any
and all loss of, or damage to, any of its property located within or upon,
or constituting a part of, the Property, which loss or damage is covered
by valid and collectible fire and extended coverage insurance policies, to
the extent that such loss or damage is recoverable under such insurance
policies. Such mutual waivers shall be in addition to, and not in
limitation or derogation of, any other waiver or release contained in this
Lease with respect to any loss of, or damage to, property of the parties
hereto. Inasmuch as such mutual waivers will preclude the assignment
of any aforesaid claim by way of subrogation of otherwise to an
insurance company (or any other person), each party hereby agrees
immediately to give to each insurance company which has issued to it
policies of fire an extended coverage insurance, written notice of the
terms of such mutual waivers, and to cause such insurance policies to be
properly endorsed, if necessary, to prevent the invalidation of such
insurance coverages by reason of such waivers.
ARTICLE SIX: USE OF PROPERTY
6.01. Permitted Use. Tenant may use the Property only for the
permitted use stated in Section 1.08.
6..02. Compliance with Law. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of
the Property, and shall promptly comply with all governmental orders
and directives for the correction, prevention and abatement of nuisances
in or upon, or connected with the Property, all at Tenant's sole expense.
6.03. Certificate of Occupancy. Tenant may, prior to the
commencement of the term of this Lease, apply for a Certificate of
Occupancy to be issued by the municipality in which the Property is
located, but this Lease shall not be contingent upon issuance thereof.
Nothing herein contained shall obligate Landlord to install any additional
electrical wiring, plumbing or plumbing fixtures which are not presently
existing on the property, or which have not been expressly agreed upon
by Landlord in writing.
6.04. Signs. Without the prior written consent of Landlord, Tenant
shall not place or affix any signs or other objects upon or to the
Property, including but not limited to the roof or exterior walls of the
building or other improvements thereon, or paint or otherwise deface
said exterior walls. Any signs installed by Tenant shall conform with
applicable laws and deed and other restrictions. Tenant shall remove all
signs at the termination of this Lease and shall repair any damage and
close any holes caused or revealed by such removal.
6.05. Utility Services. Tenant shall pay the cost of all utility services,
including but not limited to initial connection charges, all charges for
gas, water and electricity used on the Property, and for all electric lights,
lamps and tubes.
6.06. Landlord's Access. Landlord and its authorized agents shall have
the right, during normal business hours, to enter the Property (a) to
inspect the general condition and state of repair thereof, (b) to make
repairs required or permitted under this Lease, (c) to show the property
to any prospective Tenant or purchaser or (d) for any other reasonable
purpose. During the final 150 days of the lease Term, Landlord and its
authorized agents shall have the right to rect and maintain on or about
the Property customary signs advertising the Property for lease or for
sale.
6.07. Quiet Possession. If Tenant pays the rent and complies with all
other terms of this Lease, Tenant may occupy and enjoy the Property for
the full Lease Term, subject to the provision of this Lease.
6.08. Exemptions from Liability. Landlord shall not be liable for any
damage or injury to the person, business (or any loss of income
therefrom), goods, wares, merchandise or the property of Tenant,
Tenant's employees, invitees, customers or any other person in or about
the Property, whether such damage or injury is caused by or results from
(a) fire, steam, electricity, water, gas or rain, (b) the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures or any other cause, (c)
conditions arising on or about the Property or upon other portions of
any building of which the Property is a part, or from other sources or
places; or (d) any act or omission of any other tenant of any building of
which the Property is a part. Landlord shall not be liable for any such
damage or injury even though the cause of our the means of repairing
such damage or injury are not accessible to Tenant. The provisions of
this Section 6.08 shall not however, exempt Landlord from liability for
Landlord's gross negligence or willful misconduct.
ARTICLES SEVEN: MAINTENANCE, REPAIRS AND
ALTERATIONS
7.01. Acceptance of Premises. Tenant acknowledges that it has fully
inspected the Property and accepts the Property in its condition as of the
execution of this Lease as suitable for the purposes for which it is
leased. Tenant acknowledges that ,except as stated in the following
sentence, neither Landlord nor an agent of Landlord has made any
representation as to the condition of the Property or the suitability of the
Property for Tenant's intended use. Landlord represents that on the
Commencement Date, the plumbing, electrical system and exterior
doors, heating system, air conditioning equipment existing on the date of
this Lease, are in good operating condition.
7.02. Landlord's Obligation to Repair. Subject to the provisions of
Article Eight (Damage or Destruction) and Article Nine
(Condemnation) and except for damage caused by any act or omission
of Tenant, Landlord shall keep the foundations, roof and the structural
portions of exterior walls of the improvements of the Property in good
order, condition and repair. However, Landlord shall not be obligated
to maintain or repair windows, doors, plate glass or the surfaces of
walls. In addition, Landlord shall not be obligated to make any repairs
under this Section until a reasonable time after receipt of written notice
from Tenant of the need of such repairs. If any repairs are required to
be made by Landlord, Tenant shall, at Tenant's sole cost and expense,
promptly remove Tenant's fixtures, inventory, equipment and other
Property, to the extent required to enable Landlord to make such
repairs. Landlord's liability hereunder shall be limited to the cost of such
repairs or corrections. Tenant waives the benefit of any present or
future law which might give Tenant the right to repair the Property at
Landlord's expense or to terminate the Lease because of the condition of
the property.
7.03. Tenant's Obligation to Repair. Subject to the provisions of the
last sentence of Section 7.01., the pre preceding Section 7.02, Article
Eight (Damage or Destruction) and Article Nine (Condemnation),
Tenant shall, at all times, keep that portion of the Property not required
to be maintained by Landlord in good order, condition and repair,
including but not limited to repairs (including all necessary
replacements) of the windows, plate glass, doors, heating system, air
conditioning equipment, interior and exterior plumbing and the interior
of the building in general, and including care of landscaping and regular
mowing of grass. In addition, Tenant shall, at Tenant's expense, repair
any damage to the roof, foundation or structural portions of exterior
walls caused by Tenant's acts or missions. If Tenant fails to maintain
and repair the property as required by this section, Landlord may, on ten
(10) days prior written notice, enter the Property and perform such
maintenance or repair on behalf of Tenant, except that no notice shall be
required in case of emergency, and Tenant shall reimburse Landlord for
all costs incurred in performing such maintenance or repair immediately
upon demand.
7.04. Alterations. Additions and Improvements. Tenant shall not
create any openings in the roof or exterior walls, or make any
alterations, additions or improvements shall not be unreasonably
withheld by Landlord. Tenant shall have the right to erect or install
shelves, bins, machinery air conditioning or heating equipment and trade
fixtures, provided that Tenant complies with all applicable governmental
laws, ordinances and regulations. At the expiration or termination of
this lease, Tenant shall, subject to the restrictions of Section 7.05 below,
have the right to remove such items so installed by, provided Tenant is
not in default at the time of such removal and provided further that
Tenant shall, at the time of
removal of such items, repair in a good and workmanlike manner any
damage caused by installation or removal thereof. Tenant shall pay for
all costs incurred or arising out of alterations, additions or
improvements in or to the Property and shall not permit a mechanic's or
materialism's lien to be asserted against the Property. Upon request by
Landlord, Tenant shall deliver to Landlord proof of payment reasonably
satisfactory to Landlord of all costs incurred or arising out of any such
alterations, additions or improvements.
7.05. Conditions upon Termination. Upon the termination of the lease,
Tenant shall surrender the property to Landlord, broom clean and in the
same condition as received except for ordinary wear and tear which
Tenant was not otherwise obligated to remedy under any provision of
the lease. However, Tenants shall not be obligated to repair any damage
which Landlord is required to repair under article Eight (Damage or
Destruction). In addition, Landlord may require Tenant to remove any
alterations, additions or improvements (whether or not made with
Landlord's consent) prior to the termination of the lease and to restore
the property to its prior condition, all at Tenant's expense. All
alterations, additions and improvements which Landlord has not
required Tenant to remove shall become Landlord's property and shall
be surrendered to Landlord upon the termination of the lease. In no
event, however, shall Tenant remove any of the following materials or
equipment without Landlord's prior written consent: any power wiring
or power panels; lighting or lighting fixtures; wall coverings,; drapes,
blinds or other window coverings; carpets or other floor coverings;
heaters, air conditioners or any other heating or air conditioning
equipment; fencing or security gates; or other similar building operating
equipment and decorations.
ARTICLES EIGHT: DAMAGE OR DESTRUCTION
8.01. Notice. If the building or other improvements situated on the
property should be damaged or destroyed by fire, tornado or other
casualty, Tenant shall immediately give written notice thereof to
Landlord.
8.02. Partial Damage. If the building or other improvements situated
on the property should be damaged by fire, tornado or other casualty
but not to such an extent that rebuilding or repairs cannot reasonably be
completed within 120 days from the date Landlord receives written
notification by Tenant of the happening of the damage, this lease shall
not terminate, but Landlord shall, at its sole cost and risk, proceed
forthwith and use reasonable diligence to rebuild or repair such building
and other improvements on the property (other than leasehold
improvements made by Tenant or any assignee, subtenant or other
occupant of the property) to substantially the condition in which they
existed prior to such damage; provided, however, if the casualty occurs
during the final 18 months of the lease term, Landlord shall not be
required to rebuild or repair such damage unless Tenant shall exercise its
renewal option (if any is contained herein) within fifteen (15) days after
the date of receipt by Landlord of the notification of the occurrence of
the damage. If Tenant does not elect to exercise its renewal option or if
there is no renewal option contained herein or previously unexercised at
such time, this lease shall terminate at the option of Landlord and rent
shall be abated for the unexpired portion of this lease, effective from the
date of actual receipt by Landlord of the written notification of the
damage. If the building and other improvements are to be rebuilt or
repaired and are untenantable in whole or in part following such
damage, the rent payable hereunder during the period in which they are
untenantable shall be adjusted equitably.
8.03. Substantial or Total Destruction. If the building or other
improvements situated on the Property should be substantially or totally
destroyed by fire, tornado or other casualty, or so damaged that
rebuilding or repairs cannot reasonably be completed within 120 days
from the date Landlord receives written notification by Tenant of the
happening of the damage, this lease shall terminate at the option of
Landlord and rent shall be abated for the unexpired portion of this lease,
effective from the date of receipt by Landlord of such written
notification. If this lease is no terminated, the building and the
improvements shall be rebuilt or repaired and rent abated to the extent
provided under Section 8.02.
ARTICLE NINE: CONDEMNATION
If, during the term of this lease or any extension or renewal thereof, all
or a substantial part of the property should be taken for any public or
quasi-public use under any governmental law, ordinance or regulation or
by right of eminent domain, or should be sold to the condemning
authority under threat of condemnation, this lease shall terminate and
the rent shall be abated during the unexpired portion of this lease,
effective from the date of taking of the property by the condemning
authority. If less than a substantial part of the demised premises is taken
for public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain, or is sold to the condemning
authority under threat of condemnation, Landlord, at its option, may be
written notice terminate this lease or shall forthwith at its sole expense
restore and reconstruct the buildings and improvements (other than
leasehold improvements made by Tenant or any assignee, subtenant or
other occupant of the property) situated on the Property in order to
make the same reasonably tenantable and suitable for the use for which
the property is leased as defined in section 6.01. The rent payable
hereunder during the unexpired portion of this lease shall be adjusted
equitably. Landlord and Tenant shall each be entitled to receive and
retain such separate awards and portions of lump sum awards as may be
allocated to their respective interests in any condemnation proceedings.
The termination of this lease shall not affect the rights of the respective
parties to such awards.
ARTICLE TEN: ASSIGNMENT AND SUBLETTING
Tenant shall not, without the prior written consent of Landlord, assign
this lease or sublet the property or any portion thereof. Any assignment
or subletting shall be expressly subject to all terms and provisions of this
lese, including the provisions of Section 6.01 pertaining to the use of the
property. In the event of any assignment or subletting, Tenant shall
remain fully liable for the full performance of all Tenants obligations
under this lease. Tenant shall no assign its rights hereunder or sublet the
property without first obtaining a written agreement from the assignee
or sublessee whereby the assignee or sublessee agrees to be bound by
the terms of this lease. No such assignment or subletting shall constitute
a novation. In the event of the occurrence of an event of default while
the property is assigned or sublet, Landlord, in addition to any other
remedies provided herein or by law, may at Landlord's option, collect
directly from such assignee or subtenant all rents becoming due under
such assignment or subletting and apply such rent against any sums due
to Landlord hereunder. No direct collection by Landlord from any such
assignee or subtenant shall release Tenant from the performance of its
obligations hereunder.
ARTICLE ELEVEN: DEFAULT AND REMEDIES
11.01. Default. The following events shall be deemed to be events of
default under this lease:
(a) Failure of Tenant to pay any installment of the rent or other sum
payable to Landlord hereunder on the date that same is due and such
failure shall continue for a period of ten (10) days;
(b) Failure of Tenant to comply with any term, condition or covenant
of this lease, other than the payment of rent or other sum of money, and
such failure shall not be cured within thirty (3) days after written notice
thereof to Tenant;
(c) Tenant or any guarantor of Tenant's obligations hereunder shall
generally not pay its debts as they become due or shall admit in writing
its inability to pay its debts or shall make a general assignment for the
benefit of creditors.
(d) Tenant or any guarantor of Tenant's obligations hereunder shall
commence any case, proceeding or other action seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or
its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property.
(d) Any case, proceeding or other action against Tenant or any
guarantor of Tenant's obligations hereunder shall be commenced seeking
to have an order for relief entered against it as debtor, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking appointment
of a receiver, trustee, custodian or other similar official for it or for all or
any substantial part of its property, and Tenant (i) fails to obtain a
dismissal of such case, proceeding, or other action within sixty (60) days
of its commencement or (ii) converts the case from one chapter of the
Federal Bankruptcy Code to another chapter or (iii) is the subject of an
Order of Relief which is not fully stayed within seven business days after
the entry thereof.
(f) Abandonment by Tenant of any substantial portion of the
Property or cessation of the Property for the purpose leased.
11.02. Remedies. Upon the occurrence of any of the events of default
listed in Section 11.01, Landlord shall have the option to pursue any one
or more of the following remedies without any notice or demand
whatsoever;
(a) Terminate this lease, in which event Tenant shall immediately
surrender the property to Landlord. If Tenant fails to so surrender such
premises, Landlord may, without prejudice to any other remedy which it
may have for possession of the property or arrearage in rent, enter upon
and take possession of the property and expel or remove Tenant and any
other person who may be occupying such premises or any part thereof,
by force if necessary, without being liable for prosecution or any claim
for damages therefor. Tenant shall pay to Landlord on demand the
amount of all loss and damage which Landlord may suffer by reason of
such termination, whether through inability to relet the property on
satisfactory terms or otherwise;
(b) Enter upon and take possession of the Property, by force if
necessary, without terminating this lease and without being liable for
prosecution or for any claim for damages therefor, and expel or remove
Tenant and any other person who may be occupying such premises or
any part thereof. Landlord may relet the property and receive the rent
therefor. Tenant agrees to pay to Landlord monthly or on demand from
time to time any deficiency that may arise by reason of any such
reletting. In determining the amount of such deficiency, the brokerage
commission, attorneys' fees, remodeling expenses and other costs of
reletting shall be subtracted from the amount of rent received under such
reletting.
(c) Enter upon the Property, by force, if necessary, without
terminating this lease and without being liable for prosecution or for any
claim for damages therefor, and do whatever Tenant is obligated to do
under the terms of this lease. Tenant agrees to pay Landlord on demand
for expenses which Landlord may incur in thus effecting compliance
with Tenant's obligations under this lease, together with interest thereon
at the rate of twelve percent (12%) per annum from the date expended
until paid. Landlord shall not be liable for any damages resulting to
Tenant from such action, whether caused by negligence of Landlord or
otherwise.
Pursuit of any of the foregoing remedies shall no preclude pursuit of
any of the other remedies herein provided or any other remedies
provided by aw, nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Landlord hereunder
or of any damages accruing to Landlord by reason of the violation of
any of the terms, conditions and covenants herein contained.
11.03. Notice of Default. Tenant shall give written notice of any failure
by Landlord to perform any of its obligations under this lease to
Landlord and to any ground lessor, mortgagee or beneficiary under any
deed of trust encumbering the property whose name and address have
been furnished to Tenant in writing. Landlord shall not be in default
under this lease unless Landlord (or such ground lessor, mortgagee or
beneficiary) fails to cure such non-performance within thirty (30) days
after receipt of Tenant's notice. However, if such non-performance
reasonably requires more than thirty (30) days to cure, Landlord shall
not be in default if such cure is commenced within such thirty (30) day
period and thereafter diligently pursued to completion.
11.04. Limitation of Landlord's Liability. As used in this lease, the term
"Landlord" means only the current owner or owners of the fee title to
the property or the leasehold estate under a ground lease of the property
at the time in question. Each Landlord is obligated to perform the
obligations of Landlord under this lease only during the time such
Landlord owns such interest or title. Any Landlord who transfers its
title or interest is relieved of all liability with respect to the obligations
of Landlord under this lease to be performed on or after the date of
transfer. However, each Landlord shall deliver to its transferee all funds
previously paid by Tenant if such funds have not yet been applied under
the terms of this lease.
ARTICLE TWELVE: LANDLORD'S LIEN
In addition to the statutory Landlord's lien, Tenant hereby grants to
Landlord a security interest to secure payment of all rent and other sums
of money becoming due hereunder from Tenant, upon all goods, wares,
equipment, fixtures, furniture and other personal property of Tenant
situated in or upon the property, together with the proceeds from the
sale or lease thereof. Such property shall not be removed without the
consent of Landlord until all arrearage in rent and other sums of money
then due to Landlord hereunder shall first have been paid and
discharged. Upon the occurrence of an event of default, Landlord may,
in addition to any other remedies provided herein or by law, enter upon
the property and take possession of any and all goods, wares,
equipment, fixtures, furniture and other personal property of Tenant
situated on the property without liability for trespass or conversion, and
sell the same at public or private sale, with or without having such
property at the sale, after giving Tenant reasonable notice of the time
and place of any such sales. Unless otherwise required by law, notice to
Tenant of such sale shall be deemed sufficient if given in the manner
prescribed in this lease at least ten (10) days before the time of the sale.
Any public sale made under this Article shall be deemed to have been
conducted in a commercially reasonable manner if held on the Property
or where the property is located, after the time, place and method of sale
and general description of the types of property to be sold have been
advertised in a daily newspaper published in Dallas County, Texas, for
five consecutive days before the date of the sale. Landlord or its assigns
may purchase at a public sale and, unless prohibited by law, at a private
sale. The proceeds from any disposition dealt with in this Article, less
any and all expenses connected with the taking of possession, holding
and selling of the property (including reasonable attorneys' fees and legal
expenses(), shall be applied as a credit against the indebtedness secured
by the security interest granted herein. Any surplus shall be paid to
Tenant or as otherwise required by law; Tenant shall pay any
deficiencies forthwith. Upon request by Landlord, Tenant agrees to
execute and deliver to Landlord a financing statement in form sufficient
to perfect the security interest of Landlord in the aforementioned
property and proceeds thereof under the provision of the Uniform
Commercial Code in force in the State of Texas. The statutory lien for
rent is expressly reserved; the security interest herein granted is in
addition and supplementary thereto.
ARTICLE THIRTEEN: PROTECTION OF LENDERS
13.01. Subordination. Landlord shall have the right to subordinate this
lease to any ground lease, deed of trust or mortgage encumbering the
property, and advances made on the security thereof and any renewals,
modifications, consolidations, replacements or extension thereof,
whenever made or recorded. However, Tenants right to quiet
possession of the property during the lease term shall not b disturbed if
Tenant pays the rent and performs all of Tenant's obligations under this
lease and is not otherwise in default. If any ground lessor, beneficiary or
mortgagee elects to have this lease prior to the lien of its ground lease,
deed of trust or mortgage whether this lease is dated prior or subsequent
to the date of said ground lease, deed of trust or mortgage or the date of
recording thereof.
13.02. Attornment. If Landlords interest in the property is acquired by
any ground lessor, beneficiary under a deed of trust, mortgagee or
purchaser at a foreclosure sale, Tenant shall attorn to the transferee of
or successor to Landlord's interest in the property and recognize such
transferee or successor as Landlord under his lease. Tenant waives the
protection of any state or rule of law which gives or purports to give
Tenant any right to terminate this lease or surrender possession of the
property upon the transfer of Landlord's interest.
13.03. Signing of Documents. Tenant shall sign and deliver any
instruments or documents necessary or appropriate to evidence any such
attornment or subordination or agreement to do so. If Tenant fails to do
so within ten (10) days after written request, Tenant hereby makes,
constitutes and irrevocably appoints Landlord, or any transferee or
successor of Landlord, the attorney-in-fact of Tenant to execute and
deliver any such instrument or document.
13.04. Estoppel Certificates.
(a.) Upon Landlord's written request, Tenant shall execute,
acknowledge and deliver to Landlord a written statement certifying: (i)
that none of the terms or provision of this lease have been changed (or if
they have been changed, stating how they have been changed); (ii) that
this lease has not been cancelled or terminated; (iii) the last date of
payment of the Base Rent and other charges and the time period
covered by such payment; and (iv) that Landlord is not in default under
this lease (or, if Landlord is claimed to be in default, stating why).
Tenant shall deliver such statement to Landlord within ten (10) days
after Landlord's request. Any such statement by Tenant may be given by
Landlord to any prospective purchaser or encumbrancer of the
property.. Such purchaser or encumbrancer may rely conclusively upon
such statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such
ten (10) day period, Landlord, and any prospective purchaser or
encumbrancer, may conclusively presume and rely upon the following
facts: (i) that the terms and provision of this lease have not been
changed except as otherwise represented by Landlord; (ii) that this lease
has not been cancelled or terminated except as otherwise represented by
Landlord; (iii) that not more than one month's Base Rent or other
charges have been paid in advance; and (iv) that Landlord is note in
default under the lease. In such event, Tenant shall be estopped from
denying the truth of such facts.
13.05. Tenant's Financial Condition. Within ten (10) days after written
request from Landlord, Tenant shall deliver to Landlord such financial
statements as are reasonably required by Landlord to verify the net
worth of Tenant, or any assignee, subtenant, or guarantor of Tenant. In
addition, Tenant shall deliver to any lender designated by Landlord any
financial statements required by such lender to facilitate the financing or
refinancing of the Property. Tenant represents and warrants to Landlord
that each such financial statement is a
true and accurate statement as of the date of such statement. All
financial statements shall be confidential and shall be used only for the
purposes set forth herein.
ARTICLE FOURTEEN: REALTORS' COMMISSIONS
14.01. Amount and Manner of Payment of Commissions. Commissions
due to the undersigned Principal REALTOR shall be calculated and paid
as follows:
(a) [struck from lease]
(b) Landlord agrees to pay to the undersigned Principal REALTOR a
commission for negotiating this lease equal to the percentage stated in
Section 1.11B of the total rent to become due to Landlord during the
term of this lease. Said commission shall be payable to Principal
REALTOR on the date of the execution of this lease.
14.02. Commissions on Renewal, Expansion or Purchase. If during the
term of this lease (as the same may be renewed or extended) or within
ten (10) years from the date hereof, whichever shall be the greater
period of time, Tenant, its successors or assigns, shall (a) exercise any
right or option to renew or extend the term of this lease (whether
contained in this lease or in any amendment, supplement or other
agreement pertaining hereto) or enter into a new lease or rental
agreement with Landlord covering the Property, or (b) enter into any
lease, extension, renewal, expansion or other rental agreement with
Landlord demising to Tenant any premises located on or constituting all
or part of any tract or parcel of real property adjoining, adjacent to or
contiguous to the Property and owned by Landlord on the date of this
lease. Landlord shall pay to the Principal REALTOR an additional
commission covering the full period of such renewal, extension, lease,
expansion or their rental agreement which shall be due on the date of
exercise, in the case of the exercise of an option, or the execution, in the
case of a lease or other agreement. Such commissions shall be
computed under Section 14.01(a) or 14.01(b) above (whichever has
been made applicable under Section 1.11A), as if a new lease had been
made for such period of time. In the event Tenant, its successors or
assigns, should purchase the Property at anytime, pursuant to a purchase
option contained in this lease (or any lease, extension, renewal,
expansion or other rental agreement upon which an additional
commission would be due under the above provisions) or, in the absence
of any purchase option or exercise thereof, should purchase the Property
within ten (10) years form the date hereof, Landlord shall pay to the
undersigned Principal REALTOR a sales commission in cash equal six
percent (6%) of the purchase price, payable at closing. Upon closing of
the sale, all lease commissions shall terminate if the lease commissions
are payable monthly.
14.03. Joint Liability of Tenant. Tenant expressly acknowledges and
agrees that if Tenant enters into any new lease, extension, renewal,
expansion or other agreement to rent, occupy or purchase any property
described in the preceding Section 14.02 within the time specified in
such preceding Section, such agreement must be handled by and through
the undersigned Principal REALTOR, otherwise Tenant shall be jointly
and severally liable with Landlord for any commissions due or to
become due to Principal REALTOR.
14.04. Sale. In the event of a sale of the Property or the assignment of
this lease by Landlord, Landlord shall obtain from the purchaser or
assignee an Assumption Agreement in recordable from whereby such
purchaser or assignee agrees to pay the undersigned Principal
REALTOR all commission payable under this lease and shall deliver a
fully executed counterpart hereof to Principal REALTOR on the date of
closing of the sale of the property or assignment of this lease. Landlord
shall be released from personal liability for subsequent payments of
commissions only upon the delivery of such counterpart of said
Assumption Agreement. Landlord expressly agrees that it will not
transfer, convey or sell the property or assign this lease without first
obtaining from the purchaser or assignee such Assumption Agreement.
The form of such Assumption Agreement shall be furnished to the
Principal REALTOR at the time Landlord enters into any contract for
the sale of the Property or assignment of this Lease.
14.05. Termination. The termination of this lease by the mutual
agreement of Landlord and Tenant, Tenant not being in default
hereunder, shall not affect the right of the Principal REALTOR to
continue to receive monthly commission agreed to be paid by Landlord
under Section 14.01(a) above, just as if Tenant had continued to occupy
the Property and had paid the monthly rental during the remaining term
of this lease. Termination of this lease under Article Eight, or Article
Nine shall terminate the right to such monthly commission.
14.06. Lien. [section struck from lease]
ARTICLE FIFTEEN. MISCELLANEOUS
15.01. Force Majeure. In the event performance by Landlord of any
term, condition or covenant in this lease is delayed or prevented by any
Act of God, strike, lockout, shortage of material or labor, restriction by
any governmental authority, civil riot, flood, or any other cause not
within the control of Landlord, the period for performance of such term,
condition or covenant shall be extended for a period equal to the period
Landlord is so delayed or hindered.
15.02. Interpretation. The captions of the Articles or Sections of this
Lease are to assist the parties in reading this lease and are not a part of
the terms or provisions of this lease. Whenever required by the context
of this lease, the singular shall include the plural and the plural shall
include the singular. For convenience, each party hereto is referred to in
the neuter gender, but the masculine, feminine and neuter genders shall
each include the other. In any provision relating to the conduct, acts or
missions of Tenant, the term "Tenant" shall include Tenant's agents,
employees, contractors, invitees, successors or others using the property
with Tenant's expressed or implied permission.
15.03. Waivers. All waivers must be in writing and signed by the
waiving party. Landlord's failure to enforce any provisions of this lease
or its acceptance of rent shall not be a waiver and shall not prevent
Landlord from enforcing that provision or any other provision of this
lease in the future. No statement on a payment check from Tenant or in
a letter accompanying a payment check shall be binding on Landlord.
Landlord may, with or without notice to Tenant, negotiate such check
without being bound to the conditions of such statement.
15.04. Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal
or unenforceable shall not cancel or invalidate the remainder of such
provision or this lease, which shall remain in full force and effect.
15.05. Joint and Several Liability. All parties signing this lease as
Tenant shall be jointly and severally liable for all obligations of Tenant.
15.06. Incorporation of Prior Agreements; Modifications. This lease is
the only agreement between the parties pertaining to the lease of the
Property and no their agreements are effective. All amendments to this
lease shall be in writing and signed by all parties. Any other attempted
amendment shall be void.
15.07. Notices. All notices required or permitted under this lease shall
be in writing and shall be personally delivered or shall deemed to be
delivered, whether actually received or not, when deposited in the
United States mail, postage pre-paid, registered or certified mail, return
receipt requested, addressed as stated herein. Notices to Tenant shall be
delivered to the address specified in Section 1.03 above, except that,
upon Tenant's taking possession of the property, the property shall be
Tenant's address for notice purposes. Notices to any other party hereto
shall be delivered to the address specified in Article One as the address
for such party. Any party hereto may change its notice address upon
written notice to the other parties.
15.08. Attorney's Fees. If on account of any breach or default by any
party hereto in its obligations to any other party hereto (including but
not limited to the Principal REALTOR), it shall become necessary for
the non-defaulting party to employ an attorney to enforce or defend any
of its rights or remedies hereunder, the defaulting party agrees to pay
the non-defaulting party its reasonable attorneys' fees, whether or not
suit is instituted in connection therewith.
15.09. Venue. All obligations hereunder, including but not limited to
the payment of commissions to the Principal REALTOR, shall be
performable and payable in Dallas, Dallas County, Texas.
15.10. Governing Law. The laws of the State of Texas shall govern
this Lease.
15.11. Survival. All obligations of any party hereto not fulfilled at the
expiration or the earlier termination of this Lease shall survive such
expiration or earlier termination as continuing obligations of such party.
15.12. Binding Effect. This Lease shall inure to the benefit and be
binding upon each of the parties hereto and their heirs, representatives,
successors and assigns; provided, however, Landlord shall have no
obligation to Tenant's successors or assigns unless the rights or interests
of such successors or assigns are acquired in accordance with the terms
of this Lease.
15.13. Execution as Offer. The execution of this lease by the first party
to do so constitutes an offer to lease the Property. Unless within the
number of days stated in Section 1.15 above from the date of its
execution by the first party to do so, this lease is accepted by the other
party and a fully executed copy is delivered to the first party, such offer
shall be automatically revoked and terminated.
ARTICLE SIXTEEN: ADDITIONAL PROVISIONS AND RIDERS
Additional provisions may be set forth in the blank space below, and/or
a rider or riders attached hereto. If no additional provisions are to be
inserted in the blank space below, please draw a line through such space.
If no rider or riders are to be attached hereto, please state "no riders" in
the blank space below. If a rider or riders are to be attached hereto,
please state in the blank space below: "See rider or riders attached," and
please have Landlord and Tenant initial all such riders.
See Rider attached.
EXECUTED as of the date stated in Section 1.01 above.
ATTEST:
____________________________ LANDLORD: Xxxxxx Investments
By: /s/ XXXXXXX XXXXXX
Xxxxxxx Xxxxxx
Title: President
Date of Execution by Landlord:
5-2-91
ATTEST:
/s/ XXXXX XXXXXX TENANT: Sublingual Products International
By: /s/ XXXXX XXXXXXX, PRESIDENT
Xxxxx XxXxxxx
Title: President
Date of Execution by Tenant:
5-1-91
REALTORS
None CB Commercial Real Estate Group, Inc.
______________________ _____________________________
Cooperating REALTOR Principal REALTOR, Member of
The Greater Dallas Board of
REALTORS, Inc.
By:_________________________ By: /s/ XXXX XXXXXXX
Xxxx XxXxxxx
*NOTE: If this Lease Agreement is negotiated by Principal Realtor in
cooperation with another Realtor, Landlord shall be liable for payment
of all commissions to Principal Realtor only, whereupon it shall be
protected from any claims from said Cooperating Realtor.
16.01 Rent:
The rent schedule for the term of the Lease is as follows:
Months 1-12 $3,300 month
Months 13-24 $3,900 month
Months 25-36 $4,100 month
16.02. Tenants Right to Purchase:
Tenant will have the option to purchase the property during the first
year of the lease term for $420,000. Landlord will apply a purchase
credit of $20,000 in the event the property is purchased during the first
year of the lease term.
Provided Tenant has not exercised its option to purchase the property
during the first year of the lease term, they will have the first right of
refusal to purchase the property in second and third year for $450,000
and $460,000 respectively. Tenant will have ten (10) days from the date
of written notification by Landlord of receipt of an acceptable offer from
another party within which to exercise their right to purchase the
property.
Tenant will notify Landlord, in writing, within the specified time period
whether they intend to exercise their right to purchase the property at
the applicable price stated above. In the event Tenant does not notify
landlord in writing within the applicable time period of their intent to
purchase the property, it will be deemed that Tenant forfeits its right to
purchase and will have no further rights of refusal to purchase the
property.
