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[R Realtor(R) Logo] [Equal Housing Opportunity Logo]
GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
NET COMMERCIAL LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF DALLAS
THIS LEASE AGREEMENT made and entered into by and between
XXXXXX INCOME PROPERTIES II, LTD.
hereinafter referred to as "Landlord," and CARE MANAGEMENT ENTERPRISES, INC.;
a Texas corporation
hereinafter referred to as "Tenant;"
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby takes from
Landlord the following described premises (hereinafter referred to as the
"demised premises" or "premises") situated within the County of Tarrant, State
of Texas.
Being an approximate 54,000 square foot portion of an approximate
172,000 square foot office/warehouse building situated on an 8.66-Acre
tract of land described a Site 3 of Block 7, of the Great Southwest
Industrial District, and being locally known as 0000 Xxxxxx X,
Xxxxx Xxxxxxx, Xxxxx; and being more particularly described on Exhibit A
attached hereto.
together with all rights, privileges, easements and appurtenances belonging to
or in any way pertaining to the demised premises and together with the building
and other improvements now situated or to be erected upon the demised premises.
TO HAVE AND TO HOLD the same for a term of thirty-six months,
beginning on December 1, 1997 and expiring on November 30, 2000, upon
the following terms, conditions and covenants:
See Contingency, Special Conditions, Paragraph 32A attached hereto.
1. RENT: Tenant agrees to pay the Landlord herein, without offset or
deduction, for the account of Landlord rent for the demised premises at the rate
of See Rent Schedule, Special Conditions, Paragraph 32 B attached hereto
Dollars ($ ) per month in advance. One such monthly installment shall
be due and payable on or before the beginning date of this lease, and a like
monthly installment shall be due and payable on or before the first day of each
succeeding calendar month during the term hereof; provided that, in the event
the term hereof shall commence or end during a calendar month, the rent for any
fractional calendar month following the commencement or preceding the end of the
term of this lease shall be pro rated by days. (If percentage rent is to be
payable to Landlord, refer to Exhibit A attached to this lease, In such case
Exhibit A shall be incorporated into and become a part of this lease when
physically attached hereto.)
Tenant will deposit with Landlord, upon commencement of this lease,
Twenty nine thousand seven hundred and 00/100 Dollars ($29,700.00) to be
applied as follows:
(a) $14,175.00 for base rent for December 1, 1997 through December 31,
1997.
(b) $15,525.00 as a security deposit. Such security deposit shall be
held by Landlord without interest as security for the performance
by
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Tenant of Tenant's covenants and obligations under this . The security
deposit is not an advance payment of rental the full measure of liquidated
damages in case of default by Tenant. Upon the occurrence of any event of
default, Landlord may, from time to time, without prejudice to any other remedy
provided herein or provided by law, use the security deposit to the extent
necessary to make good any arrears of rent and any other damage, injury,
expense or liability caused to Landlord by such event of default. Following any
such application of the security deposit. Tenant shall pay to Landlord, on
demand, the amount so applied in order to restore the security deposit to its
original amount. If Tenant is not in default, hereunder, any remaining balance
of such deposit shall be returned by Landlord to Tenant upon expiration or
termination of this lease.
2. ACCEPTANCE OF PREMISES:
Tenant acknowledges that it has fully inspected the demised premises and
accepts the demised premises, and any buildings and improvements situated
thereon, as suitable for the purposes for which the same are leased in their
present condition, except
NONE
3. USE OF PREMISES:
The demised premises shall be used and occupied only for the purpose of
General offices, storage and distribution of medical products,
excluding drugs and narcotics.
See Special Conditions, Paragraph 32C, attached hereto.
and not otherwise. Tenant shall at its own expense obtain any and all
governmental licenses and permits necessary for such use.
4. COMPLIANCE WITH LAW:
Tenant shall comply with all governmental laws, ordinances and regulations
applicable to the use of the demised premises, 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 demised premises, all
at Tenant's sole expense.
5. REAL ESTATE TAXES:
(a) Tenant agrees to pay before they become delinquent all taxes (both
general and special), assessments or governmental charges of any kind and
nature whatsoever (hereinafter collectively referred to as the "taxes"), levied
or assessed against the premises or any part thereof. Tenant shall furnish to
Landlord not later than twenty (20) days before the date any such taxes become
delinquent, official receipts of the appropriate taxing authority or other
evidence satisfactory to Landlord evidencing payment thereof. If Tenant shall
fail to pay any taxes, assessments, or governmental charges required to be
paid by Tenant hereunder, in addition to any other remedies provided herein,
Landlord may if it so elects pay such taxes, assessments, and governmental
charges. Any sums so paid by Landlord shall be deemed to be so much additional
rental owing by Tenant to Landlord and due and payable on written demand by
Landlord together with interest thereon at the rate of ten percent (10%) per
annum from date paid by Landlord to date of repayment by Tenant.
(b) All real estate taxes and assessments on the demised premises owned by
Landlord shall be prorated between Landlord and Tenant with respect to the tax
years in which this lease commences or terminates. Tenant shall pay that part
of the real estate taxes attributable to the portion of the tax year covered by
this lease.
(c) In the event the premises constitute a portion of a multiple occupancy
building, in lieu of Tenant paying the "taxes" as above provided, Landlord
agrees to pay before they become delinquent all "taxes" lawfully levied or
assessed against such building and the grounds, parking areas, driveways and
alleys around the said building, and during each month of the term of this
Lease, Tenant shall make a monthly escrow deposit with Landlord equal to 1/12 of
its proportionate share of the taxes on the building which will be due and
payable for that year. Tenant's "proportionate share" as used throughout this
lease, shall mean a fraction, the numerator of which is the space occupied by
Tenant and the denominator of which is the entire gross space contained in the
building. The current taxes are approximately $.55 per square foot on the
building. In the event Landlord does not dispute and contest the taxes, then.
(d) Tenant may, alone or along with any other tenants of said building, at
its or their sole cost and expense, in its or their own name(s) and/or in the
name of the Landlord, dispute and contest any "taxes" by appropriate
proceedings diligently conducted in good faith, but only after Tenant and all
other tenants, if any, joining with Tenant in such contest have deposited with
Landlord the amount so contested and unpaid, or their proportionate shares
thereof as the case may be, which shall be held by Landlord without obligations
for interest until the termination of the proceedings, at which time the
amount(s) deposited shall be applied by Landlord toward the payment of the
items held valid (plus any court costs, interest, penalties and other
liabilities associated with the proceedings), and Tenant's share of any excess
shall be returned to Tenant. Tenant further agrees to pay Landlord upon demand
Tenant's share (as among all tenants who participated in the contest) of all
court costs, interest, penalties and other liabilities relating to such
proceedings. Tenant hereby indemnifies and agrees to hold harmless the
Landlord from and against any cost, damage or expense, including attorney's
fees, in connection with any such proceedings.
(e) If at any time during the term of this Lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments, levies or charges levied, assessed or imposed on real estate and
the improvements thereon there shall be levied, assessed or imposed on Landlord
a capital levy or other tax directly on the rents received therefrom and/or a
franchise tax, assessment, levy or charge measured by or based, in whole or in
part, upon such rents or the present or any future building or buildings on the
premises, then all such taxes, assessments, levies or charges, or the part
thereof so measured or based, shall be declined to be included within the term
"taxes" for the purpose hereof.
6. REPAIRS AND MAINTENANCE:
(a) Tenant shall at its own cost and expense keep, maintain and take good
care of the premises and make all necessary repairs thereto, interior and
exterior, non-structural, ordinary and extraordinary, and shall suffer no waste
or nuisances; provided, however, that the cost of maintenance and repair of any
common party wall (any wall, divider, partition or any other structure
separating the premises from any adjacent premises occupied by other tenants)
shall be shared equally by Tenant and the Tenant occupying adjacent premises.
Tenant shall not damage any party wall or disturb the integrity and support
provided by any party wall and shall, at its cost and expense, promptly repair
any damage or injury to any party wall caused by Tenant or its employees,
agents or invitees. At the end of the term or other termination of this lease,
Tenant shall deliver the premises with all improvements thereon in good repair
and condition, reasonable wear and tear only excepted. Landlord shall be
responsible for maintaining the roof, exterior walls and foundation throughout
lease term.
(b) Tenant shall at its own cost and expense care for the grounds around
the buildings on the premises, including the regular mowing of grass, care of
shrubs and general landscaping, and maintenance of the parking areas,
driveways, alleys and shall maintain the whole of the premises in a clean and
sanitary condition.
(c) In the event the premises constitute a portion of a multiple occupancy
building, Tenant and its employees, customers, and licensees shall have the
nonexclusive right to use, in common with the other parties occupying said
building, the parking areas, driveways and alleys adjacent to said building,
subject to such reasonable rules and regulations as Landlord may from time to
time prescribe, and Tenant shall, in lieu of their obligations set forth under
subparagraph (b) above, be liable for its proportionate share of the cost and
expense of the care for the grounds around the said building, including but not
limited to, the mowing of grass, care of shrubs, general landscaping, and
maintenance of parking areas, driveways and alleys. Tenant shall reimburse
Landlord monthly for the amount of its proportionate share of such costs and
expenses in the event Landlord elects to perform or cause to be performed
such work.
(d) In the event Tenant shall fail to maintain the demised premises or any
paving, landscaping or milroad siding in accordance with this paragraph 6,
Landlord shall have the right (but not the obligation) to cause all repairs or
other maintenance to be made and the reasonable costs therefor expended by
Landlord shall be paid by Tenant on written demand.
7. ALTERATIONS, ADDITIONS AND IMPROVEMENTS
Tenant shall not create any openings in the roof or exterior walls, or
make any alterations, additions or improvements to the demised premises without
prior written
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consent of Landlord. Consent for non-structural 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 have the right to remove such items so
installed, 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 demised premises and shall not permit a
mechanic's or materialman's lien to be asserted against the demised premises.
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.
All alterations, additions or improvements in or to the demised
premises shall become the property of Landlord at the expiration or termination
of this lease; however, Landlord may direct the removal of alterations,
additions or improvements by giving written notice to Tenant prior to the
expiration or termination of this lease. At the direction of Landlord, Tenant
shall promptly remove all alterations, additions and improvements and any other
property placed in the demised premises by Tenant, and Tenant shall repair in a
good and workmanlike manner any damage caused by such removal.
8. SIGNS:
Tenants shall not place or affix any signs or other objects upon or to
the roof or exterior walls of the demised premises or paint or otherwise deface
the exterior walls of the demised premises without the prior written consent of
Landlord. 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.
9. INSURANCE, FIRE AND CASUALTY DAMAGE:
(a) Landlord agrees to maintain insurance covering the building of
which the demised premises are a part in an amount not less than 90% (or such
greater percentage as may be necessary to comply with the provisions of any
co-insurance clauses of the policy) of the "replacement cost" thereof as such
term is defined in the Replacement Cost Endorsement to be attached thereto,
insuring against the perils of Fire, Lightning, Extended Coverage, Vandalism
and Malicious Mischief, extended by Special Extended Coverage Endorsement to
insure against all other Risks of Direct Physical Loss, such coverages and
endorsements to be as defined, provided and limited in the standard bureau
forms prescribed by the insurance regulatory authority for the State in which
the demised premises are situated for use by insurance companies admitted in
such state for the writing of such insurance on risks located within such
state. Subject to the provisions of subparagraphs 9(b) and 9(c) below, such
insurance shall be for the sole benefit of Landlord and under its sole control.
Tenant agrees to pay Landlord's cost of maintaining such insurance on said
building (or, in the event the premises constitute a portion of a multiple
occupancy building, Tenant's full proportionate share of such cost). Said
payments shall be made to Landlord within ten days after presentation to Tenant
of Landlord's statement setting forth the amount due. Any payment to be made
pursuant to this subparagraph (a) with respect to the year in which this lease
commences or terminates shall bear the same ratio to the payment which would be
required to be made for the full year as that part of such year covered by the
terms of this lease bears to a full year. During each month of the term of this
lease, Tenant shall make a monthly escrow deposit with Landlord equal to 1/12
of its proportionate share of the insurance on the building which will be due
and payable for that year.
(b) If the buildings situated upon the premises should be damaged or
destroyed by any peril covered by the insurance to be provided by Landlord
under subparagraph 9(a) above, Tenant shall give immediate notice thereof to
Landlord, and Landlord shall at its sole cost and expense thereupon proceed
with reasonable diligence to rebuild and repair such buildings to substantially
the condition in which they existed prior to such damage or destruction, except
that Landlord shall not be required to rebuild, repair or replace any part of
the partitions, fixtures, additions or other improvements which may have been
placed in, on or about the premises by Tenant and except that Tenant shall pay
to Landlord upon demand any applicable deductible amounts specified under
Landlord's insurance. The rent payable hereunder shall in no event xxxxx by
reason of any damage or destruction.
(c) If the buildings situated upon the premises should be damaged or
destroyed by a casualty other than a peril covered by the insurance to be
provided by Landlord under subparagraph 9(a) above, or if any other
improvements situated on the demised premises should be in any manner damaged
or destroyed, Tenant shall at its sole cost and expense thereupon proceed with
reasonable diligence to rebuild and repair such buildings and/or improvements
to substantially the condition in which they existed prior to such damage or
destruction, subject to Landlord's approval of the plans and specifications for
such rebuilding and repairing, which approval shall not be unreasonably
withheld. Tenant's obligation hereunder shall not include destruction of the
premises by war, riot, civil disobedience, or flood.
(d) Tenant covenants and agrees to maintain insurance on all
alterations, additions, partitions and improvements erected by, or on behalf
of, Tenant in, on or about the demised premises in an amount not less than 90%
(or such greater percentage as may be necessary to comply with the provisions
of any co-insurance clause of the policy) of the "replacement cost" thereof as
such term is defined in the Replacement Cost Endorsement to be attached
thereto. Such insurance shall insure against the perils and be in form,
including stipulated endorsements, as provided in subparagraph 9(b) hereof.
Such insurance shall be for the sole benefit of Tenant and under its sole
control. All such policies shall be procured by Tenant from responsible
insurance companies satisfactory to Landlord. Certified copies of policies of
such insurance, together with receipt evidencing payment of premiums therefor
shall be delivered to Landlord prior to the commencement date of this lease.
Not less than fifteen (15) days prior to the expiration date of any such
policies, certified copies of renewals thereof (bearing notations evidencing
the payment of renewal premiums) shall be delivered to Landlord. Such policies
shall further provide that not less than thirty (30) days written notice shall
be given to Landlord before such policy may be cancelled or changed to reduce
insurance provided thereby.
(e) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
premises required that the insurance proceeds be applied to such indebtedness
then the Landlord shall have the right to terminate this lease by delivering
written notice of termination to Tenant within fifteen (15) days after such
requirement is made by any such holder, whereupon all rights and obligations
hereunder shall cease and terminate.
10. 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, the demised
premises, 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 or otherwise to an
insurance company (or any other person), each party hereby agrees immediately
to give to each insurance company which has issued to its policies of fire and
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.
Landlord and its authorized agents shall have the right, during normal
business hours, to enter the demised premises (i) to inspect the general
condition and state of repair thereof, (ii) to make repairs required or
permitted under this lease, (iii) to show the premises to any prospective
tenant or purchaser or (iv) for any other reasonable purpose.
During the final 150 days of the lease term, Landlord and its
authorized agents shall have the right to erect and maintain on or about the
demised premises customary signs advertising the property for lease or for sale.
11. 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 demised premises, and for all electric lights, lamps
and tubes.
12. ASSIGNMENT AND SUBLEASING:
Tenant shall not, without the prior written consent of Landlord, assign
this lease or sublet the demised premises or any portion thereof. Any
assignment or subletting shall be expressly subject to all terms and provisions
of this lease, including the provisions of paragraph 3 pertaining to the use of
the demised premises. In the event of any assignment or subletting, Tenant
shall remain fully liable for the full performance of all Tenant's obligations
under this lease. Tenant shall not assign his rights hereunder or sublet the
premises without first obtaining a written agreement from assignee or sublessee
whereby 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 demised premises are 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 of 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.
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13. INDEMNITY AND PUBLIC LIABILITY INSURANCE:
(a) Landlord shall not be liable to Tenant or Tenant's employees,
agents, patrons or visitors, or to any other person whomsoever, for any injury
to person or damage to property on or about the premises, caused by the
negligence or misconduct of Tenant, its agents, servants or employees, or any
other person entering upon the premises under express or implied invitation of
Tenant, or caused by the buildings and improvements located on the premises
becoming out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the premises, or due to any cause whatsoever, and
Tenant agrees to indemnify Landlord and hold it harmless from any loss,
expenses or claims including attorney's fees, arising out of any such damage or
injury, except injury to persons or damage to property the sole cause of which
is the negligence of the Landlord. See Special Conditions, Paragraph 32D,
attached hereto.
(b) Tenant shall procure and maintain throughout the term of this
lease a policy or policies of insurance, said insurance policy shall name
Landlord as an additional insured, at its sole cost and expense, insuring both
Landlord and Tenant against all claims, demands, or actions arising out of or
in connection with: (i) the premises; (ii) the condition of the premises, the
limits of such policy or policies to be in the amount of not less than $300,000
per person and $1,000,000 per occurrence in respect of injury to persons
(including death), and in the amount of not less than $50,000 per occurrence in
respect to property damage or destruction, including loss of use thereof. All
such policies, shall be procured by Tenant from responsible insurance companies
satisfactory to Landlord. Certified copies of such policies, together with
receipt evidencing of premiums therefor, shall be delivered to Landlord prior
to the commencement date of this lease. Not less than fifteen (15) days prior
to the expiration date of any such policies, certified copies of the renewals
thereof (bearing notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. Such policies shall further provide that not less than
thirty (30) days written notice shall be given to Landlord before such policy
may be cancelled or changed to reduce insurance provided thereby.
(c) If Tenant should fail to comply with the foregoing requirements
relating to insurance, Landlord may obtain such insurance, and Tenant shall pay
to Landlord on demand, as additional rental hereunder, the premium cost thereof
plus interest at the rate of ten per cent (10%) per annum from the date of
payment by Landlord until repaid by Tenant.
14. CONDEMNATION:
(a) If, during the term of this lease or any extension or renewal
thereof, all or a substantial part of the demised premises should be taken for
any public or quasi-public use under any governmental law, ordinance regulation
or by right of eminent domain, or should be sold to the condemnity 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 demised premises by the condemnity authority.
(b) 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 condemnity
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 demised
premises) situated on the demised premises in order to make the same reasonably
tenantable and suitable for the uses for which the demised premises are leased
as defined in paragraph 3. The rent payable hereunder during the unexpired
portion of this lease shall be adjusted equitably.
(c) All compensation awarded for any taking (or the proceeds from
private sale in lieu thereof) of the demised premises or common area shall be
the property of landlord and Tenant hereby assigns its interest in any such
award to Landlord; provided however, Landlord shall have no interest in any
award made to Tenant for loss of business or for the taking of Tenant's fixtures
and other property if a separate award for such items is made to Tenant.
15. HOLDING OVER:
Should Tenant, or any of its successors in interest fail to surrender
the demised premises, or any part thereof, on the expiration of the term of
this lease, such holding over shall constitute a tenancy from month to month,
at a monthly rental equal to 150% of the rent paid for the last month of the
term of this lease unless otherwise agreed in writing.
16. DEFAULT OF TENANT:
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 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 30 days after written notice thereof to
Tenant.
(c) Insolvency, the making of a transfer in fraud of creditors, or the
making of an assignment for the benefit of creditors by Tenant or any guarantor
of Tenant's obligations.
(d) Filing of a petition under an section or chapter of the United
States Bankruptcy Code, as amended, or under any similar law or statute of the
United States or any State thereof by Tenant or any guarantor of Tenant's
obligations or adjudication as a bankrupt or insolvent in proceedings filed
against Tenant or such guarantor.
(e) Appointment of a receiver or trustee for all or substantially all
of the assets of Tenant or any guarantor of Tenant's obligation hereunder.
(f) Abandonment by Tenant of any substantial portion of the demised
premises or cessation of the use of the use of the demised premises for the
purpose leased.
17. REMEDIES OF LANDLORD:
Upon the occurrence of any of the events of default listed in Section
18, 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 demised premises 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 demised premises or arrearages in rent, enter upon
and take possession of the demised premises 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 demised premises on satisfactory terms or otherwise.
(b) Enter upon and take possession of the demised premises, 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 demised premises and receive the rent therefor. Tenant
agrees to pay 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, attorney's fees, remodeling expenses
and other costs of reletting shall be subtracted from the amount of rent
received under such reletting.
(c) Enter upon the demised premises, by force, if necessary, without
terminating this lease and without being liable for any 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 this effecting compliance with Tenant's obligations
under this lease, together with interest thereon at the rate of 10% per annum
from the date expended until paid. Landlord shall not be liable for any damages
resulting to the Tenant from such action, whether caused by negligence of
Landlord or otherwise.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by
law, 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.
18. LANDLORD'S LIEN:
In addition to the statutory Landlord's lien, Tenant hereby grants to
Landlord a security interest to accrue payment of all rent an 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 demised premises, together with the proceeds from the sale or lease thereof.
Such property shall not be removed without the consent of Landlord until all
arrearages in rent and other sums of money then due to Landlord hereunder shall
first have been paid and discharged. Upon the occurrence of any event of
default, Landlord may, in addition to any other remedies provided
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herein or by law, enter upon the demised premises and take possession of any
and all goods, wares, equipment, fixtures, furniture and other personal
property of Tenant situated on the premises 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 sale. 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 10 days before the time of the sale. Any public sale made
under this paragraph shall be deemed to have been conducted in a commercially
reasonable manner if held in the demised premises or where the property is
located, after the time, place and method of sale and a general description of
the types of property to be sold have been advertised in a daily newspaper
published in Dallas and/or Tarrant 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 paragraph, 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 and 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 provisions of the Business and Commerce 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.
19. ATTORNEYS' FEES:
If, on account of any breach or default by Landlord or Tenant of their
respective obligations under this lease, it shall become necessary for the
other to employ an attorney to enforce or defend any of its rights or remedies
hereunder, and should such party prevail, it shall be entitled to any
reasonable attorneys' fees incurred in such connection.
20. QUIET ENJOYMENT:
Landlord warrants that it has full right and power to execute and
perform this lease and to grant the estate demised herein and that Tenant, on
payment of rent and performing the covenants herein contained, shall peaceably
and quietly have, hold and enjoy the demised premises during the full term of
this lease and any extension or renewal hereof; provided, however, that Tenant
accepts this lease subject and subordinate to any recorded mortgage, deed of
trust or other lien presently existing upon the demised premises. Landlord is
hereby irrevocably vested with full power and authority to subordinate Tenant's
interest hereunder to any mortgage, deed of trust or other lien hereafter
placed on the demised premises, and Tenant agrees upon demand to execute such
further instruments subordinating this lease as Landlord may request, provided
such further subordination shall be upon the express condition that this lease
shall be recognized by the mortgagee and that the rights of Tenant shall remain
in full force and effect during the terms of this lease so long as Tenant shall
continue to perform all of the covenants of this lease.
21. WAIVER OF DEFAULT:
No waiver by the parties hereto of any default or breach of any term,
condition or covenant of this lease shall be deemed to be waiver of any
subsequent default or breach of the same or any other term, condition or
covenant contained herein.
22. PROFESSIONAL SERVICE FEES:
Professional service fees due to the undersigned Principal Broker shall
be calculated and paid in accordance with paragraph (a) below:
(a) Landlord agrees to pay to the undersigned Principal Broker a
professional service fee for negotiating this lease equal to: Six percent (6%)
of the total lease consideration to be split four percent (4%) to Xxxx
Partners, Inc. and two percent (2%) to Xxx Xxxx Company.
(b) All professional service fees shall be payable in Dallas County,
Texas. If during the term of this lease (as the same may be renewed or
extended) or within 10 years from the date hereof, whichever shall be the
greater period of time, Tenant, its successors or assigns, shall (i) 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 demised premises, or (ii) 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 demised premises owned by
Landlord on the date of this lease, Landlord shall pay to the Principal Broker
provided Realtors are actively involved in the negotiations, an additional
professional service fee covering the full period of such renewal, extension,
lease, expansion or other 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 professional service fees shall be
computed under paragraph (a) above as if a new lease had been made for such
period of time, In the event Tenant, its successors or assigns, should purchase
the demised premises at any time, pursuant to a purchase option contained in
this lease (or any lease, extension, renewal, expansion or other rental
agreement upon which an additional professional service fee would be due under
the above provisions) or, in the absence of any purchase option or exercise
thereof, should purchase the demised premises within 10 years from the date
hereof, Landlord shall pay to the undersigned Principal Broker a sales
professional service fee in cash equal to Six percent (6%) of the first
$500,000.00 and three percent (3%) of the balance of the purchase price, payable
at closing. Upon closing of the sale, all lease professional service fees shall
terminate if the lease professional service fees are payable monthly.
(c) 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 paragraph within the time
period specified in the preceding paragraph, such agreement must be handled by
and through the undersigned Principal Broker; otherwise, Tenant shall be
jointly liable for any professional service fee due or to become due to
Principal Broker.
(d) In the event of a sale of the demised premises, or the assignment
of this lease by Landlord, Landlord shall obtain from the purchaser an
Assumption Agreement in recordable form whereby such assignee or purchaser
agrees to pay the undersigned Principal Broker all professional service fees
payable under this lease to deliver a fully executed counterpart thereof to
Principal Broker on the date of closing of the sale of the demised premises or
assignment of this lease, whereupon Landlord shall be released from all
personal liability for subsequent payments of professional service fees.
Landlord expressly agrees that it will not transfer, convey or sell the demised
premises 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 Broker at the time Landlord enters into any
contract for the sale of the demised premises or assignment of this lease.
(e) If on account of any breach or default by any party hereto in his
or its obligations to Principal Broker, it shall become necessary for Principal
Broker to employ an attorney to enforce or defend any of Principal Broker's
rights or remedies hereunder and should Principal Broker prevail, such parties
agree to pay Principal Broker reasonable attorney's fees in connection
therewith.
23. 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
demised premises are 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 in the demised premises, or which have not been expressly
agreed upon by Landlord in writing.
24. 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, and 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.
25. EXHIBITS:
All exhibits, attachments, annexed instruments and addenda referred to
herein shall be considered in part hereof for all purposes with the same force
and effect as if copied at full length herein.
6
26. USE OF LANGUAGE:
Words of any gender used in this lease shall be held and construed to
include any other gender, and words in the singular shall be held to include
the plural unless the context otherwise requires.
27. CAPTIONS:
The captions or headings of paragraphs in this lease are inserted for
convenience only and shall not be considered in construing the provisions
hereof if any question of intent should arise.
28. SUCCESSORS:
The terms, conditions and covenants contained in this lease shall apply
to, inure to the benefit of, and be binding upon the parties hereto and their
respective successors in interest and legal representatives except as otherwise
herein expressly provided. All rights, powers, privileges, immunities and
duties of Landlord under this lease, including, but not limited to, any notices
required or permitted to be delivered by Landlord to Tenant hereunder, may, at
Landlord's option, be exercised or performed by Landlord's agent or attorney.
29. SUBLEASE:
If this lease is in fact a sublease, Tenant accepts this lease subject
to all of the terms and conditions of the lease under which Landlord holds the
demised premises as lessee. Tenant covenants that it will do no act or thing
which would constitute a violation by Landlord of its obligation under such
lease.
30. SEVERABILITY:
If any provision in this lease should be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this lease shall not be affected thereby.
31. NOTICES:
Any notice or document required or permitted to be delivered hereunder
may be delivered in person or shall be deemed to be delivered, whether
actually received or not, when deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed to
the parties at the addresses indicated below, or at such other addresses as may
have theretofore been specified by written notice delivered in accordance
herewith.
LANDLORD: XXXXXX INCOME PROPERTIES II, LTD.
-----------------------------------
0000 XXX XXXXXXX, XXXXX 000
-----------------------------------
L8 #6
XXXXXX, XX 00000
-----------------------------------
PRINCIPAL BROKER: XXX XXXX COMPANY
-------------------------------
0000 XXX Xxxxxxx, Xxxxx 000
-------------------------------
Dallas, Texas 75240-6265
TENANT: CARE MANAGEMENT ENTERPRISES, INC.
-----------------------------------
0000 XXXXXX X
-----------------------------------
XXXXX XXXXXXX, XX 00000
-----------------------------------
32. SPECIAL CONDITIONS:
See Special Conditions attached hereto and made a part hereof.
EXECUTED the 16th day of November , 1995
------------- -------------------------- ------.
ATTEST:
LANDLORD: XXXXXX INCOME PROPERTIES II, LTD.
------------------------------ -----------------------------------
By Xxxxxx Realty Investors, IX, Inc.
------------------------------------
/s/ Xxxxx Xxxx
------------------------------------
Title Xxxxx Xxxx
Executive Vice President
ATTEST:
TENANT: CARE MANAGEMENT ENTERPRISES, INC.
------------------------------ ------------------------------------
/s/ Xxxxxx X. Xxxx
------------------------------------
By VICE PRESIDENT
------------------------------------
Title Xxxxxx X. Xxxx
BROKERS
XXXX PARTNERS, INC. XXX XXXX COMPANY
------------------------------ ------------------------------------
Cooperating Broker Principal Broker, Member of the
Greater Dallas Association of
REALTORS(R), Inc.
/s/ Huck Neuberry /s/ Xxx Xxxx, President
------------------------------ ------------------------------------
By By Xxx Xxxx
NOTE: If this Lease Agreement is negotiated by Principal Broker in cooperation
with another Broker, Landlord shall be liable for payment of all professional
service fees to Principal Broker only, whereupon Landlord shall be protected
from any claims from said Cooperating Broker.
7
SPECIAL CONDITIONS
TO THE LEASE AGREEMENT
BY AND BETWEEN
XXXXXX INCOME PROPERTIES II, LTD., LANDLORD
AND
CARE MANAGEMENT ENTERPRISES, INC., TENANT
32. A. CONTINGENCY
The commencement date of this Lease shall be subject to and
contingent upon Tenant not being in default of any term,
condition, or covenant contained in the Sublease which precedes
this Lease, and attached hereto as Exhibit C. In the event
Tenant is in default under said Sublease, then this Lease shall,
as Landlord's sole option, be deemed to be null and void.
B. RENT SCHEDULE:
Rent, pursuant to Paragraph 1 of the Lease, shall be paid as
follows:
December 1, 1997 - November 30, 1998 at the rate of
$14,175.00 per month;
December 1, 1998 - November 30, 1999 at the rate of
$14,850.00 per month;
December 1, 1999 - November 30, 2000 at the rate of
$15,525.00 per month.
C. HAZARDOUS WASTE:
The term "Hazardous Substances," as used in this lease shall
mean pollutants, contaminants, toxic or hazardous wastes, or
any other substances, the use and/or the removal of which is
required or the use of which is restricted, prohibited or
penalized by an "Environmental Law," which term shall mean any
federal, state, or local law, ordinance or other statute of
a governmental or quasi-governmental authority relating to
pollution or protection of the environment. Tenant hereby
agrees that (i) no activity will be conducted on the Premises
that will produce any Hazardous Substance; (ii) the Premises
will not be used in any manner for the storage of any
Hazardous Substances; (iii) no portion of the Premises will be
used as a landfill or a dump; (iv) Tenant will not install any
underground tanks of any type; (v) Tenant will not allow any
surface or subsurface conditions to exist or come into
existence that constitute, or with the passage of time may
constitute a public or private nuisance; (vi) Tenant will not
permit any Hazardous Substances to be brought onto the
Premises, and if so brought thereon, then the same shall be
immediately removed with proper disposal, and all required
cleanup procedures shall be diligently undertaken pursuant
to all environmental laws. Landlord or Landlord's representative
shall have the right but not the obligation to enter the
Premises for the purpose of ensuring compliance with all
Environmental Laws. If Tenant so contaminates the Premises,
then Tenant shall diligently institute proper and thorough
cleanup procedures at Tenant's sole cost,
See Exhibit B-1
8
and Tenant agrees to indemnify and hold Landlord harmless from
all claims, demands, actions, liabilities, costs, expenses,
damages and obligations of any nature arising from or as a
result of Tenant's failure to comply with this Paragraph 32
and/or the presence of Hazardous Substances in or on the
Premises. The foregoing indemnification and the responsibilities
of Tenant shall survive the termination or expiration of this
Lease.
D. LIABILITY
In addition to the provisions in Paragraph 13 of the Lease,
Tenant shall look solely to Landlord's interest in the Property
for the satisfaction of any judgements or decrees requiring
the payment of money by Landlord based upon any defaults
hereunder, and no other property or asset of Landlord shall be
subject to levy, execution or other enforcement procedure for
the satisfaction of such judgement or decree. This provision
shall apply as well to assignees or purchasers of Landlord.
It is specifically agreed and understood between the parties
hereto that there shall be absolutely no personal liability
on the part of the Landlord, its successors, assignees,
nominees, or designees, with respect to any of the terms,
covenants and conditions of this Lease, and Tenant or any
other party claiming by, through or under the Tenant shall
look solely to the interests of the Landlord in the Property
for the collection of any claim, demand, cost expense,
judgement or other judicial process requiring the payment
of money for any default or breach of Landlord of any of its
obligations under this Lease.
E. FINANCIAL STATEMENTS:
Tenant has attached as Exhibit B to this Lease, copies of its
current financial statements. Tenant certifies that to the best
of Tenant's knowledge, these financial statements are true and
correct.
F. INSURANCE:
Tenant shall not commit, or permit to be committed, any action
or circumstance in, upon or about the Premises or the building
which, directly or indirectly, would or might justify any
insurance carrier in canceling or increasing the premium on
any insurance policy covering the Premises, the building or
the contents of either; and if any such action or circumstance
is undertaken with Landlord's consent which results in an
increase in any such insurance premium, Tenant shall reimburse
Landlord for such increase upon demand.
G. TENANT FINISH ALLOWANCE:
Landlord shall pay to Tenant an allowance of up to $3,900.00
for reimbursement of the cost of constructing dock ramp at the
dock door on the southeast corner of the premises. The
allowance will be paid within twenty (20) days of Tenant
furnishing Landlord with paid invoices and lien releases from
all contractors and subcontractors. Landlord shall have the
right to approve Tenant's contractor, approval not to be
unreasonably withheld.
9
EXHIBIT A
LEGAL DESCRIPTION
BEING all of that certain lot, tract or parcel of land situated in Block 7,
THIRD INSTALLMENT, INDUSTRIAL COMMUNITY NO. 5, GREAT SOUTHWEST INDUSTRIAL
DISTRICT, an addition to the City of Grand Prairie, Tarrant County, Texas, as
recorded in volume 388-78, page 58, of the Plat Records of Tarrant County,
Texas, and Block 0, XXXXXX XXXXXXXXXXX, XXXXXXXXXX XXXXXXXXX NO. 5, GREAT
SOUTHWEST INDUSTRIAL DISTRICT, an addition to the City of Grand Prairie, Tarrant
County, Texas, as recorded in volume 388-130, page 94 of the Plat Records of
Tarrant County, Texas, and being more particularly described as follows:
BEGINNING at the northwest corner of Site 1, Block 2 of the Fourth Installment
of Industrial Community No. 5, Great Southwest Industrial District, an Addition
to the City of Grand Prairie, Tarrant County, Texas, as recorded in volume
388-115, page 33, of the Plat Records of Tarrant County, Texas; said point also
being on the south right-of-way line of Avenue R (a 60 foot right-of-way);
THENCE South, 418.98 feet along the west line of Site 1 to an iron rod for
corner;
THENCE North 89 degrees 53 minutes 56 seconds West, 900.00 feet to an iron rod
for corner on the east right-of-way line of Great Southwest Parkway (a 100.00
foot right-of-way);
THENCE North, 392.39 feet with the east line of Great Southwest Parkway to an
iron rod for corner at the beginning of a curve to the right having a central
angle of 90 degrees 00 minutes 00 seconds and a radius of 25.00 feet;
THENCE around said curve, a distance of 39.27 feet to an iron rod for corner on
the south line of Avenue R;
THENCE East, 875.00 feet with the south line of Avenue R to the PLACE OF
BEGINNING and CONTAINING 376,231.59 square feet or 3.6371 acres of land, more or
less.
10
EXHIBIT B
FINANCIAL STATEMENTS
11
CARE MANAGEMENT ENTERPRISES, INC. AND SUBSIDIARIES
BALANCE SHEET
FOR THE PERIOD ENDING SEP-95
ASSETS
Cash 165,808.19
A/R 1,431,757.09
Notes 54,296.67
Allowance (14,303.16)
Inventory 569,712.50
---------------------------
Total Current Assets 2,207,271.29
FIXED ASSETS
Furniture and Fixtures 132,496.11
Vehicles 210,380.51
Accumulated Depr. (124,428.24)
---------------------------
Total Fixed Assets 218,448.38
OTHER ASSETS
Deposits/Prepaid 9,315.11
Notes Receivable-LT 316,166.31
Investments 36,850.00
Intercompany 137,680.95
---------------------------
Total Other Assets 500,012.37
Total Assets 2,925,732.04
12
Exhibit B-1
(Xxxxxx Income Properties II, Ltd. and Care Management Enterprises)
Tenant shall have no responsibility for any abatement, cleanup, or other
remedial work with respect to Hazardous Substances, unless Tenant or its agents
or invitees placed such substances on the premises, in which case, Tenant shall
be responsible for all remedial work required under Environmental Laws in
connection therewith and shall indemnify and hold Landlord harmless from all
claims, demands, actions, liabilities, cost, expenses, damages and obligations
of any nature arising from or as a result of Tenant's failure to comply with
this paragraph 20. The foregoing indemnification and the responsibilities of
Tenant shall survive the termination or expiration of the lease.
