EXHIBIT 6.4CE
GROUND LEASE
THIS LEASE ("Lease") is made and entered into this 21st day of
February, 1995 by and between Xxxxx X. Xxxxxxx Investments (hereinafter called
"Landlord") and Fresh'n Lite, Inc. (hereinafter called "Tenant").
1. DEMISED PREMISES: Landlord, for and in consideration of the Covenants
hereinafter contained and made on the part of the Tenant, does hereby demise and
lease unto Tenant, and Tenant does hereby lease from Landlord, the parcel of
land ("Land") which is located in Dallas, County of Dallas, State of Texas,
containing approximately 33,810 square feet, not including roads or public right
of ways, being more particularly described in Exhibit A attached hereto and made
a part hereof, together with and subject to Landlord's easement rights and
appurtenances thereto, together with and subject to the rights of ingress,
egress and parking over, across and upon the Land for the entire term of this
lease, and all improvements now located thereon, and all easements and
appurtenances in Landlord's adjoining and adjacent land, highways, roads,
streets, lanes, whether public or private, reasonably required for the
installation, maintenance, operation and service of sewers, war gas, drainage,
electricity and other utilities and for drive-ways and approaches to and from
abutting highways, streets, and roads for the use and benefit of the above
described parcel of real estate including the improvements to be erected thereon
(the Land, together with the improvements to be erected thereon are sometimes
referred to herein collectively as the "Premises"). Tenant acknowledges that it
is leasing the Land subject to all easements (whether express or implied),
including those of record, for rights of ingress, egress and parking over,
across and upon the Land for the benefit of all adjoining landowners.
2. LEASE TERM:
a. Primary Term. The term of this Lease shall commence on the date of
last execution hereof and end twenty (20) years from the date upon which Tenant
is obligated to pay its first payment of Base Annual Rental described in
paragraph 3 below. When the term hereof is ascertainable and specifically fixed,
or otherwise agreed to by Landlord and Tenant, Landlord and Tenant shall enter
into a supplement agreement, which shall specif the actual date for the
expiration of the original term of this Lease and for the commencement of
accrual of rent payable hereunder by Tenant.
b. Option to Extend. Landlord does hereby grant to Tenant the right,
privilege and option to extend this lease for a period of five (5) years from
the date of expiration hereof, upon the same terms and conditions as herein
contained, except rental as herein contained, upon notice in writing to Landlord
of Tenant's intention to exercise said option, given at least six (6) months
prior to the expiration of the term hereof. Ir the event that Tenant shall have
exercised said option to extend the term of this Lease, Landlord does hereby
grant to Tenant the right, privilege and option again to extend this Lease for
one (1) successive period of five (5) years, upon the same terms and conditions
except rental as herein contained, upon notice to Landlord of Tenant's intention
to exercise each said option, given at least six (6) months prior to the
expiration of the preceding extension of the term hereof.
3. RENTAL: Tenant agrees to pay as rental for the use and occupancy of the
Premises, at the times and in the manner hereinafter provided, the following
sums of money.
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"Base Annual Rental": Tenant, in consideration of said demise, does
hereby Covenant and agree with Landlord to pay to Landlord annualized rents (but
payable monthly) as follows:
Term Base Annual Rental Monthly Rental
---- ------------------ --------------
Years 1-5 $51,000 $4,250
Years 6-10 $55,000 $4,583
Years 11-15 $62,000 $5,167
Years 16-20 $65,000 $5,417
First Renewal Term $69,000 $5,750
Second Renewal Term $73,000 $6,083
in advance, without notice or invoice from Landlord, upon tile first day of
every month during the term hereof commencing upon opening of the Fresh'n Lite
Restaurant (the "Restaurant") or two hundred and ten (210) days the date of this
Lease, whichever is sooner and ending upon termination of this Lease, whichever
is sooner and ending upon termination of this Lease. In the event such rental
shall be determined to commence on a day other than the first day of a month
then the Base Annual Rental for the period from such commencement date until the
first day of the month next following shall be prorated accordingly. Tenant's
duty and obligations to pay the Base Annual Rental is a separate and independent
covenant of Tenant separate and apart from and not contingent upon Landlord's
performance or failure to perform its obligations under this Lease and Tenant's
remaining obligations under this Lease.
All sums of money due under the terms of this Lease including Base
Annual Rental shall be paid or mailed to:
Xxxxx X. Xxxxxxx Investments
0000 Xxxx Xxxxx, Xxxxx #000
Xxxxxx, Xxxxx 00000
or to such other payee or address as Landlord may designate, in writing, to
Tenant.
4. COVENANTS AND REPRESENTATIONS: Landlord hereby represents that all water and
gas mains, electric power lines, sanitary and storm sewers (the "Utilities") are
located at the property line, in the public right-of-way, of the demised
premises and are available and adequate for Tenant's intended use In the event
Tenant determines that the Utilities are unacceptable for its needs, Tenant,
within sixty (60) days of the last execution hereof, may (i) elect, at Tenant's
expense, to extend the Utilities to meet its needs, or (ii) deliver written
notice to Landlord of the unacceptability of such Utilities and the requirements
necessary to make such Utilities acceptable and if Landlord fails to remedy the
problem within thirty (30) days of receipt of such notice, Tenant may terminate
this Lease. In the event the Utilities are acceptable or Tenant elects to make
them acceptable, Tenant agrees to extend the Utilities to the western boundary
of the Premises.
5. CONSTRUCTION PERMITS - TERMINATION:
a. On or before ninety (90) days from the date hereof, Tenant shall
make a determination that it can obtain such licenses, permits and other
administrative approvals (hereinafter collectively called "Permits") as may be
necessary to Construct and operate a restaurant together with signage acceptable
to Tenant (provided such signage meets the requirements of the City sign
ordinance and the construction of any pylon or billboard sign will not impede
the right of Landlord to signage on the remainder of its property abutting the
Premises), including Tenant's identification pole sign, in accordance with
Tenant's plans and specifications, as such plans and specifications may be
hereafter changed or modified by Tenant with Landlord's prior written consent,
which consent will not be unreasonably withheld.
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b. Unless Tenant delivers written notice to Landlord within ninety (90)
days from tile date hereof that Tenant is unable to obtain the Permits, Tenant
shall be deemed to have accepted the Premises and this Term and be presumed to
have obtained the Permits. However, if within such ninety (90) day period,
Tenant has delivered written notice to Landlord that Tenant has instituted legal
proceedings or is exhausting administrative remedies in order to procure the
necessary Permits, Tenant shall have an additional thirty (30) days within which
to satisfy itself that it may obtain the Permits (the "Extension Period").
Tenant agrees to apply for permits without unreasonable delay upon execution
hereof. Provided Tenant has diligently pursued the issuance of building permits
from the City of Dallas, if, at the expiration of the Extension Period, Tenant
has not satisfied itself that it can obtain all necessary Permits, Tenant shall
have the right to terminate this Lease without liability.
6. TAXES:
a. Landlord represents and warrants that all taxes on the Land, except
current taxes not delinquent, have been paid in full. Landlord, after receipt of
any tax notice or xxxx on the Premises, shall promptly furnish Tenant with a
copy of such document.
b. Tenant covenants and agrees to pay, before they become delinquent,
all ad valorem real property taxes and special assessment affecting the Premises
which accrue and are payable for the period commencing (120) days from the date
of this Lease. Tenant acknowledges that it will receive from Landlord a combined
tax statement representing taxes for the Premises and Landlord's adjoining land,
and Tenant agrees to pay its proportionate share of such taxes as determined on
a pro-rata per square foot basis.
c. If Tenant desires to contest any ad valorem real property taxes or
assessments or the validity of any tax and gives Landlord written notice of this
intention, then Tenant may contest the assessment or tax without being in
default hereunder; provided, however, that Tenant shall post a bond with
Landlord or otherwise provide for the payment of such taxes or assessments
reasonably acceptable to Landlord, so that Landlord may insure the payment of
such taxes or assessments if Tenant's contests of such tax or assessment shall
fail. Landlord agrees to cooperate with any such effort by Tenant. Tenant agrees
to indemnify Landlord and hold Landlord harmless from all costs, expenses and
damages whatsoever arising out of any such contest by Tenant.
7. LIENS AND ENCUMBRANCES: The Landlord and Tenant covenant each with the other
not to permit any lien to be filed against the Premises on account of
non-payment or dispute with respect to labor or materials furnished in
connection with construction or any subsequent repairs, modifications or
additions thereto nor shall the parties permit any judgement, lien or attachment
to lie against the Premises for any reason. Should any lien of any nature be
filled against the Premises the party from whose fault or alleged debt such lien
arises shall within thirty (30) days cause such lien to be removed by
substitution of collateral or otherwise.
In the event that Tenant, any subtenants or assigns acquire personal
property to be installed and used upon the premises subject to a conditional
sales contract, chattel mortgage or other security agreement, Landlord agrees to
execute and deliver to any such secured creditor a waiver of any lien Landlord
may have upon such personal property. Such waiver will be on a form reasonably
acceptable to Landlord authorizing the secured creditor to enter upon the
Premises and remove such personal property in the event of default under the
terms of the security agreement. Tenant agrees to indemnify defend, and hold
Landlord harmless from and against any claims, causes of action, damages,
expenses (including
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attorneys' fees) and loss incident to, resulting from, or in any way arising out
of Tenant's failure to keep the Premises free from liens and encumbrances
described in this Paragraph 7.
Any memo of lease or construction contract shall contain a notice no
Contractor, materialman or laborer may file any liens impacting the fee title to
the property. Any such lien shall on the face of such claim shall be asserted
solely against the leasehold interest of the Tenant.
8. INSURANCE:
a. Tenant covenants and agrees at its own expense to insure and keep
insured the building or buildings constructed by Tenant thereon against loss or
damage by fire and by extended coverage for not less than one hundred percent
(100%) of insurable value in responsible insurance companies licensed in the
state in which the Premises are located. Subject to the terms of paragraph 17
hereof, such insurance to be made payable in case of loss to Tenant and Landlord
as named insured, with the insurer agreeing to give Landlord fifteen (15) days
notice of cancellation. In the event that Tenant shall mortgage its leasehold
estate, the mortgagee shall also be named as an additional insured.
b. Tenant shall also maintain and keep in force for the mutual benefit
of Landlord and Tenant general public liability insurance against claims for
personal injury, death, or property damage occurring in, on or about the
Premises or sidewalks or premises adjacent to the Premises to afford protection
to the limit of not less than $1,000,000.00 in respect to injury or death of a
single person and to the limit of not less than $2,000,000.00 in respect to any
one accident and to the limit of $500,000.00 in respect to property damage.
c. In the event that either party shall at any time deem the limits or
cost of such insurance to be excessive or insufficient, the proper and
reasonable limits for such insurance to be maintained in force shall be
determined by arbitration in accordance with the Rules of the American
Arbitration Association.
d. Each party hereto waives any and every claim which arises or may
arise in its favor and against the other party hereto during the term of this
Lease for any and all loss of, or damage to, any of its property which loss or
damages is insured. Because the above mutual waiver shall preclude the
assignment of any claim by way of subrogation (or otherwise) to any insurance
company (or any other person), each party agrees to immediately give to each
insurance company that has issued policies relating to the Property written
notice of the terms of the mutual waiver, and to have such insurance policies
properly endorsed, if necessary, to prevent the invalidation of such insurance
coverages by reason of such waivers.
9. USE AND RESTRICTION:
a. "Use" means the operation of a healthier choice restaurant on the
Premises. Tenant shall comply with and abide by all applicable governmental
laws, ordinances and regulations in its use of the Premises.
b. Provided that Tenant has performed all of its covenants and
obligations under this Lease arid is not otherwise in default hereunder and
provided that Landlord is continuing to operate as a Fresh'n Light under its
original concept, Landlord agrees during the term of this Lease and any options
that Landlord will refrain from leasing land owned by Landlord adjacent to the
Premises to (i) any restaurant whose primary gross sales from this restaurant
(being defined as 80% or more) are delicatessen foods; (ii) Eureka; (iii) Fresh
Choice; and (iv) Bless Your Heart. If Tenant ceases to operate as a Fresh 'n
Light
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under its orig concept or if Tenant subleases the Premises to another party,
then the provisions of this Paragraph 9b shall be null, void, and of no further
force or effect.
10. LEASE IMPROVEMENTS:
a. Landlord shall have the right to approve Tenant's plans and
specifications for Lease improvements and any subsequent alterations to the
Premises, which approval shall not be unreasonably withheld. If Landlord fails
to respond to Tenant's written request for approval within twenty (20) days
after receipt of Tenant's plans, Landlord's approval shall be deemed granted.
b. Tenant shall have the right to change its exterior signage provided
such signage does not impact the visibility of other signage on Landlord's
adjacent property and complies with the sign ordinances of the City of Dallas
and make interior nonstructural alterations and improvements to the Premises
without the consent of Landlord. Tenant shall have the right to remove any such
nonstructural alterations at any time during the term of this Lease, or any
extension or renewal thereof provided Tenant repairs all damage to the Premises
as a result of such removal within a reasonable time.
c. Throughout the term of this Lease, Tenant shall, at its sole cost
and expense, provide security for the Premises and repair and maintain the
Premises (including parking area and drives) in first class condition and repair
and with appropriate lighting to maintain a safe and secure environment in
accordance with all applicable laws, rules, ordinances, orders, and regulations
of any federal, state, county, municipal, and other governmental entities having
jurisdiction over the Premises, and all applicable rules, orders, and
regulations of the insurance underwriting board having jurisdiction over the
insurance companies insuring all or any part of the Premises. Tenant shall, at
its sole cost and expense, diligently and promptly make or cause to be made all
necessary repairs and replacements to the Premises to maintain or comply with
the foregoing sentence. Landlord shall not be required to furnish any services
or facilities or make any repairs to the Premises. Without diminishing the
foregoing obligations of Tenant, should Tenant fail to make any necessary
repairs within thirty (30) days after notification by Landlord of such failure,
Landlord may, but shall in no event be required to, make such repairs for
Tenant's benefit and the expense thereof shall constitute additional rent which
shall be immediately paid by Tenant to Landlord upon demand. In addition,
Landlord shall have any and all other remedies provided hereunder for a default
by Tenant should Tenant fail to comply with the foregoing.
d. Tenant shall be responsible for, and shall bear all costs and
expenses associated with, any and all alterations to the Premises which may be
required by tile Americans With Disabilities Act of 1990 (the "ADA"), and for
the accommodation of disabled individuals who may be employed from time to time
by Tenant, or any disabled customers, clients, guests, or invitees or
sublessees. Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all liability incurred arising from the failure of the Premises
to conform with the ADA, including the cost of making any alterations,
renovations or accommodations required by the ADA or any government enforcement
agency, or any courts, and any and all fines, civil penalties, and damages
awarded against Landlord resulting from the violation of the ADA, and all
reasonable legal expenses and court costs incurred in defending claims made
under the ADA, including without limitation reasonable consultants and
attorneys' fees, expenses and court costs. The terms and provisions of this
paragraph shall survive the termination or expiration this Lease.
e. Notwithstanding any provision of this Lease to the contrary,
Landlord and Tenant agree that Tenant shall have performed substantial
completion of construction of the Restaurant in conformity with the plans and
specifications approved by Landlord within nine (9) months from the date of this
Lease. Tenant's failure to comply with this obligation shall constitute a
default by Tenant of its covenants and
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obligations under this Lease and will entitle Landlord to its remedies in the
event of default as provided in this Lease and under applicable law.
11. ASSIGNMENT AND SUBLETTING: Tenant may, after obtaining the prior written
consent of Landlord, sublet or assign this Lease or its rights hereunder to any
person, firm or corporation having experience in the operation of Tenant's type
of business as described in Paragraph 9, which consent will not be unreasonably
withheld. In such event Tenant shall remain liable for the payment of all rent
and other charges required to be paid hereunder and for the performance of all
terms, covenants and conditions herein undertaken by Tenant. Without limitation,
it is agreed that Tenant shall have the right to mortgage or otherwise encumber
its leasehold interest.
12. MORTGAGING OF LEASEHOLD ESTATE: In the event that Tenant shall mortgage its
leasehold estate and the mortgagee or holders of the indebtedness secured by the
leasehold mortgage or trust deed shall notify Landlord in the manner hereinafter
provided for the giving of notice of the execution of such mortgage or trust
deed and name the place for service of notice upon such mortgage or holder of
indebtedness, then, in such event, Landlord hereby agrees for the benefit of
such mortgagees or holders of indebtedness from time to time:
a. That Landlord will give to any such mortgagee or holder of
indebtedness simultaneously with service on Tenant a duplicate of any and all
notices or demands given by Landlord to Tenant from time to time asserting a
breach by Tenant of any of its obligations under this Lease.
b. That such mortgagee or holder of indebtedness shall have the
privilege of performing any of Tenant's covenants hereunder or of curing any
default by Tenant hereunder or of exercising any election, option or privilege
conferred upon Tenant by the terms of this Lease.
c. That, except for the right to terminate contained in Paragraph 5 of
this Lease, no right, privilege or option to cancel or terminate this Lease
available to Tenant shall be deemed to have been exercised effectively unless
joined in by any such mortgagee or holder of the indebtedness.
13. DEFAULT:
a. The following shall be events of default hereunder: (1) Tenant fails
to pay when due any of the Base Rent or other charges provided for herein, (2)
Tenant fails to promptly keep and perform any other covenant in this Lease;
provided further, however Landlord shall, prior to taking any action for such an
event of default, give Tenant notice specifying the default(s), and Tenant shall
have fifteen (15) days after receipt of said notice to correct any non-monetary
default, or (3) Tenant vacates all or a portion of the Premises. If Tenant fails
to correct said default(s) within the specified time periods, Landlord may
terminate this Lease and re-enter the Premises and take possession thereof,
re-take possession but not terminate this Lease, or exercise such other rights
and pursue such other remedies and damages against Tenant as a result of
Tenant's breach as provided by law.
b. In the event Landlord consents to an assignment or sublease of this
Lease or the Premises, and should any default occur requiring notice as
hereinbefore provided in this Article 13, Landlord agrees that it will use
reasonable efforts to furnish Tenant with a copy of such notice at the same time
that it is sent to such assignee or sublessee. In the event that such default is
not corrected by such assignee or sublessee during the specified time periods,
Tenant shall have an additional period of ten (10) days to correct such default,
and upon correction of such default, Tenant shall have the right and option to
resume actual possession of the Premises as Tenant hereunder for the unexpired
term of this Lease.
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c. Should there be any default or breach of this breach on the part of
Landlord, Tenant shall give Landlord written notice thereof, and Landlord shall
correct such breach or default within thirty (30) days after such notice. Should
Landlord fail to correct such breach or default, Tenant may pursue any legal or
equitable remedy to which it is entitled.
14. HOLDING OVER: In the event Tenant continues to occupy the Premises after the
last day of the term hereby created, or after the last day of any extension of
said Term, and the Landlord elects to accept rent thereafter, a tenancy from
month to month only shall be created (and not for any longer period) at one
hundred fifty percent (150%) of the immediately prior month's rent.
15. CONDEMNATION:
a. In the event all of the land is taken or condemned by any competent
authority, this Lease will terminate as of the earlier of the date of possession
of the Premises by the condemning authority or the date of the title transfer.
Tenant shall have the right to prosecute its claim for an award based on its
leasehold estate and the damage to its business only. In the event a substantial
portion, as defined in the immediately succeeding paragraph, of the Premises is
taken or condemned by any competent authority, Tenant shall have the right (i)
to terminate the Lease as of the earlier of the transfer of title or the date of
the taking of possession by the condemning authority, in which event any
unearned rent paid or credited will be refunded by Landlord to Tenant, or (ii)
to continue the Lease in full force and effect with a reduced fixed rental
commensurate with the reduced area and/or reduced utility of the Premises as
mutually determined in lieu of the amount of Base Rent hereinabove provided,
which reduced rental will become effective upon the earlier of the date of tide
transfer or the date of such taking. Tenant shall elect between these rights and
give notice to Landlord of its election within sixty (60) days after the date
when possession of the pertinent portion of the Premises is required by the
condemning authority. In the event less than a substantial portion of the
Premises is taken by the condemning authority, then the Base Rent shall not be
affected.
b. A "substantial portion", as used in the foregoing Subparagraph a, is
defined to be any of the following: (i) any part of the Building; (ii) fifteen
percent (15%) or more of the parking area; (iii) fifteen percent (15) or more of
the Land; (iv) loss through the taking of condemnation of direct access from the
Premises to any adjacent street or highway; or (v) a portion of land or
improvements the absence of which would have a substantial adverse impact on
Tenant's business conducted on or from the Premises.
c. If any award is made for the condemning or taking of all or any part
of the Premises during the original term of this Lease or any of the Extension
Periods, then Landlord and Tenant shall share in any award made for condemning
or taking the improvements to the extent of their interest in the Premise.
Tenant's interest shall be comprised solely of Tenant's leasehold estate and
damage to its business.
d. Termination of the Lease because of condemnation shall be without
prejudice to the rights of either Landlord or Tenant to recover from the
condemnor compensation and damages for the injury and loss sustained by them as
a result of such taking and Tenant shall have the right to make a claim against
the condemning authority solely for loss of profits or damage to its business by
the taking or condemnation.
16. COVENANT OF TITLE AND QUIET ENJOYMENT: Landlord covenants that Landlord
is well seized of and has good title to the Premises free and clear of all
liens, encumbrances and restrictions, except as may be shown by a current title
commitment for the Land. Landlord warrants and will defend
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the title thereto, and will indemnify Tenant against any damage and expense
which Tenant may suffer by reason of any lien, encumbrance, restriction or
defect in the title or description herein of the Premises. If, at any time,
Landlord's title or right to receive rent hereunder is disputed, or there is a
change of ownership of Landlord's estate by act of the parties or operation of
law, Tenant may withhold rent thereafter accruing until Tenant is furnished
proof satisfactory to it as to the party entitled thereto.
17. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS:
a. If the building on the Premises shall be damaged by fire or other
casualty prior to the last five (5) years of the original term of this Lease,
the Premises shall be restored to the same condition as prior to the damage. It
is understood and agreed that if the cost of the restoration exceeds the amount
of the insurance recovery, Tenant will pay such excess. In no event will rent
xxxxx during any period of untenantability.
b. If the building on the Premises shall be damaged by fire or other
casualty during the last five (5) years of the original term of this Lease, or
during any option period of this Lease, to the extent of fifty percent (50%) or
more of the insurable value of the building, Tenant may, at Tenant's option, to
be evidenced by notice given to Landlord within thirty (30) days after the
occurrence of such damage or destruction, elect to terminate this Lease as of
the date of the damage or destruction and, in such event, all of the insurance
proceeds shall be paid over to the Landlord.
c. If the building on the Premises shall be damaged by fire or other
casualty during the last five (5) years of the original term of this Lease, or
during any option period of this Lease, to the extent of less than fifty percent
(50%) of the insurable value of the building, then Tenant shall be obligated to
restore the Premises to the same condition as prior to the damage. It is
understood and agreed that if the cost of the restoration exceeds the amount of
insurance recovery, Tenant will pay such excess. In no event will rent xxxxx
during any period of untenantability.
18. TRADE FIXTURES: Landlord agrees that all trade fixtures, machinery,
equipment, furniture or other personal property of whatever kind and nature kept
or installed on the Premises by Tenant or its subtenants shall not become the
property of Landlord or a part of the realty (if not permanently affixed to the
Premises or ordinarily considered a part of the realty including but not limited
to lighting fixtures, plumbing and the HVAC system) and may be removed by Tenant
or its subtenants, in their discretion, at any time and from time to time during
the entire term of this Lease and any renewals, provided Tenant shall first and
promptly repair any damage to Premises resulting from the removal. Upon request
of Tenant or Tenant's assignees or subtenants, Landlord shall execute and
deliver any real estate consent or waiver forms submitted by any vendors,
landlords, chattel mortgagees or holders or owners of any trade fixtures,
machinery, equipment, furniture or other personal property of any kind and
description kept or installed on the Premises by any subtenant setting forth the
fact that Landlord waives, in favor of such vendor, lessor, chattel mortgagee or
any holder or owner, any lien, claim, interest or other right therein superior
to that of such vendor, landlord, chattel mortgagee, owner or holder. Landlord
shall further acknowledge that property covered by such consent to waiver forms
is personal property and is not to become a part of the realty no matter how
affixed thereto and that such property may be removed from the Premises by the
vendor, Landlord, chattel mortgagee, owner or holder at any time upon default by
the Tenant, or subtenant in the terms of such chattel mortgage or other similar
documents, free and clear of any claim or lien of Landlord, provided Tenant
shall first and promptly repair any damage to Premises resulting from the
removal.
19. NON-DISTURBANCE AND ATTORNMENT:
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a. If at the execution of this Lease there are any present mortgage(s),
Lien(s) or encumbrance(s) against the Premises, Landlord shall have the
mortgagee(s), lienholder(s) or other secured party(ies), as a further condition
precedent to the Commencement Date, execute non-disturbance agreement(s)
providing that such holder(s) will recognize Tenant's Lease of the Land and will
not disturb Tenant's quiet possession of the Land as long as Tenant is not in
default of any of the provisions of this Lease. Before Landlord shall have the
right to further encumber the Land or seek any modification or extension of
existing encumbrances, Landlord must first secure for Tenant's benefit a written
non-disturbance agreement, in the form set forth above, and accordingly, Tenant
will then execute and deliver such further instruments subjecting this Lease to
the lien of any such loan or mortgage and agreeing to attorn to said
mortgagee(s) based on their priority as shall be required by such mortgagee.
b. If Landlord defaults in making payment under any mortgage or
mortgages, or if Landlord is in breach or in default of any such mortgage or
mortgages in any respect, Tenant shall have the right and option to make all
rental payments thereafter becoming due under this Lease to the mortgagee in
lieu of Landlord, upon notice therefrom, and payments so made shall discharge
the obligation of Tenant hereunder respecting the payment of Base Rent.
20. LANDLORD'S RIGHT OF ACCESS: Landlord, its employees, agents and
representatives, shall have the right to enter upon the Premises at any time for
the purpose of making inspections or performing any work which Landlord elects
to undertake (although it shall have no obligation whatsoever to do so) made
necessary by reason of Tenant's default hereunder; provided, however, that,
excepting cases of an emergency or unless Landlord obtains the Tenant's prior
consent, Landlord shall not enter the Premises without notification to Tenant at
least twenty-four (24) hours in advance.
21. INDEMNITY: Except for the claims, rights, recovery and causes of action that
Landlord has released in Paragraph 8.c. above, Tenant shall indemnify, defend,
and hold Landlord, its employees, partners, directors, officers, agents,
invitees and contractors, from and against all claims, causes of action,
damages, losses, costs, and expenses (including attorneys' fees) resulting or
arising from or in connection with any and all injuries or death of any person
or damage to any property caused or alleged to have been caused by any acts,
omissions, or negligence of Tenant, its employees, officers, directors, agents,
customers, invitees, or guests, or any parties contracting with Tenant relating
to the Premises including, without limitation, environmental conditions caused
during the term of this Lease. The foregoing shall not apply to the gross
negligence or wilful misconduct of Landlord. This paragraph 21 shall survive the
expiration or termination of this Lease.
22. EVIDENCE OF TITLE: Within thirty (30) days from the date of last execution
of this Lease, Tenant at Tenant's expense shall apply for leasehold title
insurance from a title company acceptable to Tenant in the amount of not less
than One Hundred and Fifty Thousand and no/100 ($150,000.00) dollars, or that is
required by law, or the title insurer, effective as of the date hereof, showing
title in Landlord. If such report discloses any conditions, restrictions, liens,
encumbrances, easements or covenants not previously disclosed to Tenant and
which, in Tenant's reasonable opinion, would affect Tenant's use and enjoyment
of the Premises, and appurtenant easements, Landlord shall have sixty (60) days
from the date of issuance of such title report, binder or commitment to cure
such defects and to furnish a title report, binder or commitment showing such
defects cured or removed. If such defects in title are not so cured within sixty
(60) days, Tenant may, at its option, give written notice to Landlord within
five (5) days thereafter terminating this Lease. In the event this Lease is so
terminated, all monies, deposits and instruments shall be returned to the
respective parties. Immediately upon final execution of the Lease, Landlord
shall deliver to Tenant's title company, if so required, all prior title
evidence in Landlord's possession.
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23. BORING AND PERCOLATION CONTINGENCIES: Tenant shall have the right, within
thirty (30) days from the date hereof, to perform such boring and percolation
tests as may be required to determine the physical characteristics, including
the water table of substrata, of the Premises. In the event any such report
indicates, in Tenant's sole judgment, that the Premises are unsatisfactory for
Tenant's intended use, Tenant may, at its option, declare this Lease to be null
and void and of no further force and effect. Tenant agrees to keep the results
of such surveys, studies, tests, or borings confidential and, in the event
Tenant terminates this Agreement based on such results, Tenant will deliver the
originals and all copies of such results to Landlord. Tenant covenants and
agrees that the Premises shall not be damaged or impaired in any way as a result
of such activities on the Premises, and hereby agrees to indemnify, defend, and
hold Seller harmless from and against any and all claims, causes of action,
damages and expenses (including attorneys' fees) incident to, resulting from, or
in any way arising out of Tenant's, or Tenant's agents' or representatives',
presence in, on, or about the Premises, or out of any such test, inspection, or
study conducted by Tenant on the Premises without regard to the underlying cause
or causes of such claims, causes of action, damages or expenses. Such indemnity
shall survive the term of this Lease or any termination hereof.
24. SURVEY: Tenant may order a current certified topographical survey by a
licensed surveyor within thirty (30) days from the last execution of this Lease
If said survey discloses unsuitable or interfering easements or encroachments or
that the location, area, dimensions and shape of the demised premises are not as
represented by Landlord, then Tenant shall have the right to terminate this
Lease, by written notice to Landlord within such thirty (30) day period, and
declare same null and void and of no force and effect and all monies, deposits
and instruments shall be returned to the respective parties.
25. ENVIRONMENTAL MATTERS: Tenant shall have the right to conduct an
environmental audit of the Premises, at its cost, within ninety (90) days from
the date hereof. Such audit shall be conducted pursuant to standard quality
control assurance procedures reasonably satisfactory to Landlord and Tenant.
Tenant shall determine within said ninety (90) day period whether the audit
discloses condition(s) which, in Tenant's reasonable opinion, make the Premises
unsuitable for its purposes. If Tenant fails to advise Landlord that it is
dissatisfied with the condition of the Premises within such ninety (90) day
period, Tenant shall be deemed to have approved the condition of the Premises.
Notwithstanding anything stated elsewhere in this Lease, if Tenant is not
satisfied with the condition of the Premises and so timely notifies Landlord
within said ninety (90) day period, this Lease shall terminate and neither party
shall have any further liability or responsibility thereunder and, in such
event, Landlord shall return to Tenant all sums deposited by Tenant with
Landlord pursuant to the terms of this Lease. Tenant hereby indemnifies,
defends, and holds Landlord harmless from any damages, costs, losses, claims, or
causes of action relating to or in any way arising out of such environmental
audits allowed by this paragraph. Tenant hereby agrees that no activity will be
conducted on the Premises that will produce any environmentally hazardous or
sensitive substances or which violate any statute of a governmental or
quasi-governmental authority relating to pollution or protection of the
environment ("Hazardous Substance"). Tenant shall be responsible for obtaining
any required permits in paying any fees and providing any testing required by
any governmental agency and the Premises will not be used in any manner for the
storage of any Hazardous Substances except for the storage of such materials
that are used in the ordinary course of Tenant's business and are stored in a
manner and location meeting all applicable laws. Tenant will not install any
underground storage tanks of any type and 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 or a Hazardous
Substance. If hazardous materials are brought onto or found on the Property,
same shall be immediately removed with proper disposal, and all required cleanup
procedures shall be diligently undertaken pursuant to all applicable laws by
Tenant. Landlord hereby agrees to indemnify and hold Tenant harmless from any
expense, cleanup costs, or other damage from any Hazardous Substance or other
condition on the Premises that violates any state or federal statute or
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regulation and which Hazardous Substance or condition existed prior to the date
of this Lease. Tenant hereby agrees to indemnify and hold harmless Landlord from
any expense, cleanup costs, or other damage from any Hazardous Substance or
other existing condition on the Premises that violates any state or federal
statute or regulation and which Hazardous Substance or condition was created on
or subsequent to the date of this Lease. The terms of this paragraph 26 shall
survive the expiration or termination of this Lease.
26. ADDITIONAL SITE IMPROVEMENTS: Tenant agrees to construct, compact, fill,
grade, pave and stripe on the cross hatched land owned by Landlord as shown on
Exhibit "A" in accordance with plans, specifications, and cost approved by
Landlord prior to the commence of work. Landlord agrees to reimburse Tenant for
all reasonable costs for such work within thirty (30) days of satisfactory
completion of the work. Landlord agrees to maintain, repair and replace if
necessary said cross hatched areas. In the event Landlord fails to maintain,
repair or replace, Tenant shall have the right but not the obligation to enter
upon said lands and perform any and all work necessary to provide for the
ingress, egress and parking required for the operation of Tenant upon its
premises. In the event Tenant undertakes any repair, maintenance or replacement,
Landlord shall, upon demand, reimburse Tenant for all reasonable costs therefor.
27. NOTICES: Notices or demand required to be seen or served by either party to
this Lease by the other party shall be deemed to have been duly given or served
only if in writing and either personally delivered or deposited in the U.S.
Mail, Certified Mail, return receipt requested, postage prepaid, addressed as
follows:
To The Landlord At: 0000 Xxxx Xxxxx, Xxxxx #000, Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx Xxxxxxx
To The Tenant At: 0000 Xxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxx or Xxxxxx Xxxxxxx
Such addresses may be changed from time to time by either party by serving
notices as provided above. Notwithstanding anything herein to the contrary,
Landlord shall be under no obligation or duty to provide notices to any
mortgagee, Tenant, subtenant, or other party unless such party has provided to
Landlord in writing its name and address and statement of interest as it
pertains to this Lease.
28. ENTIRE AGREEMENTS: MODIFICATION; SEVERABILITY: This Lease contains the
entire agreement between the parties hereto and no representations, inducements,
promises or agreements, oral or otherwise, entered into prior to the execution
of this Lease, will alter the covenants, agreements and undertakings herein set
forth This Lease shall not be modified in any manner, except by an instrument in
writing executed by the parties. If any term or provision of this Lease or the
application thereof to any person or circumstances shall to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each term
and provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
29. NUMBER AND GENDER: All of the terms and words used in this Lease regardless
of the number and gender in which they were used, shall be deemed and construed
to include any other number (singular or neuter), as the context or sense of
this Lease or any paragraph or clause hereof may require the same as if the
words had been fully and properly written in the number and gender.
30. APPLICABLE LAW: This Lease shall be construed and interpreted in accordance
with the laws of the State of Texas, and venue for any actions in connection
herewith shall lie in Dallas County, Texas.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease to
become effective as of the date first written above.
LANDLORD:
XXXXX X. XXXXXXX INVESTMENTS
By:
Name:
Title:
TENANT:
FRESH'N LITE,
a Delaware corporation
By:
Name:
Title:
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