Texas Association of Realtors
Improved Property Commercial Lease
Use of this form by persons who are not members of the Texas Association of
Realtors is not authorized.
1. PARTIES: The parties to this lease are the owner of the Property Hillsboro
Loan Investors, L.P. (Landlord) and the tenant X.X. Xxxxxx Company, a
Pennsylvania Corporation (Tenant).
2. LEASED PREMISES: Landlord leases to Tenant the following described real
property, known as the "leased premises," along with all its improvements: See
Rider to Section 2.
3. TERM:
X. Xxxx: The term of this lease is fourteen (14) months, commencing on February
1, 2001 (Commencement Date) and ending on March 31, 2002 (Expiration Date).
X. Xxxxx of Occupancy: Deleted
4. RENT AND EXPENSES:
A. Base Monthly Rent: See Rider to Section 4(A).
B. Prorated Rent: If the Commencement Date is on a day other than the first day
of a month, Tenant will pay Landlord as prorated rent, and amount equal to the
base monthly rent multiplied by the following fraction: the number of days from
the Commencement Date to the first day of the following month divided by the
number of days in the month in which this lease commences. The prorated rent is
due on or before the Commencement Date.
C. -
D. Place of Payment: Tenant will remit all amounts due Landlord under this lease
to Landlord at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 Attention:
Xxxxx X. Xxxxxxx or to such other person or at such other place as Landlord may
designate in writing.
E. Method of Payment: Tenant must pay all rent timely without demand, deduction,
or offset, except as permitted by law or this lease. Time is of the essence for
the payment of rent. If Tenant fails to timely pay any amounts due under this
lease or if any check of Tenant is returned to Landlord by the institution on
which it was drawn, Landlord may require Tenant to pay, in addition to any other
available remedy, all amounts due under this lease by certified funds providing
written notice to Tenant.
F. Late Charges: If Landlord does not actually receive a rent payment at the
designated place of payment within 5 days after the date the rent is due, Tenant
will pay Landlord a late charge equal to 5% of the base monthly rent. The
mailbox is not the agent for receipt for Landlord. The late charge is a cost
associated with the collection of rent and Landlord's acceptance of a late
charge does not waive Landlord's rights to exercise remedies under Paragraph 20.
G. -
5. SECURITY DEPOSIT: Upon execution of this lease, Tenant will pay a security
deposit to Landlord in the amount of $50,000,00. Landlord may apply the security
deposit to any amounts owed by Tenant under this lease. If Landlord applies any
part of the security deposit any time this lease is in effect to amounts owed by
Tenant, Tenant must, within 10 days after receipt of notice from Landlord,
restore the security deposit to the amount stated. Within a reasonable time
after this lease ends, Xxxxxxxx will refund the security deposit to Tenant less
any amounts applied toward amounts owed by Tenant. See Rider to Section 5.
6. TAXES: See Rider to Section 6.
7. UTILITIES: Tenant will pay all charges for the use of all utility services to
the leased premises and any connection charges. NOTICE: Tenant should determine
if any and all necessary utilities (e.g., water, gas, exlectricity, telephone,
sewer, etc.) are available to the leased premises, are adequate for Tenant's
intended use, and the cost to provide necessary utilities.
8. TENANT'S INSURANCE:
A. During all times this lease is in effect, Tenant must maintain in full force
and effect:
(1) -
(2) -
(3) See Rider to Section 8(A) (3).
See Rider to Section 8(D).
See Rider to Section 8(E).
9. USE AND HOURS: Tenant may use the leased premises for the following purpose
and no other. Any lawful purpose.
10. LEGAL COMPLIANCE:
A. Tenant may not use or permit any part of the leased premises to be used for:
(1) any activity which is a nuisance or is offensive, noisy, or dangerous; (2)
any activity that interferes with Landlord's management of the Property;
(3) any activity that violates any applicable law, regulation, zoning ordinance,
restrictive covenant, governmental order, owner's association rules, tenant's
association rules,Landlord's rules or regulations, or this lease; (4) any
hazardous activity that would require any insurance premium on the Property or
leased premises to increase or that would void any such insurance; (5) any
activity that violates any applicable federal, state, or local law, including
but not limited to those laws related to air quality, water quality, hazardous
materials, wastewater, waste disposal, air emissions, or other environmental
matters.
B. "Hazardous material" means any pollutant, toxic substance, hazardous waste,
hazardous material, hazardous substance, solvent, or oil as defined by a
federal, state, or local environmental law, regulation or ordinance, or rule
existing as od the date of this lease or later enacted.
C. Landlord does not represent or warrant that the leased premises or Property
conform to applicable restrictions, zoning ordinanced, setback lines, parking
requirements, impervious ground cover ratio requirements, and other matters that
may relate to Xxxxxx's intended use. Tenant must satisfy itself that the leased
premises may be used as Tenant intends by independently investigating all
matters related to the use of the leased premises or Property. Xxxxxx agrees
that it is not relying on any warranty or representation made by Landlord,
Landlord's agent, or any broker concerning the use of the leased premises or
Property.
11. SIGNS: See Rider to Section 11(A).
12. ACCESS BY LANDLORD:
A. During Tenant's normal business hours Landlord may enter the leased premises
for any reasonable purpose, including but not limited to purposes for repairs,
maintenance, alterations, and showing the leased premises to prospective tenants
or purchasers. Landlord may access the leased premises after Tenant's normal
business hours with Xxxxxx's permission or to complete emergency repairs.
Landlord will not unreasonably interfere with Xxxxxx's business operations when
accessing the leased premises.
13. MOVE-IN CONDITION: Xxxxxx has inspected the leased premises and accepts it
in its present as-is condition. Landlord and any agent have made no express or
implied warranties as to the condition or permitted use of the leased premises
or Property.
14. MOVE-OUT CONDITION AND FORFEITURE OF TENANT'S PERSONAL PROPERTY: See Rider
to Section 14 (A) See Rider to Section 14 (D)
15. MAINTENANCE AND REPAIRS:
A. Cleaning: Tenant must keep the leased premises clean and sanitary and
promptly dispose of all garbage in appropriate receptacles. Tenant will provide,
at its expense, reasonable janitorial services to the leased premises. B.
Repairs of Conditions Caused by a Party: Each party must promptly repair a
condition caused, either intentionally or negligently, by that party or party's
guests, patrons, invitees, contracotr or permitted subtenants.
C. Repair and Maintenance Responsibility: See Rider to Section 15 (C).
D. Repair Persons: Repairs must be completed by trained, qualified, and insured
repair persons.
X. Xxxxxxx
X. Xxxxxxx
X. Xxxxxxx
H. Failure to Repair: If Tenant fails to repair or maintain an item for which
Tenant is responsible within 10 days after Landlord provides Tenant written
notice of the needed repair or maintenance, Landlord may: (1) Repair or maintain
the item, without any liability for any damage or loss to Tenant, and Xxxxxx
must immediately reimburse Landlord for the cost to repair or maintain; or (2)
exercise Landlord's remedies under Paragraph 20.
16. ALTERATIONS:
A. See Rider to 16(A).
B. Tenant may alter any locks or any security devices on the Property or the
leased premises without Landlord's consent. Tenant must immediately deliver the
new keys and access devices to the Landlord.
C. If a government order requires alteration or modification to the leased
premises, the party obligated to maintain or repair the item to be modified or
altered as designated in Paragraph 15 will, at its expense, modify or alter the
item in compliance with the order.
D. Any alterations, improvements, fixtures or additions to the Property or
leased premises installed during the term of this lease will become Landlord's
property and must be surrendered to Landlord at the time this lease ends.
17. LIENS: Tenant may not do anythind that will cause the title of the Property
or leased premises to be encumbered in any way. If Tenant causes a lien to be
filed against the Property or leased premises, Tenant will within 20 days after
the Landlord demands Tenant to take action to remove the lien, pay the lien or
take whatever action is necessary to cause the lien to be released of record.
Tenant will provide Landlord a copy of any release Tenant obtains pursuant to
this paragraph. See Rider to Section 17.
18. LIABILITY: To the extent permitted by law, Landlord it NOT responsible to
Tenant or Tenant's employees, patrons, guest, or invitees for any damages,
injuries, or losses to person or property caused by:
A. an act, omission, or neglect of : Tenant, Xxxxxx's guest; Tenant's employees;
Xxxxxx's patrons; Xxxxxx's invitees; or any other tenant on the property;
B. Fire, flood, water leaks, ice, snow, hail, winds, explosion, smoke, riot,
strike, interruption of utilities, theft, burglary, robbery, assault, vandalism,
other persons, environmental contaminants, or other occurrences or casualty
losses.
19. INDEMNITY: Tenant will indemnify and hold Landlord harmless from any
property damage, personal injury, suits, actions, liabilities, damages, cost of
repairs or services to the leased premises or Property, or any other loss caused
negligently or otherwise, by Tenant or Tenant's employees, patrons, guests, or
invitees.
20. DEFAULT:
A. If Landlord fails to comply with this lease within 30 days after Tenant
notifies Landlord of Landlord's failure to comply, Landlord will be in default
and Tenant may seek any remedy provided by law. If, however, Xxxxxxxx's
non-compliance reasonably requires more than 30 days to cure, Landlord will not
be in default if the cure is commenced within the 30 day period and is
diligently pursued.
B. If Landlord does not actually receive at the place designated for payment any
rent due under this lease See Rider to Section 20(B).
C. If Tenant is in default, Landlord may: (i) except as provided in Rider to
Section 20(C) to the contract terminate Tenant's right to occupy the leased
premises by providing Tenant with at least 3 days written notice; and (ii)
accelerate all rents which are payable during the remainder of this lease or any
renewal period without notice or demand. Xxxxxxxx will attempt to mitigate any
damage or loss caused by Xxxxxx's breach. If Tenant is in default, Tenant will
be liable for:
(1) any lost rent;
(2) Landlord's cost of reletting the leased premises, including brokerage fees,
advertising fees, and other fees necessary to relet the leased premises; (3)
repairs to the leased premises for use beyond normal wear and tear; (4) all
Landlord's costs associated with eviction of Tenant, such as attorney's fees,
court costs, and prejudgement interest; (5) all Landlord's costs associated with
collection of rent such as collection fees, late charges and return check
charges; (6) cost of removing any equipment and trade-fixtures left on the
leased premises by Tenant; (7) cost of removing any trash, debris, personal
property, hazardous materials,or environmental contaminants left by Tenant or
Tenant's employees, patrons, guests, or invitees in the leased premises or
Property; and (8) any other recovery to which Landlord may be entitled by law.
See rider to Section 20(C).
21. ABANDONMENT, INTERRUPTION OF UTILITIES, REMOVAL OF TENANT'S PROPERTY, AND
LOCKOUT: Chapter 93 of the Texas Property Code governs the rights and
obligations of the parties with regard to: (a) abandonment of the leased
premises; (b) interruption of utilities; (c) removel of Tenant's personal
property; and (d) lockout of Tenant.
22. HOLDOVER: Xxxxxx fails to vacate the leased premises at the time this lease
ends, Tenant will become a tenant-at-will and must vacate the leased premises
immediately upon receipt of demand from Landlord. No holding over by Xxxxxx,
with or without the consent of Landlord, will extend this lease. Tenant will
indemnify Landlord and any prospective tenants for any and all damages caused by
the holdover. Rent for any holdover period will be 2 times the base monthly rent
plus any additional rent calculated on a daily basis and will be immediately due
and payable daily without notice or demand.
23. LANDLORD'S LIEN AND SECURITY INTEREST: Deleted.
24. ASSIGNMENT AND SUBLETTING: Tenant may assign this lease or sublet any part
of the leased premises without Landlord's written consent. If Tenant assigns
this lease or sublets any part of the leased premises, Tenant will remain liable
for all of Tenant's obligations under this lease regardless if the assignment or
sublease is made with or without the consent of Landlord.
25. RELOCATION: Deleted.
26. SUBORDINATION: See Rider to Section 26.
27. ESTOPPEL CERTIFICATES: Deleted.
28. CASUALTY LOSS: See Rider to Section 28.
29. CONDEMNATION: See Rider to Section 29.
30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal
proceeding brought under or related to the transaction described in this lease
is entitled to recover prejudgement interest, reasonable attorney's fees, and
all other costs of litigation from the nonprevailing party.
31. REPRESENTATIONS: Tenant's statements in this lease and any application for
rental are material representations relied upon by Landlord. Each party signing
this lease represents that he or she is of legal age to enter into a binding
contract and is authorized to sign the lease. If Tenant makes any
misrepresentation in this lease or in any application for rental, Tenant is in
default.
32. Deleted.
33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other
information marked in the Addenda and Exhibit section of the Table of Contents.
If Xxxxxxxx's Rules and Regulations are made part of this lease, Xxxxxx agrees
to comply with the Rules and Regulations as Landlord may, at its descretion,
amend from time to time.
34. AGREEMENT OF PARTIES:
A. Entire Agreement: This lease contains the entire agreement between Landlord
and Tenant and may not be changed except by written agreement.
X. Xxxxxxx Effect: This lease is binding upon and inures to the benefit of the
parties and their respective heirs, executors, administrators, successors, and
permitted assigns.
C. Joint and Several: All Tenants are jointly and severally liable for all
provisions of this lease. Any act of notice to, or refund to, or signature of,
any one or more of the Tenants regarding any term of this lease, its renewal, or
its termination is binding on all Tenants.
D. Controlling Law: The laws of the State of Texas govern the interpretation,
performance, and enforcement of this lease.
E. Severable Clauses: If any clause in this lease is found invalid or
unenforcable by a court of law, the remainder of this lease will not be affected
and all other provisions of this lease will remain valid and enforceable.
F. Waiver: Landlord's delay, waiver, or non-enforcement of acceleration,
contractural or statuatory lien, rental due date, or any other right will not be
deemed a waiver of any other or subsequent breach by Tenant or any other term in
this lease.
G. Quiet Enjoyment: Provided that Tenant is not in default of this lease,
Landlord covenants that Tenant will enjoy possession and use of the leased
premises free from serious interference.
H. Force Majeure: If Xxxxxxxx's performance of a term in this lease is delayed
by strike, lock-out, shortage of material, governmental restriction, riot,
flood, or any cause outside Landlord's control, the time for Xxxxxxxx's
performance will be abated until after the delay.
35. NOTICES: All notices under this lease must be in writing and are effective
when hand-delivered, sent by mail, or sent by facsimile transmission to:
Tenant Landlord:
at the address of the leased premises. At 0000 Xxxxxxx Xxxx, Xxxxx 000 XXXX:
Xxxxx X. Xxxxxx, Xxxxxx, Xxxxx 00000
Fax (000) 000-0000
with a copy to: Tenant (Attn: Chief
Executive Officer)
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
36. SPECIAL PROVISIONS:
1. See Rider to Section 36(A) and Rider to Section 36(B).
2. The Addendum and Exhibits "A", "B" and "C" attached hereto are incorporated
Herein for all purposes.
Real estate brokers are not qualified to render legal advice, property
inspections, surveys, engineering studies (e.g. Studies of the structures,
drainage and soil conditions), environmental assessments, tax advice, financial
advice, or inspections to determine compliance with zoning, governmental
regulations, or any law (e.g., ADA, Texas Architectural Barriers Statute, etc.).
The parties should seek experts to render such services. Selection of such
experts is the responsibility of the parties and not the real estate broker. The
terms of this lease are negotiable among the parties. This is intended to be a
legal agreement binding upon final acceptance. READ IT CAREFULLY. If you do not
understand the effect of this Lease, consult your attorney BEFORE signing.
Hillsboro Loan Investors, L.P. L. B. Xxxxxx Company
------------------------------------------- --------------------------------
Landlord By: United Mortgage Services, Inc. Tenant
By /s/Xxxxx Xxxxxx President By:/s/X.X. Xxxxxxxxxxx 2/14/01
------------------------------------------- -------------------------------
As general partner of Landlord Date
ADDENDUM TO LEASE
BY AND BETWEEN
HILLSBORO LOAN INVESTORS, L.P. (the "LANDLORD")
AND
X.X. XXXXXX COMPANY (the "TENANT")
1. Rider to Section 2. That certain 7.277 acre tract of land located in Hill
County, Texas, and more particularly described in Exhibit "A" attached
hereto and made part hereof for all purposes ("Tract A") and the building
(the "Building") and other improvements located thereon and Seller's
interest, if any, in that certain 1.356 acre tract of land located in
Hill County, Texas, and more particularly described in Exhibit "B"
attached hereto and made a part hereof for all purposes ("Tract B"),
together with any and all improvements situated thereon (together, Tract
A and Tract B together with the building and all other improvements
situated thereon are herein referred to as the "Property" or the "leased
premises").
2. Rider to Section 4(A). On or before the first day of each month during
the Term of this Lease, Tenant will pay to Landlord
Base Monthly Rental as follows:
(i) $7,000.00 per month, commencing on February 1, 2001 through August 31, 2001;
and (ii) $8,000.00 per month, commencing on September 1, 2001 through March 31,
2002.
3. Rider to Section 5. The $50,000.00 security deposit is the same
$50,000.00 which has been deposited as xxxxxxx money pursuant to the
terms of that certain Contract for the Purchase and Sale of Real Property
attached hereto as Exhibit "C" and made a part hereof for all purposes
(the "Purchase and Sale Agreement").
4. Rider to Section 6. Tenant shall pay all real property ad valorem taxes
assessed against the Property. At the time of execution of this Lease,
Landlord shall furnish Tenant with written notice ("Tax Notice") of the
amount of Taxes, together with a copy of the applicable tax bills, for the
calendar year 2000. Tenant shall pay to Landlord one-twelfth (1/12th) of
the aggregate amount of the Taxes at the time each Base Monthly Rental
payment is due during the Term of the Lease. At the time the actual Taxes
for the calendar year 2001 are available, Landlord will notify Tenant of
the actual amount of the Taxes and either (a) Tenant shall pay to Landlord,
upon demand, the deficit amount, if any, between the amount of Taxes paid
for the calendar year 2001, during the Term of the Lease based upon the
calendar year 2000 Taxes and the actual Taxes due and owing based upon the
calendar year 2001 Taxes, or (b) Landlord shall credit (the "Credit")
against the Tenant's obligation to pay Taxes for that portion of the
calendar year 2002, during the Term of the Lease, the amount of
overpayment, if any, between the amount of Taxes paid for the calendar year
2001, during the Term of this Lease based upon the calendar year 2000 Taxes
and the actual Taxes due and owing based upon the calendar year 2001 Taxes.
Commencing January 1, 2002, Tenant shall pay to Landlord one-twelfth
(1/12th) of the aggregate amount of the Taxes at the time each Base Monthly
Rent payment is due during the Term of the Lease based upon the actual
Taxes for the calendar year 2001 (less the Credit, if any). At the time the
actual Taxes for the calendar year 2002 are available, Landlord shall
notify Tenant of the actual amount of the Taxes and either (x) Tenant shall
pay to Landlord, upon demand, the deficit amount, if any, between the
amount of Taxes paid for the calendar year 2002, during the Term of the
Lease based upon the calendar year 2001 Taxes and the actual Taxes due and
owing based upon the calendar year 2002 Taxes, or (y) Landlord shall pay to
Tenant, upon demand, the amount of overpayment, if any, between the amount
of Taxes paid for the calendar year 2002, during the term of the Lease
based upon the calendar year 2001 Taxes and the actual Taxes due and owing
based upon the calendar year 2002 Taxes. The obligations to pay the deficit
amounts and/or to refund any overpayments shall survive the termination of
the Lease. The term ("Taxes") shall mean and include only all real property
and ad valorem taxes, assessments and other governmental charges, general
and special, ordinary and extraordinary, of any kind and nature whatsoever,
including, without limitation, assessments for public improvements or
benefits, which shall during the Term hereof be assessed, levied and
imposed upon the Property based upon its value. In addition, Tenant shall
pay, or caused to paid before delinquency all taxes, assessments, license
fees and other charges that are levied or assessed against Tenant's
personal property, trade fixtures, and leasehold improvements located in,
on, or at the Property. Tenant shall only be responsible for Taxes assessed
for the period within the term of the Lease and not for any Taxes which are
due and owing for any period of time prior to the term of the Lease.
5. Rider to Section 8(A)(3). In addition, Xxxxxx must maintain in full force
and effect during the Term of the Lease the following:
(a) Contractual liability insurance coverage sufficient to cover
Tenant's indemnity obligations hereunder; (b) Insurance covering the
full value of the leasehold improvements in the leased premises and
other property of Tenant
and others in the leased premises; and
(c) Workmen's compensation insurance, containing a waiver of
subrogation endorsement reasonably acceptable to Landlord, at
the applicable statutory limits.
Landlord shall maintain any and all liability and fire and extended
coverage insurance policies that are insuring Landlord and/or the
Property and are in effect on the date of this Lease. In addition,
Landlord shall maintain casualty and property insurance coverage for the
replacement value of the Building (approximately 93,500 square feet).
Landlord shall furnish Tenant with satisfactory evidence of such
insurance policies promptly after the execution of this Lease, together
with a statement as to the premium costs thereof, which shall include a
breakdown based upon a monthly proration. Tenant shall pay to Landlord at
the time each Base Monthly Rental payment is due during the Term of the
Lease the monthly proration of premium costs. If, during the Term of the
Lease, the insurance expires, Landlord shall either renew or obtain new
insurance in the same amounts and the premium costs shall be
redetermined, if necessary, to reflect the actual costs of such renewed
or new policies, and the monthly proration shall be based thereon. Said
insurance shall name the Landlord as the sole insured thereunder.
6. Rider to Section 8(D). All insurance required under Section 8 shall be
issued by such good and reputable insurance companies qualified to do and
doing business in the State of Texas which shall be reasonably acceptable
to the Landlord. All insurance required to be maintained by Tenant
hereunder shall not be subject to a deductible in excess of $250,000.00.
7. Rider to Section 8(E). Tenant waives any and all rights to recover
against Landlord for any loss or damage to Tenant arising from any costs
covered by any insurance required to be carried by Tenant pursuant to
Section 8 or any other property insurance actually carried by Tenant to
the extent of the limits of such policy. Tenant will cause its respective
insurers to issue appropriate waiver of subrogation rights endorsements
to all property insurance policies carried in connection with the
Property or the contents of the Property.
8. Rider to Section 11(A). Tenant shall have the right to post or install
signs on the Property without the consent of the Landlord. All signs
installed by the Tenant must comply with all laws, restrictions, zoning
ordinances and any governmental order relating to signs on the Property.
Tenant shall not be required to remove any signs at the termination of
this Lease in the event that Tenant purchases the Property in accordance
with the provisions of the Rider to Section 36 hereof; otherwise, Tenant
shall be required, upon move out and at Tenant's expense, to remove,
without damage to the Property or the leased premises, any and all signs
that are placed on the Property by the Tenant, and, in such event, at
Landlord's option, the Landlord may require the Tenant to surrender the
signs to the Landlord.
9. Rider to Section 14(A). Notwithstanding anything contained in this Lease to
the contrary, Tenant shall not be responsible in this Lease for any
Pre-existing Condition (i.e., a condition of the leased premises which
existed prior to the Commencement Date of the Lease).
10. Rider to Section 14(D). Tenant shall have the right, upon termination of
the Lease, in the event Tenant is not in default under the Lease at such
time, to remove any and all equipment, leasehold improvements, fixtures and
non-moveable property of any kind or character, located on, attached to
and/or made in or upon the Property, provided that Tenant shall repair or,
at Landlord's action, shall pay Landlord to repair, any and all damage to
the Property, or any part thereof, caused by such removal. Tenant shall not
have the right to remove any structural alterations, structural additions
or structural improvements to the Building itself at the termination of the
Lease, and the same shall be the Landlord's property at the end of the Term
and shall remain on the Property without compensation to Tenant, subject to
the provisions of the Rider to Section 36 hereafter set forth.
11. Rider to Section 15(C). Tenant shall maintain and repair in good order
and operable condition (subject, however, to reasonable wear and tear),
the Building and all parts thereof, including but not limited to
mechanical, plumbing, electrical, air conditioning and heating systems,
structure, roof, foundation, parking areas and landscaping situated on
the land owned by the Landlord upon which the Building is situated and
used in connection with the Building, at Tenant's sole cost and expense.
Tenant is also responsible, at its sole cost and expense, for the repair
and maintenance of its personal property located at the leased premises.
Notwithstanding the foregoing, Tenant is not responsible for repairing
any Pre-existing Conditions of the leased premises.
12. Rider to Section 16 (A). Except as hereinafter provided to the contrary,
Tenant shall not make or permit any structural alterations, structural
additions or structural improvements of any kind or nature to the
Building without the prior written consent of the Landlord, which consent
shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, Tenant may modify existing structural support steel and
foundations as necessary to accommodate Tenant's bridge cranes. For these
purposes the term "structural" shall refer to the roof, foundation, and
structural walls of the Building or the demolition of all or any part of
the Building. Tenant shall have the right, however, to remove or add
internal, and non-structural walls within the Building without the
consent of the Landlord.
13. Rider to Section 17. If the lien is not removed within said twenty (20)
day period, then within said time period Tenant shall deliver to Landlord
a bond or other security reasonably satisfactory to Landlord in the
amount of 110% of the lien. If Tenant fails to timely take any such
action, then Landlord may pay the claim without inquiry as to the
validity thereof, and any amount so paid, including expenses and
interest, shall be paid by Tenant to Landlord upon demand after Xxxxxxxx
has delivered to Tenant an invoice therefor.
14. Rider to Section 20(B). After the word "Lease" in the first sentence of
Section 20(B) and for the remainder of that paragraph, the following
language is substituted in lieu of the language which has been crossed out:
"within ten (10) days after Landlord provides Tenant with written notice
that it has not received the rent payment on the date the payment was due
under the Lease, Tenant will be in default. If Tenant fails to comply with
this Lease for any other reason within ten (10) days after Landlord
provides Tenant with written notice of its failure to comply, Tenant will
be in default. Notwithstanding anything contained in this Lease to the
contrary, Landlord shall not be required to give Tenant more than three (3)
such written notices of any default in rent within the Term of the Lease,
and once three (3) such written notices have been given, if Landlord does
not thereafter actually receive at the place designated for payment any
rent due on the lease within ten (10) days after it is due, Tenant will be
in default."
15. Rider to Section 20(C). Notwithstanding the foregoing, Landlord shall not
terminate Tenant's right to occupy the leased premises for any reason
other than non-payment of rent unless it provides Tenant with at least
thirty (30) days written notice setting forth therein the nature of the
default and Tenant does not cure the default to the reasonable
satisfaction of the Landlord within said thirty (30) day period of time;
provided, however, that if Tenant's non-compliance reasonably requires
more than thirty (30) days to cure, Tenant will not be in default if the
cure commences within the thirty (30) day period and is diligently
pursued.
16. Rider to Section 26. This Lease shall be subordinate to all matters which
constitute "Permitted Exceptions" under the Purchase and Sale Agreement.
17. Rider to Section 28. In the event the Property or any portion thereof shall
be destroyed by fire or any other casualty prior to the expiration of the
Term of this Lease, Tenant shall immediately notify Landlord thereof.
Within ten (10) days following Tenant's notification to Landlord, Landlord
and Tenant shall select a contractor (the "Contractor") who shall determine
the cost of such repair and restoration and the time period in which the
same can reasonably be expected to be completed. If Landlord and Xxxxxx
cannot agree upon the Contractor within said period of time, then each
contractor selected by each party, if any, and as to which each party has
given the other party written notice, within said ten (10) day period if
time, shall, within five (5) days following the expiration of said ten (10)
day period, select a third contractor, who shall then become the Contractor
for the purposes hereunder, and the decision of that Contractor shall be
final and binding. If either party fails to so advise the other party of a
Contractor within said ten (10) day period of time, then the Contractor
shall be the contractor selected by the party who did provide such notice
to the other party within said ten (10) day period of time. If the repair
and restoration can reasonably be expected to be completed before the
expiration of the Term of the Lease, then Landlord shall, to the extent of
the insurance proceeds required to be carried by Tenant hereunder, and/or
which are carried by Xxxxxxxx and paid for by Tenant hereunder
(collectively, the "Insurance Proceeds") which are available for use by the
Landlord, undertake to repair and/or restore the Property to the condition
which existed prior to such casualty. Landlord shall diligently and
expeditiously proceed to make such repair or restoration in a good and
workmanlike manner and to complete the same prior to the expiration of the
Term of the Lease, and the Lease shall be extended, if necessary, to enable
the Landlord to so complete the repair and restoration. Notwithstanding the
foregoing, Tenant shall have the right to undertake and restore the
Property, in which event Landlord and Tenant shall assign the Insurance
Proceeds to the Tenant, and the Tenant shall repair and restore the
Property to the extent of the Insurance Proceeds that are available. In
such event, Tenant shall diligently and expeditiously proceed to make such
repair or restoration in a good and workmanlike manner and complete the
same prior to the expiration of the Term of the Lease and the Lease shall
be extended, if necessary, to permit the Tenant to make such repair and/or
restoration. In the event, however, it is determined by the Contractor that
the Property cannot be repaired or restored in a good and workmanlike
manner prior to the expiration of the Term, then, within ten (10) days
following the receipt of such determination by the Contractor, Tenant shall
have the option, by written notice delivered to Landlord within said ten
(10) day period of time, of either: i) terminating this Lease by giving
notice thereof to Landlord and this Lease shall thereupon be of no further
force or effect and the parties hereto shall not have any further rights,
duties, obligations, liabilities hereunder; or (ii) requiring Landlord to
sell the Property to Purchaser pursuant to the terms of the Purchase and
Sale Agreement and to transfer and assign to Tenant at the closing all of
Landlord's right, title and interest in and to the Insurance Proceeds
and/or recoveries payable as a result of any such destruction. In the event
of any such fire or other casualty, Landlord shall not compromise or settle
any claim therefrom with any insurance company or any other party without
the prior written consent of Tenant provided Tenant is not in default of
this Lease and has elected to purchase the Property as herein provided.
18. Rider to Section 29. In the event the Property or any portion thereof shall
become the subject of any condemnation, eminent domain or other similar
proceedings or be taken or condemned by any governmental authority or
entity prior to the expiration of the Term of this Lease, Landlord shall
immediately notify Tenant thereof, and Tenant shall have the option of
either: i) terminating this Lease by giving written notice thereof to
Landlord, and this Lease shall thereupon be of no further force or effect
and no party hereto shall have any further rights, obligations or
liabilities hereunder; or ii) requiring Landlord to convey remaining
portion of the Property to Tenant pursuant to the terms and provisions of
the Sale and Purchase Agreement and to transfer and assign to Tenant at the
closing, all of Landlord's right, title and interest in and to any award
and/or compensation made or to be made by reason of such condemnation or
other proceeding. In the event Xxxxxx has elected to purchase the Property
as provided above, Landlord shall not compromise or settle any claim
connected with any such proceeding without the prior written consent of
Tenant, and Landlord agrees, so long as Tenant is not in default, Tenant
shall have the right to join in and fully participate with Landlord in
connection with any such proceeding.
19. Rider to Section 36. Purchase and Sale Agreement.
A. Notwithstanding anything contained in this Lease to the contrary, on the
expiration date of the Term of this Lease (or the next business day
following such expiration date, as the case may be), Tenant shall be
obligated to close the purchase of the Property pursuant to the Purchase
and Sale Agreement, on the condition that the Tenant, as purchaser, is
required to close thereunder. In the event that Tenant, as purchaser, is
not required to close or, for any reason fails or refuses to close, unless
the closing thereunder is postponed in accordance with the provisions of
the Purchase and Sale Agreement, Tenant shall be a tenant from
month-to-month, and the provisions of Section 22 of this Lease shall
thereupon become applicable. If the Tenant fails to close the purchase of
the Property for any reason which shall not constitute an event of default
by Tenant under the Purchase and Sale Agreement and for which the Closing
may be postponed, this Lease shall continue, upon the same terms and
conditions and at the same rental herein set forth, until the date set for
Closing pursuant to the Purchase and Sale Agreement, whereupon Tenant shall
be required to close and this Lease shall terminate. In the event Tenant
fails or refuses to so close at that time, any holdover by Tenant hereunder
shall be subject to the provisions of Section 22 of this Lease.
Notwithstanding anything contained in this Lease to the contrary, in the
event the Tenant fails to close the purchase of the Property pursuant to
the terms and conditions of the Purchase and Sale Agreement due to a
default by the Landlord, as seller under the Purchase and Sale Agreement,
the base monthly rental for such holdover period shall be at the rate then
due and payable by the Tenant as the base monthly rent under the Lease and
not two (2) times the base monthly rent as provided in Section 22 of this
Lease. Notwithstanding anything contained in this Lease to the contrary,
the rights and remedies granted to Landlord and Tenant under this Lease
shall be in addition to, and not in lieu of, the applicable rights and
remedies granted to Landlord, as seller, and Tenant, as purchaser, under
the Purchase and Sale Agreement. The parties hereto agree that in the event
Tenant shall default under the terms and provisions of this Lease, and the
Landlord elects to terminate this Lease and/or in the event that Tenant, as
purchaser, should breach any of the terms and provisions of the Purchase
and Sale Agreement and the Landlord, as seller, shall elect to terminate
the Purchase and Sale Agreement, then, upon the happening of either or both
events, Landlord shall have the right to file of record an affidavit (the
"Affidavit") evidencing the termination of the Lease and/or the Purchase
and Sale Agreement, as the case may be; provided, however, Tenant shall
have the right to contest the filing of the Affidavit by bringing a suit in
the appropriate court in Dallas County, Texas, to have the filing of the
Affidavit removed, which lawsuit must be filed within sixty (60) days
following Tenant's receipt of written notice from the Landlord, together
with a copy of the filed Affidavit, stating that the Affidavit has been
filed of record and that a lawsuit must be filed within sixty (60) days
following Xxxxxx's receipt of this notice in order to contest the same. If
the Tenant does not timely file a lawsuit in the appropriate court in
Dallas County, Texas, contesting the filing of the Affidavit, it shall be
presumed that the Affidavit was correct. This provision shall survive the
termination of the Lease and/or the Purchase and Sale Agreement.
B. Landlord and Tenant each agree that it shall perform the following
obligations hereinafter imposed upon it, as soon as practicable within
the Term of this Lease, which shall be completed on or before the date
that Tenant is required to close the purchase of the Property, as
purchaser, under the Purchase and Sale Agreement:
(i) Tenant will be responsible for filling in the underground
storage tank located in the center of the Building and will
also be responsible for performing all remediation recommended
by the environmental assessment performed for Tenant by T-2
Environmental except the remediation that will be necessary as
a result of leakage of the underground storage tank located in
the front (southeast corner) of the building (the "Front
Tank").
(ii) On or before July 1, 2001, Landlord will remove the Front Tank and perform
any remediation resulting therefrom or required in connection therewith and
restore the disturbed areas to their pre-existing condition all in
accordance with this Agreement and applicable laws of the State of Texas.
The Landlord shall provide Tenant advance notice two (2) business days
prior to taking final verification samples and shall obtain and deliver to
Tenant an original final report addressed to Landlord and Tenant from the
environmental contractor who removes the Front Tank stating that the tank
has been removed and cleaned up in accordance with Texas law; this report
shall have been signed by a professional engineer registered in the State
of Texas and shall include the engineer's unqualified professional opinion
that the Tank was removed and remedial action was completed in accordance
with the provisions of this Agreement and applicable laws. In addition,
Landlord will use all due diligence and commercially reasonable efforts to
obtain from the TNRCC an "LPST letter" with respect to the Front Tank.
(iii) Each of the parties agrees to indemnify and hold harmless the
other from and against any and all costs, damages,
liabilities, expenses and legal fees arising out of or
attributable to a breach by the indemnifying party of its
obligations under this Section 36B. The obligations hereunder
shall survive the purchase of the leased premises by Tenant or
its assignee.
C. Simultaneously with the execution of this Lease, Landlord is
executing and delivering to Tenant an assignment of all of Landlord's
right, title and interest in $175,783.00 in insurance proceeds owed to
Landlord by Royal & Sunalliance of Stockton, California. In addition,
Xxxxxxxx will obtain from Royal & Sunalliance of Stockton, California a
consent to such assignment together with a description of the
requirements that must be satisfied before such insurance proceeds
become payable.
MEMORANDUM OF LEASE
This Memorandum of Lease (the "Memorandum") is made as of
______________________________, 2001, by and between Hillsboro Loan Investors,
L.P. (the "Landlord") and X.X. Xxxxxx Company (the "Tenant") to evidence of
record the execution of that certain unrecorded Lease by and between Landlord
and Tenant, dated _______________________, 2001 (the "Lease").
1. The real property which is the subject of this Memorandum and
of the Lease is described on Exhibit "A" attached hereto and
made a part hereof for all purposes (the "Property").
2. The term of the Lease is fourteen (14) months, commencing on February 1,
2001, and expiring on March 31, 2001. The Tenant has no option to extend
the Lease. The Tenant does have an obligation to purchase the Property
according to the terms and provisions of a Purchase and Sale Agreement
which is attached to the Lease; however, upon the happening of an event of
default under the Lease and/or the Purchase and Sale Agreement, Landlord
may file of record an affidavit (the "Affidavit") that all of Tenant's
rights pursuant to the Lease and/or the Purchase and Sale Agreement have
been terminated. Tenant shall have the right to contest the filing of the
Affidavit by bringing a suit in the appropriate court in Dallas County,
Texas, to have such filing removed. Unless said lawsuit is filed within
sixty (60) days following Xxxxxx's receipt of notice that such Affidavit
has been filed, together with a copy of the Affidavit, it shall be presumed
that the Affidavit was correct.
3. The Lease provides that the Tenant shall not do anything that
will cause the title of the Property to be encumbered in any
way. Consequently, any person or entity providing labor and/or
materials on or with respect to the Property or any
improvements thereon, for or on behalf of the Tenant, whether
directly or indirectly, whether through contract, subcontract,
or otherwise, is advised that the Tenant has no right to
encumber the fee of the Property.
4. The terms and conditions of the Lease are incorporated herein
by reference. This Memorandum is prepared for the purpose of
recordation and in no manner modifies the terms and conditions
of the Lease. If there is any consistency between the terms
and conditions of this Memorandum and the terms and conditions
of the Lease, the terms and conditions of the Lease shall
control.
IN WITNESS WHEREOF, the parties executed this Memorandum as of the date
and year hereinbefore set forth.
HILLSBORO LOAN INVESTORS, L.P.,
By: United Mortgage Services, Inc., general partner
By:
Name:
Title:
LANDLORD
X.X. XXXXXX COMPANY
By:
Name:
Title:
STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on
______________________________, 2001, by _____________________________,
___________________________ of United Mortgage Services, Inc., a
___________________________ corporation, on behalf of said corporation, and the
corporation acknowledged this instrument as partner on behalf of Hillsboro Loan
Investors, L.P., a partnership.
Notary Public, State of Texas
Notary's Name (printed):
Notary commission expires:
STATE OF )
)
COUNTY OF )
This instrument was acknowledged before me on
______________________________, 2001, by _____________________________,
___________________________ of X.X. Xxxxxx Company, a Pennsylvania corporation,
on behalf of said corporation.
Notary Public, State of
Notary's Name (printed):
Notary commission expires:
RJT/bac
Exhibit A
FIELD NOTES for a lot, tract, or parcel of land containing 7.277 acres lying and
situated in the X.X. Xxxx Survey A-750 in Hillsboro, Hill County, Texas. Said
land is that certain 7.285 acre tract described in a deed from Spartan Copper,
Incorporated to Hillsboro Loan Investors, L.P. as recorded in Volume 864, Page
134 of the Official Public Records of Hill County, and is more particularly
described by metes and bounds as follows:
BEGINNING at a 1/2" iron rod found in the northwest line of U.S. Highway 77 for
the south corner of said 7.285 acre tract, said point being the most easterly
corner of a tract described in a deed to Franklin Industries, Inc. as recorded
in Volume 928, Page 772 of the Official Public Records of Hill County:
THENCE: N 44 deg 53 min 0 sec W 599.95 feet along Xxxxxxxx'x northeast line to a
5/8" iron rod found for corner:
THENCE: N 35 deg 54 min 0 sec E 94.55 feet, and N 50 deg 17 min 15 sec W 82.27
feet and N 31 deg 49 min 30 sec E 259.24 feet along Franklin's line, 5/8" iron
rods found at all corners:
THENCE: S 85 deg 52 min 0 sec E 369.45 feet to a1/2" iron rod set for corner:
THENCE: S 42 deg 37 min 15 sec E 181.00 feet to a railroad spike found for
corner:
THENCE: S. 21 deg 51 min 0 sec 118.04 feet to a railroad spike found for corner
in the northwest line of said U.S. Highway 77;
THENCE: Around a curve to the left with radius 2024.86 feet an arc distance of
255.26 feet (Chord: S 26 deg 19 min 30 sec W 255.09 feet) to a1/2" iron rod set
for corner;
THENCE: S 29 deg 7 min 10 sec W 190.88 feet to a1/2" iron rod set for corner;
THENCE: S 17 deg 26 min 10 sec W 115.00 feet to the point of beginning,
containing 7.277 acres of land.
EXHIBIT B
FIELD NOTES for a lot, tract, or parcel of land containing 1.356 acres lying and
situated in the X.X. Xxxx Survey A-750 in Hillsboro, Hill County, Texas. Said
land is that certain 1.52 acre tract described in a deed from Hillsboro Lake
Park Association to Robintech, Inc. as recorded in Volume 507, Page 497 of the
Deed Records of Hill County. Said land is more particularly described by mete
and bounds as follows:
BEGINNING at railroad spike found for the most easterly corner of a tract
described in a deed to Hillsboro Loan Investors, L. P. as recorded in Volume
864, Page 134 of the Official Public Records of Hill County;
THENCE: N 21 deg 51 min 0 sec W 118.04 feet to a railroad spike found for
corner;
THENCE: N 42 deg 37 min 15 sec W 181.00 feet to a1/2" iron rod set for corner;
THENCE: N 85 deg 52 min 0 sec W 369.45 feet to a 5/8" iron rod found for corner;
THENCE: N 30 deg 43 min 0 sec E 99.95 feet to a1/2" iron rod found for corner;
THENCE: S 80 deg 18 min 55 sec E 299.57 feet and S 68 deg 39 min 37 sec E 327.05
fet along a fence, 5/8" iron rods found for corners;
THENCE: S 31 deg 57 min 50 sec W 219.12 feet to the point of beginning,
containing 1.356 acres of land.
