Minutes of the Board of Regents of Stephen F. Austin State University. 1991, Volume No. 103

              Stephen F. Austin
State University
Minutes of the
Board of Regents
Austin, Texas
January 22,1991
Volume 103
INDEX
Minutes of the Meeting
Board of Regents
Stephen F. Austin State University
Held at Austin, Texas
January 22,1991
Page
91-28 Approval of Minutes of October 16,1990 1
91-29 Faculty/Staff Appointments for 1990-91 1
91-30 Changes of Status for 1990-91 4
91-31 Retirements 6
91-32 Last Class Day Report 6
91-33 Underenrolled Class Report for Spring, 1991 6
91-34 Twelfth Class Day Report for Spring, 1991 6
91-35 FY 1990 Final Closing Transfers 6
91-36 Financial Certification 7
91-37 Continuation of Food Service Contract with ARASERVE 7
91-38 Approval of Computer Use Fee 7
91-39 Approval of Bond Refinancing Proposal 7
91-40 Approval of Lease Purchase Agreement for
Winn-Dixie Building 8
91-41 Election of Chairman, Vice Chairman and
Secretary of Board of Regents 8
FY 1990 Final Closing Transfers 9
1112 North Street Building Lease/Purchase Agreement 11
MINUTES OF THE MEETING
BOARD OF REGENTS
STEPHEN F. AUSTIN STATE UNIVERSITY
HELD AT AUSTIN, TEXAS
JANUARY 22, 1991
The meeting was called to order by Mrs. Peggy Wedgeworth Wright,
Chairman of the Board of Regents, at 9:30 a.m., Tuesday, January 22,1991, at
the Four Seasons Hotel, Austin, Texas.
REGENTS
PRESENT: Senator Roy M. Blake of Nacogdoches
Mr. Homer Bryce of Henderson
Mr. Larry J. Christopher of Crockett
Mr. Dan Haynes of Bullard
Mr. Richard Hile of Jasper
Mr. Kelly Jones of Arlington
Mr. Wayne Salvant of Fort Worth
Mr. James M. Windham, Jr. of Houston
Mrs. Peggy Wedgeworth Wright of Nacogdoches
STAFF
PRESENT: Dr. Donald E. Bowen, President
Mr. Scott Chafin, General Counsel
Mr. Don L. Henry, Vice President for Administrative and
Fiscal Affairs
Dr. Baker Pattillo, Vice President for University Affairs
Dr. James V. Reese, Vice President for Academic Affairs
Dr. Nancy Speck, Vice President for University
Advancement
Ms. Lucy Stringer, Assistant to the President and Editor of
University Publications
MINUTES OF THE MEETING
BOARD OF REGENTS
STEPHEN F. AUSTIN STATE UNIVERSITY
January 22,1991
91-28
Upon motion of Regent Christopher, seconded by Regent Salvant, with all
members voting aye, it was ordered that the minutes of the meeting of the
Board of Regents dated October 16,1990, be approved.
91-29
Upon motion of Regent Salvant, seconded by Regent Hile, with all members
voting aye, it was ordered that the following faculty and staff appointments
for 1990-91 be approved.
1. Communication
Ms. Martha Jean Fisher, Part-time Instructor, at a salary of $1,750 for
25% time for the spring semester, 1991.
2. Counseling and Special Educational Programs
Ms. Suzanne A. Herman, Lecturer, M.Ed. (Stephen F. Austin State
University), at a salary of $1,500 for 25% time for the fall semester, 1990.
Dr. Newell G. Holland, Lecturer, at a salary of $4,000 for 50% time for
three months, effective October 1,1990.
Ms. Sandra Hull, Part-time Instructor, at a salary of $1,500 for 25% time
for three months, effective October 1,1990.
Dr. Jack L. Spurrier, Part-time Professor, at a salary of $18,346 for 50%
time for the fall semester, 1990.
Mr. Clois L. Walker, Part-time Instructor, at a salary of $1,000 for 25%
time for three months, effective October 1,1990.
3. Elementary Education
Ms. Elizabeth Bettye Alexander, Part-time Instructor, M.Ed. (Stephen F.
Austin State University), at a salary of $2,000 for 50% time for the fall
semester, 1990.
Ms. Marilyn Joyce Barton, Part-time Instructor, at a salary of $2,000 for
50% time for the fall semester, 1990.
Ms. Becky S. Griffith, Part-time Instructor, at a salary of $1,500 for 25%
time for the fall semester, 1990.
Ms. Mildred Faye Heil, Part-time Instructor, M.Ed. (Stephen F.
Austin State University), at a salary of $1,500 for 25% time for the fall
semester, 1990.
Mr. Clois L. Walker, Part-time Instructor, at a salary of $1,000 for 25%
time for the fall semester, 1990.
Ms. Leta Ann Weaver, Part-time Instructor, at a salary of $2,000 for 50%
time for the fall semester, 1990.
4. English and Philosophy
Mr. Rufus Jeff Banks, Part-time Associate Professor, at a salary of
$14,296 for 50% time for nine months, effective fall semester, 1990.
Dr. Neal B. Houston, Part-time Professor, at a salary of $21,268 for 50%
time for nine months, effective fall semester, 1990.
Ms. Debbie Vint-Miller, Lecturer, at a salary of $7,000 for 100% time for
the fall semester, 1990.
5. Kinesiology and Health Science
Mr. William David Campbell, Part-time Instructor, at a salary of $4,000
for 25% time for the fall semester, 1990.
Mr. Emil R. Slovacek, Part-time Lecturer, M.Ed. (Stephen F. Austin
State University), at a salary of $3,000 for 50% time for the fall semester,
1990.
6. Mathematics and Statistics
Mr. John Michael Garner, Part-time Instructor, M.S. (Texas A&M
University), at a salary of $3,700 for 50% time for the fall semester, 1990.
7. Nursing
Ms. Laura Kay Bilderback, Instructor, M.S.N. (University of Texas at
Arlington), at a salary of $15,000 for 100% time for the fall semester,
1990.
Ms. Cynthia Anne McCarley, Lecturer, B.S.N. (Northwestern State
University), at a salary of $7,500 for 50% time for the fall semester, 1990.
Ms. Nancy Jean Smith-Blair, Part-time Instructor, at a salary of $2,950
for 25% time for the fall semester, 1990.
8. Political Science and Geography
Dr. Joseph E. Fults, Lecturer, at a salary of $7,500 for 100% time for the
spring semester, 1991.
Dr. Robert E. Norris, Lecturer, at a salary of $1,750 for 25% time for the
spring semester, 1991.
9. Theatre
Ms. Gem Holt Roberson, Part-time Lecturer, at a salary of $1,500 for 25%
time for the fall semester, 1990.
10. Secondary Education
Dr. Billy R. Bowman, Part-time Instructor, at a salary of $2,000 for 25%
time for the spring semester, 1991.
Dr. Allan Gordon Cannon, Part-time Instructor, at a salary of $4,000 for
50% time for the spring semester, 1991.
Dr. Harold G. Hill, Part-time Professor, at a salary of $10,552 for 50%
time for three months, effective February 1, 1991.
Dr. Darryl L. Morris, Part-time Instructor, at a salary of $2,000 for 25%
time for the spring semester, 1991.
Dr. Hugh Douglas Prewitt, Part-time Professor, at a salary of $10,726 for
50% time for three months, effective February 1, 1991.
Mr. Malcolm N. Rector, Part-time Instructor, at a salary of $4,000 for
50% time for the spring semester, 1991.
Mr. Morris Edward Smith, Lecturer, at a salary of $4,000 for 100% time
for the spring semester, 1991.
11. Administrative and Fiscal Affairs
Ms. Dianna Lynne Richards, Accounting Clerk III, at a salary of $11,773
for 100% time for twelve months, effective November 16, 1990.
12. University Affairs
Mr. David Batson, Athletic Certification Officer, at a salary of $15,000 for
twelve months, effective September 24, 1990.
Mr. David Meyers, Assistant Sports Information Director and Staff
Writer, at a salary of $18,885 for twelve months, effective September 24,
1990.
Mr. Lynn Graves, Head Football Coach, at a salary of $60,500 for twelve
months, effective January 1, 1991.
Mr. Phillip Bounds, Assistant Football Coach and Part-time Instructor
of Kinesiology and Health Science, at a salary of $40,000 for ten and
one-half months, effective January 1, 1991.
Mr. Denzil Cox, Assistant Football Coach and Part-time Instructor of
Kinesiology and Health Science, at a salary of $35,000 for ten and one-half
months, effective January 1, 1991.
Mr. Dorn Spencer Leftwich, Assistant Football Coach and Part-time
Instructor of Kinesiology and Health Science, at a salary of $28,000 for
ten and one-half months, effective January 1, 1991.
Mr. Mike Major, Assistant Football Coach and Part-time Instructor of
Kinesiology and Health Science, at a salary of $35,000 for ten and one-half
months, effective January 1, 1991.
Mr. Bradley Peveto, Assistant Football Coach and Part-time Instructor
of Kinesiology and Health Science, at a salary of $30,000 for ten and
one-half months, effective January 1, 1991.
Mr. Zane Zamenski, Assistant Football Coach and Part-time Instructor
of Kinesiology and Health Science, at a salary of $40,000 for ten and
one-half months, effective January 1, 1991.
91-30
Upon motion of Regent Bryce, seconded by Regent Jones, with all members
voting aye, it was ordered that the following changes of status for 1990-91 be
approved.
1. Communication
Dr. Jennie C Casey, from Part-time Lecturer at a salary of $6,000 for 75%
time, to Lecturer at a salary of $7,250 for 100% time for the fall semester,
effective November 12, 1990. This is to replace a faculty member who
is ill.
Mr. Gary R. Walters, Part-time Lecturer, from a salary of $1,750 for 25%
time, to a salary of $2,844 for 75% time for the fall semester, effective
November 12,1990. This is to replace a faculty member who is ill.
2. Elementary Education
Ms. Wynter Chauvin, Part-time Instructor, from a salary of $3,000 for
50% time, to a salary of $4,500 for 75% time for the fall semester, 1990.
Dr. Mary Ella Lowe, Associate Professor, an additional $1,000 for
teaching an overload the fall semester, 1990.
Dr. Leah Susan Smith, Assistant Professor, an additional $1,000 for
teaching an overload the fall semester, 1990.
Dr. Robert Frank Smith, Professor, an additional $1,000 for teaching an
overload the fall semester, 1990.
Dr. Elizabeth J. Vaughan, Associate Professor, an additional $1,000 for
teaching an overload the fall semester, 1990.
3. Secondary Education
Dr. Jose A. Rodriguez, from Professor to Professor and Title VII
Director, at a salary of $35,805 for 100% time (50% time each) for nine
months, effective spring semester, 1991.
4. Social Work
Mr. Arlyn D. Vierkant, Part-time Instructor, an additional $500 for
teaching a combined class.
5. University Advancement
Ms. Sue Zienko, from Senior Secretary at a salary of $11,212 to
Programs Coordinator at a salary of $12,333, effective September 7,1990.
6. Alumni Association
Ms. Betty Ford, from Administrative secretary at a salary of $20,364 to
Assistant to the Director of the Alumni Association at a salary of
$21,860, effective October 31,1990.
91-31
Upon motion of Regent Windham, seconded by Regent Christopher, with all
members voting aye, it was ordered that the following retirements be
accepted.
1. Administrative Services
Mrs. Jean Rudisill, Assistant Professor, effective December 31,1990.
2. Secondary Education
Dr. Harold Gene Hill, Professor, effective December 31,1990.
Dr. Hugh Douglas Prewitt, Professor, effective December 31,1990.
91-32
Upon motion of Regent Jones, seconded by Regent Salvant, with all members
voting aye, it was ordered that the Last Class Day Report for the fall semester,
1990, be approved as presented.
91-33
Upon motion of Regent Jones, seconded by Regent Salvant, with all members
voting aye, it was ordered that the Chairman of the Board be authorized to
approve the Underenrolled Class Report for the spring semester, 1991.
91-34
Upon motion of Regent Jones, seconded by Regent Salvant, with all members
voting aye, it was ordered that the Chairman of the Board be authorized to
approve the Twelfth Class Day Report for the spring semester, 1991.
91-35
Upon motion of Regent Hile, seconded by Regent Windham, with all
members voting aye, it was ordered that the closing transfers for FY 1990 be
approved as presented on page 9.
91-36
Upon motion of Regent Bryce, seconded by Regent Salvant,, with all members
voting aye, it was ordered that the financial certification as presented below be
approved.
In accordance with the request of the Board of Regents, the
President and Vice President for Administrative and Fiscal
Affairs certify to the best of their knowledge and belief that:
1. All accounting reports submitted to the Board of Regents
contain information resulting from procedures that are in
compliance with state law and regulations and are correct.
2. All funds are on deposit with approved depositories as
authorized by the Board of Regents at the July 10,1990,
meeting.
91-37
Upon motion of Regent Christopher, seconded by Regent Haynes, with all
members voting aye, it was ordered that the food service contract with
ARASERVE, which reflects a rate increase of 10% beginning with the Fall
1991-1992 semester, be approved and that the President be authorized to sign
the contract. Upon signature of the President, the contract will become a part
of these minutes and will be added accordingly.
91-38
Upon motion of Regent Blake, seconded by Regent Jones, with all members
voting aye, it was ordered that a computer access fee be established by the
authority provided in Section 54.504 of the Texas Education Code at a rate of
$3.00 per student credit hour not to exceed $36.00 per regular semester and
$18.00 per summer term and that the rate increase be effective beginning with
fall semester, 1991.
91-39
Upon motion of Regent Hile, seconded by Regent Blake, with Regent Bryce
abstaining, it was ordered that the University financial advisor and bond
counsel be authorized to prepare documents for the refinancing of the bonded
indebtedness of the University, and that the administration seek approval
from the Texas Bond Review Board for the issue. It was further ordered that
bids be accepted for refinancing of existing bond issues; that an additional
$1,200,000 be issued, the proceeds of which shall be used to renovate Gibbs
Hall; and that the administration seek preparation of plans and specifications
for such project to be submitted to the Board of Regents at its next scheduled
meeting.
91-40
Upon motion of Regent Blake, seconded by Regent Salvant, with all members
voting aye, it was ordered that the administration be authorized to secure a
lease purchase agreement with Quine and Associates, Inc., for the property
located at 1112 North Street, to secure approval from the State Purchasing and
General Services Commission for the lease agreement, to secure appraisals
and seek approval from the Texas Higher Education Coordinating Board for
the purchase of the property, and that the Chairman of the Board be
authorized to sign the necessary documents. (See page 11.)
91-41
Upon motion of Regent Bryce, seconded by Regent Blake, with all members
voting aye, it was ordered that Regent Kelly Jones be elected Chairman,
Regent Larry Christopher be elected Vice Chairman, and Mr. Don L. Henry be
elected Secretary to the Board of Regents of Stephen F. Austin State
University.
STEPHEN F. AUSTIN STATE UNIVERSITY
SCHEDULE A-3
SCHEDULE OF LEGISLATIVE APPROPRIATIONS
For Ihc Year Ended August 31. 1990
UNAUDITED
STEPHEN F. AUSTIN STATE UNIVERSITY
SCHEDULE A-3
SCHEDULE OF LEGISLATIVE APPROPRIATIONS
For the Year Ended August 31. 1990
UNAUDITED
Building Maintenance
Utilities
All Other General Purposes
Special Items:
Ctr Applied Studies In For.
Stone Fort Museum
Library
Social Security Matching
Operation and Maintenance of
Stephen F. Austin State Unlv.
Total Current Fund 261
Special Mineral Fund 241
Operation and Maintenance of
Stephen F. Austin State Unlv.
Total Special Mineral Fund 241
Total General Funds
UNEXPENDED PLANT FUNDS
H.E.A.F
Proposition 2
Fiscal Year 1988
Fiscal Year 1989
Fiscal Year 1990
Total Unexpended Plant Funds
Total Appropriations
(a) Appropriation Adjustments Consist of:
Actual Revenue over Amount Estimated
FY 1991 Deferred Income Deposited
Before 8-31-90.and Included
In Ending Balance
FY 1990 Deferred Income Deposited
Before 8-31-89 and Included
in Beginning Balance
Higher Education Assist. Funds (Prop 2)
' E&G Funds
Unexpended Plant Funds
Remedial Education Coordinating Board
Insurance Supplement
Appropriation Regular
Balances Legislative Appropriation
Sept. 1. 1989 Appropria lions Adjustments
965.300.S5
Pf]
1.534.024.53
1.534,624.53—5.324.655.60
(1.623.210.90)
—234.000.00
876.114.18 (1.198.416.44)
16.926.543.53 '.996.129.30 irar
2.074.530.62
2.524.413. 63
14.848.30
i4.A4fl.36
14.848.30
4.7/5.760.14 . 37.fl46.*>9fl.55 3.35&.661.53
I4.64d.36
14.848.30
4S.375.626.22 41.197.2dCTT "TTffT 4.777.733.75"
6.325.265.64
3.679.226.OO
6.325.265. fi4 3.679.22fi.00
11.16l,625.7fl &37.&46,59fl.55 i7.637.ft87.5JT
(114.83)
(2.999.885.17)
3.OOO.OOO.OO
(114.83)
3.325.380.47
6.679.226.00
i 6.664.461.T5T
$55.679.511.A6
(114.83)
734.651 04
5.KI8.20B.17
5.672.744.3A
^47.676.636.^5"
$1,199,766.82
1.981.798.86
(1.647.541.15)
1.467.178.00
3.679.226.00
75.399.00
282.060.00
$7.037.887755"
2.590.729.43
1.541.017.83
4.131.747.26
fW.666.4ftl.61
11
£3 OPTING COJTEft LEASE
This lease is entered into as of the 1st day of June , 19 91
by and between the Landlord and the Tenant hereinafter named.
definitions ajjo certain basic phovigions
•article: i.
1.1 (a) "Landlord": Tftl-STATE COMMERCIAL ASSOCIATES, a Texas joint venture
(b) Landlord's address: P.O. Box 833009/ Richardson/ TX 75083-3009
(c) "Tenant11: Stephen F. Austin State University ("University")
(d) Tenant's address: P. 0. Box G078 SPA Station/ Nacogdoches/ TX 75962-6078
(e) Tenant's trade name: Stephen P. Austin State University
(f) "Agent": Quine & Associates/ Inc.
(g) "Cooperating Agent": Loe Danis & Associates
(h) "Demised Premises": in Tri-State 11156 Shopping
Center (herein referred to as the "Shopping Center") in the City of
Nacogdoches t Nacogdoches County,
Texas , a store unit approximately 24/946
square feet in area, being approximately irregular
(measured to the exterior of outside walls and to the center of
interior walls), said premises known as 1112 North Street/
Nacogdoches/ TX % Qnd being outlined in red on the
plot plan attached hereto and made a part hereof. Exhibit "A".
(i) Lease term: Commencing on the 1st day of June ,
19 91 except as may be modified by exhibits which will be attached
to this lease if a building is to be constructed for Tenant (the
"Commencement Date") and continuing for Ten (10) years and
months; provided that if the Commencement Date is a
date other than the first day of a calendar month, the lease term
shall be extended for said number of years and months in addition to
the remainder of the calendar month following the Commencement Date.
(j) minimum guaranteed rental: % *SEE PAGE lA per month,
payable in advance.
(k) Percentage rental rate: ~Q~ % monthly.
(l) Common area maintenance charge: A minimum of $ • per
month, payable in advance. ** 199° ' nase Year as further defined in this
Lease-
0 ''' JK A-Initials:
/ Tenant /I \y -'■ '' // Tenant /!jI rP' >''(v/ ,/ Landlord
Page 1 '
12
1.1 (j) CONTINUED:
$'4/157.66 per month/ payable in advance for months 1 through 24.
$4,282.38 per month/ payable in advance for months 25 through 36.
$4,410.85 per month, payable in advance for months 37 through 48.
$4,543.17 per month, payable in advance for months 49 through 60.
$4,679.46 per month, payable in advance fcr months 61 through 72.
$4,819.84 per month, payable in advance for months 73 through 84,
$4,964.43 per month, payable in advance for months 85 through 96.
$5,113.36 per month, payable in advance for months 97 through 108.
$5,266.76 per month, payable in advance for months 109 through 120.
Initials: , Tenant /\ ///, , Tenant \Jjf\ /r Landlord
Page 1A
13
(m) Prepaid rental: $ 4,157.66
first ~~ " -' being tent f0^ the
~~ ■ month(s) of the. lease term
(n) Security deposit: $ None
(o) Permitted use:
CLAUSE
... -,5.s;':,'E^;a ssns kHS~-"™"~«
" NOTE: If LL*
^W ACCEPTANCE OF
REKT
r
for the n or month,
Initials:
Page 2
Tenant
ast
Tenant
Landlord
14
^
£
as follows: On or before tho 10th day of
this lease Tenant shall pay to Landlord,
guaranteed rental paid for tho precodino. the product of the Percenta%ffi3
gross sales made in or from
event that the total of j
calendar year is not egurfTto tho
amount of gross salee-foV such calendar
rate, then Tenant 1 pay toLandlord
to Tenant aj^erpayment^ as the case
of such^tfXWndar year. In no event
^ of the minimum
^KqUal to
h • P u y he total
m™*- I" the
/ f9f rentals for any
frFent*>e rental computed on the
"0" ^
be °
y. hTllL^^ff
Landlord for any calendar /ear be iTss than
fltaiheijeiflifi)
e^d
Sha11 refund
dayS after the ™*
SI ^ and annual minimum
be paid at the specified rate
a calendar year, after
ii }^
sha11
SUch r«ctional part of
re"tal a11 P^-ents of
the entire amount of ^1?
sales of merchandise (includino other receipts ^ts^^af[\^^
Premises, including mail or teleohonn ripr
Premises, deposits not refunded' tc^ purchas
orders may be filled elsewhere , o
machines or other devices, and' sflos^by
licensee or otherwise in said premises F-,rh
shall be-treated as a sale For thofnil
sale was made, irrespective of th S<
SSS: SrsVS S2i £^
C£>Sh or otheru)ise, f
ed
the Demised
although said
r0U9h UCndin9
.' concessionaire or
installment or credit
nth dUrin9 which such
which has the^oforc been made in or 1 L n purP°se of consumating a
the purpose of driving Landlord of the bennm r ^ Premises a"d/or for
be made in c^rfrom the Demised Premise- nor fh ° * Sa,lerWhich othe™^ «-ould
° M"i£*£™». nor the amount of an^cash or crStf n'^f05 t0 Shippers
merchandise sold, or some part L fuUnd made upon any sale
orf nr
or ^tal^lLaBy, i3yabl orf nr h ? l
month, whthout offset ^'deduction of^ny'nature /n Z^ °l Mch lendar
not received within 5 days after its du Lb Gnt any rental is
will be a $25.00 penalty on the 6th^ dav ! any reason whatsoever, there
penalty, thereafter, until paid V> ° an add^tionar $10.00 per day
Taft^due^^dloTdTnorder ° costs may require, by giving written notice to ^V^,^ rative
penalty accruing pursuant to Section £ 6 -town T, (and iri addition to any
remedies accruing pursuant to Article XIX"or Ar mm vl ^ °ther riQhts and
term, provision or covenent of this leaJii \hU ■" bel°W> or any other
to be paid quarterly in advance, instead nV i ?,ln™Um 9"«ranteed rentals are
p.y»nt8„ „b«M£"%>£5SX'SBi
Initials:
Page 3
Tenant Tenant Landlord
15
money order, and that the delivery of Tenant's personal or corporate check will
no longer constitute a payment of rental as provided in this lease. Any
acceptance of a monthly rental payment or of a personal or corporate check
thereafter by Landlord shall not be construed as a subsequent waiver of said
rights.
SALES REPORTS AND nEOTOS
ARTICLE V. Sr1—0n^r^9for-4^hQ^th-daY^f^
term of this lease, Tenant shall prepare and deliver to Landlord at the L
where rental is then payable a certified statement of gross sales made jduring
the preceding calendar month. In addition, within sixty days aKer the
expiration of each calendar year and within sixty days after the termination of
this lease if this lease should not terminate at the end of a calendar year,
Tenant shall prepare and deliver to Landlord at the place wheats rental is then
payable a statement of gross sales during the precedino/calendar year (or
partial calendar year), certified to be correct by an impendent Certified
Public Accountant, Tenant shall furnish similar statements for its licensees
concessionaires and subtenants, if any. All such statements shall be in such
form as the Landlord may require. S
5.2 Tenant shall keep in the Demised premises or at some other location in
the city where the premises are 1 ocatecJX permanent, accurate set of books and
records of all sales of merchandise apef revenue derived from business conducted
in the Demised Premises, and al 1 supporting records such as tax reports and
banking records. All such booksxihd records shall be retained and preserved for
at least twenty-four (24) mop^hs after the end of the calendar year to which
they relate, and shall be^sObject to inspection and audit by Landlord and its
agents at all reasonable/ximes.
5.3 In the ey^nt Landlord is not satisfied with the statements of gross
sales submitted^ Tenant, Landlord shall have the right to have its auditors
make a speciaKaudit of all books and records, wherever located, pertaining to
sales macWn or from the Demised Premises. If such statements are found to be
incorrecXto an extent of more than two per cent over the figures submitted by
Tenan^Tenant shall pay for such audit. Tenant shall promptly pay to Landlord
any/deficiency or Landlord shall promptly refund to Tenant any overpayment, as
COWOJ AREAS
... ARTICLE VI. 6.1 The term "Common Area" is defined for all purposes of
this lease asthat part of the Shopping Center intended for the cordon use of
all tenants, including among other facilities (as such may be applicable to the
Shopping Center) parking area, private streets and alleys, landscaping, curbs,
loading area, .sidewalks, malls and promenades (enclosed or otherwise), lighting
facilities, drinking fountains, meeting rooms, public toilets, and the like but
excluding space in buildings (now or hereafter existing) designed for rental for
commercial purposes, as the same may exist from time to time and further
the same, and subject to such reasonable rules and regulations
shall furnish to
, Ianant
Page 4
established by Landlord from time to time fnr ra-w-h ■, "
automobile or other vehicle is so parked
Tenant «-nal'l " f, .heteof' such
,,h h ^ \ nOt So1 icltbusiness
C' Ai It"^'^ "^ *" rl*t
ile within the Common Area or take any c'Ln
of other persons to use the Commo'n Aria
part of the Common Area for such P3tio s
repairs or alterations or to prevent the
rights. Irom
l
ybTe ta^ti
may be elevated, surface or underground
sftare of the
., r . , »-w...iiiuii niw, tne manner or maj
therefor to be in the sole discretion of Landlord
SEE PAGE 5A
Tonan0t\ha1T:lp^oUi!a^
operation and maintenance of the Common
those for lighting, painting, cl
replacing, and in the event of an i
Center, for heating and cooling)
discretion including a reasonable allowance
for depreciation of maintenance equipment and
excluding general real estate taxes, asses-original
investment. The proportion
Center, which areas
"»'»«•«'*. and
of
costs,
—3 and
the Shopping
. Landlord in its
i's overhead costs and
hazard insurance, but
„. ,,,„ ^uporcionato^harn ^ k depreciation of Landlord's
of operation and maintenance of tto<£ ,™ to ^ ,Plld by tenant °f the cost
that the total ground floor TrgfjTn ^r,11 be comP"ted on. the ratio
ground floor areas of a 11 Jarfldings"within thTl Premises bears to the total
in no event shall supPshare be less than rhl . Oppi.ng Center; providing that,
(1) above. Tenan^aTl make such payments to I Th^ ,/PeCified in Section 1'1
not more frec^c^tthan monthly. Landlord rav a? •? °n dcmand' at intervals
other pej^Jic chanrges based upon the e-tJ^r'n fPtion. make monthly or
■ of the Common Area navihlsinT annual cost of operation and
nf frho ypn1. „„ t.hf, hr.^, tr thn ^t-?"^6 Subject t
USE AND CJ\K£ OF PROniSES
fn6fKrin^ Pritt^Uco"senrorLlndloOrVtoTenant'1haf 11 ?,L"^"''^fP^^^ithout
in the Demised Premises the trade name soecinL • q .• ln th? transaction of
other trade name without the prior written rnn - r ."" >1 (e) ab°Ue and no
not at any time leave the Demised Semi,P .°f Landlord- Tenant shall
continuously throughout the^ term o '?hY- , " ' ^ ShaU in 9ood fa"h
entire Oemised Premises the type of businB« fm. k"I! i a"d Carry on in the
leased Tenant shall operate its business In fntff ■ ^^ PremiseS are
reputable manner so as to produce the m-win,!™ ? efficient, high class and
and shall, except during" reasonabirpJrTod^for SalGS ^ th° PrGmises'
decorating keep the premises open to the public fnr^"-1"9' cleanin9, and
personnel in attendance on all days and dlrinn ^ i i, buS1/?GSS wi th adequate
established by Landlord from time* tc, timr ,1 \ I"" (includin9 evenings)
Center and during any other hours when the 5^^^ i^" '"' ^ ShopPin9
the public for business, except to the ----- 9 " 9enerally is
being open for business by applicable
or maintained within"
yr^i^uUo^ or operate within the Demised Premise- Or similar
•*..««« that it
16
Page 5
17
Tenant will assume and pay his pcorata share of any coorron area charges
calculated over the Base Year of 1991. The amount of the increase^ill
be computed in accordance with the formulas stated in Article 18
Intials: , Tenant y, ,//> , Tenant //P ^ , Landlord
Page 5A
/fr ■jv ,
bo seen or heard from outside the buTldinq nor nl.r. C™ thG Same can
other projection on the exterior of the o2i"d Pr • Y antenna, awning or
action which would constitute a nismce^wJlT'r3?*''*?0* tskc'^ other
tenants of the Shopping Center or unreasonably Interfer^ wUh Th ^^ °ther
respective premises; nor do anything whichTwouIhTIh , h- lr USG of their
.of the Shopping Center. ld tend to lnJurG fche reputation
18
free ^VlSJe ^"u^n,^ Ta™ n°t ^VlT ^n
sidewalks service-ways and loading a^as adjacent^ 5, ""^ PremiSeS and
and free from dirt or rubbish at all time- 1 k V?8 Pfe™"e3 neat, clean
garbage within the premises, arranging for the' reoul -fr • 1/ tor<V aU trash ™«
garbage at Tenant's expense. Receiving and dPl P,^* Pr °P °f SUCh trash an«
and removal of garbage and trash shall be „'! °F 9°°ds and m"chandise
prescribed by Landlord. Tenant shall not operate ,• ^ tn\mann" ™« areas
or garbage within the Shopping Center area incinerator or burn trash
comply with all applicable laws,
MAINTENANCE AND REPAIR OF
and
(ce^p^e^as^n^X^^Vo^l ^0"°". th^ «t.rior walls
openings; window and door frames, m'oldTnn S? hV"5 and °ther e^3rior
fronts; lighting, heating, air c ndit L and hardware; special store
mechanical, and electromotive^ installntion' plumbln9 ™* other electrical?
Placards, decoration., or advertising^medL of °TPment a^d fixtu"s; signs
other treatment of exterior walls) and roof of 1^%^ interi°r painting or^
repair. Landlord, however, shall not be reouir^ . °emised Premises in good
ailure to make any such repairs until i
after receipt by Landlord of such written notice G sha11
any way for
elapsed
^^hril.^ ^leSt ZTT^ r d -
insects, rodents, uermin and other pest £?**, ^ ,the premises free of
replacements, including replacement of rUn *mal<cwal X n°eded repairs and
repairs and replacements required to be lade bvl nf "'^ °laSS' excoPt for
Section 8.1, flrticle XU ^d Article XUIWithon?^^ Under thc Provis ?
wiring, any sewer stoppage located tn T"3 in dUCtS
Page 6
19
free YrJ^n ^ li' jf ^ ^he Oe.isod Premises and keep thfi sa.e
sidewalks, service-waysTend loading a"ea adVa^n^to "h emi"d PlSmiSeS 3nd
and free from dirt or rubbish at \u timO,J a"d s^l^T"", ,"?'' clean
garbage within too premises, arranging for the' r*n.?l -r \ r aU trash and
garbage at Tenant's expense. Receiving and deUv^v of ^V T* ^ and
and removal of garbage and trash -V,l 1 ?«, ae^very °f 2oods and merchandise
with all applicable laU8| o.
«AINTENA!CE AKD REPAIR Of
and
and
(e^p^^as/Jind^s^oors^^^^ -"•
openings; window and door frame"moldino Ioc^^k"^ ^ °ther ext"ior
fronts; lighting, heating, air condiH „! , 1 hardware; special store
mechanical, and electro™ftive irstal at on' Plu"!°xng and other electrical,
Placards, decorations or advertising J-di nf eqUflpment and fixtures; signs,
other treatment of exterior «aus)?nd roof of li^'n™? iCtSrior paintin9 or
repair. Landlord, however, shall not be reoSirod fr"e °emlsed P^.-"ises in good
by the act or negligence of Tenant tsaoX <G a i
and concessionaires; and the provisions of the
recognized to be subject to the oro^nnf f
lease. In the even! Vh T OeSsec^^ Presses -toufth
required to be ^de by Landlord he eu d Tnn , n
notice thereof to Landlord; and LandlorS shall nnf h U 9iVe imroediate bitten
failure to make any such repairs unti 1 , In uf resP°nsi°le in any way for
after receipt by Landlord of'such ZVi, itiS"8"8 lmS Sha11 haue l
.s in good
<G any rePairs occasioned
' Sl*tenants. licensees
!f sentence are expressly
in need of
r"tponsibilities therein
hfatln5> a^ conditioning,
^rih^itlS soiecttanS .. Habitable
insects, rodents, vermirJ and ot^\lTts ZTZ^^ ^ PremisSS free of
replacements, including replacement of cracked or h. "^ repairs and
repairs and replacements required to be made bf Landing !T ° 3SS' SXCept for
Section 8.1, Article XU and Article XVI Without I*^-""^ " prouisi°ns of
previous sentence, it is understood tnnfr T«n \ i tx"9 thG couera9e of the
include the repair and replaced of all lighUnn5 r"tponsibilities therein
Plumbing and other electrical, mechanical 9 ht
equipment and fixtures and also include "
Pipes and wiring, and any sewer stoppaoe
Premises. If any repairs required^tc^ b
within ten days after written notice
^damage Vic^y ^uU to ^H^^S
be charged in^he ^££^%^}™
f,
■ V Ps in ducts, conduits,
' under a"d above the Demised
hereunder are ^ "»de
initials: Tenant
Landlord
Page 6
20
Landlord until repayment by Cn "'
shall surrender the Oemised °f by
condi H ™ ^ lease' Te™nt
ALTERATIONS
be made or installed by t " J? n equipment, which may
work, and Tenanb shall, i
satisfactory to Londlord
niarr cr access; use or nocr
, nnqn1»°;2. Tenant will permit Landlord to place and maintain 'For Rent" or "For
Lease" signs on the Demised Premises during the last ninety days of the lease
term, it being understood that such sign shall in no Ja* affect Tenant's
obligations pursuant to Section 7.3, Section 11.1 or any other provision of this
10.3 Use of the roof above the Demised Premises is reserved for Landlord.
SIGNS; STORE FRONTS
ARTICLE XI. 1.1.1 Tenant shall not, without Landlord's prior written
consent (a) make any changes to the store front or (b) install any exterior
lighting, decorations, paintings,, awnings, can.opies or the like or (c) erect or
Install any signs, window or dQQr lotterino, placards, decorations or
advertising media of any type which caji be viewed from the exterior of the
Oemised. Premises, excepting, only dignified displays of customary type for Its
display^ windows. All signs, lettering, placards, decorations and advertising
media shall conform in all respects to the sign criteria established by Landlord
for the Shopping Center from time to time in the exercise of its sole
discretion, and..shall be subject to the prior written approval of Landlord as to
construction, method of attachment, si?e, shape, height, lighting, color and
ss^sssir'li'i'"1 sh°n b0 kept l d dlti
UTILITIES
ARTICLE XII. 12.1 Landlord agrees to cause to bo provided and maintained
the necessary mains, conduits and other facilities necessary to supply water
21
and sewerage service to
tueuilceppuhuounte: sseerrvviiccee,, sseewweerraaggee ssserrvv/iiccee Taanndd otthh ^^9^• ^^ ^ejl-eccturuiicciiityy,» wwaatteerr, gas
Premises Landlord may, if it" so elects, finish™" furnish1ed to the Demised
Tenant and in such event Tenant shall purchase th. ^"-"tility service to
tendered by Landlord, and shal 1 pay on demnnri ^ .°f SUCh se™ices:as are
established therefor by Landlord which -hall o, addttional rental the rates
charged for the same services if furnished iirnrrl*"^ £" CateS Which <**>!« be
companies. Landlord may at any time di *rnr,f- * y ocal Public utility
without obligation to tenant othei^ than tc cnn""6..fL!rhnishin9 ^ny such service
public utility, if any, furnishing such service?6 "* °emiSed Prefflises to the
utilil^serSno? "fu^iS^hi^ni?^? ^"ion whatsoever in
furnished by him which are due o r 1 V err^llCns in utility services
AMD PU3LIC LIAOILITY INSURANCE
ARTICLE XIII. 13.1
stall b. promptly a»uvotP«OilSf ""u1' "ecuted c.rUFits of
of the t8!pective policy tenns If iZ. . I ^ y d'y! "lo» '■> the
ing ltl^'^ Ol ith
expiration tho foregoing raquireinnts rel.tlno^'i^ ' should f«u to c""Oly with
insursnc. .„„• Tmant shall pj.To ltdSi""iei "-andloM »ay obtain sich
hereunier tta prailm coat th»rSr plua °"?oro.t « t,™0"" " •*l"onel rSt
but in no ouont t0 cxc,ed , ,,»i"J "1l™!?' al- th» «xi»gm contractual rat.
Landlord until repaid by Tent P °n'M ft0™ the aat« of payrot b
wwu m no event to exceed 1 1/2J ner »„ fhl r u"- maxirnun> contractual rate
Tenant. m°nth) from d^e payment by
FDR CERTAIN DAMAGES
liable^ ^nt'f^ "^..^ ^°*** -Q^nts and
lnicials: / Tenant
Page 8
■■'$'
16.3 If any part or the Common Area should be taken as aforesaid thi ,
lease shall not terminate, nor shall the rent payable hereunder h» r J
except that either Landlord or Tenant may terminate this lease if the
the Common Area remaining following such takina olu- th?
23
ASSIGNMENT AND SUOLETTTNG
assignments and sublettings. as to any subsequent
irss
time of the execution of this lease the outtwr 8PP^' h°rUer> if at the
stock of Tenant are listed on a rlrnnnWon •. 9 votln9 shares of capital
market. .. , D rec°Qnized security exchange or over-the-counter
lease, then Tenant shall b bo"c^ and oblwS ^ rG,ntal P^able under this
rental and other excess considernM nn , -?k . ^^ Landlord all" such excess
thereof by Tenant from such sublesi^' ^^p l °} dayS follouin9 r^«iPt
as the case may be. Finall ntnv n»n licensee or other transferee,
understood and" agreed that a ^^0°^^^°! Sublettin5 it is
sublessee shall be received by Tenant in tru.f f ^"^ by an assi9n^ or
i^diately to Landlord yithou^ ofTse or ^ucV^ol™6' f° ^ f°rWarded
election by Landlord such rentals shall hn n^H J- ■• ^ '" a"d UpOn
specified in Section 4.1 of this lease ftnhn Pi • ^ directly to Landlord as
Tenant's rental obligations) applied as a credit and offset to
in " its
Initials:
Page 10 .
Tenant Tenant/} /j
24
of such obligation.,. Any s
by ■
TAXES AMD DBUWJCE
r s? ■£.»■
rents or other charges reserved hereunder, as a sub^HhfL
or in addition to the general taxes described^ inSection
is
t0
I = (A/B - C/D) x F
to the
accruing during 'the periodTin quosUon (prorated ifTec" inSUrafnCC
the i s; a- s^^^^^^
Initials:
Page 11 *
25
?»e -nay be; "OF- equals the Ltal Liseabl ground Qooirn "saurraen"c Se Vplrfcmbiu'm sM
in the Shopping Center either at the beginning of the base realestate^
or base insurance term, or, if later, at the time Tenant oriolnaM v n °
i:sii:sxemises''and irit equais thc toti s ssss^^
or .x^on^reo? L^lo^Cs TA^^ZI^
immediately succeeding twelve-month period Tenant
K3KS i^^
b Se
DEFAULT BY TENANT AND ROTDIES
defauu'by'Tenant und'er thf,* [e^se^9 "^ ^ b° «M to be
glndt\^JoL\n\%h7pa\men\^ ^
continue for a period of tenTy! X^lVd %?* ^ ^ ^^ Sha11
this ieise'Tt^than ^Al^t^V^) r^" —l of
such f-Uure -Uhln fifteen days aft* ^^^2 Sre°of To' SSn't ^ ""
becomi3Ls;T^ror^iTSrair:r^
an assignment for the benefit of creditor- creditors, or shall make
file ^Su°n u^^S^V^ ^S"^ ""?% ^ leaSe Sha11
amended, or under any similar lL or statute nPfh ?. "°.na,1 OankruPtcy Act. as
thereof; or Tenant or any guarantor of^TennnH ^, • "^^ StateS °r an* Statc
shall be adjudged bankrupt^ "so^t T^JS^^r' un6r ^}» ls^
any guarantor of_Tenant-s obligations unde'r? SST^t&^^S""1 "^ °T
Tor A5! 0Ar Steffi iHu ^L^^^r^^^ ^^ <*
Tenant's obligations under this lease ' °f Tenant Or *?* guarantor of
the DemiseJ^remistVr StbsTan^afporti^of' t^T"" 1°o^ °' VaCate
remove or attempt to remove, without the oHnr , !• ^ emlSed Premises or shall
or a substantial value of Tenant's hood* u^ ^ C°nsent of Landlord, all
or other personal property. 9 ' ""' e^™"t> fixtures, furniture,
the preU'eT' Sh3U ^ " Permlt t0 be done ^^"9 -hich creates a lien upon
^^^ -11 -e the
more of' tto^Lc^^l&S^y?*™™' Landlord -V take any or
Tenant's covenants and obligatYon' undL fh1"5^"3 performanc* by Tenant of
agreed that if Tenant deserts or ^acaJes thfn •"^ n1" this-^Qard, it is
pnter upon and take possession of "uch SL^1Se.d PrGmises- Landlord may
from deterioration and continue to demand frT'1" ?r^" to prote'ct th^
and other charges provided in this Jea'e L^ ^ ^ mOnthly rcntal =
but that if Landlord does, at its -ole' dT,rr l^ ob,113ation to "let;
.Demised Premises, such act-ion by Landlorrt h iT* GlGCt t0 relet the
acceptance of Tenant's surrender of\u ' Demised Srn. b\d**™* »» an
expressly notifies Tenant of such, %r~ f^d Pr?mises unless Landlord
subsection 8 of this Section 19 f t^T ^ Writin9 Pu"^"t to
Landlord shall otherwise be re let tine1 ^ ^ereby.^'<n owl edging that
furthermore hereby agreeing to pay to LandiordenanHS a.9ent and Tenant
that may arise between the monthl^^ rentals and nTh Td 3ny defi="ncy
this lease and that actually collJcSd bv L-fnrtl h t?"9M Provided in
U ^an
demises by force if J^
, Tenant £J£^ Tenant
Page. 12 •
26
re^^/Tenant^rre
for any expenses which Landlord may
F « sris S&mE
of this lease)? enLr ^on anS2e^ posses ion'of the" D?"';^ SeC.tiOn «'6
expel or remove Tenant and any other person I 1°?'^ p«mises and
premises or any part thereof bv 3- P"son who may be occupying said
for prosecution "or anv claim for damaaes th^T^' ?Uh0Ut being liable
any statutory rBquirsment of prior written notfr^'r *???■ h"eby Uaives
damage suits for nonpayment of rent In 1' t i9 Gviction °r
Landlord on demand the amount of all in- t>?' 6nant agrees to PaV fc°
suffer by reason of any t^mination efflrfnd ^ ""^ Laridl°rd may
said loss and damage to be determed ^"T^ t0 this sub^tion B,
alternative measure of damages: determined ^ either of the following
lch^^forir^ L a?^ ^MsSVtTo?? L ^ th6 ""^ °f
Demised Premises, Tenant shall pay to L/ndWH Landlord, to relet the
of each calendar month, the monthly rental and°nVh°r ^1°™ the First daV
this lease. After the Demised Premises hM hi , \ lharQeS Provid°d in
shall pay to Landlord on the 20th dav of L h ? r!,iet by Landl"d, Tenant
between the monthly rentals andothlrrh calend« n»nth the difference
the preceding calendo^^ month and tta • nr^f? ^^^ in this lease for
such month. If it is necessary for In? ^ collected by Landlord for
collect any deficiency? "n^ordah^ih^ ° brinQ SUit in order ^
deficiencies to accumulate andtogi^1^^ » *i«ht to allow such
accrued deficiencies at one time. £ such S "h n^^ °T aU °F the
way the right of Landlord to brlno a iXn ?-U nOt pre^di« in any
deficiency or deficiencies? Any amount rn,T \°V^ ™y s^=eqUent
subsequent tenants for any calendar mnnhh- collected «V Landlord from
and other charges provided inSis Toaw ^halfh' °f" ^ "^^ rentals
reduction of Tenant's liability for%nv r^i ? credited to Tenant in
col-lected by Landlord will be less than Th ^ r"/^ich the amount
charges provided in this lease; but Te^nt ^Ti k7 r6ntals and other
excess other than the above described credit' "° ^ SUCh
»^-"t. Upon
Ssroth^ ^\^ rv---^
term and the reasonable rental value of hh n °C the remaind" of the
period. Such difference to be discounted tn De'"lsed Premises for such
to the rate of interest which is alJ^ln h^° ,prese.nt value at a rate equal
Section 25.10 of this lease^ when the"oartl^ ?' "" °? State desi9na^d by
Similarly, if Landlord elects to™ , llatl°n Tenant is still in default
subsection B (i) above, this elecW "Tail T^ ^ the manner Prescribed by
at any time thereafter to demand a final ? *7? Pre^di« Landlord's right
subsection B (ii) above. Pursuit of anv of H ^^ in accordan« «"h
preclude pursuit of any other remedies nL/ the above remedies shall not
lease and any otner reLdies provided bv^ law F ^ °th" secti°^ of this
^^^
Page 13*
27
ADDENDUM TO SECTION 19.1:
Notwithstanding anything in this article to the contrary, the
Tenant shall not be deemed to have waived any immunity or defense
which (i) under the laws and constitution of the State of Texas,
may only be waived by action of the Legislature of the State of
Texas, and (ii) have not been heretofore or hereafter waived by the
Legislature; provided, however, that such stipulation shall not
preclude Landlord from obtaining consent as provided by law for the
maintenance of a suit against Tenant.
ifh.k Landlord
Page 13A
guaranteed rental (as specified in Section 1.1 (i) of
mimmm
28
mim because of gross sales durino thp two
the date Landlord initiated acSon u
calendar years have not then ell
percentage t^^s^^^
idr Date this i,l
6?^ P^
(or' if two H
^^'^ of all
S salfs during the period
concludin9 "-"h the date
aas
(including among other losses any adverse reaction hJIn? ,,UP°n reletting
by other tenants or potential tenants of thl %hnn ■ V Landl°rd's ^ortagagee or
allowance for Landlord's administrative Jfn,-109 ,*" and a reas°™°l*
attributable directly or indirectly tDTp"-^^ - ' salaries and overhead
the rights and remed/es provSfherein0 JnT^i^f "T^
any y ^ o
necessity of proving the
o"? ^Tonn'n?
of any
thr-tened breach of
'Uith01Jt the
h.™^. LanTlo^^r^pL^^at?^^^
of Landlord's rights or remedies hereSder Tp£n?
attorney-s fee'incurred by Landlord in sucn connection'"
^ T ltS *"Q-t
rf°rCe or defend
Landlord further acknowledge ^receipl^ from n c?^ lnstal^nts of rent.
1.1 (n) above to be held by Landlord without \ „ thet SUm stated in Secti°"
performance by Tenant of Tenant's covenants and nhi • f"1 aS stecurity f" the
being expressly understood that such deposit ma? ho9 -S ^ thiS leaSe> "
other funds and is not an advance paymen? of rental Cn0"min9led with Landlord's
damages in case of default by Tenant Uonnfh 3 measure °r Landlord's
default by Tenant, Landlord may, from timG to Um°CC™£nC? °f ^ °Uent of
other remedy provided herein or oro^ideri hv i ' Wlthout P^judice to any
necessary to make good any arrears o ' rBn^i . h" SUCh fU"d to the cxtent
shall pay to Landlord on demand the amount ^« -n i • w ° default- and Tenant
security deposit to its original amount sr°f aPpUe.d .in ord" to restore the
hereunder, any remaining balance of sCch deposit Tn h" nOt. then in default
sT^;rtermination of this i=2: RK^rii'SSs^
ranrwcTu/u. sEamm imteoest
lien, LandlnrH
-- and other sumsYf money becominn f^"' in SCCUre ^m^ of of
secure payment of any damages^or Lss iich Land! h^"^" frOm Tenant' and to
breach by Tenant of any covenant, agreement or 1™^ SUff" by reason of the
all goods, wares, equipment, fixtures furn^r« " COntained he^i". "P°n
Personal property of Tenant presently o'r Sture' ^Provements and other
Initials:
Page 14
Ten*"t r^/,_ , Tenant
on the premises, without Hnb'lity r>r tresn-," nr °ISper.ty oF Ten£nt '
at public or private sale u th^ wUhouTht f^ T^ ^ SeU the
seven days before the time of sal- Anv ,ni» / this, lease at least
this paragraph shall oe dGCmec"to h"v« bo" a Thi"' 'V^ prowis^ °F
commercially reasonable menner if h£d in "*ho ^ P- -I S3le condu"ed in
the property is located after the tiie, p\£e and I'T^1^ Pmnises or wh"e
oescription of the types of property to be sold "tv^ h ^ ^ * Qeneral
newspaper published in the county in ,,hich ^ aZ °r?» T^ in 3 daily
consecutive days before the dntr' of the Vlo Pi0-L; rty ls located for five
dispobition, less any nnd all pv'nn-, } 'he Prcceeds from any such
holding and' seliCof the Vw™<£XSl?Z "^ ^m ^^ °f P°ss"^
legal expenses), shall be applied as a c-ed«H reas°na^e. attorney's fees and
by the security interest oxantedI in"this paraorX" A ind,ebterin«s secured
to Tenant or as otherwise required by law- tho T^nV ^.^^ shall be paid
forthwith. Upon request by Landlord, Tenant Iarl2 f P^ ™Y def^^ncies
Landlord a financing statement in form sufridpr% ? ■""^ and deliuer to
interest of Landlord in the aforementioned n™^ ^ perfect th^ security
the provision of the Uniform Commercial Code (or In P^?CDC^ thereof under
statutes) in force in the State in which thtnrnn C°rrGSP°ndln9 sfcate statute or
other state the laws of which Landlord propGrt/ is Seated, as well as any
applicable. Landlord may at any time consider to be
HOLDING OVO?
Demised Premises after the expiration of tM™? remai"s in Possession of the
a new lease, it shall be deemed to br> nrr.Trl- -t Ulthout the execution of
month to month at a rental equal to the Salxf!9.sff1ld. Prei»ises as a tenant from
herein provided plus fifty per cent of ,Xh Uncluding any percentage rental)
the conditions, provisions"and obligation" ofThisV^ °the™ise s^ject to all
applicable to a month to month tenancy ** 3S the Same are
SUBORDINATION; ATTTJRNnENT
any mortgage, deed of trust or Ctherlien ,1? ^^ a°d =ub°rdinate to
upon the Demised Premises or the Shopping Center a" n^l"9 °rHhfeafter Pl«ed
and extensions thereof. Tenant agrees thnt nnl « I ?' a"d t0 any rene^ls
right at any time to subordinate such mor'toote WppI T^T ShaU have the
this lease; provided, however, notwithstanfino' £T£• ^USt °r Other lien to
to be) superior to mortgage, deed of tS" ^ '" ° "** ^ ^ made
mortgage, deed of trust o? othV-lien relative tn^h1""^^6 P"^**"™ °f
will respect to proceeds arising from nnomin \ , ^Qhts °f
voluntary conveyance by Landlord) anS/or -TrYITo ?""""■ taki"9
des truction of"the nn™ h° r°m
superior to any contrary pii ^S
reason of damage to or destruction oTthe'oemi ^ '*"? insUranc* wil.b
superior to any contrary provisions contained in thi/^1?" ^ll be Pri" and
the payment or usage thereof. Landlord Uh k • instnjment with respect to
power and authority to subordinate this lea-iff lrrev/ocably nested with full
Tenant written notice of its interest \n I \ Demised Premises has given
remedies for default by Landlord hen ^^ TGnnnf* "—' — *• '
Initials: Tpn.n
Page 15-
indebtedness secured by such mortgage, deed of trust or'other lien chai i k
received written notice of such default and a reasonable? time fnr • ^
default shall thereafter have elapsed reasonable time for curing such
30
KEPCHANTS ASSOCIATION
•flnTICLC
association composed of tenants in the Shopping CenTer!
null join and maintain memberhsip in sug'
DinECTION OT TENANT'S ENERGIES
NOTICES
theretofore specified by wrUten notice ^ addresses as they have
^t^e^^^^o^^^ %™ "Landlord" „ used in this
jointly arrange amOn9 themseTuos-fSr thoir ioTn^n,"13,0-3ti°?' aU sha11
specifying some indivudual at some specific^ address fC^0 ° ^ n°tiCe
and payments to the Landlord; if and ^ri inti h h 1 G receipt-of notices
{*ssi
each had received such notice or payment as if
31
"
amount (the "Maximum Charge") permittedhh»rnf k %u„ 1S ln eXcess of
Tenant, during the period (the "Freeze Period>)^Z ^ othe "^"^tions, then
force and effect shall not be requxred to nav nor^iT1^0"5 ShaU be in
to collect, any sum in excess of tK MaxiSLm Ch,r n Lan^ord be Permitted
the expiration of the Freeze Period or titWl ° P0" the earlier °f U)
judgment of a court of competent ?uri°dictinnH fSuanc? of a ^^ order or
invalid or not appliesIbe to th^ prouis\on^of ,dh°ClfinQ ^e Re9^tions to be
not then prescribed by law, and colencinQ wTth tuT/- T?' t0, the extent
immediately following, shall pay totheL^Hinl ^-f"St day of the "^nth
monthly installments'during the balance o ? Jh^TtZLnt >t°™\ Tent*U in equal
to the cumulative difference between the' Maxim?™ rh Xt leaSe> a sum e^al
during the Freeze Period. If any nrovisinnt nf Th^ 9°!-anC) the LeasG Pay^nts
thereof, shall to any extent be'dTdare^^ to be invalid "h* " ^ apPlicatio"
same shall not be deemed to affect anv of ?hpn.ho a"d. unenfor«able, the
or of this lease, all of which shall hn J? } Provisions of this section
fullest extent permitted bylaw be deemed Valld and enforceable to the
MISCELLANEOUS
by thTSKe^Stof'L^iS hthrrdnpCa°rnt?ined ^ ** «M °r
principal and agent or of partme^hic' Or of Jn,-"^1"9 ^ relati°"ship of
hereto, it'being understood and ngrew? that neithw tT ?s J3^0" th° parties
rent, nor any other provision conhinpH h e method of c°mPutation of
hereto, shal.l be deeme^to create anv felaUnn^-^K fny acts °f ^ Parties
other than the relationship of^Landlord and T^ant^ ^^ the parties heret°
inVo
that the obligations of lease> U bein9
— w7 .._iiaiiv, unuuiiucr, tenant ujili r
— — claim against Landlord of whatever natur^^T J^t^**'01^'" or
proceedings; and in the event that Tenant intnrnn^J^T^^f i0n in any sucn
other claim against Landlord in such proceadWnTlVnrii a ^ ^.ounter-claim °r
and agree that, in addition to anyJfen^^Xf remedy of L^nHlT^ stiPulat*
of Landlord, such counter-aeWlmor oth l • Landlord, upon motion
■os instituted0 b"tonXrd^ S^proceed
ay proceed to final judgment separately anapartfrom
;c"l" ZlT'enCC t0 thG StatUS °f SUch counPter-cla?;
the tSs o^thLlease^t^f SitedtTth y
the interest of Landlord in the Demised P re mi ^-h f Sale °n ex^ion of
personally liable for any deficiency exctni- fh f . ' ^? Landlord shall not be
provisions of Section 17.S hereof'wmain p^son Uv li°aM ^all> SUbjUCt to the
for any security deposited hereunder. This clause shin , I ^^ t0 Tenant
or deny any remedies which Tenant may hair intl I "Ot be deemed to limit
hereunder, which do not involve the persOnn 11 i^, "r^.f dGfault by Landlord
to any oth^er remedies of the Tenant under this le\ Landlord. In addltion
to the remedy of specific performance? ' ^^ Sha11 be
A
32
27.4 Except as may be otherwise herein providea, in all circumstanm*
thl* lefsc *he" P^or consent or permission of one ("fit ^?
exclusive judgment and discretion of the first party; andishall n t
<- -
i the Demised Premises are located
performance and enforcement of this
or »£VJy tSTp^'w^S^™"1 "' '" -»--"" »nly - * not li.it
Page Iff
33
. i
transfer fee to Landlord of the g
($250.00) or ten percent (10%) o
provided for' herein? FaUure
attempted assignment or
of default under this Le
« ^ , °C- subtenant shall, pay a
"Undced Fi£tY and N°/100 Dbllars
"^' f''1/7 Re"tal instaH"«nt
£ee 3ha11 render ™V
Lease in effect with the'exception'of
^bruarv 1,
(1) The current Tenant's lease is terminated or expires;
(30)
the -Si^i^^Si^SnSia b> "^"^y- or agents of or for
Premises to a third party Sthout the 1 "^ "Ot. SUbleaae the Demi^
Landlord. P Y wicnout the expressed written approval of the
the
prevailing rate with
i
Page 19
34
27.21 OPTION TO PURCHASE, Provided that no default has
occurred by Tenant hereunder, Tenant shall have, and Landlord
hereby grants Tenant an option (the ••Option") to purchase the
Property described on Exhibit "B" hereto, in accordance with the
Contract of Sale attached to this Lease marked Exhibit "C," and
made a part hereof by reference, and executed by Landlord. If
Tenant exercises the Option to purchase, such purchase will be on
the terms and conditions stated in the Contract of Sale.
Notwithstanding the exercise of the Option, all rents and other
charges shall remain due and payable and be prorated up to the date
of Closing. Unless Closing has occurred within the original term
of this Lease, such Option shall expire and shall be of no further
force and effect. Tenant covenants and agrees not to exercise the
Option unless funds have been lawfully appropriated for the
purchase of the Property and no legal impediments exist to Tenant's
Closing thereunder.
a- Time of Exercising Option. Tenant may exercise
the Option at any time after February 1, 1992, but prior
to the expiration or early termination of this Lease.
b- Method of Exercising Option, If Tenant decides
to exercise the Option., it will notify Landlord and Title
Company in writing by executing the Contract of Sale, and
shall deposit such executed Contract and the Escrow
Deposit specified in the Contract of Sale in escrow with
the Title Company. The Option will be deemed to have
been exercised upon giving such notice and the deposit
of the Escrow Deposit with the Title Company.
c*. Performance of Sale and Purchase, If and when
the Option is exercised, Landlord as Seller, and Tenant
as Purchaser, will close under the Contract of Sale
attached hereto within the time specified therein, time
being of the essence.
d- Consideration of Sale, The sales price of the
Property will depend upon the time the Tenant closes the
Purchase under the Option. If the Option is closed
between February 1, 1992, and January 31, 1994, the sales
price will be $675,000.00, called the "Base Option Sales
Price." If the Option is closed after January 31, 1994,
the sales price will be increased by three percent over
the prior year's price on each February 1, commencing
February 1, 1994.
e-. Default under Contract. Should Tenant exercise
the Option, and thereafter fail to close the purchase of
the Property due to Tenant's default thereunder, at
Landlord's option such failure shall constitute a default
by Tenant under this Lease.
£• Documentation. At the time of execution of
this Lease, Landlord shall execute the following
documents and deliver same into escrow with the Title
Company:
Special Warranty Deed to be effective as
of the Closing Date, and with the
Permitted Exceptions to be attached at
Closing
Initial, t __ , Tenant
Page 20
35
Mechanic's Lien and Parties in Possession
Affidavit
Non-Foreign Entity Certificate
In the event that Closing under the Contract does
not occur, such escrowed items shall be returned to
Landlord and shall not be delivered to Tenant.
9- Early Termination. Upon Closing of the
purchase of the Property pursuant to the Option, this
Lease shall terminate and merge into the deed, except
?Sn^ena^tl3 ^1den?n1i.ties, in favor of Landlord and
Tenant s financial obligations due and unpaid.
an nff«r *- i Leaf><f uh*n executed bY the Landlord constitutes
before5-00°o £"? ^ ^ Open to acceptance by Tenant on or
before 5.00 p.m. local time on January 31, 1991, by unconditional
delivery of two (2) fully executed counterparts to Landlord or its
on or before such date and time, accompanied by
Board of Regents of Tenant confirming its approval
and by a codv of a letter from the State Purchasing and
consenting to the Tenant entering into
de1ivAroH"a7;u r««-o.~rd. If such acceptance is not timely
tlh % '/ ? °V}LOn of Landlord, this Lease shall be null and
If ?hfa V n° f"rtheur forc,e and effect. Time is of the essence
of this Lease and each provision hereof.
EXECUTED as of the date hereinabove stated.
LANDLORD!
TRI-STATE COMMERCIAL ASSOCIATES,
a Texas joint venture
By: TRI-STATE PRQPERTIESfi INC.,
a Texas corporation/,/ joint Venturer
ATTEST or WITNESS
ATTEST or WITNESS
By: I'S&l/
Mike Schuminsky, President
By: TRI-STATE INVESTORS GROUP,
a California limited partnership,
joint venturer
By: NCM MANAGEMENT OF TEXAS, INC.,
a Texas corporation,
general
ATTEST or WITNESS
'Herb Jaffey President
TENANT:
STEPHEN/1\ AUSTIN STATE UNIVERSITY'
By: .v^,-' ,^t jU /.," '/'/, M)/^/l£-
iame': P^g,fA, (0. U/'«a\
Initialst
Page 21
A' //I
-' Tenant ,/ » ((/' . Tenant
Landlord
PROPERTY. TX 1156"
1112 NORTH STREET-NACOGDOCHES,
TEXAS'
- 39'oo°
EXHIBIT A
36
34,-Sam Houston
NORTH
"This site
DISCLAIMER
EXHIBIT B 37
correction-deed from J e Ltl \ land des«ib«d in a
described in a deed from Carl r u I - tract of land
Trading Co. dated July l0, 1965' nnTr *V? Henderso" County
on Pages 239-241 of the nlJ d d recorded in Volume 322,
TeXa39and d..^.^^ Io^lril^l^T^V
of Nacogdochas Tax Record Books • (3) a J 4«2 °" th° Clty
land described in a deed from j d „ rw " 3=re traot of
Super Marketa, Inc., dated May 31 !«>««!" et UX tO Buddie "3
349, on Paaggee 113377 OOff tthhss nnllJJ II ,, and recorde<3 in Volume Texas and d'eoJgLtfd^ lol^T^rL0^0^'*
of Nacogdochcs Tax Record Dooks to whiei ^ / °" tH° Clty
THENCE S 3» 16' 29" W, vlth the ^
> 'V.
38
Monk tract at 103.40 .feet (called 103 5 feet) th« q *
of same and the North boundary line «f%h! I f corn"
to 1.4299 acre df^ f af°"said referred
et ux a 1/2" iron-pipe set fo "f * D' Harkrid^
cre tract described in a df
iron.-pipe, for ornfr;
118.75 feet the s. E. corner of ,!» ! aCrC braCt' at
1.(299 ,„, ;!t !■! ,1 -2«
tr.ct .nd th. s.v."Ul"\
*"•■
->-
cy or wacogdoches Tax Records Dock, o\ * *. "" "'""
;! Super Markets, Inc., dated May V i ^^* et UX tC
349, on Page 137 of tha o e id Na "C°5ded i
Texas and designated as Lot No! 13 in Block N^ ^
of Nacogdoches Tax Record Books to hiJ *" °"
same, and thi sLlVL nda^1^17^
land described in a deed from Jr Eth i
dated March 23, 1923 1 i
of
Strip °f
K' Cason
land an-a the moat Southern Sorth
tract de.cribea in the correction
"J9 m: 'j;»;^ £?
"lde 3ttip °f
* °£ the said
,. H. Reese trae?.
THENCE N 3° 16f 2 9" E (^'>^^*A o ^^ boundary lino of the Jid D K th"ardl>'» '
land the most S^"^?^ »"•> the East
«rip of
the ...t
r;cr^:^e
iron pipe, set for corner? ilrl E'
THENCE N 88° 55' 20" „ lcauecl 88 1/2.*P, . ^ v
dary line of the said Monk tract a U ' f!' \, 7"^ b°Un'
of same a 1/2" iron pipe, set for corner; N'E* COrner
THENCE S 3
3aid
40
EXHIBIT "C" CONTRACT OF SALE
1. Parties. This Contract of Sale is between Tri-State Commercial Associates, A Joint Venture
("Seller") and Stephen F. Austin State University ("Purchaser"). Seller has executed this
Contract incident to a lease of a portion of the Property (below defined), to facilitate an
option to Purchaser, as tenant of a portion of the Property, to purchase the Property. This
Contract is open to acceptance by Purchaser no sooner than February 1, 1992, and no later
than termination or expiration of the Lease to wluch it is attached.
2. Sale and Purchase. Subject to the terms of this Contract of Sale, Seller will sell to
Purchaser, and Purchaser will purchase from Seller, the land described in Exhibit "A*
attached hereto and made a part hereof by reference, including all improvements located
thereon "as is" as of the Closing date, without express or implied warranty, except as
expressly set out herein, there being no implied warranties or merchantability, habitability,
or fitness for any intended purpose (the "Property").
3. Purchase Price. The Purchase Price will be the sum of Six Hundred Seventy-Five Thousand
Dollars ($675,000.00) if Closing occurs between February 1, 1992, and January 31, 1994,
increasing three percent (3%) over the previous year's price on each February 1. The
Purchase Price, as adjusted by expenses or charges as provided herein, will be payable, all
in cash, at Closing.
4. Purchaser's Obligations. The obligations of the Purchaser to consummate the transaction
contemplated by this Contract of Sale is subject to the satisfaction of each of the following
conditions, any of which may be waived in whole or in part by Purchaser at or prior to the
Closing.
4.1 Survey. Within thirty (30) days after this Contract of Sale becomes effective,
Purchaser will cause to be made a current plat of survey of the Property,
prepared by a duly licensed Texas land surveyor acceptable to Purchaser,
Seller, and the Title Company, and certified to such parties. The survey will
be staked on the ground and the plat will show the location of all
improvements, highways, streets, easements, rights-of-way, and other features
on or adjacent to the Property, if any, and shall contain the surveyor's
certification that there are no encroachments on the Property except as
noted thereon and shall set forth the approximate number of total acres
comprising the Property, together with a metes and bounds description
thereof. Upon receipt of the completed survey, Purchaser will promptly file
same with the Title Company and Seller.
4.2 Preliminary Title Report. Within thirty (30) days after this Contract of Sale
becomes effective, Seller will have caused Lawyers American Title Company,
300 Crescent Court, Suite 100, Dallas, Texas 75201, Attention: Paulette
Hubbard (Title Company") to issue a preliminary title report (Title
Report"), accompanied by copies of all recorded documents relating to
easements, rights-of-way, etc., affecting the Property. Purchaser will give
Seller written notice on or before thirty (30) days after it receives the Title
Report that the condition of the title as set forth in Schedule B of the title
binder is or is not satisfactory. Seller may promptly undertake to eliminate
2715\24\HS8\»em\Contr»ct\122890
41
CONTRACT OF SALE - Page 2
or modify all such unacceptable matters to the reasonable satisfaction of the
Purchaser, but Seller shall not be obligated to incur any expenses whatsoever
in order to do so. In the event Seller is unable or unwilling to do so prior
to the date set for Closing, Purchaser may at its election withdraw its
objections and close without abatement of the Purchase Price, or declare this
Contract to be terminated and of no further force and effect. All objections
in the Title Report not cured by Seller shall be permitted exceptions to the
deed and Title Policy if Purcliaser does not elect to terminate tliis Contract.
4.3 State Agency and Use of State Funds. Purchaser is an agency of the State
of Texas and as such its funds are deemed to be state funds and its legal
authority is limited to that which has been granted by the state legislature.
In the event legal impediments not now known to the Purchaser are raised
by the Attorney General of Texas, the Comptroller of Texas, or the State
Auditor in such manner as cannot be appropriately cured, and to the extent
the Purchaser is legally prohibited from consummating this purchase, then
in such event tliis Contract shall terminate, and it shall be null and void for
all purposes. Purchaser agrees to exercise diligence with respect to correcting
any legal impediments that may arise.
4.4 Estoppel Letter. At Closing, Seller shall deliver to Purchaser an "estoppel
• • letter," signed on behalf of the Seller, in which shall be stipulated that no
third persons other than Purchaser, and those claiming under Purchaser, are
in possession of the Property nor have any rights to possession, with the
exception of lawful tenants of Seller. To the extent any such persona may
be presently occupying or using the premises in any manner, Seller shall
have such estoppel letter signed by such third person (or Seller's certificate
and indemnity in lieu thereof) stipulating the basis upon which they occupy
or possess and further stipulating no continued right to do so after
conveyance to the Purchaser, with the exception of lawful tenants of Seller.
However, Purchaser hereby agrees to allow any lawful tenant of Seller to
continue to occupy the Property until the lease agreement with such tenant
expires. Such tenant lease(s) if any shall be assigned to and assumed by
Purchaser. A copy of any written lease agreement shall be furnished to the
Purchaser, and at Closing the original of any such lease shall be delivered to
Purcliaser.
5. Representations and Warranties of Seller. Seller hereby represents and warrants to
Purchaser as follows to the best of Seller's actual knowledge and belief, which
representations and warranties shall be deemed made by Seller to Purchaser as of the date
of Seller's execution hereof.
5.1 There are no parties in possession of any portion of the Property as lessees,
tenants at sufferance, or trespassers, except as stipulated by Seller, other
than Purchaser and those claiming under Purchaser; "Yahmoz" is stipulated
to be a tenant of 1110 North Street as of Seller's execution hereof;
2715\24\MSS\*ea\Contr*ct\122890
42
CONTRACT OF SALE - Page 3
5.2 There is no pending or threatened condemnation or similar proceeding or
assessment affecting the Property, or any part thereof, nor to the best
knowledge and belief of Seller is any such proceeding or assessment
contemplated by any governmental authority;
5.8 Seller has complied with all applicable laws, ordinances, regulations, statutes,
rules and restrictions relating to the Property, or any part thereof; and,
5.4 The Property has full and free access to and from public highways, streets
or roads and, to the best knowledge and belief of Seller, there is no pending
or threatened governmental proceeding which would impair or result in the
termination of such access.
6. Closing.
6.1 Closing Agent. The Closing Agent will be the Title Company.
6.2 Date and Place. The Closing will take place at the Title Company, within
thirty (30) days after the earlier of (a) the Seller's completion of curative title
work pursuant to paragraph 4.2 hereof if Purchaser timely shall have objected
to title pursuant to paragraph 4.2 hereof, of (b) Purchaser's notification to
. • the Seller that it is satisfied with the condition of the title (which shall be
deemed to have been given on the thirtieth (30th) day after delivery of the
Title Report if no notice is given by Purchaser), or at such other date as the
Seller and Purchaser may agree.
6.3 Seller's Duties. At the Closing, the Seller shall:
6.3.1 Deliver to Purchaser an acknowledged Special
Warranty Deed conveying good and indefeasible title
in fee simple to all of the Property, free and clear of
any and all liens, encumbrances, conditions,
easements, assessments, and restrictions, except for
those enumerated in the preliminary Title Report and
which are or are deemed acceptable to Purchaser and
except for the following:
a. General real estate
taxes for the year of Closing and
subsequent years not yet due and
payable (see proration of taxes for
current year);
b. Any exception
approved or deemed approved by
Purchaser pursuant to Section 4
hereof; and
2715\24\MSS\aea\Contract\1228J0
43
CONTRACT OF SALE - Page 4
c. Any exception
approved by Purchaser.
6.3.2 Deliver to Purchaser a Texas Owner's Title
Policy issued by the Title Company in Purchaser's
name in the full amount of the Purchase Price,
insuring Purchaser's fee simple title to the Property
subject only to those title exceptions as may be
approved pursuant to this Contract, and the standard
printed exceptions contained in the usual form of a
Texas Owner's Title Policy, provided, however:
a. The exception as to
restrictive covenants shall be endorsed
"None ol Record," except those made
a part of the deed for this conveyance
as herelnabove provided;
b. To the extent permitted
by law without premium surcharge, the
exception as to liens for taxes shall be
limited to the year of Closing and
shall be endorsed "Not Yet Due and
Payable"; and
c. The exception as to any
discrepancies, conflicts, or shortages in
area or boundary lines, or any
encroachments, or any overlapping of
improvements shall be deleted except
for "shortages in area," and matters
shown on the survey specified in
Section 4.1.
6.3.3 Deliver to Purchaser possession of the Property,
subject to permitted exceptions and tenants.
6.3.4 Taxes and Costs. General real estate taxes for
the year of claims relating to the Property shall be
prorated as of the date of Closing based upon the
taxes assessed, subject to the parties' respective
obligations for taxes under the Lease. If the Closing
shall occur before the Seller has received current year
tax notices, the taxes shall be estimated based upon
the most recent taxes assessed. Such to the parties'
respective obligations for taxes under the Lease. The
estimated amount is to be delivered or charged to
Purchaser at the time of Closing. If the taxes actually
2715\2 4\MSS\aem\Contrtct\ 12269 0
44
CONTRACT OF SALE • Page 5
due exceed the estimated sum, Seller sliall be liable
to Purchaser for the additional amount due; however,
if the estimated amount exceeds the taxta actually
due, Seller sliall be entitled to a refund of the excess.
All special taxes or assessments due prior to Closing
shall likewise be paid by Seller. All costs and
expenses of Closing consummating the sale and
purchase of the Property shall be borne arid paid as
follows:
a. Owner's Title Policy
paid by Seller;
b. Escrow fee, if any, paid
one-half (1/2) by Seller and one-lialf
(1/2) by Purchaser;
c. Filing and recording
fees of Special Warranty Deed paid by
Purchaser;
, • d. Filing and recording of
any releases and curative instruments
as may be required to be paid by
Seller; and
e. Seller's attorney's fees
paid by Seller.
7. Real Estate Commissions. If the Closing actually occurs hereunder, but not otherwise
(including default by either party or failure of title) Seller shall be liable to pay out of the
Closing Funds to be received by it a commission of two percent (2%) of the Purchase Price
each to Quine & Associates, Inc. and to Lee Danis & Associates ("Brokers"). Brokers
hereby advise the Purchaser that it should obtain or be provided with a policy of title
insurance or a complete abstract of title to be reviewed by an attorney of Purchaser's own
selection. By their acceptance of such sums, Brokers will be deemed to represent and
warrant that they are licensed Texas real estate brokers entitled to be paid and receive
such commissions. Purchaser stipulates that the Property has not been presented to it as
a prospective purchaser by any real estate agent or broker other than Lee Danis &
Associates. To the extent any other real estate commission shall be claimed or become due
or payable arising out of. this transaction, such payment obligation shall be the sole
obligation of the party alleged to have committed to pay such commission and who hereby
agrees to hold the other party harmless from any such payment obligation.
8. Escrow Deposit. For the purpose of securing the performance of Purchaser under the
terms and provisions of this Contract, Purchaser will deliver to the Title Company the sum
of One Thousand and No/100 Dollars ($1,000.00) (the "Escrow Deposit") which shall be
paid by the Title Company to the Seller in the event Purcliaser breaches tills Contract. At
2715\2 4\HSS\aes»\Contr»ct\122890 fffr.k
45
CONTRACT OF SALE • Page 6
the Closing, the Escrow Deposit shall be returned to Purchaser and shall not be applied
to the cash portion of the Purchase Price. In the event, however, that one or more of the
conditions to Purchaser's obligations set forth in Section 4 hereof have not been complied
with by Seller, then the Escrow Deposit shall be forthwith returned by the Title Company
to the Purchaser as Purchaser's sole and exclusive remedy.
9. Miscellaneous.
9.1 Survival of Covenants. Seller has not made any representations or warranties
not set out herein, and no person has authority to do so on its behalf or to
waive the terms and conditions hereof. Any of the representations,
warranties, covenants, and agreements of the parties, as well as any rights
and benefits of the parties, pertaining to a period of time following the
Closing of the transactions contemplated hereby shall survive the Closing
and shall not be merged therein.
9.2 Notice. Any notice required or permitted to be delivered hereunder shall
be deemed received when sent by United States mail, postage pre-paid,
certified mail, return receipt requested addressed to Seller or Purchaser, as
the case may be, at the address(es) set forth opposite the signature of each
party hereto.
9.3 Parties Bound. This Contract shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
legal representatives, successors, and permitted assigns, where permitted by
this Contract.
9.4 Legal Construction. In case any one or more of the provisions contained
in this Contract shall for any reason be held to be invalid or illegal in any
respect, such invalidity or illegality shall not affect any other provision hereof,
and this Contract shall be construed as if such invalid or illegal provision had
never been contained herein. Captions and titles shall not affect the
construction. Both parties have participated in the negotiation hereof and
the same shall not be strictly construed against either party.
9.5 Prior Agreements Superseded. This Contract constitutes the sole and only
agreement of the parties hereto and supersedes any understandings or
written or oral agreements between the parties respecting the subject matter
of this Contract, except the lease agreement to wliich this Contract is
attached. Time is of the essence.
2715\24\HSS\aem\Contract\122890
46
. day of ,
CONTRACT OF SALE • Page 7
EXECUTED by Seller this .
SELLER:
TRI-STATE COMMERCIAL ASSOCIATES,
a Texas joint venture
By: TRI-STATE PROPERTIES, INC.,
a Texas corporation, joint venturer
By:
Mike Schuminsky, President
By: TRI-STATE INVESTORS GROUP,
a California limited partnership
_, 1991.
c/o Quine & Associates, Inc.
P.O. Box 833009
Richardson, Texas 75083-3009
Attn: Coy Quine and Jerry Goldberg
with copy to:
Marvin S. Smith, Jr.
Smith & Stern, P.C.
3102 Oak Lawn, Suite 610, LB 138
Dallas, Texas 75219-4271
By: NCM MANAGEMENT OF TEXAS, INC.,
a corporation, general partner
. • By:
Herb Jafle, President
EXECUTED by Purchaser this day of .
PURCHASER: -
STEPHEN F. AUSTIN STATE UNIVERSITY
_, 199
By:
Printed Name: . ,
Its: Chairman, Board of Regents
P.O. Box 6078
Nacogdoches, Texas 75962
Attn: Dr. Donald E. Bowen, President
By:
Donald E. Bowen, President
The undersigned Brokers hereby accept the provisions of paragraph 7 above as Seller's sole
and conditional brokerage obligation with respect to the sale of the Property, and make the
representations and give the notices set forth in such paragraph.
LEE DANIS & ASSOCIATES, INC. QUINE & ASSOCIATES, INC.,
a Texas corporation
By:
Lee Danis, Its:
By:
Coy Quine, President
2715\24\MSS\»en\Contract\122890
47
EXHIBIT "A11
Page 1 of I
BEING all that certain lot, tract, or parcel of land lying
and situated on the SAM HOUSTON SURVEY ABSTRACT NO. 34 in
Nacogdoches County, Texas being an aggregate of the following
three tracts of landi (1) a tract of land describnd in a
correction'deed from J. E. Reese et ux to Henderson County
Trading Co. dated August IB, 1964 and recorded in Volume 323,'
on pages 429-430 of the Deed Records of Nacogdoches County,
Texas and designated as Lot No. 41 in Block'No. 45 on" the
City of Nacogdoches Tax Records Book; (2) a tract of land
described in a deed from Carl E. Monk et ux to Henderson County
Trading Co. dated July 10, 1964 and recorded in Volume 322,
on Pages 239-241 of the Deed Records of NacogdocWes County,
Texas and designated as Lot No. 42 in Block No. 45 on the City
of Nacogdoches Tax Record Books; (3) a 1.4299 acre tract of
land described in a deed from J. D. Harkrider et ux to Buddie's
Super Markets, Inc., dated May 31, 1968 and recorded in Volume
349, on Page 137 of the Deed Records of Nacogdoches County,
Texas and designated as Lot No. 43 in Block No. 45 on the City
of Nacogdoches Tax Record Books to which•referonces are hereby
made and the three tracts being described in aggregate as
follows, to-witi
'BEGINNING* at the intersection of the East Right-of-Way of
North Street, 40 feet at right an.gle9 from the ccn terline. of
same, and the South boundary line of an 8 foot wide strip of
land described in a deed from Mrs. Ethel Dent to D. K. Cason
dated March 23, 1923," and recorded in Volume 133., on Page 466
of the Deed Records of Nacogdoches Cbunty, Texas, also being
the most Western N.W. corner of-the aforesaid referred to
tract described in the correption deed from J. E. Reese a
1/2" iron pin, found for corner.
THENCE N 88* 54' 45" E (called,N 88 l/2# E) , with the South
boundary line of the said D. K. Cason 8 foot wide stfip of
land and the most Southern ftorth boundary line of the said
tract described in the correction deed from J. E. Reese, at
290.90 feet (called about 300 feet) the S. E. corner of the
said 8 foot wide strip of land and an angle corner of the
said:J. E. Reese tract, a 1/2" iron pipe, set for corner;
THENCE N 3# 16' 29" E (called Southwardly), with tha East
boundary line of the said D. K. .Cason 8 foot wide strip of '
land the most Northern West boundary line of the said J. E,
Reese tract, at 8.00 feet th* N.E. corner of the D. K. Caflon
8 foot wide strip of land and the most Northern N.W. corner
of the said J. E. Reese tract a 1/2" iron pipe, set for corner;
THENCE N 8.8 • 53' 45" E ( called N 88 1/2* E), with the most
Northern boundary line of the said J. E. Reese tract, at
193.60 feet (called 184.5 feet) the N.E. corner of same a
1/2" iron pipe, Bet for corner;
, i
48
Page 2 of 2
THENCE S 1* O31 2 8" W (called South) with the East' boundary
lino of the aaid J. E. Reese tract, at 103.50 feet the S.E.
corner of same, on the North boundary line of the aforesaid
referred to tract described in a deed from Carl E. Monk a 1/211
'iron pipe, set for corner; • ;
THENCE N 88* 551 20M E (called 88 l/2f)E), with the North boun
dary line of the said Monk tract at 11.50 feet the N.E. corner
of same a 1/2" iron pipe, sot for corner)
THENCE S 3* 1.6 • 29M W, with the East boundary line of the said
Monk tract at 103.40 .feet (called 103.5 feet) the S.E. corner
of same and the North boundary line of the aforesaid referred
to 1.4299 aero tract described in a deed from J. D. Harkrider
et ux a 1/2" iron.-pipe, set for corner;
THENCE N 88% 551 17" E (called N 88* 53".28* E) , with* t^e
North boundary line of the said Harkrider 1.4299 acre tract,'
at 13.76 feet the N. E. corner of the same a 1/2" iron'pipe,
set for corner)
THENCE SO? 041 05" E (called S 00* 021 E), with the East
boundary line of the said Harkrider 1.4*299 acre bract, at '
118.75 feet the S. E. corner of same on the Horth boundary
line of Safeway Stroes, .Inc. property a 1/2" iron pin found
for cprneri
THENCE S 88* 38* 00" Wr with the South boundary line of the
said Harkrider 1.4299 acre tract' and the North boundary line
of Safeway Stores, Inc. property, at 520.91 feet intersect
the aforesaid East Right-of-Way line of North Street, 40
feet at right angles for the center line of oame, a 1/2"
iron pipe, set for corner;
THENCE N 3# 161 29" E, with the said East R-of-Vf line of North
Street, at 121.70 feet pass the K.W. corner of the said Hark
rider 1.4299 acre tract and the'S.H, corner of the said-Monk
tract,"at 225.11 feet pass the N.W. corner of the said Monk
tract and the S.H. corner of the. said Reese tract, at 320.61
feet the point and place 'of beginning and containing 3.7095 acres
or 161,586.0605 square feet of landj more Of less.
/ t