EXHIBIT 10.14
AMENDED AND RESTATED EAGLE PASS LEASE
THIS AMENDED AND RESTATED EAGLE PASS LEASE dated February 20, 2003 for
reference purposes ("Lease"), is entered into by and between ▇▇▇▇▇ AND ▇▇▇▇▇▇
▇▇▇▇▇, whose address is ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Landlord")
and CENTRAL FREIGHT LINES, INC. whose address is ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ("Tenant").
Background. In February, 2003, in connection with a $65 million refinance
mortgage loan to Southwest Premier Properties, L.L.C. ("SPP") from Zions
National Bank (the "Loan"), Landlord, as an accommodation pledgor, pledged as
collateral one of the three properties subject to the Underlying Lease, as
defined below, making it necessary to split the three properties into two
leases. The underlying lease was executed March 2, 1998 covering the following
three properties: Eagle Pass, TX; Temple, TX, and Fort Worth, TX ("Underlying
Lease"). The Temple, TX property was sold to a third party, and is no longer
subject to the Underlying Lease or to this Lease. With respect to the Eagle Pass
property that is the subject of this Lease, this Amended and Restated Eagle Pass
Lease replaces and supplements the Underlying Lease. As of the date hereof, the
parties also have entered into an Amended and Restated Fort Worth Lease that
replaces and supplements in its entirety the Underlying Lease.
W I T N E S E T H :
ARTICLE 1
THE LEASE
SECTION 1.01. Subject to the terms and conditions set forth below,
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the
property located at ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ more fully
described on Exhibit "A" (herein, the "Property").
SECTION 1.02. The term of this Lease is ten (10) years and shall
commence on MARCH 20, 1998, and shall end on MARCH 19, 2008, unless it is sooner
terminated as hereinafter provided. Landlord or Tenant may extend this Lease an
additional ten (10) years by giving six (6) months written notice of the
extension to the other party. In the event that the term is extended, the terms
and conditions shall remain the same as during the original term.
SECTION 1.03 Tenant hereby consents to the release of the Property
subject to this Lease in the event of its sale by Landlord during the term of
this Lease. In the event of such sale, Tenant shall be relieved of its
obligations under the Lease, effective as of the date of closing of the sale of
the Property.
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ARTICLE 2
RENT
SECTION 2.01. Tenant agrees to pay rental to Landlord during the entire
term of this Lease without abatement or set off, base rent in monthly
installments, each in the amount of $1,013. Rent shall be paid in advance of
each month during the Term, on or before the last business day of each calendar
month, for the next succeeding month. Any portion of a month shall be on a daily
prorata basis.
SECTION 2.02. Tenant shall also pay after thirty (30) days notice, and
without abatement, deductions or set off as additional rent hereunder, all sums,
costs and expenses which Tenant in any other provisions of this Lease agrees to
pay. In the event of nonpayment of such sums, Landlord shall have (in addition
to all other rights and remedies) all the rights and remedies provided herein or
by law for nonpayment of rent.
ARTICLE 3
SECURITY DEPOSIT
SECTION 3.01. None.
ARTICLE 4
IMPOSITIONS
SECTION 4.01. Tenant shall pay as and when due the charges for water,
sewer, electrical power, data lines, telephone service and trash collection.
SECTION 4.02. Rent shall be paid to Landlord without notice or demand.
It is the intent of the Landlord and Tenant that all rental payable hereunder
shall be absolutely net to Landlord, and shall be paid, without abatement,
deduction or set off by the tenant. Tenant shall be responsible for real estate
taxes. Tenant shall also be responsible for the taxes on Tenant's personal
property.
SECTION 4.03. All payments of rent are to made to Landlord, at such
place as Landlord shall designate in writing to Tenant. If after initial
designation Landlord desires that rent shall be paid and directed among other
parties, then Landlord shall make such designation in writing to Tenant,
otherwise such designation shall not be effective.
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ARTICLE 5
SURRENDER ON TERMINATION
SECTION 5.01. Tenant shall, on the last day of the term hereof or upon
any earlier termination of this Lease, surrender the Property to Landlord in as
good condition, reasonable wear and tear excepted, as Tenant received the
Property from Landlord on the first day of the Lease term, free and clear of all
occupancies unless expressly permitted by Landlord in writing, and free and
clear of all liens and encumbrances other than those to which this Lease is
subject.
SECTION 5.02. Tenant will, at the termination of this Lease by lapse of
time or otherwise, yield up immediate possession to Landlord, and failing to do
so, will pay as liquidated damages, for the whole time such possession is
withheld, the monthly rent set forth in Article 2 for the month immediately
prior to the termination; but the provisions of this clause shall not be held as
a waiver by Landlord of any right of re-entry as hereinafter set forth; nor
shall the receipt of said rent or any part thereof, or any other act in apparent
affirmance of tenancy, operate as a waiver of the right to forfeit this Lease
and the term hereby granted for the period still unexpired, for a breach of any
of the covenants herein.
SECTION 5.03. Upon termination of this Lease, title to all permanent
improvements made or constructed by Tenant and located on the Property shall
vest in Landlord under the following terms and conditions. Tenants cost of
improvements to the Property shall be disclosed and agreed upon by amendment to
this Lease.
SECTION 5.04. All personal property of Tenant which shall remain on the
Property after the termination of this Lease shall, at the option of Landlord,
be deemed to have been abandoned and may be retained by Landlord as its property
or be disposed of, without accountability, in such manner as Landlord may see
fit. However, Landlord shall also have the right to require Tenant to remove any
such personal property at Tenant's own cost and expense and to repair any
damages caused by such removal. Upon Tenant's failure to do so upon fifteen (15)
days notice from Landlord, Landlord may cause such personal property to be
removed and charge all cost of removal to Tenant.
SECTION 5.05. The provision of this Article 5 shall survive the
expiration or any termination of this Lease.
ARTICLE 6
INSURANCE
SECTION 6.01. During the term of the Lease, Tenant shall at its sole
cost and expense, keep all his personal equipment and furnishings insured.
Landlord assumes no responsibility for Tenant's personal property and
belongings. Tenant shall insure the buildings covered under this Lease.
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SECTION 6.02. In addition to the insurance to be provided and
maintained by Tenant pursuant to Section 6.01 above, Tenant at its sole cost and
expense, but for the mutual benefit of Landlord and Tenant, shall maintain
during the term of this Lease, personal injury and property damage liability
insurance against claims for personal injury, death or property damage,
occurring in, on or about the Property. Such insurance to afford minimum single
limit protection of not less than Two Million Dollars ($2,000,000).
SECTION 6.03. Any additional insurance carried by Tenant shall not
reduce the insurance required under this Lease to be carried by Tenant on behalf
of Landlord, nor cause Landlord to become a co-insurer with any other person or
entity.
SECTION 6.04. All insurance provided for in this Article shall be
effected under valid and enforceable policies in form reasonably satisfactory to
Landlord, issued by insurers of recognized responsibility which are licensed to
do business under the laws of the United States and the state of Texas. Upon the
execution of this Lease, and thereafter not less than thirty (30) days prior to
the execution dates of the expiring policies theretofore furnished pursuant to
this Article, one original certificate thereof, bearing notations evidencing the
payment of premiums or accompanied by other evidence satisfactory to Landlord of
such payment, and further showing Landlord to be listed as an additional named
insured and loss payee on all insurance policies provided for in this Article,
shall be delivered by Tenant to Landlord. Copies of all said insurance policies
provided for in this Article shall also be delivered to Landlord upon execution
of this Lease and thereafter not less than thirty (30) days prior to expiration
of said policies.
SECTION 6.05. All policies of insurance provided for in Section 6.01
and 6.02 shall name Landlord and Tenant as the insureds, as their respective
interests may appear.
SECTION 6.06. Each such certificate shall contain an agreement by the
insurer that such policy shall not be canceled or modified without at least
thirty (30) days prior written notice to Landlord.
ARTICLE 7
LANDLORD'S RIGHT TO CURE
SECTION 7.01. If Tenant shall at any time fail to pay any Imposition in
accordance with the provision of this Lease, or to take out, pay for, maintain
or deliver any of the insurance policies provided for in Article 6, or shall
fail to make any other payment or perform any other act on its part to be made
or performed under this Lease, including the obligation to maintain and repair
the Property, then Landlord, after thirty (30) days notice to Tenant (or without
notice in case of emergency) and without waiving or releasing Tenant from any
obligation of Tenant contained in this Lease, may (but shall be no obligation
to):
(a) pay any Imposition by Tenant, or
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(b) make any other payment or perform any other act on
Tenant's part to be made or performed as in this Lease provided, and may enter
upon the Property for such purpose and take all such action thereon as may be
necessary therefor.
SECTION 7.02. All sums so paid by Landlord and all reasonable costs and
expenses incurred by Landlord in connection with the performance of any such act
(together with interest thereon at the maximum interest rate then permitted by
Texas law from the respective dates of Landlord's making of each such payment or
incurring of each cost and expense) shall constitute additional rent payable by
Tenant under this Lease and shall be paid by Tenant to Landlord upon written
demand.
ARTICLE 8
TENANT'S DUTY TO MAINTAIN
SECTION 8.01. Throughout the term of this Lease, Tenant, at its own
cost and expense, will repair, maintain and take good care of the Property, and
appurtenances therein and every part of and portion of the Property and any
sidewalks, parking lots, driveways, roadways, walls, curbs, and vaults adjoining
and/or appurtenant to the Property and will keep same in good order and
condition. Tenant will neither do or suffer any waste or injury to the Property
or any part thereof, nor make any alteration of the Property without the
Landlord's prior written consent.
SECTION 8.02. Tenant hereby assumes the full and sole responsibility
for the condition, operation, repair, replacement, maintenance, development, and
management of the Property throughout the entire term of this Lease. Tenant
accepts the Property in the condition existing as of the date of this Lease and
acknowledges that Landlord has not made any representation or warranty as to the
condition of the Property and the present suitability for the conduct of
Tenant's business on the Property.
SECTION 8.03. It is understood and agreed that Tenant's duty to
maintain the Property is limited by the provision of Article 23 below.
ARTICLE 9
COMPLIANCE WITH LAWS
Subject to the provision of Article 23 below:
SECTION 9.01. Throughout the term of this Lease, Tenant at its own cost
and expense, will promptly comply with (a) all present and future laws,
ordinances, orders, rules, regulations, and requirements of every duly
constituted governmental authority or agent, and (b) all orders, rules and
regulations of the National Board of Fire Underwriters, the Texas Fire Insurance
Rating Organization or any other body exercising similar functions.
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SECTION 9.02. Tenant shall likewise observe and comply with the
requirements of all policies of insurance at any time in force with respect to
the Property and of the insurance companies issuing them.
ARTICLE 10
LIENS AND MORTGAGES
SECTION 10.01. Tenant will not create or permit to be created or to
remain, and will discharge, any lien, encumbrance or charge which might be or
become a charge on the interest of Landlord under the Lease; provided, however,
nothing herein shall require payment by Tenant of any lien or encumbrance
created by Landlord.
SECTION 10.02. If any mechanic's, laborer's or materialman's lien shall
at any time be filed against the Property or any part thereof, Tenant, if
Landlord shall so require, within ninety (90) days after commencement of
foreclosure action thereon, whichever shall first occur, will cause the same to
be discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fail to cause such lien to be
discharged within such period, then, in addition to any other right or remedy
which Landlord may have under this Lease or otherwise, Landlord may, but shall
not be obligated to, discharge the same either by paying the amount claimed to
be due or by procuring the discharge of such lien by deposit or by bonding
proceedings, and in any such event Landlord shall be entitled, if Landlord so
elects, to compel the prosecution f an action for the foreclosure of such lien
by the lienor and to pay the amount of the judgment in favor of the lienor with
interest, costs and allowances, and recover such sums from Tenant including the
cost of discharge by deposit or bond, plus interest, as herein above provided.
ARTICLE 11
SALE OF LANDLORD'S INTEREST
SECTION 11.01. In the event of any sale or exchange of the Property by
Landlord and assignment by Landlord of this Lease, Landlord shall be relieved of
all liability under all of its covenants and obligations contained in or derived
from this Lease arising out of any act, occurrence or omission relating to the
Property of this Lease occurring after the consummation of such sale or
exchange.
ARTICLE 12
RESTRICTED LAWFUL USE
SECTION 12.01. Tenant will not use or allow the Property or any part
thereof to be used or occupied for any unlawful purpose or in violation of any
certificate of occupancy or certificate
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of compliance covering or affecting the use of the Property or any part
thereof, and Tenant will not suffer any act to be done or any condition to exist
on the Property or any part thereof, or any article to be brought thereon, which
may be dangerous, unless safeguarded as required by law, or which, in law,
constitutes a nuisance, public or private, or which may make void or voidable
any insurance then in force with respect thereto, unless consented to by
Landlord, in writing.
ARTICLE 13
HAZARDOUS MATERIALS
SECTION 13.01. Tenant shall act, at its expense, comply with all
applicable laws, regulations, rules and orders, regardless of when they become
or became effective, including without limitation those relating to health,
safety, noise, environmental protection, waste disposal and water and air
quality, and furnish satisfactory evidence of such compliance upon request of
Landlord. Should any discharge, leakage, spillage, emission, or pollution of any
type occur upon or from the leased Property, due to Tenant's use and occupancy
thereof, Tenant, at its expense shall be obligation to clean the Property to the
satisfaction of Landlord and any governmental body having jurisdiction there
over Tenant and landlord agree to indemnify, hold harmless and defend each other
against all liability, cost and expense (including without limitation, any
fines, penalties, judgments, litigation costs and attorney's fees) incurred by
the other party as a result of the other parties breach of this Section 13.
Landlord hereby represents and warrants to Tenant that to the best of Landlord's
knowledge, neither Landlord, nor to the best of Landlord's knowledge any other
person has ever caused or permitted any Hazardous Material to be released from
the leased Property, into any water course, body or water, or wetlands and
neither has the leased Property ever been used as a treatment, or disposal site
for any Hazardous Material. The term "Hazardous Material" means and includes any
petroleum products and any hazardous substance or any pollutant or contaminant
defined as such (or for purposes of) the Comprehensive Environmental Response
Compensation, and Liability Act; any so-called "Superfund" or "Superlien" law;
Toxic Substances Control Act; or other federal, state or local statute, law,
ordinance, code, rule, regulation, order, or decree regulation, relating to, or
imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous wastes, substance or material, as now or at any time hereafter in
effect; and asbestos or any substance or compound containing asbestos, PCB's or
any other hazardous, toxic or dangerous waste, substance or material
(hereinafter collectively referred to as "Environmental Laws").
ARTICLE 14
LANDLORD'S RIGHT TO INSPECT AND ENTER
SECTION 14.01. Tenant will permit Landlord, and its authorized
representatives, to enter the Property at all reasonable times during usual
business hours for the purpose of (a) inspecting the same, and (b) making any
repairs thereto and performing any work therein that may be necessary by reason
of Tenant's default under this Lease. Nothing herein shall imply any
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duty upon the part of Landlord to do work which Tenant is required to perform,
and performance thereof by Landlord shall not constitute a waiver of Tenant's
default.
SECTION 14.02. Landlord shall upon twenty four (24) hours oral notice
have the right to enter the Property at all reasonable times during usual
business hours for the purpose of showing the same to prospective purchasers or
mortgagors thereof.
SECTION 14.03. Landlord may, during the progress of any work performed
by Landlord, keep and store upon the Property all necessary materials, tools,
supplies and equipment. Landlord shall not be liable for inconvenience,
annoyance, disturbance, loss of business or other damage of Tenant or any
subtenant reasonably and necessarily required by the making of such repairs or
the performance of any such work, or an account of bringing materials, tools,
supplies and equipment into or through the Property during the course thereof,
and the obligations of Tenant under this Lease shall not be affected thereby.
ARTICLE 15
TENANT TO INDEMNIFY
SECTION 15.01. Tenant will pay and discharge, and indemnify, defend and
save harmless Landlord against and from costs, charges and expenses, including
reasonable attorneys' fee, which may be imposed upon or incurred by or asserted
against Landlord and/or against the Property by reason of any of the following
occurring during the term of this Lease, except as and to the extent (i) the
same may arise from the negligence of Landlord or (ii) the same relate to the
express responsibilities of Landlord hereunder:
(a) Any work or thing done or suffered by Tenant in, on,
or about the Property, or any part thereof;
(b) Any use, possession, occupation, condition,
operation, maintenance or management of the Property;
(c) Any negligence on the part of Tenant or any of its
agents, contractors, servants, employees, licensee, or invitees;
(d) Any accident, injury or damage to any person or
property occurring in, on, or about the Property or any part thereof;
In case any action or proceeding is brought against Landlord by reason
of any such claim, Tenant, upon written notice from Landlord shall, at Tenant's
expense, resist or defend such action or proceeding by counsel selected by
Tenant and reasonably satisfactory to Landlord. Tenant may settle any such claim
at any time on such items as it may find acceptable.
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ARTICLE 16
DAMAGE OR DESTRUCTION
SECTION 16.01. In case of casualty to the Property resulting in damage
or destruction, Tenant will promptly give written notice thereof to Landlord.
Tenant, at its sole cost and expense, whether or not such casualty loss is
covered by insurance and whether or not the insurance proceeds, if any, shall be
sufficient for the purpose, shall restore, repair replace or rebuild the same as
nearly as possible to its value, condition and character immediately prior to
such damage or destruction.
SECTION 16.02. No destruction of or damage to the Property or any part
thereof by fire or any other casualty, irrespective of whether such destruction
or damage may occur before, on or after the date of the commencement of the term
of this Lease, shall permit Tenant to surrender this Lease or shall relieve
Tenant from its liability to pay the full net rent and other charges payable
under this Lease, and Tenant waives any rights now or hereafter conferred upon
it by statute or otherwise to quit or surrender this Lease or the demised
Property or any part thereof, or to any suspension, diminution, abatement or
reduction of net rent on account of such destruction or damage. Notwithstanding
the foregoing, in the event that the Property or a significant portion thereof
(exclusive of buildings and other improvements thereon) are materially damaged
or destroyed by a natural disaster or other casualty (other than fire) such that
they cannot economically or feasibly be used by Tenant in the conduct or
operation of its business, irrespective of whether such damage or destruction
may occur before, or after the date of the commencement of the term of his
Lease, Tenant may at its option terminate this Lease upon thirty (30) days prior
written notice to Landlord given with fifteen (15) days of such damage or
destruction. Upon such termination, neither party shall have any further
obligation to the other except with respect to accrued but unpaid liabilities
under the Lease to the date of termination.
ARTICLE 17
CONDEMNATION
SECTION 17.01. Wherever used in this Article, the following words shall
have the definitions and meaning hereinafter set forth:
(a) "Condemnation": any action or proceeding brought for
the purpose of any taking of the fee of the Property or any part thereof or
interest therein (including the leasehold estate of Tenant in the Property) by
competent authority as a result of the exercise of the power of eminent domain,
including a voluntary sale to such authority either under threat of condemnation
or while such action or proceeding is pending.
(b) "Vesting Date": the event and date of vesting title
to the fee of the Property or any part thereof or interest therein, in the
competent authority pursuant to condemnation.
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SECTION 17.02. If all of the Property shall be taken in condemnation,
this Lease shall terminate at the Vesting Date and the net rent under this Lease
shall be apportioned to the date of such termination.
SECTION 17.03. If less than all of the Property shall be taken in
condemnation, Landlord and Tenant mutually shall determine, within a reasonable
time after the Vesting Date, whether the remaining buildings and improvements
thereon (after necessary repairs and reconstruction to constitute them a
complete architectural unit) can economically and feasibly be used by Tenant.
If it is determined that the remaining Property cannot economically and feasibly
by used by Tenant, taking into account minimum space requirements for the
conduct and operation of its business, Landlord or Tenant, at their respective
election, may terminate this Lease on thirty (30) days notice after such
determination, and the net rent and other charges payable by Tenant under this
Lease shall be apportioned to the date of termination. Thereafter, neither party
shall have any continuing obligation to the other hereunder.
SECTION 17.04. In the event of condemnation, the entire condemnation
award shall be paid to the Landlord.
SECTION 17.05. If this Lease shall not terminate as provided in Section
17.02, the base rent thereafter required to be paid shall be reduced by a
fraction, the denominator of which shall be the total square footage of the
Property prior to condemnation, and the numerator of which shall be the
denominator minus the total square footage of the Property after condemnation.
ARTICLE 18
ASSIGNMENT
SECTION 18.01. Tenant may not sell, transfer, assign, sublease,
license, concession or transfer all or any part of its rights under this Lease
without the prior written consent of Landlord. Landlord's consent to any such
assignment shall not be unreasonably withheld. Provided, however, it shall be a
condition to Landlord's consent that the proposed transferee has the financial
ability and business experience to own and operate the business located on the
Property and has a good business reputation.
Upon any such permitted assignment or transfer, Tenant (and any
previous assignee) shall remain fully liable hereunder and shall not be released
from the performance of any remaining obligations of Tenant under his Lease
during the remainder. Tenant shall deliver to Landlord not later than five (5)
days before the effective date thereof, a duplicate original of such assignment
together with the assumption agreement by the assignee.
SECTION 18.02. Any assignment of sublease which may hereafter be made
by Tenant with Landlord's approval shall provide that it is expressly made
subject to the terms, covenants, provisions and conditions of this Lease and is
subordinate thereto, and shall prohibit prepayment
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of rent thereunder (including security) in an amount exceeding three (3) months
rent. Landlord will issue non-disturbance agreements to subtenants requesting
same in writing, provided their respective subleases are commercially reasonable
terms.
SECTION 18.03. Tenant hereby assigns to Landlord, effective upon the
occurrence of any Event of Default hereunder, and so long as such Default
remains uncured, as collateral security for the performance of all obligations
of Tenant under this Lease, any sublease created by Tenant and each and every
amendment, modification or extension thereof. In no event shall such assignment
impose upon Landlord any duty or obligation to perform any of the obligations of
Tenant as sub-landlord under any such lease or subleases. After default by
Tenant, Landlord may collect the rents and subrents from any and all subtenants
or occupants and apply the net amount collected to the net rent under this
Lease, but no such collection by landlord will be deemed to be a waiver of any
agreement, term, covenant, or condition of this Lease by Landlord, nor the
acceptance by Landlord of any subtenant or occupant, as Tenant.
SECTION 18.04. Notwithstanding any provision of this Article 18,
Tenant's interest in this Lease may be assigned with Landlord's written consent.
Provided, however, upon any such assignment, Tenant (and any previous assignee)
shall remain fully liable hereunder and shall not be released from the
performance of any remaining obligations of Tenant under this Lease during the
remainder of the term.
ARTICLE 19
TENANT'S DEFAULTS
SECTION 19.01. The occurrence of any one or more of the following
events (herein sometimes called "Events of Default") shall constitute a material
default and breach of this Lease by Tenant:
(a) Failure to make in the due and punctual payment of
any rent, or in the payment of any other sums required to be paid by Tenant
under this Lease when and as the same shall become due and payable; or
(b) Failure by Tenant to perform of or compliance with
any of the covenants, agreements, terms or conditions contained in this Lease
other than those referred to in the foregoing subdivisions (a), and the
continuation of such default for a period of thirty (30) days after written
notice thereof form Landlord to Tenant (provided, that if Tenant proceeds with
due diligence during such thirty (30) day period to cure such default and is
unable by reason of the nature of the work involved, to cure the same within the
said thirty (30) days, its time to do so shall be extended for such additional
period as shall be necessary to cure the same); or
(c) The filing by Tenant of a voluntary petition in
bankruptcy or the adjudication of Tenant as a bankrupt or insolvent, or taking
by Tenant of the benefit of any relevant debtors or the filing by Tenant of any
petition or answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under
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any present or future federal, state or other consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or all or any
substantial part of its properties, or the making by Tenant of any general
assignment for the benefit of creditors; or
(d) The filing against Tenant of a petition seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future federal, state or other statute,
law or regulation which petition shall remain undismissed or unstayed for an
aggregate of sixty (60) days, or if any trustee, receiver or liquidator of
Tenant, or of all or any substantial part of its properties, shall be appointed
without the consent or acquiescence of Landlord and such appointment shall
remain unvacated or unstayed for an aggregate of sixty (60) days.
In the event of any such Event of Default, this Lease and the term
herein stated and all rights of Tenant under this Lease at the option of the
Landlord shall expire and terminate.
SECTION 19.02. Upon any such termination of this Lease, Tenant shall
quit and peacefully surrender the Property to Landlord and the buildings and
improvements thereon shall automatically be and become the property of Landlord
free and clear of any claims of Tenant. At any time on or after such
termination, Landlord may without further notice, enter upon the Property by
force, summary proceedings, ejectment or otherwise, and dispose and remove
Tenant therefrom.
SECTION 19.03. In such event of termination, Landlord shall be entitled
to accelerate the rent to recover from Tenant all unpaid installments of rent
and other sums due and owing under this Lease for the remainder of the term and
all other damages incurred by Landlord by reason of Tenant's default, including
but not limited to any or all of the following:
(a) The cost of recovering possession of the Property,
including attorney's fees and court costs;
(b) Any other amount necessary to compensate Landlord for
all the determent proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom; and
(c) Any other amounts and remedies permitted by law. All
remedies are cumulative and are not alternate or singular.
SECTION 19.04. At any time (a) written fifteen (15) days prior to the
expiration of the term of this Lease, or (b) after Landlord or Tenant shall have
been served any notice of termination of this Lease, but prior to the date of
termination, or (c) after Landlord shall have commenced a proceeding to recover
possession of the Property, but prior to the termination of this Lease, all
subleases theretofore executed by or assigned to Tenant and the rents payable
thereunder, at the option of Landlord (such option to be exercised by notice to
Tenant), shall be deemed assigned and transferred by Tenant to Landlord. Such
assignment and transfer shall be effect without execution by Tenant of any
instrument. However, Tenant at Landlord's request, shall execute, acknowledge
and deliver to Landlord an instrument or instruments, in recordable
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form, confirming such assignment and transfer, and in the event that Tenant
shall fail or refuse to execute, acknowledge or deliver such instrument,
Landlord, in addition to any other rights and remedies, may as the
attorney-in-fact of Tenant, execute, acknowledge and deliver it, and Tenant
hereby irrevocably nominates, constitutes and appoints Landlord Tenant's proper
and legal attorney-in-fact for such purpose, coupled with an interest, hereby
ratifying all that Landlord may do in such capacity.
SECTION 19.05. Tenant, for and on behalf of itself and all persons
claiming through or under Tenant waives any and all right of redemption or
reentry or repossession or to restore the operation of this Lease in case Tenant
shall be dispossessed by a judgment or by warrant of any court or judge or in
case of expiration or termination of this Lease. The terms "enter", "reenter",
"entry" or "reentry", as used in this Lease, are not restricted to their
technical legal meaning.
SECTION 19.06. No failure by Landlord to insist upon the strict
performance of any covenant, agreement, term or condition of this Lease or to
exercise any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial rent during the continuance of any such breach, shall
constitute a wavier of any such breach or of such covenant, agreement, term of
condition. No covenant, agreement, term of condition of this Lease to be
performed or complied with by Landlord or Tenant, and no breach thereof, shall
be waived, altered or modified, except by a written instrument executed by the
party to be charged therewith. No waiver of any breach shall affect or alter
this Lease, but each and every covenant, agreement, term, and condition of this
Lease shall continue in full force and effect with respect to any other then
existing or subsequent breach thereof.
SECTION 19.07. In the event of any breach by Tenant of any of the
covenants, agreements, terms or conditions contained in this Lease, Landlord
shall be entitled to enjoin such breach and shall have the right to invoke any
right and remedy allowed at law or in equity for such breach as through
re-entry, summary proceedings, and other remedies were not provided for in this
Lease. In the event of Tenant's failure to pay rent on the date when due, Tenant
shall pay Landlord interest on any such overdue payments at the lessor of its
maximum interest rate then permitted by Texas law or fifteen percent (15%) per
annum.
ARTICLE ▇▇
▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ DEFAULT, AND LATE CHARGES
SECTION 20.01. All rent in arrears and all amounts collectible
hereunder shall bear interest at the lessor of (i) fifteen percent (15%) per
annum or (ii) the maximum rate then permitted by Texas law, from their
respective due dates until paid, provided that this shall in no way limit,
lesson or affect any claim for damages by Landlord for any breach or default by
Tenant.
SECTION 20.02. Tenant hereby acknowledges that late payment by Tenant
to Landlord of rent and other sums due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but
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are not limited to processing and accounting charges, and late charges which may
be imposed on Landlord by the terms of any mortgage or trust deed covering the
Property.
ARTICLE 21
SEVERABILITY
SECTION 21.01. If any term of provision of this Lease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unacceptable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
ARTICLE 22
NOTICES AND CONSENTS
SECTION 22.01. Any notice, request, demand, statement or consent herein
required or permitted to be given by either party to the other hereunder shall
be in writing and shall be deemed to have been sufficiently and effectually
given if signed by or on behalf of the party giving the notice and mailed by
registered or certified prepaid post, return receipt requested, addressed to the
other;
If to Landlord:
▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇
c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(by U.S. Mail) (by Express Courier)
▇.▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
And if to Tenant:
Central Freight Lines, Inc.
Attn: ▇▇▇▇ ▇▇▇▇▇
(by U.S. Mail) (by Express Carrier)
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
telephone no. ▇▇▇-▇▇▇-▇▇▇▇
facsimile no. ▇▇▇-▇▇▇-▇▇▇▇
Any such notice given as aforesaid shall be conclusively deemed to have
been given and received, if mailed by U.S. mail properly addressed and postage
prepaid, three (3) business days next following the day on which such notice was
mailed. Either party may, from time to time,
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furnish to the other notice of the address or change of address to which notices
are to be given to it hereunder.
SECTION 22.02. Wherever any consent is required under this Lease, the
same shall not be unreasonably withheld.
ARTICLE 23
CONDITION OF LEASED PROPERTY
SECTION 23.01. Tenant represents that, except as expressly provided in
this Article 23, the Property, all surface conditions thereof, and the present
uses thereof, have been examined by Tenant and that Tenant accepts the same in
the condition or state in which they or any of them may be upon the date of this
Lease, without any representation or warranty, express or implied, in fact or by
law, by Landlord and without recourse to Landlord, as to the nature, condition
or usability thereof or the use or uses to which the Property or any part
thereof may be put.
ARTICLE 24
COVENANT OF QUIET ENJOYMENT
SECTION 24.01. Except as provided in Articles 7 and 14 and in Section
24.03 below, Landlord covenants that Tenant, upon paying the rent and all other
charges herein provided for and observing and keeping all covenants, agreements
and conditions of this Lease on its part to be kept, shall quietly have and
enjoy the Property during the term of this Lease, without hindrance or
molestation by Landlord or anyone claiming by or through Landlord.
SECTION 24.02. In case Landlord or any successor owner shall convey or
further lease the Property, all liabilities and obligations on the part of the
Landlord, as Landlord, under this Lease occurring after such conveyance shall
terminate upon such conveyance, and thereupon all such liabilities and
obligations will be binding upon the grantee or lessee as successor Landlord.
SECTION 24.03. Tenant nor Tenant's employees, agents or legal
representatives are permitted to park, store or house their personal trailers,
boats, recreational vehicles of any kind, farm equipment, campers or storage
units on the leased Property or any of the property owned by and/or controlled
by Landlord.
ARTICLE 25
BROKERS
SECTION 25.01. Landlord and Tenant each represent and warrant to each
other that no agent or broker represents them in connection with this Lease.
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ARTICLE 26
CAPTIONS
SECTION 26.01. The captions of this Lease are for convenience and
reference only and in no way define, limit or describe the scope or intent of
this Lease nor in any way affect this Lease.
ARTICLE 27
SUCCESSORS
SECTION 27.01. The covenants and agreements herein contained shall bind
and inure to the benefit of Landlord and Tenant and their respective heirs,
legal representatives, successors and assigns, except as otherwise provided
herein.
ARTICLE 28
DELAYING CAUSES
SECTION 28.01. If either party is delayed in the performance of any
covenant of this Lease because of any of the following causes: unusual action of
the elements, war, riot, strikes, lockouts, labor disputes, inability to procure
or general shortage of labor, materials or merchandise in the normal channels of
trade, delay in transportation, delay in inspections, governmental action or
inaction where action is required, or any cause beyond the reasonable control of
the party so obligated, whether similar or dissimilar to the foregoing (except
for any delay on account of financial inability), then such performance shall be
excused for the period of the delay and the period such performance shall be
extended for a period equivalent to the period of such delay, except that the
foregoing shall in no way affect (i) Tenant's obligation to pay rent or other
monetary obligations hereunder, or (ii) the length of the term.
ARTICLE 29
NO PARTNERSHIP
SECTION 29.01. Nothing contained in this Lease shall be construed as
creating any type or manner of partnership, joint venture or joint enterprise
with or between Landlord and Tenant.
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ARTICLE 30
MISCELLANEOUS
SECTION 30.01. This Lease shall be construed and enforced in accordance
with the laws of the State of Texas.
SECTION 30.02. Time is of the essence of this Lease.
ARTICLE 31
FURTHER INSTRUMENTS
SECTION 31.01. Upon request of Tenant or Landlord, the parties hereto
shall execute and deliver such further instruments in form for recording as may
be necessary to effect this Lease and the covenants and obligations of the
parties hereto.
SECTION 31.02. This Agreement is the entire agreement and understanding
of the parties hereto with respect to the subject matter hereof, and supersedes
all prior and contemporaneous representations, negotiations, undertakings and
agreements, written or oral, among any of the parties. No representation,
inducement, agreement, promise, understanding, or waiver altering, modifying,
taking from or adding to the terms and conditions hereof, shall have any force
or effect unless the same is in writing and validly executed by all the parties
hereto.
ARTICLE 32
SUBORDINATION OF LEASE TO MORTGAGES
SECTION 32.01 This Lease shall be subject and subordinate at
all times to the lien of existing mortgages and of mortgages which hereafter may
be made a lien on the Premises. Although no instrument or act on the part of the
Tenant shall be necessary to effectuate such subordination, the Tenant will
nevertheless execute and deliver such further instruments subordinating this
Lease to the lien of any such mortgages as may be desired by the mortgagee. The
Tenant hereby irrevocably appoints the Landlord his attorney-in-fact to execute
and deliver any such instrument for the Tenant. Provided, however, and
notwithstanding the foregoing provisions hereof, upon foreclosure of the
mortgage with the mortgagee succeeding to the rights of the Landlord, the Tenant
shall, at the option of said mortgagee, attorn to the mortgagee as follows:
(a) Tenant shall be bound to the mortgagee under all the
terms of the Lease for the balance of the term hereof remaining with the same
force and effect as if the mortgagee were the Landlord under the Lease, and
Tenant hereby attorns to the mortgagee as its Landlord, such attornment to be
effective and self-operative, without the execution of further instrument on the
part of either of the parties hereto, and immediately upon the mortgagee
succeeding to the
17
interest of Landlord under this lease and having given written notice of the
same to Tenant. The respective rights and obligations of Tenant and of the
mortgagee upon such attornment shall to the extent of the remaining term of the
lease be the same as now set.
(b) The mortgagee shall be bound to the Tenant under all
of the terms of this Lease, and the Tenant shall, from and after such event,
have the same remedies against the mortgagee for the breach of an agreement
contained in this Lease that the Tenant might have had under this Lease against
the Landlord hereunder. In no event, however, shall the mortgagee be liable for
any act or omission of any prior Landlord, be subject to any offsets or defenses
which Tenant might have against any prior Landlord, or be bound by any rent or
additional rent which the Tenant might have paid to any prior Landlord for more
than the current month.
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Eagle Pass Lease effective as of the day and year first above written.
"TENANT"
Central Freight Lines, Inc.
Signed on 8/3 2003 By: /s/ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
Its: Vice President
"LANDLORD"
▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇
Signed on 8/15 2003 /s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
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