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HomeMy WebLinkAboutResolution - 3432 - Lease Agreement - BCD, Science Spectrum - TIME_DC Building, 2579 S Loop 289 - 08_09_1990Resolution # 3432 August 9, 1.990 Item #23 DGV:da RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to indicate approval by the City of Lubbock of the lease agreement attached hereto by and between the Board of City Development and the Sci- ence Spectrum by signing the same, which agreement shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 9th ATTEST: anette boys, city �;ecreta APPROVED AS TO CONTENT: Bob Cass, Deputy City Manager APPROVED AS TO FORM: r-anaia Li. vanoiver, first Assistan City Attorney day of August 1990. 4 B. C. Mc If N, MAYOR �5#W - LEASE THIS LEASE, made this 144w day of August, 1990, between The Science Spectrum, a Texas non-profit orgaion, c/o Westar Property Management, 7200 Quaker, Suite 12, Lubbock, Texas 79424 (hereinafter called the "Landlord") and the Lubbock Board of City Development, a Board of the City of Lubbock, Texas (hereinafter called "Tenant"). WITNESSETH: In consideration of the mutual promises contained herein, the parties hereto do hereby covenant and agree as follows: ARTICLE 1 PREMISES AND TERM 1.01 Premises: The Landlord does hereby demise and lease to the Tenant, and the Tenant does hereby lease from the Landlord, a portion of that certain space known as original TIME/DC Building (hereinafter called the "Premises") at 2579 South Loop 289 in the City of Lubbock and the State of Texas containing approximately 32,900 square feet, more particularly described in Addendum "A" attached hereto. 1.02 Term: The Term (hereinafter called Term) of the Lease shall commence on September 1, 1990 and end on September 30, 1995 subject, however, to the Tenant's right to terminate this agreement as hereinafter provided. The tenant may begin renovations of its space upon execution but will be bound by the articles of this lease. 1.03 Termination: This Lease is subject to and contingent upon the Board of City Development receiving funding from the City of Lubbock for the operation of the Center for Innovation, an operation of Tenant, during each Term year that this lease is in existence. The Lease Term years shall be as follows: (1) First lease Term year shall commence on September 1, 1990 and terminate on September 30, 1991; (2) Second lease Term year shall commence on October 1, 1991 and terminate on September 30, 1992; (3) Third term year shall commence on October 1, 1992 and terminate on September 30, 1993; (4) Fourth term year shall commence on October 1, 1993 and terminate on September 30, 1994; and, (5) Fifth term year shall commence on October 1, 1994 and terminate September 30, 1995. In the event the Tenant does not receive budget funding for the Center for Innovation during any term year above set forth then in such event this lease shall become a month to month tenancy at the end of the lease term year during which such funding is eliminated. The rent for the above described premises shall be the same monthly rent as was paid for the premises prior to the month to month tenancy being created. ARTICLE 2 RENT 2.01 The Tenant shall pay to the Landlord as rent (hereinafter called the "Rent") for the Premises the sum of One Hundred Twenty Four Thousand Seven Hundred Forty Five and 83/100 Dollars ($124,745.83) for the first year of the lease (September 1, 1990 to September 30, 1991) and thereafter the sum of One Hundred Fifteen Thousand One Hundred Fifty and No/100 Dollars ($115,150.00) per annum, all in equal monthly installments of Nine Thousand Five Hundred Ninety Five and 83/100 Dollars ($9,595.83). Rents not received by the tenth (loth) of each month will bear a late charge equal to ten (10%) percent of the monthly charge. ARTICLE 3 RENTAL ADJUSTMENT 3.01 Landlord agrees to pay current property taxes assessed against the property for the 1990 tax year. It is understood by the Tenant that the Landlord is operating the building as a not -for -profit entity. In the event that any business activity solely attributable to the Tenant should result in the assessment of taxes on the property, then the Tenant shall be required to annually pay that increase amount to the Landlord after thirty (30) days prior written notice. A tax bill shall be sufficient evidence of the amount of any such tax increase. 3.02 Landlord agrees to pay all hazard insurance premiums covering the property herein demised. If during the second full year after the Commencement Date or during any subsequent year the hazard insurance premiums levied against the demised premises for such year shall exceed the base year amount, Tenant shall pay to Landlord, as additional rental, a proportionate share of such increase, allocated on a pro rata square footage basis to the Premises. The term "first full year" shall mean the year during which the leased premises shall have been originally occupied by the Tenant under this lease. Presentation of photocopies of statements from the insurance carrier or other written evidence by Landlord shall be sufficient evidence of the amount of any such hazard insurance premiums. ARTICLE 4 LANDLORD'S WARRANTIES 4.01 The Landlord warrants and represents that neither the present use of the Building nor the use of the Premises as a business office is in violation of any law, ordinance, requirement or regulation of any governmental authority. 4.02 The Landlord further represents that it will maintain the Building in accordance with its obligations under the terms of this Lease and under any other agreement and in such a manner so as to comply with all present and future laws, ordinances, requirements and regulations of all governmental authorities affecting the Buildin&. Landlord further warrants and represents that the Building shall meet any and all requirements of any federal, state, municipal or other local governmental authority and the Landlord agrees to maintain the structural portions of the Building, all fixtures and machinery therein and all facilities within the Building or the Premises that are the property or responsibility of the Landlord in such condition so as to comply fully with such requirements. Landlord further warrants and represents that the electrical facilities within the Building and the Premises shall be maintained in compliance with the national Electrical Code and any other applicable Federal, State or Local electrical codes. 4.03 Landlord further warrants and represents that the availability of the Premises for Tenant's use will occur no later than September 1, 1990. 4.04 Both parties acknowledge that the building has been certified as asbestos safe and that the building will be managed in accordance with a management plan provided by the architect who supervised the asbestos inspection. ARTICLE 5 TENANT'S USE 5.01 The tenant may use and occupy the Premises as a business office or for any other purposes in keeping with the general character of the Building and permitted by law. ARTICLE 6 SUBLETTING AND ASSIGNMENT 6.01 The Tenant shall not assign this Lease without the prior written consent of the Landlord, which consent Landlord agrees it shall not unreasonably withhold, provided that the proposed assignee is of reasonably good reputation and has agreed to use the Premises in a manner compatible with the standards of use by other tenants in the Building. Tenant shall have the right to sublet the Premises. Lease - Page 2 ARTICLE 7 SERVICES 7.01 It shall be the responsibility of the Tenant to supply and pay utility expense, including electrical, gas, water and sewer services to the leased premises. ARTICLE 8 EXTERIOR MAINTENANCE 8.01 The Tenant shall accept the parking lot on the east side of the building in its present condition, which Landlord warrants to be in operational and functional condition and which Landlord shall maintain in operational and functional condition. The Tenant shall be responsible for keeping clean the parking area, drives and walks in front of or adjacent to the east portion of the building. REPAIRS 9.01 The Tenant shall provide an amount up to but not to exceed $12,000.00 for heating and air conditioning repairs for the premises necessary to make the pproperty suitable for the Tenant's intended use. In addition, the Tenant shall be responsible for all rest -room renovation, repairs, and interior maintenance required for the Tenant. Tenant will provide normal, routine maintenance on the elevator until such time as any other tenants shall lease all or any portion of the building at which time such maintenance shall be on a pro rata basis. Landlord shall deliver the premises to Tenant with the elevator in good repair and working order. 9.02 Subject to the foregoing paragraph, the Tenant shall, at its sole expense, keep the interior of the premises, including all windows, doors and glass, in as good order and repair as it was at the commencement of this Lease, reasonable wear and tear excepted. Tenant shall maintain the premises in a clean and orderly condition. Landlord shall not allow the exterior of the building or any part of the real property upon which the premises are located to become littered, disorderly or unsightly in any manner. 9.03 Landlord shall keep the structural supports, exterior walls and roof of the building in good order and repair and shall be responsible for the operation and maintenance of all common areas and facilities as hereinafter provided. 9.04 Tenant shall be responsible for normal, routine maintenance of all equipment installed and used for the purpose of heating and air conditioning of the premises wherever such equipment may be located. Landlord shall be responsible for all capital repair to the heating and air conditioning systems in excess of the $12,000.00 set forth in Paragraph 9.01 above. 9.05 On default of Tenant in making any repairs, replacements or fulfilling its maintenance obligation as set out above, the Landlord may, after thirty (30) days prior written notice to Tenant, but shall not be obligated to, make such repairs, replacements or perform such maintenance and take other necessary action for Tenant's account, and the expense thereof shall be payable by Tenant to Landlord. ARTICLE 10 ALTERATIONS 10.01 Tenant shall not alter or improve the Premises without prior written consent of Landlord. It is expressly agreed that the Tenant may securely attach to the Premises, with screws or otherwise, such fixtures or other articles as may be convenient for the conduct of its business, including, but not limited to, desks, counters, partitions, shelving, lighting fixtures and safes. Said fixtures may be maintained during the continuance of the Term, and any renewal or extension thereof, and all such fixtures installed by the Tenant shall remain the personal property of the Tenant and, at its election, may be removed by the Tenant at, or prior to, the expiration of the Term or any renewal or extension period thereof; provided that the Tenant shall repair any material damage caused by such removal. Lease - Page 3 ARTICLE 11 DAMAGE OR DESTRUCTION 11.01 In case of the total destruction of the Building or of the Premises by any cause whatsoever either during the Term, or prior thereto, or during any renewal or extension period thereof, or in case of such partial destruction thereof as to render the Premises untenantable and unfit for the Tenant's occupancy, then in any such event the Term shall cease and terminate as of the date of such damage or destruction, and the Rent, including Rent paid in advance, shall be adjusted and apportioned as of the date of such damage or destruction; provided, however, that should the Premises be capable of restoration to its previous good tenantable condition within sixty (60) days from the happening of such damage, the Landlord shall enter and, at its sole cost and expense, repair the same with all reasonable speed, and this Lease shall continue in full force and effect, but the Rent shall abate during the period from the date of such damage until such time as the repairs shall have been completed. Delay of more than fifteen (15) days by the Landlord in commencing repairs in a case in which the Premises is capable of restoration within sixty (60) days shall entitle the Tenant to declare the Lease terminated as of the date of the happening of such damage. In the event of the partial destruction of the Premises (by any cause whatsoever) not rendering the Premises untenantable, the Premises shall be immediately repaired or restored by and at the sole cost and expense of the Landlord, and Rent, until the completion of such repairs or restorations, shall abate in proportion of the area of the Premises which is unusable by the Tenant. ARTICLE 12 QUIET ENJOYMENT 12.01 Landlord covenants that so long as the Tenant shall perform and observe all the covenants, agreements and undertakings of this Lease on the Tenant's part to be performed and observed, the Tenant shall have quiet, peaceful and uninterrupted possession, use and enjoyment of the Premises. ARTICLE 13 CONDEMNATION 13.01 In the event of the complete or partial condemnation of the Premises or the parking area, the Tenant shall have the option to cancel this Lease within ninety (90) days after possession of the land or other property is legally authorized to be taken by the governmental authority. ARTICLE 14 SIGNS 14.01 No sign, fixture, advertisement or notice shall be displayed, inscribed, painted or affixed by any Tenant on any part of the outside or inside of said Building or on or about the Premises of any Tenant without written consent of the Landlord and then only of such color, size, style and material as shall be first specified by the Landlord. It is understood that the Tenant desires some identification of the Premises. Therefore, the Landlord will not unreasonably withhold the approval of a sign. ARTICLE 15 SUBORDINATION TO MORTGAGE 15.01 This Lease is subject and subordinate to any first lien mortgage or deed of trust which may now or hereafter encumber the Building of which the Premises form a part and to all renewals, modifications, consolidations, replacements, and extensions thereof. This clause shall be self -operative and no further instrument of subordination need be required by any mortgagee. In confirmation of such subordination, however, Tenant shall at Landlord's request execute promptly any appropriate certificate or instrument that Landlord may request. ARTICLE 16 ABANDONMENT 16.01 In the event the Premises are abandoned by Tenant, Landlord shall be required to exercise reasonable diligence in obtaining a new tenant for the remainder of the Term provided for herein; and if the rent received through such reletting does not at Lease - Page 4 least equal the rent provided for herein, Tenant shall pay and satisfy any deficiency between the amount of the rent so provided for and that received through reletting. ARTICLE 17 ATTORNEYS FEES 17.01 In the event Tenant makes default in t covenants, agreements or conditions contained in t enforcement of this Lease, or any part thereof, or t become due hereunder, or recovery of the possessio attorney, or files suit upon the same, Tenant agrees to fee incurred by Landlord. ARTICLE 18 DEFAULT BY TENANT n he performance of any of the terms, his Lease and Landlord places the he collection of any rent due, or to of the Premises in the hands of an pay Landlord a reasonable attorney's 18.01 Default on the part of the Tenant in paying rent or any installment thereof, as herein provided, or default on Tenant's part in keeping or performing any other term, covenant or condition of this Lease, shall authorize Landlord after thirty (30) days prior written notice to Tenant of default and Tenant's failure to cure same to declare this lease terminated. ARTICLE 19 BANKRUPTCY BY TENANT 19.01 If voluntary bankruptcy proceedings are instituted by Tenant, or if Tenant is adjudged as bankrupt, or if Tenant makes an assignment for the benefit of its creditors, or if execution is issued against it, or if the interest of Tenant hereunder passes by operation of law to any person other than Tenant, this Lease may, at the option of Landlord, be terminated by thirty (30) days prior written notice mailed by registered mail and addressed to Tenant. ARTICLE 20 LIABILITY INSURANCE 20.01 Landlord shall, at its expense, maintain a Lessor's Risk Insurance policy protecting Tenant against any liability caused or occassioned by the acts or omissions of Landlord's agents, servants and/or employees or by any instrumentalities under Landlord's control. Tenant, as a self insurin& entity, shall protect Landlord against any liability caused or occasioned by the acts or omissions of Tenant's agents, servants and employees or by instrumentalities under Tenant's control. ARTICLE 21 HOLD HARMLESS 21.01 Landlord shall not be liable to Tenant, or the Tenant's agents, servants, employees, customers or invitees for any damage to person or property caused by any act, omission or neglect of Tenant, and Tenant agrees to hold Landlord harmless from all claims for any such damage. Tenant shall not be liable to Landlord, or to Landlord's agents, servants, employees, customers or invitees for any damage to person or property caused by any act, omission or neglect of Landlord, and Landlord agrees to hold Tenant harmless from all claims for such damage. ARTICLE 22 RENEWAL OPTIONS 22.01 It is expressly understood and agreed that the Tenant shall have two (2) options to renew and extend the Term of this Lease for three (3) years each, on the same terms and conditions as contained in this Lease, except that the renewal rate will be negotiated at that time. Each such option shall be exercisable by Tenant in writing at any time not less than thirty (30) days prior to the expiration of the Term, or the extension of a renewal or extension period thereof. Lease - Page 5 ARTICLE 23 HOLDOVER 23.01 In the event that Tenant remains in possession of the Premises after the expiration of the Term, or of any renewal or extension period thereof, this Lease shall then be automatically extended on a month to month basis upon the same terms and conditions as contained in this Lease. In the event of such extension, either party may terminate this Lease by giving to the other party thirty (30) days prior written notice by mail of its intention to do so. ARTICLE 24 RIGHTS AND REMEDIES CUMULATIVE 24.01 All rights and remedies of Landlord under this Lease shall be cumulative and none shall exclude any other rights or remedies allowed by law; and this Lease is declared to be a Texas contract, and all of the terms thereof shall be construed according to the laws of the State of Texas. ARTICLE 25 LEGAL CONSTRUCTION 25.01 In the event any one or more of the provisions contained in this Lease, or in any other instrument referred to herein or executed in connection herewith, shall, for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality and enforceability shall not affect any other provision of this Lease or any other instrument referred to herein or executed in connection herewith. ARTICLE 26 PRONOUNS 26.01 The use of the neuter singular pronoun in referring to the Landlord shall, nevertheless, be deemed a proper reference even though the Landlord may be an individual, a corporation, a partnership or a group of two or more individuals or corporations. ARTICLE 27 ENTIRE AGREEMENT 27.01 This Lease embodies the entire agreement between the parties. There are no promises, terms, conditions or obligations regarding the subject matter, other than those contained herein. There may be no modification of this Lease, except in writing, executed by both Tenant and Landlord with the same formalities as this Lease. ARTICLE 28 CAPTIONS 28.01 The captions are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope of this Lease nor the intent of any provision thereof. ARTICLE 29 SUCCESSORS AND ASSIGNS 29.01 The covenants and conditions herein contained shall apply to and bind the heirs, successors, executors, administrators and assigns of all parties hereto. ARTICLE 30 ATTORNEYS 30.01 This lease is subject to the review and approval by the attorneys of both parties within ten (10) days of the signing of this lease by both parties. Lease - Page 6 ARTICLE 31 ADDITIONAL PROVISIONS 31.01 Addendum "A" attached hereto and hereby incorporated herein and made a part hereof. IN WITNESS WHEREOF the Landlord and the Tenant have duly executed these presents in proper legal manner on the day and year first above written. TENANT: Lub ck Board of City Development By: /�- ?�� n . a out, Chairman APPROVE D AS TO FORM: 0. Murray c ee y Attorney Board of City Development Lease - Page 7 LANDLORD: ATTEST: ecretary APPROVED: Approved as to form: C- 4 John C. Ross, Jr., City Attorney ATTEST: ane to oy , City ecretary STATE OF TEXAS X X COUNTY OF LUBBOCK X Science Spectrum By: Cassandra L. Henry, rest ent City of Lubbock B.C. McMinn Mayor This instrument was acknowledged before me on this I day of August, 1990, by CASSANDRA L. HENRY, the President of the Science Spectrum, a Texas not for profit Corporation, on behalf of said Corporation. > Yak> �ti f I^�f Vic. to ggf[aTn*mtety�y0g:�e5�a ~/�/121J v// i 9,2. Ey�2Vhd'Nv YLOf���2Mti . No ry Public, tate�o Tex STATE OF TEXAS X X COUNTY OF LUBBOCK X This instrument was acknowledged before me on the day of August, 1990 by JOHN B. MALOUF, Chairman of the Lubbock Board of City eve opment, a Board of the City of Lubbock, Texas, on behalf of said 'Board". ADMIM ha,vl otarM Public, State of TexF b\bcd-lea3 Lease - Page 8 Second Floor Plan An ni II Exec.t -"I Exec. Off.. Off. Off. Off. v eceptio \Off. R R • A � A 01 G a� 4-- F O t O 84.2' Off. •R Mech R Lunch r Room Kitchen Off. Off.; Open Off. Unfinished A --0- Area Off. Office Off. Work Area Off. 84.2' `n rn t9' v+ 49..9' Scale: 1" • 30' Second Floor Area: 27,956 SF Chairman, Lubbock Board of City Development n . Date Chairman, Shcence.Spectrum, ,INc. Date 84.2' Open Unfinished Area 84.2' Z, C4 M -..W-- N --.._ .. Adclenclum i� (Page i of j) GROUND FLOOR PLAN Covered Parking 1 B 18' Covered Walk' 6 Covered Walk r I .9' Foyer R111771— R R I.s Office Offices Work Work Area Open Work Room Area Work T I T Room Emergency Fire Entr R r R y Off. Off. j--� Computer Room Open Floor IWork Area Work I , ��— Room Offices 1: '6 .12 StgEntry 12' . orc Scale: 1° 30' Ground Floor Area: 33,007 SF 49.91 Chairman, Lubbock Board of City Development Date Chairman, Science Spectrum, Inc. Date I Offices I 1* Offices 81.6' Addendum A (Page 3 of 3) Basement Floor Plan 49.9' ,-ale: 1" ■ 30' Basement Floor Area: 32,423 SF Chairman, -Lubbock Board of City Development Date hair an, Science Spectrum, Inc. Date a -=_— H__._._., WAIVER OF LEASE PROVISION AND NON -DISTURBANCE AGREEMENT THIS AGREEMENT made and entered into on the day and date last herein appearing by and between TEXAS COMMERCE BANK, N.A., a National Banking Association acting by and through its duly authorized officer hereinafter referred to as "TCB" and THE LUBBOCK BOARD OF CITY DEVELOPMENT, a Board of the City of Lubbock, Texas, acting by and through its duly authorized chairman hereinafter referred to as "BCD". WITNESSETH: WHEREAS, on or about February 26, 1990, the Science Spectrum, a Texas non- profit corporation, executed a Deed of Trust in favor of TCB which Deed of Trust was recorded in Volume 3290, page 109 of the Real Estate Records of Lubbock County, Texas, a copy of which is attached hereto as Exhibit "A"; WHEREAS, the BCD has leased certain space from the Science Spectrum, a copy of which is attached hereto as Exhibit "B", subject of the above referenced Deed of Trust; WHEREAS, the referenced Deed of Trust and lease each contain certain provisions that are objectionable to the BCD the provisions of which it desires TCB to ameliorate; WHEREAS, TCB, believes that it is in the best interest of the bank and the BCD that the BCD lease the subject premises and is agreeable to taking such steps as are necessary to cure the objections of the BCD; NOW, THEREFORE, for and in consideration of the premises and the hereinafter contained covenants, conditions and obligations, the parties hereto agree as follows, to wit: (1) TCB agrees, in satisfaction of the requirements set forth in said Deed of Trust at recorded page 111 or page 3 of the base Deed of Trust, that lease of this property is in the best interest of the Debtor (Science Spectrum), TCB and the BCD and hereby consents to the lease by Debtor to the BCD of a proportion of said property. (2) Paragraph 15.01 "Subordination of Mortgage" contained in the lease executed by and between the Science Spectrum and the BCD contains a standard bank generated provision subordinating the lease to the bank's mortgage. The BCD objects to this provision in that should TCB call the note due or should the Debtor (the Science Spectrum) fail to make its payments as required under its note with TCB, then upon foreclosure of the property, the lease would be automatically terminated. TCB, the BCD and the Science Spectrum all agree that such an occurrence is not in the best interest of any affixed, of the parties concerned herewith. Therefore, TCB, by its signature hereinafter axed, agrees that should the Debtor (the Science Spectrum) fail to make its payments as required, or default on its note in any manner and foreclosure under the Deed of Trust occurs, then, in that event, TCB, herewith agrees that it will not dispossess the BCD from the premises so long as the BCD is not in default of any of the terms of the lease thereby allowing the BCD to continue its occupancy of the premises under the lease agreement herein referred to and any extensions and/or renewals thereof without penalty and BCD agrees that it will attorn to TCB in accordance with the terms of the lease. LEGAL CONSTRUCTION In the event any one or more of the provisions contained in this agreement, or in any other instrument referred to herein or executed in connection herewith, shall, for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality and enforceability shall not affect any other provision of this agreement or any other instrument referred to herein or executed in connection herewith. PRONOUNS The use of the neuter singular pronoun in referring to the parties herein shall, nevertheless, be deemed a proper reference even though the party may be an individual, a corporation, a partnership or a group of two or more individuals or corporations. ENTIRE AGREEMENT This agreement embodies the entire agreement between the parties. There are no promises, terms, conditions or obligations regarding the subject matter, other than those contained herein. There may be no modification of this agreement, except in writing, executed. by all parties, with the same formalities as this agreement. CAPTIONS The captions are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope of this agreement nor the intent of any provision thereof. SUCCESSORS AND ASSIGNS The covenants and conditions herein contained shall apply to and bind the heirs, successors, executors, administrators and assigns of all parties hereto. IN WITNESS WHEREOF, the parties hereto have duly executed this instrument in proper legal matter on the day and year first above written. b\bcd-agr Waiver of Lease Provision and Non -Disturbance Agreement - Page 2 Return to Texas Commerce Bank, N. A., P. O. Box 841, Lubbock, Texas 79408 Attn: Ida Sims o I4a 3290 Wrjo9 DEED OF TRUST STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § That Science Spectrum, A Texas Non -Profit Corporation whose address is 2598- 74th Street, Lubbock, Lubbock County, Texas, ("Grantors", whether one or more) for the purpose of securing the indebtedness hereinafter described and in consideration of the stun of TEN AND NO/100 DOLLARS (SIO.OD) to us paid by the Trustee hereinafter named, the receipt and sufficiency of which are hereby expressly acknowledged and confessed, and for the further consideration of the uses, purposes and trust hereinafter set forth, have GRANTED, SOLD AND CONVEYED and by these presents do GRANT, SELL AND CONVEY unto Edwin Schulz Trustee, P.O. Box 841, Lubbock, Lubbock County, Texas, ('Trustee") and his substitutes or successors, all of the following described property situated In Lubbock County, Texas, to -wit: ? ; LOT THREE-E (3-E), a replat of Lot 3, TIME'S SQUARE ADDITION to the City of Lubbock, Lubbock County, Texas, according to the Map, plat and/or Dedication Deed thereof recorded In Volume 1566, Page 343 of the Deed Records of Lubbock County, Texas LOT FOUR -A (4-A), a replat of Lot 4, TIMES SQUARE ADDITION to the City of j Lubbock, Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed thereof recorded in Volume 1587, Page 625 of the Deed Records of Lubbock County, Texas together with all buildings and improvements of every kind or character now or hereafter ilocated thereon, all mechanical, plumbing, gas, electrical, heating, refrigeration, ventilating, air conditioning, sprinkling and swimming pool equipment and all other fixtures and equipment, and all replacements, substitutions, additions and betterments { thereof and thereto, except that consumer goods (as said term is defined in the Texas Business and Commerce Code) acquired more than ten (10) days after the proceeds of I the Note (hereinafter defined) are disbursed shall not be included in the foregoing grant, and all leases and other rental agreements, rents, security and other deposits, royalties, ` revenues, profits and income now or hereafter belonging or incident thereto and all and ?` singular the rights, privileges, hereditaments and appurtenances thereto in any lease y4 belonging (all of the property, both personal, real and mixed, described hereinabove shall r^. i be hereinafter collectively called the "Property"). TO HAVE AND TO HOLD unto Trustee, and his substitutes and successors forever. And Grantors do hereby bind themselves, their heirs, executors, administrators and assigns to warrant and forever defend all and singular the Property unto Trustee, his j substitutes and successors and assigns forever, against the claim, or claims, of every party claiming, or to claim the same or any part thereof. This conveyance, however, is made in TRUST to secure (i) payment of all sums, including, without limitation, principal, interest, expenses, costs, late charges, attorney's fees and court costs called for in that one certain promissory note of even date herewith in the principal sum of Six Hundred Thousand and No/100 Dollars ($600,000.00) executed by Grantors, payable to the order of Texas Commerce Bank, a national banking association (hereinafter, together with all subsequent owners and/or holders of the herein -described note, called "Beneficiary") in the City of Lubbock, Lubbock County, Texas bearing Interest at the rate and due and payable as therein provided, providing for acceleration of maturity and for attorneys' fees and with a final maturity date of March 1, 1991 (the "Note; (ii) payment of all sums including, without limitation, pinned ur— Toestt expenses, costs, late charges, attorney's fees and court costs called for in any note or other instrument representing In whole or in part a renewal, extension, modificadon, or rearrangement of any Indebtedness under the Note; it being agreed and F,XHTRTT "T" r m 3290 PIcf 110 understood, however, that Beneficiary Is under no obligation whatsoever to renew, extend, rearrange or modify any such indebtedness and (III) payment of all sums and/or performance of all obligations owing by Grantor pursuant to the terms and provisions of this Deed of Trust as hereinafter set forth Should Grantors do and perform all of the covenants and agreements herein contained, and make prompt payment of the Note as the same shall become due and payable, then this conveyance shall become null and void and of no further force and effect, and shall be released upon the written request and at the expense of Grantors. Grantors warrant, covenant and agree as follows: That they are lawfully seized of the Property in fee simple and have the right and authority to execute this Deed of Trust; that the Property is free from all liens, encumbrances, security interests and charges, except to the extent herein provided. To pay promptly as and when due all sums called for in the Note. To protect the title and possession of the Property and to pay when due and prior to delinquency all taxes, assessments and other charges of every type or nature now existing, and/or hereafter levied, imposed or assessed upon the Property, or any part thereof, or any interest created therein by this Deed of Trust including, without limitation, all ad valorem taxes or assessments and water, gas, sewer, electricity and other charges which may become an encumbrance against the Property or any part thereof, and Grantors will deliver to Beneficiary, at least thirty (30) days prior to the date on which each such tax, assessment or other charge becomes past -due, a receipt evidencing payment of same in full. To preserve and maintain each of the liens, encumbrances, security interests and/or other charges created by this Deed of Trust as a fast and prior lien, encumbrance, security interest and/or other charge, as the case may be, on the Property (or on any part thereof, as applicable), including, without limitation, any buildings or other improvements hereafter made a part of the realty. To keep all buildings, improvements and equipment included in the Property in good repair and condition, and not to commit or permit any waste of the Properly; not to alter, tear down or remove any buildings or other improvements included in the Property (or any part thereof), nor attempt to do so nor permit anyone to do so; to keep said improvements and buildings occupied so as not to impair the insurance -carried `thereon and -riot to-do- or perrnit to be done anything iliai may rn any wayimpait or weaken the Property as security hereunder. To provide flood insurance (in the event flood insurance is now or hereafter available on the Property) and to insure and keep insured at all times all buildings and other improvements included in the Property, whether now or hereafter ezrstrng,-against loss or damage by fire, tornado, hail and windstorm, and any other hazard or hazards as may be from time to time required by Beneficiary to the extent of the original principal amount of the Note, or to the extent of the full and insurnble value of said buildings and other improvements, whichever is lesser, in such form or forms and with such insurance company or companies as may be approved by Beneficiary, and to deliver to Beneficiary the policies of such insurance, having attached to said policies such mortgage indemnity clause as Beneficiary shall direct; to deliver renewals of such policies to Beneficiary at least ten (10) days before any such insurance policies shall expire. The foregoing notwithstanding, the Beneficiary may, at its option, require Grantors, and in the event Beneficiary does so require Grantors, Grantors hereby covenant and agree, to deposit monthly with Beneficiary on the payment dates specified in the Note, a sum equal to one -twelfth (1/12) of the estimated annual taxes and utsurance premiums on the Property, such estimates to be made by Beneficiary; said monthly deposits to be in t vol3200 r4,f li- addition to the payments called for in the Note and the Beneficiary shall hold said deposits in trust, without bond and without the accrual of interest thereon, to pay such taxes and premiums as they become due. Should such deposits at any time be insufficient to pay said taxes and insurance premiums when due, Grantors further agree to deposit the deficiency with Beneficiary immediately upon Beneficiarys request for same, and if any excess should accumulate in such fund, such excess shall be credited to the next maturing deposits of such fund, or at Beneficiary's option, refunded to Grantors. If Grantors shall make full payment of the indebtedness hereby secured Beneficiary will, before accepting such full payment, apply to the reduction of principal any and nll amounts then accumulated in such fund. Grantors covenant and agree that any default in the making of said deposits as herein provided shall, at the option of Beneficiary, mature at once the entire amount remaining unpaid on the Note. Any balance on hand in such fund at the time of any sale, whether voluntary, judicial or under the terns of this Deed of Trust, of the Property, shall, without assignment thereof, inure to the benefit of the purchaser at such sale and shall be applied under and subject to the provisions hereof. Any proceeds which Beneficiary may receive under any such policy or policies may be applied by Beneficiary at its option to reduce the indebtedness hereby accrued, whether then matured or to mature in the future, and in such manner as Beneficiary may elect, or Beneficiary may, at its sole election, permit Grantors to use said proceeds, or any portion thereof as Beneficiary in its sole determination may elect, to repair or replace all buildings or improvements included in the Property damaged or destroyed, or any portion thereof as Beneficiary in its sole determination may elect. That, upon any lease, sale, conveyance or other transfer of whatever kind, or the further encumbrance oc assignment of whatever kind, of the Property or any pan thereof or interest therein (including, without limitation, any transfer or purported transfer by contract for deed or contract for sale and the transfer of any beneficial interest in the Property), Beneficiary may declare all of the indebtedness secured hereby immediately due and payable and may exercise any and all other remedies permitted hereunder or otherwise at law or in equity, and any and all sums received from any such transaction, if any shall occur, shall constitute a trust fund held for the benefit of Beneficiary to be applied against the indebtedness secured hereby; provided, however, that the foregoing shall not apply in the case of any sale, conveyance or other transfer when Beneficiary is satisfied in its sole discretion that the sale, conveyance or other transfer would not diminish the value of the Property or increase the risk of default under this Deed of Trust or the Note and when the transferee's creditworthiness is satisfactory to Beneficiary (in Beneficiary's sole opinion) and the transferee has executed, at the option of ' Beneficiary, prior to such sale, conveyance or other transfer a written assumption agreement whereby the transferee assumes the indebtedness evidenced by the Note and all obligations of Borrowers contained herein and/or in any document executed in connection with or as security for the indebtedness evidenced by the Note, and containing such terms as Beneficiary may require, including without limitations, if required by Beneficiary, an increase in the rate of interest payable on the indebtedness evidenced by the Note. Unless otherwise required by applicable law, if all or any portion of the Property constitutes a "home" as such term is from time to time defined in regulations issued by the Federal Home Loan Bank Board and such home is occupied or is to be occupied by the makers of the Note, then Beneficiary shall not exercise its option pursuant to the foregoing provision in those circumstances set forth in regulations from time to time issued by the Federal Home Loan Bank Board pursuant to the GarnSt. Germain Depository institutions Act of 1982. That in the event Grantors shall fail to keep the improvements included in the property in good repair and condition, or to pay promptly when due all taxes and assessments, as aforesaid, or to deliver the receipts evidencing payment of taxes, assessments or other charges, as aforesaid, or to preserve the prior lien of this Deed of Trust on the Property, or to keep the buildings and improvements insured, as aforesaid, or to deliver the policy, or policies, of insurance or the renewal thereof to Beneficiary, as aforesaid, then Beneficiary may, at its option, but without being required to do so, rvm323D matte such repairs, pay nxh taxes and assessawn:, Purchase any tax title there remove any prior liens and prosecute or defend any suits in relation to the preservai of the prior lien of this Deed of Trust on the Property, or insure and keep insured improvements included therein in an amount not to exceed that above stipulated; i any sums which may be so paid out by Beneficiary and all sums paid for insura premiums, as aforesaid, including the costs, expenses and Attorney's fees paid in any affecting the Property when necessary to protect the lien hereof shall bear interest h the dates of such payments at the rate stated in the Note and shall be paid by Gran to Beneficiary upon demand, at the same place at which the Note is payable, and s; be deemed a part of the debt hereby secured and recoverable as such in all respect To the extent not prohibited by applicable law, Grantors will pay all costs expenses and reimburse Beneficiary for any and all expenditures of every chars incurred or expended from time to time, regardless of whether or not a default shall h occurred, in connection with Beneficiarys evaluating, monitoring, administering protecting the property, and creating, perfecting and realizing upon Beneficiary s secu interests in and liens on the property, and all costs and expenses relating to Beneficia exercising any of its tights and remedies hereunder or at law, including, will limitation, all appraisal fees, consulting fees, filing fees, taxes, brokerage fees commissions, fees incident to security interest, lien and other title searches and repc escrow fees, attomey's fees, legal expenses, court costs, auctioneer fees and Expen other fees and expenses incurred in connection with liquidation or sale of the prop and all other professional fees. Any amount to be paid hereunder by Grantor. Beneficiary shall be a demand obligation owing by Grantors to beneficiary, and to extent not prohibited by applicable law, shall bear interest from the date of expendi until paid at the maximum non -usurious rate of interest from time to time permittec applicable law ("Highest lawful Rate"). At all such times, if any, that Chapter ("Chapter One") of Title 79, Texas Revised civil Statutes, 1925, as amended (the 'T1 Credit Code") establishes the Highest lawful Rate, the Highest Lawful Rate shall be "indicated rate ceiling" (as defined in Chapter One) from time to time in effect. The property described herein constitutes no part of Grantor's homestead. That in the event of default in the payment of any installment, principa interest, of the Note, in accordance with the terms thereof, or of a breach of any of covenants herein contained to be performed by Grantors, then and in any of such evt Beneficiary may elect„ Grantors hereby expressly waiving presentment, demand payment, notice of intention to accelerate, notice of acceleration and all other action notices except to the extent provided for herein and to the extent, if any applicable prohibits the waiver thereof, to declare the entire principal indebtedness hereby sec with all interest accrued thereon and all other sums hereby secured immediately due payable, and in the event of default in the payment of said indebtedness when du declared due, it shall thereupon, or at any time thereafter, be the duty of the Truster his successor or substitute as hereinafter provided, at the request of Beneficiary (w request is hereby conclusively presumed), to enforce this trust, all pursuant to provisions of Section 51.002 of the Property Code of the State of Texas; and t advertising the time, place and terns of the sale of the Property, then subject to the hereof, for at least twenty-one (21) days preceding the date of sale by posting wri or printed notice thereof at the Courthouse of the county where said real proper situated and by filing a copy of said notice in the office of the county clerk of the co, in which the sale is to be made at least twenty-one (21) days preceding the date of sale, which notices may be posted and/or filed by the Trustee acting, or by any pe acting for him, and after the Beneficiary (the holder of the indebtedness secured her has, at least twenty-one (21) days preceding the date of sale, served written or pri notice of the proposed sale by certified mail on each debtor obligated to pay indebtedness secured by this Deed of Tnst according to the records of Beneficiary, b) deposit of such notice, enclosed in a postpaid wrapper, properly addressed to such de at debtor's most recent address as shown by the records of Beneficiary, in a post o t by , !ice :F -zr . �, Vot.3290 PAff 113 or official depository under the care and custody of the United States Postal Service, the Trustee shall sell the Property, then subject to the lien hereof, at public auction in accordance with such notice at the Courthouse of said county where such real property is situated (provided where said real property is situated in more than one county, said notice to be posted as herein provided shall be posted at the Courthouse of each of such counties where said real property is situated, and the Property then subject to the lien hereof may be sold at the Courthouse of any one of such counties), and the notices so posted shall designate the county where the property will be sold, on the first Tuesday in any month between the hours of ten o'clock A.M. and four o'clock P.M., and shall designate the earliest time at which the sale will occur, to the highest bidder for cash, selling nll of such property as an entirety or in such parcels as the Trustee acting may elect, and make due conveyance to the Purchaser or Purchasers, with general warranty binding Grantors, their heirs and assigns; and out of the money arising from such sale, the Trustee acting shall pay fast, all the expenses of advertising the sale and making the conveyance, including a commission of five percent (5%) to himself, which commission shall be due and owing in addition to the Attomey's fee provided for in the Note, and then to Beneficiary the full amount of principal, interest, Attorney's fees and other charges due and unpaid on the Note and all other indebtedness secured hereby, rendering the balance of the sales price, if any, to Grantors, their heirs or assigns; and the recitals in the conveyance to the Purchaser or Purchasers shall be full and conclusive evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed, and no other proof shall be requisite thereof, including maturity of the indebtedness, the request that Trustee sell the Property subject of the lien hereof, the time, place, manner and other particulars of the advertisement, notice of sale, the removal, absence, death or inability of, or the failure or refusal to act of Trustee or any substitute or successor trustee, and the time and manner of the appointment of any Substitute Trustee (including any Substitute Trustee executing such deed), and the fact of such appointment, all even though such recitals are general and in the form of legal conclusions; and the purchaser or purchasers named in any such deed and all persons subsequently dealing with the Property purported to be thereby conveyed shall be fully protected in relying upon the wthfulness of such recitals and such sale and conveyance shall be conclusive and a perpetual bar against Grantors, their heirs and assigns. Notwithstanding any agreement to the contrary, the holder of the note shall serve a debtor in default under this Deed of Trust, if the property is used as the Debtor's residence, with written notice by certified mail, stating that the debtor is in default under this Deed of Trust and that the Debtor has 20 days to cure the default before the entire debt is due and before the other notice provided herein is given. It is agreed that in the event a foreclosure hereunder should be commenced by the Trustee, or his substitute or successor, Beneficiary may at any time before the sale of the Property then subject to the lien hereof direct the said Trustee to abandon the sale, and may then institute suit for the collection of the Note, and for the foreclosure of this Deed of Trust lien; it is further agreed that if Beneficiary should institute a suit for the collection thereof, and for a foreclosure of this Deed of Trust lien, that he may at any time before the entry of a final judgment in said suit dismiss the same, and require the Trustee, his substitute or successor to sell the property in accordance with the provisions of this Deed of Trust. Beneficiary shall have the right to purchase at any sale of the Property then subject to the lien hereof, being the highest bidder and to have the amount for which such property is sold credited on, the debt then owing. Beneficiary in any event is hereby authorized to appoint a substitute trustee, or a successor trustee, to act instead of the Trustee named herein with or without cause and without other formality than the designation in writing of a substitute or successor trustee; and the authority hereby conferred shall extend to the appointmestt of other successor and substitute trustees successively until the indebtedness hereby secured has been paid in full, or until said property is sold hereunder, and each substitute and rYD13290 race114 successor trustee shall succeed to all of the rights, power and duties of the original trustee named herein, and his conveyance to any purchaser at a foreclosure sale shall be equally valid and effective. In the event any sale is made of the above described Property, or any portion thereof, under the terms of this Deed of Trust, Grantors, their heirs and assigns, shall forthwith upon the making of such sale surrender and deliver possession of the property so sold to the Purchaser at such sale, and in the event of their failure to do so they shall thereupon from and after the making of such sale be and continue as tenants at will of such Purchaser, and in the event of their failure to surrender possession of said Property upon demand, the Purchaser, his heirs and assigns shall be entitled to institute and maintain an action for forcible detainer of said Property in the Justice of the Peace Court in the Justice precinct in which such property or any part thereof is situated. it is agreed that the lien hereby created shall take precedence over and be a prior lien to any other lien of any character, whether vendor's, materialmen's or mechanic's lien hereafter created upon the Property, and in the event the proceeds of the indebtedness secured hereby are used to pay and satisfy any liens heretofore existing on the Property (or any part thereof), then Beneficiary is, and shall be, subrogated to all of the rights, liens and remedies of the indebtedness so paid. It is further agreed that if Grantors, their heirs or assigns, while the owner of the hereinabove described property, should commit an act of bankruptcy or make an assignment for the benefit of creditors, or authorize the filing of a voluntary petition in bankruptcy, or should an act of bankruptcy be committed and involuntary proceedings instituted or threatened, or should the property hereinabove described be taken over by a Receiver for Grantors, their heirs or assigns, the Note shall, at the option of Beneficiary, immediately become due and payable, and the acting Trustee may then proceed to sell the same under the provisions of this Deed of Trust. As further security for the payment of the hereinabove described indebtedness, Grantors hereby transfer, assign, and convey unto Beneficiary all rents, security and other deposits and profits of any nature whatsoever issuing or to hereafter issue from the Property, and in the event of any default in the payment of said note or hereunder, Beneficiary, his agent or representative, is hereby authorized, at his option, to take possession of the Property and collect said rents, security and other deposits and profits or if such property is vacant to rent the same and collect the rents, security deposits and other deposits and/or profits and apply the same, less the reasonable costs and expenses of collection and administration thereof, to the payment of said indebtedness, whether then matured or to mature in the future, and in such manner as Beneficiary may elect. In. the event Beneficiary takes possession of or rents the property pursuant to the foregoing authorization, Grantors hereby release Beneficiary from all liability while acting pursuant to said authorization. The collection of said rents, security deposits and other deposits and profits by Beneficiary shall not constitute a waiver of his right to accelerate the maturity of said indebtedness nor of his right to proceed with the enforcement of this Deed of Trust. it is agreed that an extension, or extensions, may be made of the time of payment of all, or any part, of the indebtedness secured hereby, and that any part of the Property may be released from this lien Nzthout altering, affecting or dinlintishing the priority of the lien created by this Deed of Trust or any renewals or extensions thereof in favor of any junior encumbrancer, mortgagee or purchaser, or any person acquiring an interest in the Property, or any part thereof; it being the intention of the panics hereto to preserve this lien on the Property and all improvements thereon, and that may be hereafter constructed thereon, first and superior to any liens that may be placed thereon, or that may be fixed, given or imposed by law thereon after the execution of this instrument notwithstanding any such extension of the time of payment, or the release of a portion of the Property from this lien, until all sums, including principal, interest, late VOL.3290 pw 115 charges, attomey�s fees, court costs and all other expenses and charges, hereby secured are fully and finally paid. In the event any portion of the indebtedness hereinabove described cannot be lawfully secured by this Deed of Trust lien, it is agreed that the lust payments made on said indebtedness shall be applied to the discharge of that portion of said indebtedness. Beneficiary shall he entitled to receive any and all sums which may become payable to Grantors for the condemnntion of the Property, or any part hereof, for public or qu;,si public use, or by virtue of private stile in lieu thereof, and any sums which may be awarded or become paytible to Grantors for damages caused by public works or construction on or near the said property. All such sums are hereby assigned to Beneficiary, who may, after deducting therefrom all expenses actually incurred, including attorney's fees, release same to Grantors or apply the same to the reduction of the indebtedness hereby secured, whether then matured or to mature in the future, or on any money obligated hereunder, as and in such manner as Beneficiary may elect. Beneficiary shall not be, in any event or circumstances, liable or responsible for failure to collect, or exercise diligence in the collection of, any such sums. Nothing herein or in the Note contained shall ever entitle Beneficiary, or be construed to entitle Beneficiary upon the arising of any contingency whatsoever, to contract for, charge or receive interest in excess of the maximum non -usurious interest rate allowed by the laws of the State of Texas or the United States of America, whichever shall allow the higher rate on the principal indebtedness hereby secured or on any money obligation hereunder and in no event shall Grantors be obligated to pay interest thereon in excess of such rate. in the event an interest rate greater than the maximum non -usurious rate allowed by applicable law is contracted for, charged, or received by Beneficiary, the same shall be refunded by Beneficiary to Grantors or credited on the unpaid principal balance of the Note, as Beneficiary shall elect. If this Deed of Trust is executed by only one person or by a corporation the plural reference to Grantors shall be held to include the singular, and reference to any gender shall include reference to any other gender, as the context may require. All of the covenants and agreements herein undertaken to be performed by and the rights conferred upon the respective Grantors named herein, shall be binding upon and inure to the benefit of not only said parties respectively but also their respective heirs, executors, administrators, grantees, successors and assigns. In the event any term or provision contained in this Deed of Trust is In conflict, or may hereafter be held to be in conflict, with any applicable law or is otherwise held to be unenforceable, this instrument shall be affected only as to its application to such term or provision and shall in all other respects remain in full force and effect. The failure of Beneficiary to exercise any remedy or option provided hereunder shall not constitute a waiver of Beneficiary�s right to exercise the saute at any other tittle and/or with respect to any other default. Grantee's Address: Texas Commerce Bank National Association, Lubbock, Texas P.O. Box 841 Lubbock, Texas 79408 ,m.�• ,r i f j j iy:5r, r 1 r yetr .A. YSf�( 3290 PAGE 116 EXECUTED THIS 26th day of February 1990 . .. SCIENCE SPECTRUM, A TEXAS NON-PROFIT i CORPORATION ' i 3f Br-- ..f[(JCL=L Cassandra L Henry, Its President r �7 J cxay, its Vice-Presi ent . THE STATE OF TEXAS § § ` COUNTY OF LUBBOCK $ This instrument was acmowledged before me on the .?_% day of Lfu41 h 1922, by Cassandra L Henry, President, of Science Spectrum. _SUR summe" Notary Public, State of Texas ow« uiuio Notary's Printed Name: Notarys Commission expires: )ci-I1-5 .AN;. THE STATE OF TEXAS § § :SEAL COUNTY OF LUBBOCK § �- This instrument was acknowledged before me on the /S/' day of 416ed t r 195_0 by Joe D. McKay, Vice -President, of Science Spectrum - ` Not Public, a of Texas E:::��EAL Notary's Printed Name: l Notary's Commission expires: '^ sr�l• ry rew COU` . G. lVaencK -I'.; _ nco•ae..w v.i,.....a .....+r a.rwr.�.r� �,�s�, 1• .}' e kAR S 1990 SO PAR 5 a10 : 51 COVr Cl1M ! (i Lu"O"GoWaM.taaT ,1. n..�.... , c..y. T... _ -- 8 'i