EX-10.17



 






Exhibit
10.17

LEASE AGREEMENT




THE STATE OF TEXAS




COUNTY OF HILL



This agreement of a lease made this 22 day of February 2002 by and between the
CITY OF HILLSBORO, TEXAS, hereinafter referred to as “Lessor,” and L. B. FOSTER
CORPORATION, hereinafter referred to as Lessee. In contemplation of the mutual
consideration set forth herein the parties hereby agree as follows:



Lessor does by these presents lease and demise unto Lessee the real property
described in “Exhibit A,” attached hereto and incorporated by reference herein
including all improvements situated thereon, for a term of ten (10) years,
commencing upon the date of this lease, unless sooner terminated by virtue of
the terms and provisions herein contained. This lease is made upon and subject
to the following conditions and covenants, to-wit:




I. RENTAL



Rental for the above designated property, which Lessee agrees to pay to Lessor
is as follows: The total lease amount is Seven Hundred Thousand and No/100
Dollars ($700,000.00). Rental shall be payable in one hundred nineteen (119)
equal monthly installments of Five Thousand Eight Hundred Thirty-Three Dollars
and 33/100 Dollars ($5833.33) each and one (1) final payment of Five Thousand
Eight Hundred Thirty-Three Dollars and 73/100 Dollars ($5833.73) (1). The
payments shall commence on the first day of the month after the date of this
lease, continuing in a like amount on the first day of each month thereafter
throughout the term of the lease. Lease payments received 10 calendar days or
more past the due date will be assessed a late charge/fee of five percent (5%)
of the payment amount. Payments will be made to the City of Hillsboro, Texas at
214 B. Elm Street, P.O. Box 568 Hillsboro, Texas, 76645, or such address as may
be designated from time to time by the Lessor.




II. OCCUPANCY



Lessor warrants and represents to Lessee that it has complete and lawful right
to lease the premises, and that upon paying the rents and performing the other
terms and conditions, hereof, Lessee shall have quiet and peaceful possession of
the premises, subject to Lessee’s compliance with the provisions of this Lease
Agreement.




III. CARE AND MAINTENANCE OF PREMISES



Lessee shall promptly make all repairs and perform all maintenance on the
building and parking lot, and shall keep all areas of the property, including
the parking lot, in proper condition, repair, and maintenance. Lessee agrees to
pay all costs associated with the care and maintenance of




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the premises. Failure to adequately maintain the premises shall be deemed a
default of the Lease Agreement and shall entitle die, Lessor to all remedies
stated herein.




IV. ALTERATIONS



Upon written approval of the Lessor, Lessee shall have the right, at its own
expense, to make alterations and improvements and to install such fixtures,
machinery, and equipment in and about the premises, and to post or attach such
signs to the interior and exterior of said premises as Lessee may deem
desirable. All alterations, improvements, signs, fixtures (including lights),
and machinery which have been or may be installed, placed, and attached in or
about the premises by Lessee shall always remain the property of Lessee and upon
termination by expiration or otherwise of this lease, or of any renewal thereof,
or at any prior time or times, Lessee will, as it desires to do so, be permitted
to remove within a reasonable time all or any of said alterations, improvements,
signs, fixtures, machinery and equipment so installed, placed, or attached;
provided, however, that any damage caused to the premises by reason of such
removal shall be repaired by Lessee, and the Lessee shall restore the premises
to their original condition.




V. UTILITIES



Lessee hereby agrees to pay for all electricity, gas, water, and other utilities
used by Lessee upon the premises.




VI. REAL PROPERTY TAXES AND PERSONAL PROPERTY TAXES



In contemplation of the fact that the lessor is a governmental entity and the
real property may be tax exempt, the lessee herein agrees to provide payment in
lieu of taxes to all taxing entities for the real property as follows:



I. 50 % of the assessable taxes based on the appraised value of the property for
the City of Hillsboro and Hill County.



II. 100 % of the assessable taxes based on the appraised value of the property
for all other taxing entities.



During the term of this agreement, Lessee shall make payment in lieu of taxes by
January 31 of each year, payable directly to the Lessor at the address in
Section XVI of the agreement.



Lessee agrees to pay when due all taxes and assessments of every nature, kind,
and description levied and assessed by the taxing authorities against personal
properties, betterments, and improvements contained in the building as the same
may become due from time to time during the term of this lease. Lessee hereby
certifies that all taxes on such property are current (paid in full as of the
date hereof).





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VII. INSURANCE



The Lessee shall, at Lessee’s own expense, maintain insurance coverage as set

forth below:




	 	 	 	 	 
	General Liability Insurance:

	 	Bodily Injury $1,000,000 per occurrence


	Property damage

	 	$1,000,000 per occurrence
	Aggregate

	 	$2,000,000
	Products/completed operations

	 	$2,000,000 aggregate

	Environmental Liability Coverage

	 	$1,000,000	 
	Workers Compensation

	 	Statutory Limits






Standard form fire extended coverage property insurance insuring in an amount of
at least $1,000,000 against the perils of fire, extended coverage, vandalism,
malicious mischief, special extended coverage (“all risk”).



The Lessee shall not occupy the premises under this Lease Agreement until the
Lessee has obtained all the insurance required under this Lease Agreement and
such insurance has been approved by the Lessor. All required policies shall name
Lessor as an additional insured, except the Worker’s Compensation Insurance (as
applicable). As proof of the insurance coverage, the Lessee shall furnish to
Lessor valid certificates of insurance of the types and limits required herein,
prior to occupying the premises. In addition, the required insurance coverage
shall contain ‘a provision that coverage afforded under the policies will not be
materially changed or canceled without provision of thirty (30) days written
notice to Lessor. The insurance requirements shall remain in effect throughout
the term of this Lease Agreement.



Concerning insurance to be furnished by the Lessee, it is a condition precedent
to the acceptability thereof that:



1. Any policy submitted shall not be subject to limitations, conditions or
restrictions deemed inconsistent with the intent of the requirements to be
fulfilled by the Lessee;



2. All policies are to be written through companies duly approved to transact
that class of insurance in the State of Texas.



The Lessee agrees to the following:



1. The Lessee hereby waives subrogation rights for loss or damage to the extent
same are covered by insurance. Insurers shall not have the right to recovery or
subrogation against Lessor, it being the intention that the insurance policies
shall protect all parties to the Lease Agreement and be primary coverage for all
losses covered by the policies;



2. Companies issuing the insurance policies and the Lessee shall have no
recourse against Lessor for payment of any premiums, or assessments for any
deductible, as all such premiums are the sole responsibility and risk of the
Lessee.




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3. Approval, disapproval or failure to act by Lessor regarding any insurance
supplied by the Lessee shall not relieve Lessee of full responsibility or
liability, if any, for damages and accidents as set forth in the Lease
Agreement. Neither shall the insolvency or denial of liability by the insurance
company exonerate the Lessee from liability.



4. Any of the insurance policies required under this section may be written in
combination with any of the others, where legally permitted, but none of the
specified limits may be lowered thereby.




VIII. LIABILITY AND INDEMNIFICATION



The Lessee hereby accepts responsibility and liability for the Lessee’s
employees, agents, sub-contractors, guests or other’s use or occupation of the
premises contemplated by this Lease Agreement. The Lessee shall be solely and
completely responsible for the use and/or occupation of the leased premises. The
Lessee herein agrees to comply with the requirements of all applicable laws,
rules and regulations and shall exonerate, indemnify and hold the Lessor
harmless from any and all liability or damages resulting from failure to do so.
In addition, the Lessee agrees to keep, save and hold the Lessor harmless from
any and all actions, liabilities, damages, judgments, costs and expenses
including reasonable attorneys’ fees, in case an action is filed or does in any
way accrue against the Lessor, its officials, officers, and employees in
consequence of this Lease Agreement or for any act, negligence or omission of
the Lessee in the use or occupation of the premises. It is specifically
understood and agreed by the Lessee that such indemnity is indemnity by the
Lessee to indemnify and protect the Lessor from liability, claims, suits,
losses, damages or causes of action due to the Lessee’s use of the premises
under this Lease Agreement. Lessor shall not be held responsible for and shall
be expressly held harmless by Lessee from any and all liability resulting from
any injury, loss, or damage to any person or property occurring in or about the
lease premises, whether the loss, injury, or damage be to personal property of
the Lessee or any other person, except in instances where such loss, injury, or
damage is caused by or through the negligence of Lessor, its agents and
employees.




IX. HAZARDOUS MATERIALS



Lessee shall defend, indemnify, and hold harmless Lessor from any and all
liabilities (including strict liability), actions, demands, penalties, losses,
costs, or expenses (including, without limitation, attorneys’ fees and expenses
and remediation costs), suits, costs of any stt1ement or judgment and claims of
any and every kind whatsoever which may now or in the future be paid, incurred,
or suffered by, or asserted against Lessor by any person or entity or
governmental agency for, with respect to, or as a direct or indirect result of,
the presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission, or release from the lease premises of any hazardous materials or any
hazardous materials contamination, or arise out of or result from the
environmental condition of the lease premises or the applicability of any
governmental requirements relating to hazardous materials (including, without
limitation, CRCLA or any federal, state, or local so-called “Superfund” or


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“Superlien” laws, statute, law, ordinance, code, rule, regulation, order, or
decree), caused by or within the control of Lessee. The representations,
covenants, warranties, and indemnification contained in this paragraph shall
survive the term of this lease.




X. PARTIAL OR TOTAL DESTRUCTION OF PREMISES



In the event the premises are hereinafter partially damaged or destroyed or
rendered partially unfit for their accustomed use by fire or other casualty
insured by fire and extended coverage insurance, then Lessor shall, with
insurance proceeds, promptly repair said premises and restore the same to
substantially the same condition in which the premises were immediately prior to
the occurrence of such damage, but in no event shall Lessor be required to
expend any funds other than the insurance proceeds. From and after the date of
damage, the rental required to be paid by Lessee to Lessor shall be reduced to
that portion of the annual rent which the value of the part of the lease
premises not damaged bears to the value of the total premises, such value to be
determined as of the date of the damage. The lease term shall be extended to
such times as to compensate for the rent abatement.



Lessee shall provide to Lessor a Certificate of Insurance with Lessor as loss
payee and with instruction that Lessor will be notified if Lessee fails to pay
insurance premiums in a timely manner.




XI. CONDEMNATION



Should the whole or any part of the lease premises be condemned or taken by a
competent authority for any public or quasi-public use or purpose, each party
shall be entitled to retain, as its own property, any award payable to it. In
the event that a single award is made on account of the condemnation, each party
will be entitled to take such proportion of said award as may be fair and
reasonable. If the whole of the lease premises shall be so condemned or taken,
Lessor shall not be liable to Lessee except and as its rights are preserved in
this paragraph. In determining such proportion to be divided, the parties will
take into account all improvements made by Lessee and the transfer of the real
estate to Lessor.




XII. TERMINATION OF LEASE AND DEFAULTS OF LESSEE



1) This lease shall terminate upon expiration of the lease term or if this
lease expressly and in



writing provides for any option or options, and if any such option is exercised
by Lessee, then this lease will terminate at the expiration of the option term
or terms. Upon default in the payment of rental herein or upon any other default
by Lessee in accordance with the terms and provisions of this lease, this lease
may at the option of Lessor be canceled and forfeited. Provided, however, before
any such cancellation and forfeiture except as provided in XII(2) below, Lessor



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shall give Lessee a written notice specifying the default, or defaults, and
stating that this lease will be canceled and forfeited thirty (30) days after
the giving of such notice, unless such default, or defaults, are remedied within
such grace period. Lessee shall have the right to exercise the option to
purchase under XV below during the thirty (30) day grace period.



2) In the event Lessee is adjudicated bankrupt or in the event of a judicial
sale or other transfer of Lessee’s leasehold interest by reason of any
bankruptcy or insolvency proceedings or any other operation of law, and such
bankruptcy, judicial sale, or transfer has not been vacated or set aside within
thirty (30) days from giving of notice thereof by Lessor to Lessee, then and in
any such event, Lessor may, at its option, immediately terminate this lease,
re-enter the premises, upon giving thirty (30) days written notice by Lessor to
Lessee, all to the extent permitted by applicable law.



3) In (1) and (2) above, waiver as to any default shall not constitute a waiver
of any subsequent default or defaults.



4) Acceptance of keys, advertising, and re-renting by Lessor upon the Lessee’s
default shall be construed only as an effort to mitigate damages by the Lessor,
and not as an agreement to terminate this lease.




XIII. RIGHTS OF EITHER PARTY TO MAKE GOOD ANY DEFAULT OF THE OTHER



If default shall be made by either party in the performance of, or compliance
with, any of the terms, covenants, or conditions of this lease, and such default
shall have continued for thirty (30) days after written notice thereof from one
party to the other, the party aggrieved, in addition to all other remedies now
or hereafter provided by law, may, but need not, perform such term, covenant, or
condition, or make good such default and any amount advanced shall be repaid
forthwith on demand within ten (10) days from the date of said advance.




XIV. ASSIGNABILITY



The Lessee shall not assign, mortgage, or encumber this lease, or sublet or
permit the-lease premises or any part thereof to be used by others, without the
prior written consent of Lessor in each instance. If this lease is assigned, or
if the lease premises or any part thereof is sublet or occupied by anybody other
than the Lessee and affiliated companies, the Lessor may, after default by the
Lessee, collect rent from the assignee, subtenant, or occupant and apply the net
amount collected to the rent herein reserved. No such assignment, subletting
occupancy, or collection shall be deemed a waiver of this covenant, nor the
acceptance of the assignee, subtenant, or occupant as a Lessee, or a release of
the Lessee from the further performance by the Lessee of the covenants in this
lease. The consent by Lessor to an assignment or subletting shall not be
construed to relieve the Lessee from obtaining the consent in writing of the
Lessor4e any further assignment or subletting. Lessee agrees to forward all
payments received from subleasee, if one is approved, to Lessor during the term
hereof. Not withstanding the foregoing, Lessee, any merge or consolidate with
another entity so long as the surviving entity is bound to the terms of this
Lease Agreement.





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XV. OPTION TO PURCHASE



At any time after the expiration of five (5) years from the date of this lease,
during the lease term or any extension thereof, Lessee is given the option to
purchase the leased premises together with all improvements thereon for the
unpaid principal lease amount. The Lessee shall exercise this option to purchase
by giving to Lessor written notice of its intention to purchase. If this option
to purchase is exercised, Lessor shall deliver to Lessee within thirty (30) days
after having received such notice a Special Warranty Deed and Lessee shall
deliver to Lessor, on the date that the deed is delivered, a cashier’s check for
the unpaid principal balance of the lease payments. If Lessee has not previously
exercised its option to purchase, Lessee’s payment of the last payment owed
hereunder shall be lessees’ exercise of said option. Lessees’ obligations to
make the rental payments on the lease shall be suspended after Lessee notifies
Lessor of its intention to exercise the option to purchase.




XVI. NOTICES



Any notice or communication required or permitted hereunder or under this Lease
Agreement shall be in writing, sent certified mail return receipt requested and
addressed as follows:




	 	 	 
	To Lessor:

	 	City Manager
	 

	 	City of Hillsboro
	 

	 	214 E. Elm
	 

	 	P.O. Box 568
	 

	 	Hillsboro, Texas 76645
	 
	 	 
	To Lessee:

	 	L. B. Foster Company
	 

	 	c/o David Minor
	 

	 	901 N. Highway 77
	 

	 	Hillsboro, Texas 76645





Either party may change the address to which notices are to be sent it by giving
the other party written notice of the new address in the manner provided in this
section.




XVII. RIGHTS CUMULATIVE



The various rights, powers, options, elections, and remedies of either party
provided in this lease shall be construed as cumulative and not one of them is
exclusive of the others, or exclusive of any rights, remedies, or priorities
allowed either party by law, and shall in one way affect or impair the right of
either party to pursue any other equitable or legal remedy to which either party
may be entitled as long as any default remains in any way unremedied,
unsatisfied, or undischarged.




XVIII. BENEFITS TO BIND AND BENEFITS OF SUCCESSORS ASSIGNS ETC.


The provisions of this lease shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and/or assigns.





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XIX. TEXAS CAPITAL FUND REOU1REMENT



Lessee is aware that Lessor has acquired funds from the Texas Capital Fund. Any
terms or conditions contained in this lease which contradict any of the rules
and regulations of Texas Capital Fund shall be void. Lessee acknowledges that
Lessee is familiar with the rules and regulations of Texas Capital Fund. Any
amendments to the lease agreement shall require prior written approval by the
Texas Department of Economic Development. Any change in the total lease amount
will result in an adjustment of the monthly lease payment and the calculation of
a revised payment schedule.




XX. EQUIPMENT FINANCING



Lessor disclaims any right or interest in certain equipment, whether or not
considered to be fixtures, described in Exhibit B hereto (the “Equipment”),
which Equipment is subject to a Lease Agreement among GE Capital Public Finance
Inc. (“GEPF”), Hillsboro Industrial Development Corporation and Lessee (the
“Equipment Lease”). Lessor agrees to give GEPF and its assigns access to the
Equipment and the right to store on the premises the Equipment in the event
Lessee should default under the Equipment Lease for a period not to exceed 60
days from any lease termination resulting from such default. Lessor agrees to
execute documents reasonably requested by Lessee in connection with the
provisions of this Article XX herein.




XXI. OPEN MEETINGS ACT COMPLIANCE



This lease has been approved by the City Council of the City of Hillsboro,
meeting in an open session on the 5th day of February 2002 and all provisions of
the Texas Open Meetings Acts have been complied with by City of Hillsboro.



IN WITNESS WHEREOF, the parties hereunto have executed duplicate originals of
this document by their proper officers duly authorized to so act and with the
intent to be bound by the terms stated herein.




	 	 	 	 	 	 	 
	LESSOR:
	 	 	 	 	 	 
	 	 	 	 	CITY OF HILLSBORO
	ATTEST:
	 	 	 	 	 	 
	 

	 	 	 	By:  	 	 
	
LESSEE:	 	 	 	
L.B. FOSTER COMPANY
 
	ATTEST:

	 	 	 	By:  	 	 






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EXHIBIT A




TRACT 1:



FIELD NOTES for a lot, tract, or parcel of land containing 7.277 acres lying and
situated in the J.E. Ross Survey A-750 in Hillsboro, Hill County, Texas. Said
land is that certain 7.285 acre tract described in a deed from Spartan Copper,
Incorporated to Hillsboro Loan Investors, L.P. as recorded in Volume 884, Page
134 of the official Public Records of Hill County, and is more particularly
described by metes and bounds as follows:



BEGINNING at a 1/2” iron rod found in the northwest line of U.S. Highway 17 for
the south corner of said 7.285 acre tract, said point being the most easterly
corner of a tract described, in a deed to Franklin Industries, Inc. as recorded
in Volume 928, Page 772 of the Official Public Records of Hill County;



THENCE: N 44 deg 53 min 0 sec W 599.95 feet along Franklin’s northeast line to a
5/8” iron rod found for corner; THENCE: N 35 deg 54 mm 0 sec E 94.55 feet and N
50 deg 17 min 15 sec W 82.21 feet and N 31 deg 49 min 30 sec E 259.24 feet along
Franklin’s line, 5/8” iron rods found at all corners;



THENCE: S 85 deg 52 min 0 sec E 369.45 feet to a 1/2” iron rod set for corner;



THENCE: S 42 deg 37 min 15 sec E 181.00 feet to a railroad spike found for
corner;



THENCE: S 21 deg 51 min 0 sec E 118.04 feet to a railroad spike found for
corner in the northwest line
of said U.S. Highway 77;



THENCE: Around a curve to the left with radius 2024.86 feet an arc distance
of 255.26 feet (Chord: S 26
deg 19 min 30 sec W 255.09 feet) to a 1/2’ Iron rod set for corner;



THENCE: S 29 deg 7 min 1O sec W 190.88 feet to a 1/2” iron rod set for corner



THENCE: S 17 deg 26 min 10 sec W 115.00 feet to the point of beginning,
containing 7.277 acres of land.




TRACT 2:



FIELD NOTES for a lot, tract, or parcel of land containing 1.356 acres lying and
situated in the J.H. Ross Survey A-750 in Hillsboro, Hill County, Texas. Said
land is that certain 1.52 acre tract described in a deed from Hillsboro Lake
Park Association to Robintech, Inc. as recorded in Volume 486, Page 779 of the



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Deed Records of Hill County, arid in a Quit Claim Deed from Hillsboro Lake Park
Association to Robintech, Inc. as recorded in Volume 507, Page 497 of the Deed
Records of Hill County. Said land is more particularly described by metes and
bounds as follows:



BEGINNING at railroad spike found for the most easterly corner of a tract
described in a deed to Hillsboro Loan Investors, L.P. as recorded in Volume 864,
Page 134 of the Official Public Records of iii 11 County;



THENCE: N 21 deg 51 min 8 sec W 118.04 feet to a railroad spike found for
corner;



THENCE: N 42 deg 37 min 15 sec W 181.00 feet to a 1/2” iron rod set for corner;



THENCE: N 85 deg 52 min 0 sec W 369.45 feet to a 5/8” iron rod found for corner;



THENCE: N 30 deg 43 min 0 sec E 99.95 feet to a 1/2” iron rod found for corner;



THENCE: S 80 deg 18 min 55 sec E 299.57 feet and S 68 deg 39 min 37 sec
E 327.05 feet along a fence, 5/8” iron rods found for corners;



THENCE: S 31 deg 57 min 50 sec W 219.12 feet to the point of beginning,
containing 1.356 acres of land.





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