EXHIBIT 10.12
EXECUTION COPY
ASSIGNMENT AND ASSUMPTION OF LEASE AND SUBLEASE
This ASSIGNMENT AND ASSUMPTION OF LEASE AND SUBLEASE (this
"Assignment") is dated effective as of 12:01 a.m. on November 1, 2002 (the
"Effective Time"), by and among Xxxxxx Gas Sales LLC, a Texas limited liability
company formerly known as Xxxxxx Gas Sales, Inc., a Texas corporation, prior to
its conversion to a limited liability company under Article 5.17 of the Texas
Business Corporation Act (the "Assignor"), and Xxxxxx Operating Partnership
L.P., A Delaware limited partnership ("Assignee").
WITNESSETH
WHEREAS, the Tampa Port Authority, a body politic and corporate under
and by virtue of the Laws of the State of Florida, and of Hillsborough County,
and, as the governing body of the Hillsborough County Port District, as landlord
("Landlord"), and Assignor, as tenant, are parties to that certain Lease
Agreement, dated as of December 16, 1976, as amended by eight amendments
thereto, including the Consent to Assignment and Attornment Agreement dated
March 30, 1995, between, the Tampa Port Authority, Xxxxxx Gas Sales, Inc., and
Boliden Chemicals, Inc., (which Lease Agreement, together with all
modifications, amendments and supplements thereto, is hereinafter referred to
collectively as the "Lease"), a copy of which is attached hereto as Exhibit A,
pursuant to which Landlord leases to Assignor, and Assignor leases from
Landlord, the property situated in Hillsborough County, Florida, and commonly
referred to as "4118 Xxxxxxx Point Road," consisting of approximately 9.94 acres
as more particularly described and set forth in Exhibit "A" to the Lease (the
"Premises");
WHEREAS, Tenant has subleased a portion of the Premises (such portion
referred to herein as the "Subleased Premises") to XX Xxxxxx Sulphur, LP, a
Delaware limited partnership ("CF"), pursuant to that certain Sublease Agreement
between Tenant and CF, dated as of November 22, 2000 (the "Sublease"), a copy of
which is attached as Exhibit B;
WHEREAS, pursuant to the terms of that certain Contribution, Conveyance
and Assumption Agreement, dated as of the Effective Time, to which Assignor and
Assignee are parties, Assignee is acquiring Assignor's right, title and interest
in and to certain assets of Assignor, including all right, title and interest
in, to and under the Lease and the Sublease, including Assignor's post Effective
Time liabilities and obligations under the Lease and the Sublease;
WHEREAS, in connection with the foregoing, Assignor desires to assign
the Lease and the Sublease to Assignee, and Assignee desires to accept the
assignment of the Lease and the Sublease from Assignor and to assume and be
bound by all of the terms, conditions, provisions, obligations, covenants and
duties of Assignor under the Lease and the Sublease from and after the Effective
Time; and
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby
covenant and agree as follows:
1. Assignment. As of the Effective Time, Assignor hereby grants,
assigns and transfers to Assignee, its successors and assigns, all of Assignor's
right, title and interest in, to and under the Lease and the Sublease
(including, without limitation, any options under the Lease and the Sublease and
any rights to extend or renew the Lease and the Sublease), and Assignee accepts
from Assignor all of Assignor's right, title and interest in, to and under the
Lease and the Sublease.
2. Assumption of Obligations. As of the Effective Time, Assignee hereby
assumes and agrees to be bound by and to perform and fulfill all of the terms,
conditions, provisions, obligations, covenants and duties required to be
performed and fulfilled by Assignor under the Lease and the Sublease from and
after the Effective Time as if Assignee was an original party thereto,
including, without limitation, any and all post Effective Time payment or
performance obligations due under the Lease and the Sublease.
3. Representations of Assignor. Assignor represents to Assignee as
follows:
a. The Lease and the Sublease attached hereto as Exhibit A,
and Exhibit B, respectively, are true, correct and complete copies of
the Lease and the Sublease;
b. The Lease and the Sublease are in full force and effect and
have not been modified, amended or supplemented except as set forth
therein;
c. Other than the Lease, there are no other agreements,
whether written or oral, between Landlord and Assignor regarding the
Premises or Assignor's obligations thereunder;
d. Other than the Sublease and that certain Easement Agreement
between Sublessee and Tenant dated as of November 22, 2000, there are
no other agreements, whether written or oral, between Assignor and
Sublessee regarding the Subleased Premises or Assignor's or Sublessee's
obligations thereunder;
e. No default or breach by Assignor or Landlord has occurred
and is continuing under the Lease, and no event has occurred and is
continuing which, with or without the giving of notice or the lapse of
time, or both, would constitute a default thereunder;
f. No default or breach by Assignor or Sublessee has occurred
and is continuing under the Sublease, and no event has occurred and is
continuing which, with or without the giving of notice or the lapse of
time, or both, would constitute a default thereunder;
g. The current term of the Lease expires on December 15, 2006,
unless sooner terminated (or extended) as provided in the Lease;
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h. The current term of the Sublease expires on December 14,
2006, unless sooner terminated (or extended) as provided in the
Sublease; and
i. To Assignor's knowledge, neither Landlord nor Sublessee has
filed a petition in bankruptcy or has been subject to an involuntary
petition in bankruptcy which has been dismissed or made an assignment
for the benefit of creditors.
4. Successors and Assigns. This Assignment shall be binding on and
inure to the benefit of the parties hereto, and their respective successors and
assigns, provided that this Section 4 shall not be construed to permit any
future assignments of the Lease or the Sublease or any subletting of the
Premises or the Subleased Premises except as expressly permitted by the Lease or
the Sublease, as the case may be.
5. Counterparts. This Assignment may be signed in counterparts, each of
which shall be deemed an original and all of which, when taken together, shall
constitute one and the same instrument.
6. Governing Law. This Assignment shall be governed by and construed in
accordance with the laws of the State of Florida.
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IN WITNESS WHEREOF, the parties hereto have executed this assignment as
of the Effective Time.
ATTEST: ASSIGNOR:
XXXXXX GAS SALES LLC
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxxx By: Xxxxxx Resource Management Corporation
Its Sole Member
ATTEST:
By: /s/ Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx
Chief Financial Officer
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
ATTEST: ASSIGNEE:
XXXXXX OPERATING PARTNERSHIP L.P.
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx By: Xxxxxx Operating GP LLC
Its General Partner
ATTEST: By: Xxxxxx Resource LLC
Its Sole Member
By: /s/ Xxxx Xxxxxxxx By: Xxxxxx Resource Management Corporation
Name: Xxxx Xxxxxxxx Its Sole Member
By: /s/ Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx
Chief Executive Officer
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STATE OF TEXAS, COUNTY OF DALLAS, TO WIT:
On this 1st day of November, 2002, before me, a notary public of said
State and County, personally appeared Xxxxxx Xxxxxxxxx, who acknowledged himself
to be Chief Financial Officer of Xxxxxx Resource Management Corporation, the
sole member of Xxxxxx Gas Sales LLC and that he being authorized so to do,
executed the foregoing instrument for the purposes therein contained, by signing
the name of the limited liability company by himself as an officer thereof.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxx Xxxxxxxx
Notary Public
My Commission Expires: 10-17-2004
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STATE OF TEXAS, COUNTY OF DALLAS, TO WIT:
On this 1st day of November, 2002, before me, a notary public of said
State and County, personally appeared Xxxxxx Xxxxxxxxx, who acknowledged himself
to be Chief Financial Officer of Xxxxxx Resource Management Corporation, the
sole member of Xxxxxx Resource LLC, the sole member of Xxxxxx Operating GP LLC,
the general partner of Xxxxxx Operating Partnership L.P., and that he, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the company by himself as noted above.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxx Xxxxxxxx
Notary Public
My Commission Expires: 10-17-2004
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EXHIBIT A
THE LEASE
[TAMPA PORT AUTHORITY LETTERHEAD]
LANDLORD ESTOPPEL CERTIFICATE
November 8, 2000,
Re: Ground Lease Agreement dated December 16, 1976, together with all
amendments thereto (collectively, the "LEASE")
Landlord: Tampa Port Authority ("LANDLORD")
Tenant: Xxxxxx Gas Sales, Inc ("TENANT")
Premises: All that certain parcel or parcels of land, the same being
situated in Hillsborough County,
Florida, and commonly
referred to as "4118 Xxxxxxx Point Road", consisting of
approximately 9.94 acres as more particularly described and
set forth in Exhibit "A" of that certain ground lease
agreement dated December 16, 1976. (the "PREMISES").
Gentlemen:
The Tampa Port Authority is the current Landlord under the Lease. We
give you this certificate to permit you to rely on it as conclusive evidence of
the matters stated below. We warrant and represent to you as follows:
1. Attached hereto as Schedule A is a true, correct and complete
copy of the Lease, including all amendments and modifications.
The attached lease documents represent the entire agreement
between Landlord and Tenant as of the date of this certificate
and the Lease has not been otherwise assigned, amended,
supplemented or modified except for the Landlord's consent to
a sublease with XX Xxxxxx Sulphur, LP, a Delaware limited
partnership, for operation of the sulphur facilities on the
site. The Lease is the only lease between the Tenant and the
Landlord affecting the Premises.
2. On the date of this certificate the Lease is in full force and
effect according to its terms.
3. No action or proceeding has been instituted by the Landlord
against the Tenant under the Lease in any federal or state
court, and on the date of this certificate, the Landlord has
no actual knowledge of a default by the Tenant under the
Lease. The Landlord has not examined the Premises to verify
the condition thereof or to verify that no nonmonetary
defaults exist. Landlord has not given or received a notice of
default under the Lease.
4. Landlord hereby acknowledges that the Tenant intends to
sublease a portion of the Premises to XX Xxxxxx Sulphur LP
pursuant to the terms of the document attached hereto as
Schedule A-1 (the "Sublease"). The Landlord has consented to
the grant of the Sublease.
5. The person signing this letter on behalf of Landlord is a duly
authorized agent of the Landlord.
We understand that you will rely on the certifications set forth above.
Sincerely,
LANDLORD:
TAMPA PORT AUTHORITY, a body politic and
corporate under and by virtue of the Laws of
the State of
Florida, and of Hillsborough
County, and, as the governing body of the
Hillsborough County Port District
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
--------------------------------
Title: [ILLEGIBLE]
-------------------------------
CEK:bap
AMENDMENT NO. 8 TO AGREEMENT OF LEASE
This Amendment No. 8 to Agreement of Lease ("AMENDMENT") made and
entered into as of this 16th day of December, 1996, by and between the TAMPA
PORT AUTHORITY, a body politic and corporate organized and existing under the
laws of the State of
Florida ("LESSOR"), and XXXXXX GAS SALES, INC., a Texas
corporation ("LESSEE"), successor in interest to Boliden Chemicals, Inc., a
Delaware corporation.
WITNESSETH:
WHEREAS, the Lessee currently leases approximately ten (10) acres of
land at Port Xxxxxx ("PREMISES") from Lessor under the terms and provisions of a
December 16, 1976 Agreement of Lease ("ORIGINAL LEASE"), as amended on May 21,
1980 ("FIRST AMENDMENT"), October 10, 1980 ("SECOND AMENDMENT") August 15, 1984
("THIRD AMENDMENT") July 13, 1987 ("FOURTH AMENDMENT"), December 5, 1988 ("FIFTH
AMENDMENT"), February 16, 1989 ("SIXTH AMENDMENT"), May 13, 1992 ("SEVENTH
AMENDMENT") and March 30, 1995 (Original Lease, as amended, is collectively
referred to as the "LEASE"); and,
WHEREAS, Paragraph 23 of the Lease provides that the Lessee shall have
the option to extend the Lease for ten (10) years and provides that in the event
of an extension, the rental rate, the inbound and outbound wharfage guarantees
and the minimum charge relative to the Vessel Moorings System shall be increased
in the manner set forth in Paragraph 23; and,
WHEREAS, Lessee has notified the Lessor of its intent to exercise the
final ten (10) year renewal term; and,
WHEREAS, the parties wish to amend the Lease to document the ten (10)
year renewal term, to increase the rental rate, the wharfage guarantees, and the
Vessel Moorings System charge, and to modify Lessee's permitted use of the
Premises to allow for Lessee's handling of anhydrous ammonia at the Premises.
NOW, THEREFORE, in consideration of the covenants contained herein and
the sum of Ten Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby covenant and agree as follows:
1. All of the foregoing recitals are incorporated by reference to the
same force and effect as if repeated in this Paragraph.
2. The term of the Lease is hereby extended ten (10) years commencing
on December 16, 1996 and ending on December 15, 2006.
3. The first sentence of Paragraph 3 of the Original Lease is hereby
deleted and replaced with the following sentence:
The leased premises shall be used solely and only for the
storage and handling of petroleum products, sulfuric acid,
molten sulphur, asphalt and derivatives thereof and anhydrous
ammonia.
4. The Lease, as amended by Article 3, Paragraph 1(a)(i) of the First
Amendment, Article 2 of the Fourth Amendment, Article 2 of the Fifth Amendment,
and Article 2 of the Seventh Amendment, is further amended to provide that:
The bare land rental rate shall be increased to $84,480.00
annually, to be paid in twelve (12) equal monthly installments
of $7,040.00, together with any applicable sales and/or rental
tax due thereon, due and payable in advance of each month.
5. This Lease, as amended by Article 3, Paragraph 1(a)(ii) of the
First Amendment, Article 2 of the Second Amendment, Article 3 of the Fourth
Amendment, Article 3 of the Fifth Amendment, Article 2 of the Sixth Amendment
and Article 3 of the Seventh Amendment, is further amended to provide that:
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The wharfage rate for petroleum products, sulfuric acid, and
anhydrous ammonia shall be assessed at the established rate of
the Tampa Port Authority's tariffs, as amended from time to
time, and shall apply towards Lessee's minimum annual wharfage
guarantees.
Once Lessee has reached its outbound wharfage guarantee limit,
the applicable outbound wharfage rate shall be reduced to
fifty percent (50%) of the Tampa Port Authority's tariff rate
for the remaining portion of the Lease year.
Wharfage Guarantees shall be increased as follows:
a. The wharfage guarantee for inbound movements of petroleum
products, sulfuric acid, molten sulphur, asphalt and
derivatives thereof and anhydrous ammonia shall be $84,480.00
annually, together with any applicable sales or other tax due
thereon.
b. The wharfage guarantee for outbound movements of petroleum
products, sulfuric acid, molten sulphur, asphalt and
derivatives thereof and anhydrous ammonia shall be $18,665.00
annually, together with any applicable sales or other tax due
thereon.
6. The Lease, as amended by Article 3, Paragraph 2(b) of the First
Amendment, Article 3 of the Second Amendment, Article 4 of the Fifth Amendment,
and Article 4 of the Seventh Amendment, is further amended to provide that the
Vessel Mooring Charge (in lieu of dockage charge) shall be $32,920.00 annually,
together with any applicable sales or other tax due thereon.
7. Except as herein expressly amended, all other terms, conditions and
covenants of the Lease, as previously amended, shall remain the same.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers on the day and year first above
written.
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Signed, sealed and delivered TAMPA PORT AUTHORITY
in the presence of:
By: /s/ XXXXXX X. XXXXXXX
/s/ [ILLEGIBLE] -------------------------------
----------------------------------- XXXXXX X. XXXXXXX
Its: Port Director
/s/ [ILLEGIBLE]
----------------------------------- XXXXXX GAS SALES, INC., a
Texas corporation
/s/ [ILLEGIBLE]
----------------------------------- By: /s/ XXXXX X. XXXXXX, III
-------------------------------
/s/ XXXXX X. XxXXXXXX XXXXX X. XXXXXX, III
----------------------------------- Its: President
[CORPORATE SEAL]
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CONSENT TO ASSIGNMENT AND ATTORNMENT AGREEMENT
Subject to the terms and conditions hereinafter set forth, TAMPA PORT
AUTHORITY ("Lessor") hereby consents to the Assignment and Assumption Agreement
between BOLIDEN CHEMICALS, INC., ("BCI"), whose address is 0000 Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, XX 00000 and XXXXXX GAS SALES, INC., ("Lessee"), whose
address is P. O. Xxx 000, Xxxxxxx, XX 00000-0000, dated March 28, 1995
("Assignment") and attached hereto as Exhibit "A," upon the following terms and
conditions:
Background
A. BCI currently leases approximately ten (10) acres of land situated in Tampa,
Florida ("Premises") from Lessor under the terms and provisions of a December
16, 1976 Lease Agreement, as amended May 21, 1980, October 10, 1980, August 15,
1984, July 13, 1987, December 5, 1988, February 16, 1989, and May 13, 1992
("collectively referred to as the Lease"):
B. This Consent is required by the Lease, and issued at the express request of
BCI and Xxxxxx Gas Sales, Inc. This Consent replaces BCI with Xxxxxx Gas Sales,
Inc. as "Lessee" under the Lease from and after the effective date of the
Assignment and does not in any way expand the obligations of BCI under the
Lease existing prior to the effective date of this Consent.
C. The basic rent, supplemental payments and other fees currently payable by BCI
to Lessor pursuant to the Lease are as follows:
1. Bare Land Rent: $66,948.00 xxx./$5,579.00 mo.
2. Wharfage Rate: The wharfage rate for petroleum and
sulphuric acid shall be assessed at the
Tampa Port Authority's established rate and
shall apply toward Lessee's minimum annual
wharfage guarantees.
Once Lessee has reached its outbound wharfage
guarantee limit the applicable outbound
wharfage rate shall be reduced to fifty (50)
percent of the tariff rate for the remaining
portion of the lease year.
3. Wharfage Guarantee:
a. The wharfage guarantee for inbound movements of petroleum
and sulphuric acid products shall be $66,948.00 annually.
b. The wharfage guarantee for outbound movements of petroleum
and sulphuric acid products shall be $14,784.00 annually.
4. Vessel Mooring Charge:
Vessel Mooring Charge (in lieu of dockage charge) shall be $26,088.00
annually, to be paid monthly in advance at a rate of $2,174.00.
Terms and Conditions of Consent
The Assignment is hereby approved by Lessor, subject to the terms of the Lease
and the terms of this Consent:
1. The Lease, as described above, is in full force and effect and, to
Lessor's knowledge, no default exists thereunder.
2. Lessor hereby consents to the Assignment, provided that the consent
of Lessor evidenced hereby is subject to the following:
a) Unless otherwise expressly stated in this Consent, nothing in the
Assignment shall supersede or limit the continued effectiveness of the
provisions of the Lease, which provisions remain in full force and
effect. In the event of any conflict between the provisions of the
Lease and the Assignment, the Lease shall control.
b) The execution and delivery of this Consent shall not affect the
rights of Lessor under the Lease with respect to future subleases,
transfers or assignments of the Lease.
c) Lessor shall be entitled to prompt written notice from Lessee and
BCI of any amendment, modification, or termination of the Assignment by
either party thereto.
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d) Notwithstanding the execution and delivery of this Consent, no
person or entity, heretofore so liable in whole or in part, is to be
deemed released hereby from liability to Lessor for the full and due
performance of the Lease, provided that Lessor agrees to look first to
Xxxxxx Gas Sales Inc., as Lessee, for fulfillment of all performance
obligations applicable to Lessee under the Lease from and after the
effective date of the Assignment, and shall seek such performance from
BCI under the Lease only in the event Lessee fails or refuses in such
performance, and, provided further, as between Lessor and BCI but not
otherwise, that BCI shall be fully released and forever discharged from
all obligations under the Lease as of and from and after the Lease
expiration date, i.e., December 15, 1996, except for any costs and
expenses, including attorneys' fees resulting from any violations of
federal, state or local laws, statutes, rules, regulations or
ordinances during the term of the Lease up to March 28, 1995.
e) No provision of the Assignment shall be held to impose upon Lessor
any obligations or liabilities not expressly provided for in the Lease.
3. Notwithstanding any contrary provision of the Lease:
(A) Paragraph No. 7 of the Agreement of Lease is hereby amended by
adding with the following:
INSURANCE
During the life of this Lease, from and after March 28, 1995,
Lessee shall provide, pay for, and maintain with insurance companies
satisfactory to the Lessor, the types of insurance described herein.
(a) Insurance Requirements. All insurance shall be from
responsible insurance companies eligible to do business in the State of
Florida.
All Liability Policies shall provide that the Lessor is an Additional Insured as
to the operations of Lessee under this Lease and shall also provide the
Severability of Interest Provision. The insurance coverages and the limits
required must be evidenced by properly executed Certificates of Insurance on
forms which are to be furnished by the Lessor. The Certificate must be
personally manually signed
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by the Authorized Representative of the insurance company shown in the
Certificate with proof that he/she is an authorized representative thereof. In
addition, certified, true and exact copies of all insurance policies required
shall be provided the Lessor, on a timely basis, if requested by the Lessor. The
required policies of insurance shall be performable in Hillsborough County,
Florida, and shall be construed in accordance with the laws of the State of
Florida.
Thirty (30) days prior written notice by registered or
certified mail shall be given the Lessor of any cancellation, intent not to
renew, or reduction in the policies' coverage amount in the application of the
Aggregate Limits Provisions. In the event of a reduction in any Aggregate Limit,
Lessee shall take immediate steps to have it reinstated to not less than the
minimum amount specified in the Lease. If at any time the Lessor requests a
written statement from the insurance company as to any impairments to the
Aggregate Limit, Lessee shall promptly authorize and have delivered such
statement to the Lessor. Lessee shall make up any impairment when known to it to
the extent necessary to maintain the minimum Aggregate Limit specified above.
Lessee authorizes the Lessor and its Insurance Consultant to confirm all
information furnished the Lessor, as to its compliance with its Bond and
Insurance Requirements, with Lessee's insurance agents, brokers, surety and
insurance carriers. All insurance coverages of Lessee shall be primary to any
insurance or self-insurance program carried by the Lessor for this Lease.
No occupancy of the Premises shall commence at the Premises
unless and until the required Certificates of Insurance are in effect.
If any General Liability Insurance required herein is to be
issued or renewed on a "claims made" form as opposed to the "occurrence" form,
the retroactive date for coverage shall be no later than the date of the
Assignment of the Lease. In addition, Lessee covenants that in the event of
cancellation or non-renewal of any such policy, or if any such policy is
replaced with a new policy that does not have an effective commencement date
which is the same as the date of the Assignment, then Lessee shall obtain such
coverage as shall be necessary for the discovery period for insurance claims
(Tail Coverage) under such non-renewal or cancelled policy to be not less than
the applicable Statutes of Limitations.
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All of the required insurance coverages shall be issued as
required and policies shall be endorsed, where necessary, to comply with the
minimum requirements contained herein. Renewal Certificates of Insurance on the
Lessor's form must be provided the Lessor ten (10) days prior to expiration of
current coverages so that there shall be no interruption in Lessee's occupancy
due to lack of proof of the insurance coverages required of Lessee in this
Lease. Should at any time Lessee not provide or maintain the insurance coverages
required in this Lease, the lessor may terminate or suspend this Lease.
The amounts and types of insurance shall conform to the
following minimum requirements with the use of Insurance Service Office (ISO)
policies, forms, and endorsements or broader where applicable. Notwithstanding
the foregoing, the wording of all policies, forms and endorsements must be
acceptable to the Lessor.
(b) Insurance Coverages and Limits.
(1) Commercial General Liability Insurance shall be maintained
by Lessee. Coverage shall include but not be limited to Premises and
Operations, Personal Injury, Contractual, Independent Contractors,
Broad Form Property Damage including Completed Operations and Products
& Completed Operations Coverages and shall not exclude coverage for the
"X" (explosion), "C" (collapse) and "U" (underground) Property Damage
Liability exposures.
Completed Operations Liability Coverage shall be maintained
for a period of not less than two (2) years following termination of this Lease
Agreement.
Limits of Coverage shall not be less than:
Bodily Injury & Property
Damage Liability $l,000,000.00 Combined Single Limit Each
Occurrence and Aggregate.
The General Aggregate
limit shall be separately
applicable to this
specific Lease.
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Should Lessee's General Liability Insurance be written or renewed on the
Comprehensive General Liability form, the limits of coverage required shall not
be less than:
Bodily Injury Liability $1,000,000.00 Limit Each Occurrence
Damage Liability $1,000,000.00 Limit Each Occurrence
or
Bodily Injury & Property
Damage Liability $1,000,000.00 Combined Single Limit Each
Occurrence
(2) Automobile Liability Insurance shall be maintained by
Lessee as to the ownership, maintenance, and use of all owned,
non-owned, leased or hired vehicles to be used on the Premises with
limits of not less than:
Bodily Injury Liability $1,000,000.00 Limit Each Person
$1,000,000.00 Limit Each Accident
Property Damage
Liability $1,000,000.00 Limit Each Accident
or
Bodily Injury & Property
Damage Liability $1,000,000.00 Combined Single Limit Each
Accident
(3) Umbrella Liability Insurance shall be maintained by Lessee
with a limit of not less than $3,000,000.00 each occurrence and
aggregate. The limits of Primary Liability Insurance for the General
Liability, Automobile Liability and Employers' Liability Insurance
Coverages required in this section shall be not less than:
Bodily Injury, Personal
Insurance and Property
Damage Liability $1,000,000.00 Combined Single Limit and
Aggregate Limit,
where applicable
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(B) Lessee and not BCI expressly assumes, and agrees to be responsible
to Lessor for, the covenants of, and the indemnifications of Lessor by, Lessee
under the provisions of the "Environmental Addendum to Lease" attached hereto
and made a part hereof as Exhibit "B". The environmental provisions starting at
line 4, page 4 of Amendment No. 4 to Agreement of Lease and continuing through
line 28, page 5 of Amendment No. 4 to Lease are hereby stricken and replaced
with the provisions set forth in Exhibit "B".
4. The undersigned Lessee and BCI, respectively, covenant and agree to
be bound by the terms of this Consent.
5. Lessee hereby attorns to Lessor and agrees to keep and perform all
the covenants and obligations of Lessee under the Lease, and the "Environmental
Addendum to Lease" attached hereto, as so assigned effective as of the date
hereof.
6. Lessee represents and covenants that it will only conduct business
on the Premises under the name of Xxxxxx Gas Sales, Inc., a Texas corporation,
and will not conduct business on the Premises under any other name or permit any
other person or entity to conduct business from or on the Premises without the
prior written consent of the Lessor, provided that duly authorized customers of
Lessee shall be entitled to conduct business on the Premises to the extent as
part of an operator/customer relationship established in the ordinary course of
business. Lessee agrees that with respect to entities other than Lessee which
are controlled by Lessee, or which are under common control with the Lessee, it
shall be responsible for and pay to the Lessor any charges, commissions,
assessments, wharfage or dockage fees resulting from any transactions by such
person or entity which arise from the use or occupation of the Premises and
which would be assessable if the entity was a Lessee.
7. This Consent shall be effective only after the execution of the
Acknowledgement, below, by all of the designated parties, and the delivery of an
original (or original counterparts) hereof executed by Xxxxxx Gas Sales, Inc.
and Boliden Chemicals, Inc. to the Lessor.
8. Notwithstanding any provision of this instrument or the Lease to the
contrary, from the effective date of the assignment of the Lease by Boliden
Chemicals, Inc. to Xxxxxx
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Gas Sales, Inc. (the "Effective Date of the Assignment") and through the
remaining term of the Lease:
(a) The Leased Premises may be used for the storage, handling,
terminalling and related functions of petroleum products,
sulphuric acid, molten sulphur, asphalt and derivatives
thereof.
(b) Upon the occurrence of any breach and/or default by Lessee
under the Lease, the Lessor shall promptly notify AmSouth Bank
of Florida ("AmSouth") in writing at 000 00xx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxxxxxxx,
telephone: (000) 000-0000, fax: (000) 000-0000. Following
receipt of such notice, AmSouth shall have thirty (30) days to
cure any such breach or default, and the Lessor hereby agrees
that it shall not exercise any available remedies, under the
Lease or otherwise, until the expiration of such thirty (30)
days period.
(c) Xxxxxx Gas Sales, Inc. shall have no liability or obligation
to the Lessor under the Lease or otherwise with respect to the
failure by any such prior lessee to make any payments to the
Lessor under the Lease or otherwise.
TAMPA PORT AUTHORITY
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Port Director
Date: March 30, 1995
--------------------------------------
8
Acknowledgement
The foregoing Consent to Assignment and Attornment Agreement by TAMPA
PORT AUTHORITY is hereby accepted and approved, and the undersigned hereby
acknowledge that complete copies of the instruments comprising the Lease, as
defined above, have been delivered to Xxxxxx Gas Sales, Inc.
XXXXXX GAS SALES, INC.,
a Texas corporation
By: /s/ XXXXX X. XXXXXX III
-----------------------------------------
Name: Xxxxx X. Xxxxxx III
Title: President
Date: 3/30/95
---------------------------------------
BOLIDEN CHEMICALS, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------------
Title: President
--------------------------------------
Date: March 30, 1995
---------------------------------------
9
EXHIBIT "A"
Assignment and Assumption Agreement between Boliden Chemicals, Inc. and Xxxxxx
Gas Sales, Inc., dated March 28, 1995.
EXHIBIT "B"
ENVIRONMENTAL ADDENDUM TO LEASE
This Addendum is effective from and after March 28, 1995 and applies
exclusively to Xxxxxx Gas Sales, Inc. and not to Boliden Chemicals, Inc.
(a) Definitions for Environmental Provisions. The following
terms, as used in the environmental provisions of this Lease Agreement, shall
have the meanings indicated:
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 USC Sections 9601, et seq.),
as amended from time to time, including without limitation, the
Superfund Amendments and Reauthorization Act of 1986 ("XXXX").
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System, or any other information
system, established pursuant to CERCLA.
"Environmental Law" means any applicable federal, state or
local law, statute, code, ordinance, or common law, whether now in
existence or established, enacted or amended during the term of this
Lease Agreement, relating to pollution, protection of the environment,
health, industrial hygiene, Hazardous Substances (including, without
limitation, the manufacture, generation, distribution, use, treatment,
storage, disposal, transport or handling thereof), including but not
limited to CERCLA, XXXX, RCRA, the Florida Resource Recovery and
Management Act (Florida Statutes Sections 403.701, et seq.), and the
Pollutant Spill Prevention and Control Act (Florida Statutes Sections
376.011 through 376.17 and 376.19 through 376.21)
"Environmental Regulation" means any applicable regulation or
rule promulgated by any Environmental Regulator.
"Environmental Regulator" means any federal, state or local
governmental or quasi-governmental unit, body or agency which is
charged with regulating the environment or Hazardous Substances, or
which is charged with enforcing
any Environmental Law or Environmental Regulation, including, without
limitation, the U.S. Environmental Protection Agency ("EPA"), or the
Florida Department of Environmental Protection ("FDEP").
"Hazardous Substance" means asbestos, polychlorinated
biphenyls, petroleum products and distillates, and any other
substances, materials and wastes which are or become regulated or
controlled by any Environmental Law or Environmental Regulation
applicable at any time to the use by Lessee, its agents or invitees of
the Leased Premises during the term of this Lease Agreement, including,
without limitation, those within the definition of "hazardous
substances," "hazardous materials," "hazardous wastes," "toxic
substances," "solid waste," "pollutants," "contaminants," or "nuclear
or byproduct material" in any such Environmental Law or Environmental
Regulation.
"National Priorities List" means the National Priorities List
established pursuant to CERCLA or any other list identifying hazardous
or toxic waste sites maintained or controlled by any Environmental
Regulator.
"RCRA" means the Resource Conservation and Recovery Act of
1976 (42 USC Sections 6901, et seq.), as amended from time to time.
(b) Environmental Covenants of Lessee. Lessee covenants and
warrants, as applicable, that at all times during the term of this Lease
Agreement:
(1) The Leased Premises shall not be used by Lessee,
its agents or invitees for the storage or generation of any Hazardous
Substance in violation of any Environmental Law, Environmental
Regulation, order of an Environmental Regulator.
(2) No Hazardous Substance will be released or
disposed of on the Leased Premises by Lessee, its agents or invitees in
violation of any Environmental Law, Environmental Regulation, order of
an Environmental Regulator.
2
(3) Lessee and its agents and invitees shall comply
with all permits and/or licenses issued by Environmental Regulators
with respect to the conduct by Lessee, its agents or invitees of
operations governed by this Lease Agreement.
(4) If Lessee shall receive any notice regarding the
Leased Premises from any Environmental Regulator of any violation or
suspected violation of any Environmental Law or Environmental
Regulation, or relating to any clean-up, remediation or other response
action or threat thereof, then Lessee shall notify the Lessor within
24 hours thereof, and of all subsequent developments related thereto.
(5) To the best of Lessee's knowledge, no properties
owned, operated or controlled by Lessee are listed on the National
Priorities List or with CERCLIS, and, except for certain properties of
Lessee not related to the Premises, no Environmental Regulator or any
third party has demanded any right of recovery, nor brought or
threatened to bring any action, cause of action, suit or proceeding
against Lessee seeking recovery for payment or reimbursement for
clean-up costs, damages or other costs incurred under or pursuant to
any Environmental Law or Environmental Regulation.
(c) Covenant Not To Store Hazardous Substances In Violation of
Law. Lessee, for itself, its agents and invitees, covenants and agrees not to
use the Leased Premises, at any time, for:
(1) the storage, generation, release or disposal of
any Hazardous Substance in violation of any Environmental Law or
Environmental Regulation, any order of an Environmental Regulator, or
any permit issued by an Environmental Regulator;
(2) any purpose that would give rise to a clean-up,
remediation or other response action; to the imposition of any fine,
penalty, assessment, cost, forfeiture or imposition for violation of an
Environmental Law or Environmental Regulation; or to a claim, claim of
lien or lien (whether against the Leased Premises, the Lessor or the
Lessor's properties) for response costs,
3
damages or other costs pursuant to any Environmental Law or
Environmental Regulation; or,
(3) any purpose that would cause the Leased Premises
to be listed on the National Priorities List or with CERCLIS.
In furtherance of the foregoing, Lessee also agrees
that it will not use, operate or maintain any other properties it owns, operates
or controls in a manner which would give rise to a claim, claim of lien or lien
against the Lessor, the Leased Premises, or Lessee's interests under this Lease
Agreement under any Environmental Law or Environmental Regulation.
The Lessor may, upon reasonable grounds for
insecurity, request in writing, assurances, in reasonable form and content,
concerning the environmental covenants and warranties made by Lessee in this
Lease Agreement. The Lessor shall state in its request for assurances the
specific grounds for insecurity with respect to the environmental covenants and
warranties of this Lease Agreement. The Lessor may obtain such assurances, at
the Lessor's option, from a duly authorized agent of Lessee.
(d) Release of Hazardous Materials; Claim. Lessee agrees to
notify the Lessor within 24 hours of an occurrence or any release or disposal of
any Hazardous Substance of any kind in, on, about or under the Leased Premises
regardless of the source or other circumstances thereof to the extent any such
release or disposal is required to be reported under Environmental Law or
Environmental Regulation.
Further, Lessee shall, within 24 hours, notify the
Lessor in writing of the receipt of any notice, order, correspondence or
communication that:
(1) a permit is required from any Environmental
Regulator for the use or operation by Lessee, its agents or invitees
upon the Leased Premises;
(2) a summons, citation; order directing compliance
or inquiry has been or is being issued or made by any Environmental
Regulator with respect to the Leased Premises;
4
(3) any Environmental Regulator or third party has
demanded or asserted any right of recovery for payment or
reimbursement, or any claim, claim of lien or lien against the Leased
Premises for clean-up costs, damages, or other costs incurred, under or
pursuant to any Environmental Law, Environmental Regulation, or the
common law;
(4) the Leased Premises are or will be listed on the
National Priorities List or with CERCLIS;
(5) any fine, penalty, assessment, cost, forfeiture
or imposition has been, or will be or is sought to be imposed against
Lessee, its agents or invitees, or the Lessor, for violation or
asserted violation by Lessee, its agents or invitees of any
Environmental Law, Environmental Regulation, any order of an
Environmental Regulator or any permit issued by an Environmental
Regulator with respect to the Leased Premises; or,
(6) any clean-up, remediation or other response
action pursuant to any Environmental Law or Environmental Regulation
has been, is being, or will be, commenced by any Environmental
Regulator or third party with regard to (1) the Leased Premises or (2)
any other properties owned, operated or controlled by Lessee which
would give rise to a claim, claim of lien or lien against the Leased
Premises.
(e) Clean-up Plan. In the event of any determination that,
through actions by or attributable in any manner to Lessee, its agents or
invitees, any Hazardous Substance has been stored, generated, located, released
or disposed of in, on, about or under the Leased Premises in violation of any
Environmental Law, Environmental Regulation, order of an Environmental
Regulator, or any permit issued by an Environmental Regulator with respect to
the Leased Premises, Lessee shall so notify the Lessor within 24 hours.
Further, in each such instance, Lessee shall, at
Lessee's sole cost and expense, within 24 hours notify and keep the Lessor fully
informed of response actions proposed or necessary for clean-up or remediation,
the details of plans and specifications therefor, and all developments related
thereto with respect to the Leased Premises. As soon as reasonably
5
possible, after obtaining all necessary approvals, permits and/or licenses of
all appropriate governmental or quasi-governmental units, bodies or agencies,
including without limitation Environmental Regulators, Lessee shall diligently
prosecute the accomplishment of the response actions contemplated herein with
respect to the Leased Premises, at Lessee's sole cost and expense.
(f) Continuing Nature. The environmental provisions of this
Lease Agreement shall survive the termination of the Lease Agreement, such
provisions to continue in full force and effect so long as the possibility of
any environmental liability, claim, obligations, or leases of the Lessor with
respect to the Leased Premises, attributable to Lessee, its agents or invitees,
shall exist. However, Lessee may limit its liability and obligations under the
environmental provisions of this Lease by obtaining environmental audits of the
Leased Premises before the effective date of the Assignment and after the
Termination of the Lease Term, at Lessee's sole expense, prepared by
environmental consultants acceptable to the Lessor (which acceptable consultants
shall include Ash Environmental Engineering, Inc., St. Petersburg, Florida), to
determine if Lessee has caused any Hazardous Substances to be released or
disposed of in, on, about, or under the Leased Premises in violation of any
Environmental Law, Environmental Regulation, order of an Environmental
Regulator, or any permit issued by an Environmental Regulator. Lessee shall
provide copies of all such environmental audits to the Lessor. In the event that
the environmental audits substantiate that Lessee has not caused any Hazardous
Substances to be released or disposed of in, on, about, or under the Leased
Premises in violation of any Environmental Law, Environmental Regulation, order
of an Environmental Regulator, or any permit issued by an Environmental
Regulator, then Lessee's obligations under the environmental provisions of this
Lease shall cease.
(g) Radon Gas. Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels of radon
that exceed Federal and State guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your County Public Health Unit. Each party hereto disclaims any
liability for any health risks incurred by the other, its employees, and/or its
invitees as a result of, or claimed to be a result of, radon at the Leased
Premises.
6
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Agreement made this 28th day of March, 1995, by and between
Boliden Chemicals, Inc. ("BCI") and Xxxxxx Gas Sales, Inc. ("Xxxxxx").
WITNESSETH:
WHEREAS, Port Xxxxxx, Inc. and Eastern Seaboard Petroleum Company
previously entered into an Agreement of Lease dated December 16, 1976 (the
"Lease", including all amendments to date) which Lease was amended by the
parties on May 21, 1980, and October 10, 1980; and
WHEREAS, Eastern Seaboard Petroleum Company assigned the Lease to
Xxxxxxx Petroleum Company on August 14, 1984 which Lease was amended by the
parties on August 15, 1984; and
WHEREAS, Port Xxxxxx assigned the said Lease on September 21, 1984 to
Tampa Port Authority ("TPA"); and
WHEREAS, the TPA and Xxxxxxx Petroleum Company amended said Lease on
July 13, 1987, and December 5, 1988, and
WHEREAS, Xxxxxxx Petroleum assigned the Lease to BCI on February 16,
1989; and
WHEREAS, TPA and BCI amended said Lease on February 16, 1989; and
WHEREAS, TPA and BCI amended said Lease on May 13, 1992; and
WHEREAS, BCI and Xxxxxx, contemporaneously with the execution of this
Agreement, have executed an Asset Purchase and Sale Agreement whereunder BCI
conveys to Xxxxxx BCI's Tampa Terminal assets and a commitment to assign the
Lease to Xxxxxx; and
WHEREAS, this document evidences BCI's willingness to assign its rights
in the Lease to Xxxxxx and Xxxxxx'x willingness to agree to and accept such
assignment.
NOW, THEREFORE, the parties hereto, in consideration of the covenants,
terms and conditions contained herein, and the sum of One Dollar ($1.00),
receipt of which is herewith acknowledged by each party, hereby covenant and
agree as follows:
-2-
1. BCI herewith assigns and transfers to Xxxxxx all of its right, title
and interest in the Lease and Xxxxxx accepts such assignment and transfer.
2. BCI and Xxxxxx acknowledge that the consent of the Lessor under the
Lease to this Assignment and Assumption Agreement is a pre-condition to the
effectiveness of this Agreement and each agrees to timely execute a consent with
said Lessor in form reasonably acceptable to each party and its respective
counsel.
3. Xxxxxx agrees to assume all responsibilities as Lessee under the
Lease and to hold harmless and indemnify BCI, its directors, officers and
stockholders, from and against any liability arising under the Lease except any
such liability expressly retained by BCI under the terms of the Asset Purchase
and Sale Agreement above referenced and except any such liability expressly
undertaken or retained by BCI under the terms of the Consent to Assignment and
Attornment Agreement, dated ____________, 1995, by and between BCI, Xxxxxx and
the Tampa Port Authority.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives the day and year first above
written.
BOLIDEN CHEMICALS, INC. XXXXXX GAS SALES, INC.
/s/ XXXXXXX X. XXXXX /s/ XXXXX X. XXXXXX, III
---------------------------------- ----------------------------------
By: Xxxxxxx X. Xxxxx By: Xxxxx X. Xxxxxx, III
Its: President Its: President
AMENDMENT NO. 7 TO AGREEMENT OF LEASE
This Amendment No. 7 to Agreement of Lease made and entered into this
13th day of May, 1992, by and between the TAMPA PORT AUTHORITY, a body politic
and corporate organized and existing under the laws of the State of Florida,
hereinafter referred to as "Lessor", and BOLIDEN CHEMICALS INC., hereinafter
referred to as "Lessee".
WITNESSETH:
WHEREAS, Port Xxxxxx, Inc. and Eastern Seaboard Petroleum Company
previously entered into an Agreement of Lease dated December 16, 1976 which was
amended by the parties on May 21, 1980, and October 10, 1980; and
WHEREAS, Eastern Seaboard Petroleum Company assigned its Lease to
Xxxxxxx Petroleum Company on August 14, 1984 which Lease was amended by the
parties on August 15, 1984; and
WHEREAS, Port Xxxxxx assigned the said Lease on September 21, 1984 to
Lessor; and
WHEREAS, the Lessor and Xxxxxxx Petroleum Company amended said
Agreement of Lease on July 13, 1987, and December 5, 1988, and
WHEREAS, Xxxxxxx Petroleum Company assigned its Lease to Lessee on
February 16, 1989; and
WHEREAS, the Lessor and the Lessee amended said Lease on 16 February
1989; and
WHEREAS, the parties desire to further amend such Agreement of Lease.
NOW, THEREFORE, the parties hereto, in consideration of the covenants
contained herein and the sum of One Dollar ($1.00) each to the other in hand
paid, hereby covenant and agree as follows:
1. Term of this Lease shall be extended for seven (7) years, commencing
December 16, 1989 and ending December 15, 1996.
2. This Lease, Article 3, Paragraph 1 (a)(i) of the First Amendment and
Article 2 of the Fifth Amendment to Agreement of Lease, is amended to provide
that the bare land rental rate shall be increased to $66,948.00 annually, to be
paid monthly in advance at a rate of $5,579.00.
3. This Lease, Article 3, Paragraph 1 (a)(ii) subparagraphs A and B of
the First Amendment to Agreement of Lease and Article 2 of the Second Amendment
to Agreement of Lease, and Article 3 of the Fifth Amendment to Agreement of
Lease, and Article 2 of the Sixth Amendment to the Agreement of Lease, is
amended to provide that the wharfage guarantee on inbound movements of petroleum
and sulphuric acid products shall be increased to $66,948.00 annually, and the
wharfage guarantee on outbound movements of petroleum and sulphuric acid
products shall be increased to $14,784.00 annually.
The wharfage rate for petroleum and sulphur acid products shall be at
the rates established by Tampa Port Authority Tariff No. 11 and any revisions
thereto, and shall apply toward the minimum wharfage guarantee.
During any lease year, once Lessee has reached its outbound wharfage
guarantee limit the applicable outbound wharfage rate shall be reduced to fifty
(50) percent of the tariff rate for the remaining portion of the lease year.
4. This Lease, Article 3, Paragraph 2 (b) of the First Amendment of
Lease and Article 3 of the Second Amendment to Agreement and Article 4 of the
Fifth Amendment to Agreement, is amended as follows:
a. the minimum charge (in lieu of dockage charge)
relative to the Vessel Mooring System (VMS) shall be
increased to $26,088.00 annually, to be paid monthly
in advance at a rate of $2,174.00.
b. In lieu of dockage charge shall be suspended,
effective 1 June 1990, and shall be reinstated at the
above rate on the first day of the month after Lessor
places VMS is service and as more particularly
provided for in Article 6 of this Amendment.
5. Paragraph 23 of the Agreement of Lease as deleted and replaced by
Article 5 of the First Amendment to Agreement of Lease and Article 5 of the
Fifth Amendment to the Agreement, is hereby amended in its entirety to read as
follows:
23. Lessee shall have one successive option to renew and
extend this Lease, as amended. The renewal shall be for a
period of ten (10) years beginning December 16, 1996. Each
such option shall be exercised by Lessee by giving written
notice to the Lessor no less than ninety (90) days prior to
the expiration of the term then in effect. If Lessee does
exercise the ten (10) year option period, the rental rate, the
inbound and outbound wharfage
2
guarantees and the minimum charge relative to the Vessel
Mooring System shall be increased effective upon commencement
of said ten (10) year option period to an amount calculated by
multiplying the base amount of the charge (as stated in this
Amendment) for which the adjustment is being calculated by a
fraction whose numerator is The Consumer Price Index, U.S.
City Average All Items (Base Year 1967) published by the
Bureau of Labor Statistics, U.S. Department of Labor, for the
third month prior to the expiration of the term then in
effect, and whose denominator shall be said Consumer Price
Index, U.S. City Average All Items for the third month prior
to the commencement of this Amendment.
Should the Bureau of Labor Statistics change the manner of
computing the Consumer Price Index, the Bureau shall be
requested to furnish a conversion factor designated to adjust
the new index to the one previously in use, and adjustment to
the new index will be made on the basis of such conversion
factor. Should the publication of the Consumer Price Index be
discontinued by the Bureau of Labor Statistics, then such
other index as may be published by said Bureau most nearly
approaching said discontinued index shall be used in making
the adjustment herein provided. No additional option fee shall
be payable by Lessee with respect to the successive ten (10)
year option period.
6. The Lessor will relocate the existing VMS now sited immediately west
of Berth 24 to an area east of Berth 24, and it is herein agreed that:
a. The Lessor will relocate the VMS at its sole expense,
excepting that Lessee shall be responsible for the
relocation of any pipelines at its own expense.
b. The "in lieu of dockage charge" shall be suspended
until the relocation of the VMS has been completed
and will be reinstated as provided for in Article 4
(b) of this Lease Amendment.
c. The Lessor, at its sole discretion, will determine
the date the VMS will be considered operational and
when charges to the Lessee for the use of the VMS
will be reinstated, and will be independent of the
Lessee's relocation of its pipelines.
d. When the VMS is operational at the site east of Berth
24, the Lessee's berthing limits shall be the western
boundary limit of Berth 24, which is the western
boundary of the Lessee's lease area, and the eastern
boundary of the Lessee's lease area, with both
boundaries extended into the Port Xxxxxx Terminal
Channel.
e. During that period of time pending the completion of
the relocation of the VMS, Lessee shall have the
right to use Berth 24, for its tugs and bunkering
barges, free of charges. Such use is on an
as-available basis, subject to operational activities
by revenue-producing vessels of said Lessee or other
tenants of the Lessor.
3
f. During the relocation of the VMS to a site east of
Berth 24, Lessor agrees, in order to provide
clearance for vessels using Berth 24 and to the
extent that public berths are not available and there
is no expense to the Lessor, Lessee may tie its
bunkering barges to other Lessor facilities without
charge.
7. The Lessor and Lessee have agreed to cooperate on a project to
extend the existing rail service along the right-of-way north of Xxxxxxx Point
Road and along the southern boundary of the leased premises with a spur track
onto the leased premises (Exhibit A). The project shall be completed under the
following terms and conditions:
a. All construction plans will be coordinated with the
Authority's Engineering Department.
b. Lessee shall be the contracting party with the
railroad (CSX) for all proposed improvement.
c. Lessee will assume responsibility for all costs
associated with the construction of approximately
1,300 lineal feet of lead track, spur track,
switches, crossings and other common track
facilities.
x. Xxxxxx'x participation in cost sharing shall be
limited to a maximum of $50,000.00 or 50% of the cost
of the lead track facilities, whichever is the
lesser. Payment to be made after all track and
associated facilities are in place and certified by
the railroad (CSX) and upon receipt of appropriate
invoices.
e. Responsibility for maintenance of the spur track and
associated equipment and facilities shall be stated
in a separate agreement between the Lessor and
Lessee.
f. The extended lead track shall become the property of
the Lessor with the Lessor responsible for the
maintenance of the track.
8. Except as herein expressly amended, all other terms and conditions
of the Agreement of Lease, as previously amended, shall remain the same.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized officers the day and year first above
written.
Signed, sealed and delivered TAMPA PORT AUTHORITY
in the presence of:
/s/ XXXXX X. XXXXXX /s/ XXXXXX X. XXXXXXX (Seal)
---------------------------------- ----------------------------------
/s/ XXXXX XXXXXXX By: Xxxxxx X. Xxxxxxx
---------------------------------- Its: Port Director
4
Signed, sealed and delivered BOLIDEN CHEMICALS INC.
in the presence of:
/s/ [ILLEGIBLE] /s/ XXXXXXX X. XXXXX (Seal)
---------------------------------- ----------------------------------
/s/ [ILLEGIBLE] By: Xxxxxxx X. Xxxxx
---------------------------------- Its: Secretary
5
EXHIBIT A
AMENDMENT NO. 6 TO AGREEMENT OF LEASE
This Amendment No. 6 to Agreement of Lease made and entered into this
16th day of this 16th day of February, 1989, by and between the TAMPA PORT
AUTHORITY; a body politic and corporate organized and existing under the laws of
the State of Florida, hereinafter referred to as "Lessor", and BOLIDEN CHEMICALS
INC., hereinafter referred to as "Lessee".
WITNESSETH:
WHEREAS, Port Xxxxxx, Inc. and Eastern Seaboard Petroleum Company
previously entered into an Agreement of Lease dated December 16, 1976 which was
amended by the parties on May 21, 1980, and October 10, 1980; and
WHEREAS, Eastern Seaboard Petroleum Company assigned its Lease to
Xxxxxxx Petroleum Company an August 14, 1984 which Lease was amended by the
parties on August 15, 1984; and
WHEREAS, Port Xxxxxx assigned the said Lease on September 21, 1984 to
Lessor; and
WHEREAS, the Lessor and Xxxxxxx Petroleum Company amended said
agreement of Lease on July 13, 1987, and December 5, 1988, and
WHEREAS, Xxxxxxx Petroleum Company assigned its Lease to Lessee on
February 16, 1989; and
WHEREAS, the parties desire to further amend such Agreement of Lease.
NOW, THEREFORE, the parties hereto, in consideration of the covenants
contained herein and the sum of One Dollar ($1.00) each to the other in hand
paid, hereby covenant and agree as follows:
1. This Lease, Article 3, is amended to provide that sulfuric acid
products shall be a permitted commodity to be stored and handled on the leased
premises; provided, however, the Lessee shall use its best efforts to insure the
continuation of throughput/storage of bunker fuels on the lease premises in
order to continue that service as a function of the marine terminal located on
the lease premises.
2. This Lease, Article 3, Paragraph 1 (a)(ii) subparagraphs A and B of
the First Amendment to Agreement of Lease, Article 2 of the Second Amendment to
Agreement of Lease, and Article 3 of the Fifth Amendment to Agreement of Lease,
is amended to provide that the wharfage rate for sulfuric acid products either
inbound or outbound shall be at rates established by Tampa Port Authority Tariff
No. 10 and any revisions thereto, and movement of sulfuric acid products shall
apply toward the minimum wharfage guarantee for movement of petroleum products.
3. Except as herein expressly amended, all other terms and conditions
of the Agreement of Lease, as previously amended, shall remain the same.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized officers the day and year first above
written.
WITNESSES: TAMPA PORT AUTHORITY
/s/ XXXXX X XXXXXXX /s/ XXXXXX X. XXX, XX.
---------------------------------- ------------------------------------
/s/ XXXXX XXXXXXX By: Xxxxxx X. Xxx, Xx.
---------------------------------- Its: Port Director
WITNESSES: BOLIDEN CHEMICALS INC.
/s/ [ILLEGIBLE] /s/ XXXXXXX X. XXXXX
---------------------------------- ------------------------------------
/s/ [ILLEGIBLE] By: Xxxxxxx X. Xxxxx
---------------------------------- Its: Secretary
-2-
AMENDMENT NO. 5 TO AGREEMENT OF LEASE
This Amendment No. 5 to Agreement of Lease made and entered into this
5th day of December, 1988, by and between the TAMPA PORT AUTHORITY, a body
politic and corporate organized and existing under the laws of the State of
Florida, hereinafter referred to as "Lessor", and XXXXXXX PETROLEUM COMPANY,
hereinafter referred to as "Lessee".
WITNESSETH:
WHEREAS, Port Xxxxxx, Inc. and Eastern Seaboard Petroleum Company
previously entered into an Agreement of Lease dated December 16, 1976 which was
amended by the parties on May 21, 1980, and October 10, 1980; and
WHEREAS, Eastern Seaboard Petroleum Company assigned its Lease to
Lessee on August 14, 1984 which Lease was amended by the parties on August 15,
1984; and
WHEREAS, Port Xxxxxx assigned the said Lease on September 21, 1984 to
Lessor; and
WHEREAS, the parties amended said Agreement of Lease on July 13, 1987;
and
WHEREAS, the parties desire to further amend such Agreement of Lease.
NOW, THEREFORE, the parties hereto, in consideration of the covenants
contained herein and the sum of One Dollar ($1.00) each to the other in hand
paid, hereby covenant and agree as follows:
1. Term of this Lease shall be extended for one (1) year commencing
December 16, 1988 and ending December 15, 1989.
2. This Lease, Article 3, Paragraph 1 (a)(i) of the First Amendment to
Agreement of Lease, is amended to provide that the bare land rental rate shall
be increased to $64,140.00 annually, to be paid monthly in advance at a rate of
$5,345.00.
3. This Lease, Article 3, Paragraph 1 (a)(ii) subparagraphs A and B of
the First Amendment to Agreement of Lease and Article 2 of the Second Amendment
to Agreement of Lease, is amended to provide that the wharfage guarantee on
inbound movements of petroleum products shall be increased to $64,140.00
annually, and the wharfage guarantee on outbound movements of petroleum products
shall be increased to $14,153.00 annually.
APPROVED AS TO FORM AND LEGALITY,
/s/ XXXXXX X XXXXXX
-------------------
LEGAL DEPARTMENT
4. This Lease, Article 3, Paragraph 2 (b) of the First Amendment of
Lease and Article 3 of the Second Amendment to Agreement, is amended to provide
that the minimum charge relative to the Vessel Mooring System shall be increased
to $24,984.00 annually, to be paid monthly in advance at a rate of $2,982.00.
5. Paragraph 23 of the Agreement of Lease as deleted and replaced by
Article 5 of the First Amendment to Agreement of Lease is hereby amended in its
entirety to read as follows:
23. Lessee shall have two successive options to renew and extend this
Lease, as amended. The first renewal shall be for a period of seven (7)
years beginning December 16, 1989, and the second renewal shall be for
a period of ten (10) years beginning December 16, 1996. Each such
option shall be exercised by Lessee by giving written notice to the
Lessor no less than ninety (90) days prior to the expiration of the
term then in effect. If Lessee does not exercise the seven (7) year
option to renew, Lessee shall pay to the Lessor an amount of
$167,417.00 as an option fee within 30 days of expiration of the term
as herein extended. If Lessee does exercise the seven (7) year option
period, the rental rate, the inbound and outbound wharfage guarantees
and the minimum charge relative to the Vessel Mooring System shall be
increased effective upon commencement of said seven (7) year option
period (and, if exercised, increased again effective at the
commencement of the successive ten (10) year option period) to an
amount calculated by multiplying the base amount of the charge (as
stated in this Amendment) for which the adjustment is being calculated
by a fraction whose numerator is The Consumer Price Index, U.S. City
Average All Items (Base Year 1967) published by the Bureau of Labor
Statistics, U.S. Department of Labor, for the third month prior to the
expiration of the term then in effect, and whose denominator shall be
said Consumer Price Index, U.S. City Average All Items for the third
month prior to the commencement of this Amendment.
-2-
Should the Bureau of Labor Statistics change the manner of computing
the Consumer Price Index, the Bureau shall be requested to furnish a
conversion factor designated to adjust the new index to the one
previously in use, and adjustment to the new index will be made on the
basis of such conversion factor. Should the publication of the Consumer
Price Index be discontinued by the Bureau of Labor Statistics, then
such other index as may be published by said Bureau most nearly
approaching said discontinued index shall be used in making the
adjustment herein provided. No additional option fee shall be payable
by Lessee with respect to the successive ten (10) year option period.
6. Except as herein expressly amended, all other terms and conditions
of the Agreement of Lease, as previously amended, shall remain the same.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized officers the day and year first above
written.
Signed, sealed and delivered TAMPA PORT AUTHORITY
in the presence of:
/s/ XXXXX X. XXXXXXX /s/ XXXXXX X. XXX, XX. [Seal]
---------------------------------- ----------------------------
/s/ XXXXX XXXXXXX By: Xxxxxx X. Xxx, Xx.
---------------------------------- Its: Port Director
Signed, sealed and delivered XXXXXXX PETROLEUM COMPANY
in the presence of:
/s/ XXXXXXX XXXXXX /s/ XXXX X. XXXXXXXX, XX. [Seal]
---------------------------------- ----------------------------
/s/ XXXXX X. XXXXXXX By: Xxxx X. Xxxxxxxx, Xx.
---------------------------------- Its: Senior Vice President
-3-
AMENDMENT NO. 5 TO AGREEMENT OF LEASE
This Amendment No. 5 to Agreement of Lease made and entered into this
5th day of December, 1988, by and between the TAMPA PORT AUTHORITY, a body
politic and corporate organized and existing under the laws of the State of
Florida, hereinafter referred to as "Lessor", and XXXXXXX PETROLEUM COMPANY,
hereinafter referred to as "Lessee".
WITNESSETH:
WHEREAS, Port Xxxxxx, Inc. and Eastern Seaboard Petroleum Company
previously entered into an Agreement of Lease dated December 16, 1976 which was
amended by the parties on May 21, 1980, and October 10, 1980; and
WHEREAS, Eastern Seaboard Petroleum Company assigned its Lease to
Lessee on August 14, 1984 which Lease was amended by the parties on August 15,
1984; and
WHEREAS, Port Xxxxxx assigned the said Lease on September 21, 1984 to
Lessor; and
WHEREAS, the parties amended said Agreement of Lease on July 13, 1987;
and
WHEREAS, the parties desire to further amend such Agreement of Lease.
NOW, THEREFORE, the parties hereto, in consideration of the covenants
contained herein and the sum of One Dollar ($1.00) each to the other in hand
paid, hereby covenant and agree as follows:
1. Term of this Lease shall be extended for one (1) year commencing
December 16, 1988 and ending December 15, 1989.
2. This Lease, Article 3, Paragraph 1 (a)(1) of the First Amendment to
Agreement of Lease, is amended to provide that the bare land rental rate shall
be increased to $64,140.00 annually, to be paid monthly in advance at a rate of
$5,345.00.
3. This Lease, Article 3, Paragraph 1 (a)(ii) subparagraphs A and B of
the First Amendment to Agreement of Lease and Article 2 of the Second Amendment
to Agreement of Lease, is amended to provide that the wharfage guarantee on
inbound movements of petroleum products shall be increased to $64,140.00
annually, and the wharfage guarantee on outbound movements of petroleum products
shall be increased to $14,153.00 annually.
APPROVED AS TO FORM AND LEGALITY.
/s/ XXXXXX X. XXXXXX
--------------------
LEGAL DEPARTMENT
4. This Lease, Article 3, Paragraph 2 (b) of the First Amendment of
Lease and Article 3 of the Second Amendment to Agreement, is amended to provide
that the minimum charge relative to the Vessel Mooring System shall be increased
to $24,984.00 annually, to be paid monthly in advance at a rate of $2,982.00.
5. Paragraph 23 of the Agreement of Lease as deleted and replaced by
Article 5 of the First Amendment to Agreement of Lease is hereby amended in its
entirety to read as follows:
23. Lessee shall have two successive options to renew and extend this
Lease, as amended. The first renewal shall be for a period of seven (7)
years beginning December 16, 1989, and the second renewal shall be for
a period of ten (10) years beginning December 16, 1996. Each such
option shall be exercised by Lessee by giving written notice to the
Lessor no less than ninety (90) days prior to the expiration of the
term then in effect. If Lessee does not exercise the seven (7) year
option to renew, Lessee shall pay to the Lessor an amount of
$167,417.00 as an option fee within 30 days of expiration of the term
as herein extended. If Lessee does exercise the seven (7) year option
period, the rental rate, the inbound and outbound wharfage guarantees
and the minimum charge relative to the Vessel Mooring System shall be
increased effective upon commencement of said seven (7) year option
period (and, if exercised, increased again effective at the
commencement of the successive ten (10) year option period) to an
amount calculated by multiplying the base amount of the charge (as
stated in this Amendment) for which the adjustment is being calculated
by a fraction whose numerator is The Consumer Price Index, U.S. City
Average All Items (Base Year 1967) published by the Bureau of Labor
Statistics, U.S. Department of Labor, for the third month prior to the
expiration of the term then in effect, and whose denominator shall be
said Consumer Price Index, U.S. City Average All Items for the third
month prior to the commencement of this Amendment.
Should the Bureau of Labor Statistics change the manner of computing
the Consumer Price Index, the Bureau shall be requested to furnish a
conversion factor designated to adjust the new index to the one
previously in use, and adjustment to the new index will be made on the
basis of such conversion factor. Should the publication of the Consumer
Price Index be discontinued by the Bureau of Labor Statistics, then
such other index as may be published by said Bureau most nearly
approaching said discontinued index shall be used in making the
adjustment herein provided. No additional option fee shall be payable
by Lessee with respect to the successive ten (10) year option period.
6. Except as herein expressly amended, all other terms and conditions
of the Agreement of Lease, as previously amended, shall remain the same.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized officers the day and year first above
written.
Signed, sealed and delivered TAMPA PORT AUTHORITY
in the presence of:
/s/ XXXXX X. XXXXXXX /s/ XXXXXX X. XXX, XX. [Seal]
---------------------------------- ------------------------------
/s/ XXXXX XXXXXXX By: Xxxxxx X. Xxx, Xx.
---------------------------------- Its: Port Director
Signed, sealed and delivered XXXXXXX PETROLEUM COMPANY
in the presence of:
/s/ XXXXXXX XXXXXX /s/ XXXX X. XXXXXXXX, XX. [Seal]
---------------------------------- ------------------------------
/s/ XXXXX X. XXXXXXX By: Xxxx X. Xxxxxxxx, Xx.
---------------------------------- Its: Senior Vice President
-3-
SETTLEMENT AGREEMENT
This Settlement Agreement dated this 31st day of August, 1988 by and
between the Tampa Port Authority, a body corporate and politic organized and
existing under the laws of the State of Florida (hereinafter "Authority"), party
of the first part, and Xxxxxxx Petroleum Company, a Delaware Corporation
(hereinafter "Xxxxxxx"), party of the second part (hereinafter "Tenant").
WITNESSES
WHEREAS, on December 16, 1976, Port Xxxxxx, Inc. and Eastern Seaboard
Petroleum Company (hereinafter "Eastern") entered into a lease of certain
property in Hillsborough County, Florida, located on that peninsula commonly
known as "Xxxxxxx Point";
WHEREAS, by agreement dated August 14, 1984, Eastern assigned its
interest in the lease to Xxxxxxx Petroleum Company (hereinafter "Xxxxxxx")
WHEREAS, on November 14, 1985 Port Xxxxxx, Inc. conveyed the lease
premises to and assigned its interest in said lease to the Authority;
WHEREAS, the lease premises are currently operated by Xxxxxxx through
its Western Fuels Division;
WHEREAS, on March 7, 1987 the bulkhead adjacent to the lease premises
partially collapsed causing damage to some of Tenant's equipment on the lease
premises;
WHEREAS, a dispute arose between Authority and Tenant regarding each
parties responsibilities for repair and payment of rent under the lease
agreement;
WHEREAS, the parties now desire to settle the dispute between them;
NOW, THEREFORE, the parties hereto agree as follows:
1. That Authority on June 18, 1987 completed repairs to the structure
supporting the pipeline and stabilizing the bulkhead at the lease premises to
the reasonable satisfaction of Tenant.
2. That the pipeline itself is now in working order and operational.
3. That Authority agrees to reduce its invoiced amount for the period
March 7, 1987 through June 19, 1987 ($5,790.96) by one-half, thereby making the
amount due and payable to Authority for that period two thousand eight-hundred
ninety five and 48/100 dollars ($2,895.48).
-2-
4. That Tenant shall pay to the Authority the sums described in
paragraph 3, within ten (10) days after full execution hereof by certified check
payable to the Authority.
5. Within ten (10) days after full execution hereof and simultaneously
with the delivery of the certified check described in paragraph 4, the parties
hereto shall exchange fully executed releases in the forms attached hereto as
Exhibits A and B.
6. That any charges accruing thereafter are not governed by this
settlement agreement but shall be invoiced and paid in accordance with the lease
agreement, as amended, between the parties.
IN WITNESS WHEREOF the parties hereto have set their hands and seals on
the dates stated below.
WITNESSES: TAMPA PORT AUTHORITY
/s/ XXXXX XXXXXXX By: /s/ XXXXXX X. XXX, XX.
---------------------------------- --------------------------------------
/s/ XXXXX XXXXXXX Its: Xxxxxx X. Xxx, Xx., Port Director
---------------------------------- Date: 31 August 1988
XXXXXXX PETROLEUM COMPANY
/s/ [ILLEGIBLE] By: /s/ XXXX X. XXXXXXXX, XX.
---------------------------------- --------------------------------------
/s/ [ILLEGIBLE] Its: Senior Vice President
---------------------------------- Date: August 26, 1988
Exhibit A - Full and Complete Release (Xxxxxxx)
Exhibit B - Full and Complete Release (Authority)
FULL AND COMPLETE RELEASE
KNOW ALL MEN BY THESE PRESENTS, That XXXXXXX PETROLEUM COMPANY, in
consideration of the sum of Ten Dollars, acknowledged by all parties as paid and
other good and valuable consideration, the receipt of all of which is hereby
acknowledged by the undersigned, which is acknowledged to be in full and final
payment of all sums, obligations or claims due or made by it against TAMPA PORT
AUTHORITY, and its successors, assigns, officers, directors, attorneys, agents,
servants, trustees and employees, does by these presents forever release, acquit
and discharge the said TAMPA PORT AUTHORITY, its successors, assigns, officers,
directors, agents, servants, employees, attorneys and trustees, of and from any
and all, known and unknown, claims, debts, demands, causes of action and
liabilities of every kind, character and nature whatsoever arising out of the
failure on March 7, 1987 of the bulkhead at Tampa Port Authority Berth 25,
located on Port Xxxxxx Channel, Hillsborough County, Florida whether they be for
negligence or based on the lease agreement between the parties, from the
beginning of time to date.
IN WITNESS WHEREOF, the undersigned has set its hand and seal this 26th
day of August, 1988.
Signed, sealed and delivered XXXXXXX PETROLEUM, COMPANY
in the presence of:
/s/ XXXX X. VILLINGHUNT By: /s/ XXXX X. XXXXXXXX XX.
----------------------------- --------------------------
Its: Senior Vice President
by Xxxxxxx Xxxxxx (CORPORATE SEAL)
-----------------------------
THIS IS A LEGAL RELEASE OF
LIABILITY -- READ IT CAREFULLY
BEFORE SIGNING.
FULL AND COMPLETE RELEASE
KNOW ALL MEN BY THESE PRESENTS, That TAMPA PORT AUTHORITY (hereinafter
"AUTHORITY"), in consideration of the sum of Ten Dollars, acknowledged by
AUTHORITY as paid, and other good and valuable consideration, the receipt of all
of which is hereby acknowledged by the undersigned, which is acknowledged to be
in full and final payment of all sums, obligations or claims due or made by it
against XXXXXXX PETROLEUM COMPANY ("XXXXXXX"), and its successors, assigns,
officers, directors, attorneys agents, servants, trustees and employees, does by
these presents forever release, acquit and discharge the said XXXXXXX, its
successors, assigns, officers, directors, agents, servants, employees, attorneys
and trustees of and from any and all, known and unknown, claims, debts, demands,
causes of actions and liabilities, of every kind, character and nature
whatsoever arising out of the failure on March 7, 1987 of the bulkhead at Tampa
Port Authority Berth 25 located on Port Xxxxxx Channel, Hillsborough County,
Florida, whether they be for negligence or based on the lease agreement between
the parties, from the beginning of time to date.
IN WITNESS WHEREOF, the undersigned has set its hand and seal this 31st
day of August, 1988.
Signed, sealed and delivered TAMPA PORT AUTHORITY
in the presence of:
/s/ XXXXX X. XXXXXXX /s/ XXXXXX X. XXX, XX.
-------------------------------- --------------------------------------
/s/ XXXXX XXXXXXX Its: Xxxxxx X. Xxx, Xx., Port Director
-------------------------------- (CORPORATE SEAL)
THIS IS A LEGAL RELEASE OF
LIABILITY -- READ IT CAREFULLY
BEFORE SIGNING
AMENDMENT NO. 4 TO AGREEMENT OF LEASE
This Amendment No. 4 to Agreement of Lease made and entered into this
13th day of July, 1987, by and between the TAMPA PORT AUTHORITY, a body politic
and corporate organized and existing under the laws of the State of Florida,
hereinafter to as "Lessor" and Xxxxxxx Petroleum Company, hereinafter referred
to as "Lessee".
WITNESSETH:
WHEREAS, Port Xxxxxx, Inc. and Eastern Seaboard Petroleum Company
previously entered into an Agreement of Lease dated December 16, 1976 which was
amended by the parties on May 21, 1980, and October 10, 1980 and;
WHEREAS, Eastern Seaboard Petroleum Company assigned its Lease to
Lessee on August 14, 1984 which Lease was amended by the parties on August 15.
1984; and
WHEREAS, Port Xxxxxx assigned the said Lease on September 21, 1984 to
Lessor; and
WHEREAS, the parties desire to amend such Agreement of Lease.
NOW, THEREFORE, the parties hereto, in consideration of the covenants
contained herein and the sum of One Dollar ($1.00) each to the other in hand
paid, hereby covenant and agree as follows:
1. Term of this Lease shall be extended for Two (2) years commencing
December 16, 1986 and ending December 15, 1988.
2. This Lease, Article 3, Paragraph 1 (a)(i) of the first Amendment to
Agreement of Lease, is amended to provide that the bare land rental rate shall
be increased to $59,676.00 annually, to be paid monthly in advance at a rate of
$4,973.00.
3. This Lease, Article 3, Paragraph 1 (a)(ii) subparagraphs A and B of
the First Amendment to Agreement of Lease and Article 2 of the Second Amendment
to Agreement of Lease, is amended to the extent that wharfage rate for petroleum
products either inbound or outbound shall be per the rates established in the
Tampa Port Authority Tariff No. 9 and any revisions thereto. Wharfage guarantee
on inbound movements of petroleum products shall be increased to $59,676.00
annually, and the wharfage guarantee on outbound movements of petroleum products
shall be increased to $13,168.40 annually.
Page two
4. Paragraph 23 of the Agreement of Lease as deleted and replaced by
Article 5 of the First Amendment to Agreement of Lease is hereby amended in its
entirety to read as follows:
23. Lessee shall have two successive options of renewing and extending
this Lease, as amended. One such renewal and extension being a period
of eight (8) years beginning December 16, 1988 and one further renewal
extending this Lease for a period of ten (10) years beginning December
16, 1996. Each such option shall be exercised by giving written notice
to the Lessor no less than ninety (90) days prior to the expiration of
the term then in effect. If Lessee does not exercise the eight (8) year
option to renew, Lessee shall pay to the Lessor an amount of
$155,770.40 as an option fee within 30 days of expiration of the term
as herein extended. If Lessee does exercise the eight (8) year option
period, the rental rate, the inbound and outbound wharfage guarantees
and the minimum charge relative to the Vessel Mooring System set forth
in Article 3, paragraph 2(b) of the Fist Amendment of Lease and as
amended by Article 3 of the Second Amendment to Agreement shall be
increased effective upon commencement of said eight (8) year option
period (and, if exercised, increased again effective at the
commencement of the successive ten (10) year option period) to an
amount calculated by multiplying the base amount of the charge (as
stated in this amendment) for which the adjustment is being calculated
by a fraction whose numerator is The Consumer Price Index, U.S. City
Average All Items (Base Year 1967) published by the Bureau of Labor
Statistics, U.S. Department of Labor, for the third month prior to
expiration of the term then in effect, and whose denominator shall be
said Consumer Price Index U.S. City Average All Items for the third
month prior to the commencement of this Amendment. Should the Bureau of
Labor Statistics change the manner of computing the Consumer Price
Index, the Bureau shall be requested to
Page three
furnish a conversion factor designated to adjust the new index to the
one previously in use, and adjustment to the new index will be made on
the basis of such conversion factor. Should the publication of the
Consumer Price Index be discontinued by the Bureau of Labor Statistics,
then such other index as may be published by said Bureau most nearly
approaching said discontinued index shall be used in making the
adjustment herein provided. No additional option fee shall be payable
by Lessee with respect to the successive ten (10) year option period.
5. Paragraph 10 of the Agreement of Lease is hereby amended in its
entirety to read as follows: It is covenanted and agreed that Lessor by
and through its duly authorized officers, agents and representatives
shall have the right at any and all times to go upon and inspect the
demised premises. If at any time during the term of this Lease, Lessor
has reasonable grounds to suspect that there has been - unauthorized
or prohibited disposal of "hazardous waste" as defined below, Lessor
shall also have the right to perform appropriate tests on the demised
premises at its own cost and expense.
6. Paragraph 11 of the Agreement of Lease is hereby amended in its
entirety to read as follows:
Lessee covenants and agrees that Lessee will comply with all the valid
requirements of law and duly constituted public authority and
environmental protection laws so far as they concern Lessee's occupancy
of demised premises, and it will not use the demised premises or any
part hereof in such manner as to create a nuisance, undue noise,
noxious odors or unwarranted interference with the enjoyment of
adjoining premises by the Owners and tenants thereof other than what is
normal for an operating petroleum storage terminal nor use the same for
any unlawful purposes or in violation of any State Statute, City
Ordinance or Rule or Regulation promulgated by or under such authority;
and that at all times Lessee will keep said demised premises in a clean
and sanitary condition and not allow waste or refuse to accumulate or
be stored
Page four
on the demised premises and shall not dump or place any waste or refuse
in any water, either navigable or non-navigable in or adjacent to the
terminal area.
Any "disposal" of a "hazardous substance" as defined in and prohibited
by 42USC9601, the "Comprehensive Environmental Response, Compensation
and Liability Act of 1980", of a "hazardous waste" as defined in and
prohibited by 42USC6901, the "Resource Conservation and Recovery Act of
1976" or of a "hazardous waste" as defined in and prohibited by Section
403.703, Florida Statutes (1985), as same may be modified or revised,
on any property of the Tampa Port Authority or in any manner
deleteriously affecting property of the Tampa Port Authority is
expressly prohibited. Any unauthorized discharge prohibited on the
Lease Premises under Lessee's exclusive possession and control by
anyone or any unauthorized or prohibited discharge upon any
non-exclusive easements which are a part of the lease premises by
Lessee of such "hazardous substance" or "hazardous waste" shall be
promptly cleaned up and environmentally restored by Lessee in
accordance with proper procedures and applicable governmental
regulations. Any violation of this provision which is not remedied by
Lessee or with respect to which curative actions are not commenced by
Lessee as required by the governmental entity requesting same (after
Lessee has exercised or invoked all available review and /or appeals of
such requirements) shall be considered a default hereunder, and Lessor,
at its option, may declare this lease terminated upon expiration of the
longer of any curative period permitted by the governmental entity or
by Lessor. In addition, Lessee agrees that within forty-five (45) days
of termination of this Lease for any reason, Lessee shall have
performed a site investigation
Page five
by an independent environmental consultant, who has been approved in
advance by Lessor, such approval shall not be unreasonably withheld.
The scope of such site investigation shall be as recommended by the
consultant and approved by the parties hereto. The results of such site
investigation shall be in writing and shall be delivered to Lessor
within five (5) days of receipt from the independent environmental
consultant. If the results of this site investigation do not reveal the
presence of prohibited disposal of "hazardous waste" on the Premises,
Lessee shall bear the cost of such site investigation not to exceed
$7,500.00 and Lessor shall bear any cost of the same in excess of
$7,500.00; said $7,500.00 is stated in 1986 dollars and shall be
adjusted by the CPI Index in the manner provided in paragraph 4 hereof
at the time any such sums become due. In addition, any further site
investigation may be conducted by the Lessor at its cost and expense.
If any site investigation reveals the presence of "hazardous waste"
which has been disposed of on the premises without proper
authorization or Lessee otherwise violates this provision, Lessee shall
bear the entire cost of such site investigation and Lessor may bring an
action for injunctive relief against Lessee and/or bring any action
against Lessee to recover any damages, including but not limited to
costs of investigation, removal, recovery and clean-up costs and fines
incurred by Lessor due to Lessee's violation of this provision.
7. Except as herein expressly amended, all other terms and conditions
of the Agreement of Lease, as previously amended, shall remain the same.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized officers the day and year first
Page six
above written.
Signed, sealed and delivered TAMPA PORT AUTHORITY
in the presence of.
/s/ XXXXX X. XXXXXXX By: /s/ XXXXXX X. XXX, XX.
------------------------------- ----------------------------
/s/ [ILLEGIBLE] Xxxxxx X. Xxx, Xx.
------------------------------- Its: Port Director
Signed sealed and delivered
in the presence of:
/s/ [ILLEGIBLE] By: /s/ XXXX X. XXXXXXXX, XX.
------------------------------- ---------------------------
/s/ XXXXX X. XXXXXXX Its: Sr. Vice President
-------------------------------
THIRD AMENDMENT TO BE ATTACHED TO AGREEMENT OF LEASE DATED
DECEMBER 16, 1976, BETWEEN PORT XXXXXX, INC. AND EASTERN
SEABOARD PETROLEUM COMPANY, INC. FOR PREMISES LOCATED IN
PORT XXXXXX. HILLSBOROUGH COUNTY, FLORIDA
This Third Amendment to Lease of December 16, 1976, by and between PORT
XXXXXX, INC., a Florida corporation, (hereinafter called "Lessor") and XXXXXXX
PETROLEUM COMPANY, a Delaware corporation, (hereinafter called "Lessee").
WITNESSETH:
WHEREAS, Lessor and EASTERN SEABOARD PETROLEUM COMPANY previously
entered into an Agreement of Lease (the "Agreement of Lease") dated December 16,
1976 covering certain real property situated at Port Xxxxxx, southeast of the
city of Tampa, in Hillsborough County, Florida, together with nonexclusive
easements, as described in said Agreement of Lease; and
WHEREAS, Lessor and EASTERN SEABOARD PETROLEUM COMPANY amended the
Agreement of Lease by First Amendment to Agreement of Lease dated May 21, 1980,
and further amended the Agreement of Lease by a Second Amendment to Lease dated
October 10, 1980; and
WHEREAS, EASTERN SEABOARD PETROLEUM COMPANY, entered into Lease
Assignment and Agreement effective August 14, 1984 in which it assigned all of
its interest in the Agreement of Lease to Lessee; and
WHEREAS, Lessor and Lessee desire to add additional acres to the leased
real property;
NOW, THEREFORE, for and in consideration of the sum of One Dollar
($1.00) each to the other in hand paid, receipt of which is hereby acknowledged,
and other valuable consideration, Lessor and Lessee stipulate and bind
themselves and agree as follows:
1. The Lessor does hereby lease unto the Lessee an additional 0.334
acres which is more particularly described in Exhibit A attached hereto and
incorporated herein by reference.
2. The monthly land rent and wharfage for this increased area described
in Exhibit A shall be at the same rate as the rate stated in the Agreement of
Lease.
3. In all other respects, the Agreement of Lease, as amended by the
First Amendment to Agreement of Lease dated May 21, 1980, and further amended by
the Second Amendment to Lease dated October 10, 1980, between Lessor and Lessee
is hereby confirmed and ratified.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the 15th day of August, 1984.
Witnesses: "LESSOR"
/s/ XX XXXXXXX PORT XXXXXX, INC.
----------------------------
By: /s/ XXXXXX XXXXXX
/s/ XXXXXXX X. XXXXXX ----------------------------
---------------------------- Its President
------------------------
ATTEST:
By: /s/ XXXXXXX BUGLY
------------------------
Its Assistant Secretary
Witnesses: "LESSEE"
/s/ [ILLEGIBLE] XXXXXXX PETROLEUM COMPANY
----------------------------
/s/ XXXXXXX X. XXXXX By: /s/ [ILLEGIBLE]
---------------------------- ----------------------------
Its President
ATTEST:
By: /s/ XXXXXX X. [ILLEGIBLE]
----------------------------
Its Secretary
------------------------
STATE OF Florida
COUNTY OF Hillsborough
The foregoing instrument was acknowledged before me this 28th day of
August, 1984, by 1984, by Xxxxxx Xxxxxx, President of PORT XXXXXX, INC., a
Florida corporation,
on behalf of the corporation.
/s/ [ILLEGIBLE]
---------------------
NOTARY PUBLIC
My Commission Expires:
----------------------
STATE OF WASHINGTON
----------
COUNTY OF D.C
---------
The foregoing instrument was acknowledged before me this 5th day of
Sept., 1984, by Xxxxxxx X. Xxxxxx XX;, Xxxxxx X. Xxxxxxxx, of XXXXXXX PETROLEUM
COMPANY, a Delaware corporation, on behalf of the corporation
/s/ XXXXX [ILLEGIBLE]
---------------------
NOTARY PUBLIC
My Commission Expires:
/s/ August 31, 1985
Exhibit A to Third Amendment to Lease Agreement dated August 15, 1984 between
Port Xxxxxx, Inc. and Eastern Seaboard Petroleum Company, Inc.
Beginning at the NE corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00
Xxxx, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, run South 2,020.00 feet parallel to
the East Boundary of said Section 4; thence run West 4,810.00 feet
parallel to the North Boundary of said Section 4 to the Point of
Beginning of the tract hereinbelow described: Thence continue West
parallel to the North Boundary of said Section 4 a distance of 20.00
feet; thence run South parallel to the East Boundary of said Section 4
a distance of 729.81 feet; thence run N. 76 degrees 12' 10" E a
distance of 20.59 feet; thence run North parallel to the East Boundary
of said Section 4 a distance of 724.90 feet to the Point of Beginning.
An area containing 0.334 +/- acres.
[PROPERTY BOUNDARIES]
LEASE ASSIGNMENT AND AGREEMENT
AGREEMENT, made as of August 14, 1984, by and between EASTERN SEABOARD
PETROLEUM COMPANY, INC., a Florida corporation, with a mailing address of 0000
Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Vice President ("Assignor"),
and XXXXXXX PETROLEUM COMPANY, a Delaware corporation, with a mailing address of
0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: President
("Assignee").
WITNESSETH:
WHEREAS, pursuant to a lease dated December 16, 1976, a true copy of
which is attached hereto as Exhibit A and made a part hereof, Amendment Number 1
to said Lease dated May 21, 1980, a true copy of which is attached hereto as
Exhibit B and made a part hereof and Amendment Number 2 to said Lease dated
October 10, 1980, a true copy of which is attached hereto as Exhibit C and made
a part hereof (all hereinafter referred to as the "Lease"), Port Xxxxxx, Inc.,
with a mailing address of X.X. Xxx X, Xxxxx, Xxxxxxx 00000 ("Lessor"), leased to
Eastern Seaboard Petroleum Company, Inc., a Florida corporation, certain
property located at Port Xxxxxx, Hillsborough County, Florida and more
particularly described in the Lease (the "Leased Premises").
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Assignor hereby grants, bargains, sells, assigns and confirms to
Assignee, its successors and assigns, all right, title and interest of Assignor
in and to the Lease, on the terms and conditions set forth below.
1. Representations of Assignor. Assignor hereby represents and warrants
to Assignee that; (i) the Lease documents at Exhibits A, B and C constitute the
entire Agreement between Lessor and Assignor and there have
been no modifications to the said documents; (ii) that as of the date hereof,
the Lease is in full force and effect, has not been materially breached by
Assignor (or, if materially breached, that such breach has been effectively
cured), is enforceable in accordance with its terms and conditions, and Assignor
is not aware of any condition which upon mere delivery of notice and or passage
of time would result in a default thereunder; (iii) Assignor has full and lawful
authority to assign the Lease subject to the consent of Lessor; and (iv)
Assignor will save harmless and indemnify Assignee, its officers and directors,
from any and all claims resulting from Assignor's conduct of business in
connection therewith.
2. Covenants of Assignee. From and after the date hereof, Assignee
hereby assumes all right, title and interest of Assignor in and to the Lease,
agrees to be bound by all terms and conditions thereof, and agrees to protect,
defend and indemnify and save harmless Assignor and its subsidiaries and related
companies and the directors, officers, employees, workmen and agents of Assignor
and its subsidiaries and related companies, from and against any loss, cost,
damage, demand, claim or other liability, including attorneys fees and other
expenses of litigation, which directly or indirectly results from or arises out
of Assignee's performance or nonperformance under the Lease, or which directly
or indirectly results from or arises out of Assignee's ownership, use or
possession of the Leased Premises or the improvements thereon. Not more than
fifteen (15) days after the date hereof, Assignee shall obtain and furnish to
the Lessor (with a copy furnished to Assignee) a certificate evidencing that
Assignee has obtained the insurance coverages requested by the Lease.
3. Taxes and Recording Costs. Assignee shall be fully liable for and
pay: (i) any sales or excise tax which is due with respect to the transfer of
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the Lease; and (ii) the cost for the recording of this Assignment or any other
instrument relating to the Lease.
4. Rentals/Real Estate Taxes/Assessments/Utilities. The monthly rental;
and any real estate taxes or assessments on the Leased Premises due and payable
by Assignor during the year of the Closing shall be prorated between Assignor
and Assignee as of the Closing Date on the basis of the most recently available
bills with a post-Closing adjustment within seven (7) days after receipt of the
actual current tax bills. From and after the Closing Date, Assignee shall be
fully liable for and pay all rentals, taxes, utility charges and other expenses
relating to the Leased Premises, in accordance with the provisions of the Lease.
5. Miscellaneous Provisions.
(a) This Agreement shall be construed, governed and
administered in accordance with the laws of the State of Florida.
(b) This Agreement is the final and entire expression of the
agreement between Assignor and Assignee with respect to its subject matter.
(c) Nothing in this Agreement, express or implied, is intended
to confer on any person other than Assignor and Assignee, and their respective
successors and assigns, any right or remedy under or by reason of this
Agreement.
(d) This Agreement is binding upon and shall inure to the
benefit of Assignor and Assignee and their respective heirs, successors and
assigns. In no event shall assignment of this Agreement by Assignee relieve such
party of its liabilities and obligations as primary obligor under this Agreement
without the prior written consent of the Assignor.
(e) This Agreement will not be binding upon Assignor or
Assignee until it is fully executed by and delivered to both parties. This
Agreement
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may not be amended, modified or supplemented, except by written agreement of
Assignor and Assignee, executed by their duly authorized representatives.
(f) Any notice or other communication required or permitted by
this Agreement shall not be valid unless in writing and personally delivered or
sent by postage prepaid registered or certified United States Mail, with return
receipt requested, addressed to the party for whom such notice is intended at
the address given for such party in the heading of this Agreement. Notice shall
be deemed given upon actual physical receipt by the party to whom the notice is
addressed. Either ASSIGNOR or ASSIGNEE may change the address provided for it by
notice given to the other party in accordance with this Section 5(f).
(g) No waiver of any breach of this Agreement may be construed
as a waiver of any continuing or subsequent breach of the same or any other
provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written, by order of their respective Boards of
Directors.
Signed, Sealed and Delivered
In The Presence Of:
WITNESSES: EASTERN SEABOARD PETROLEUM
COMPANY, INC.
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
----------------------- --------------------------------
/s/ XXXXXX XXXXX Its: Vice President
-----------------------
ATTEST:
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Assistant Secretary [SEAL]
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Signed, Sealed and Delivered
In The Presence Of:
WITNESSES: XXXXXXX PETROLEUM COMPANY
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
----------------------------- ----------------------------
/s/ [ILLEGIBLE] Its: President
-----------------------------
ATTEST:
By: /s/ XXXXXX X. [ILLEGIBLE]
-------------------------
Secretary [SEAL]
Signed, Sealed and Delivered
In The Presence of:
WITNESSES: Agreed and accepted this 20th
day of July, 1984.
/s/ [ILLEGIBLE] PORT XXXXXX, INC.
----------------------------------
/s/ XXXXXXX X. XXXXXX By: /s/ [ILLEGIBLE]
---------------------------------- ----------------------------
Its: President
---------------------------
ATTEST: /s/ XXXXXXX X. XXXXXX
------------------------
Asst Secretary [SEAL]
STATE OF Kentucky )
) SS:
COUNTY OF [ILLEGIBLE] )
On the 10th day of July, 1984, before me personally came Xxxxx X. Xxxxx
and Xxxxxxx X. Xxxxxx to me known, who, being by me duly sworn, did depose and
say that they are the Vice President and Asst Secretary, respectively, of
EASTERN SEABOARD PETROLEUM COMPANY, INC., the corporation described in and which
executed the above instrument; that they know the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that they
signed their names thereto by like order.
/s/ XXXXX X. XXXXXXX
--------------------------
Notary Public
My commission expires May 12, 0000
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XXXXX XX XXXXXXXXXX, X.X.)
) SS.
COUNTY OF D.C. )
On the 5th day of July, 1984, before me personally came Xxxxxx X.
Xxxxxxxx and Xxxxxxx X. Xxxxxxx, XX to me known, who, being by me duly sworn,
did depose and say that they are the President and Secretary, respectively, of
XXXXXXX PETROLEUM COMPANY, the corporation described in and which executed the
above instrument; that they know the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation; and that they signed their
names thereto by like order.
/s/ [ILLEGIBLE]
-----------------------
Notary Public
(SEAL)
My commission expires of ____________________.
STATE OF FLORIDA )
) SS.
COUNTY OF HILLSBOROUGH )
I, Xxxxx Xxxxxxxx, a Notary Public in and for the said county in said
state, hereby certify that Xxxxxx Xxxxxx whose name as President of Port Xxxxxx,
Inc., a corporation, is signed to the foregoing conveyance, and who is known to
me, acknowledged before me on this day that, being informed of the contents of
the conveyance, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand and seal of office this 2Oth day of July, 1984.
/s/ XXXXX XXXXXXXX
--------------------------
Notary Public
(SEAL)
My commission expires: [ILLEGIBLE]
-----------
This Instrument Prepared By:
-----------------------------
Xxxxxxx X. Xxxxxx, Attorney
Ashland Petroleum Company
Division of Ashland Oil, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE, made as of the 16th day of December 1976, by
and between PORT XXXXXX INC.; A Florida corporation, herein called "LESSOR", and
EASTERN SEABOARD PETROLEUM COMPANY, INC., a Florida corporation, herein called
"LESSEE",
WITNESSETH;
That in consideration of the mutual covenants and agreements herein
contained, the Lessor does hereby lease unto the Lessee the real property
situate at Port Xxxxxx, southeast of the City of Tampa, in Hillsborough County,
Florida, described on Exhibit "A" attached hereto and made a part hereof.
TOGETHER with an easement or easements for the non-exclusive use of:
(a) The East-West dock known as Berth 24 located on the south side of
Port Xxxxxx channel as indicated on the sketch marked Exhibit "B" and attached
hereto, together with the bollards and other appurtenances to such dock and the
private channel of Lessor connecting the same with the main ship channel of
Hillsborough Bay.
(b) The wharf area adjacent to the aforesaid dock outlined on Exhibit
"B" in red.
(c) Easements for utilities and for ingress and egress to and from the
aforesaid dock and wharf area over roads, railroads and other rights-of-way
from time to time designated by the Lessor necessary or convenient for the
leased premises to be operated by the Lessee as a petroleum products terminal.
The real property and easements hereinbefore described are hereinafter
called "the leased premises."
TO HAVE AND TO HOLD the above-described premises, together with the
tenements, hereditaments, appurtenances and easements thereunto belonging upon
the terms and conditions hereinafter stated for a term of ten (10) years,
commencing on the 16th
day of December, 1976, and extending to and including the 15th day of December,
1986.
1. Lessee agrees to pay Lessor as rental for leased premises and use of
wharfage facilities and the easements hereinabove described the following.
A. Monthly land rent at the rate of Two Hundred Fifty Dollars
($250.00) per acre in the leased premises; plus
B. Wharfage for products brought into the leased premises from
vessel, truck, railcar or pipeline as follows:
$0.02 per barrel for the first 2,000,000 barrels
$0.015 per barrel for the second 2,000,000 barrels
$0.01 per barrel over 4,000,000 barrels.
C. Lessee agrees that minimum wharfage will aggregate a minimum of
Three Thousand Dollars ($3,000.00) per acre in any contract year. If at the end
of any contract year, Lessee has unloaded insufficient volume of product to
bring the minimum wharfage to a sum equal to Three Thousand Dollars ($3,000.00
times the number of acres in the leased premises (and remitted therefor), it
will within the following fifteen days remit an additional amount sufficient to
bring the annual payment for such contract year up to a total equal to Three
Thousand Dollars ($3,000.00) times the number of acres in the leased premises.
D. In the event the docking facility on Port Xxxxxx Channel becomes
unusable for more than 96 hours through no fault of the Lessee, its agents or
employees, or by vessels serving the Lessee, the annual minimum wharfage shall
be reduced by the ratio of hours the docking facility is unusable to the total
hours in the contract year. This reduction in minimum wharfage shall not alter
the demurrage provisions of other paragraphs in this contract.
2. In addition to the amounts hereinabove specified, the Lessor will
charge dockage to or against the various vessels employed in the movement of
materials to and from the leased premises at a rate not greater than the then
current rates estab-
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lished by the applicable tariff of the Tampa Port Authority. In the event the
Tampa Port Authority ceases to publish its tariffs, then the dockage charge will
be established by mutual agreement of the parties for the balance of any lease
term or extensions thereof.
3. The leased premises shall be used solely and only for the storage
and handling of petroleum products. The premises shall not be used for other
purposes except upon the prior written consent of Lessor. Lessee shall have the
right to place or install for its exclusive use, on the leased premises
unloading facilities, tanks, scales, boilers, pipelines, and other fixtures and
equipment, including office buildings and appurtenant structures for the conduct
of its business thereon. Any facilities placed within the wharf area shall be so
placed and maintained as to facilitate the joint use of said wharf area by the
Lessee and the Lessor or its licensees or other tenants. -- All buildings and
appurtenances erected or installed on the leased premises shall be properly
designed and built to meet all applicable building codes and shall be maintained
in good order and condition.
Lessee shall not engage in general stevedoring but may charge other
tenants, present and future, of Port Xxxxxx, Inc. an appropriate fee for the use
of any facilities, pipelines, or appurtenances which Lessee has placed on the
leased premises and easements for its exclusive use; the written consent of the
Lessor shall be obtained prior to enacting any such agreement.
4. Lessor covenants and agrees to maintain the dock, constructed in
accord with the plans marked Exhibit C and attached hereto, as well as a berth
and channel to the main ship channel of Hillsborough Bay having a depth of
thirty-four (34) feet at mean low water; provided, however, the Lessee shall be
responsible for any damage to any such facilities by its agents or employees or
by vessels serving the Lessee.
5. In the event any vessel owned by or under the control or direction
of the Lessee sinks or becomes disabled for
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reasons other than those caused by Lessor at any dock, channel, slip, turning
basin, or fairway located at Port Xxxxxx, the Lessee will promptly and with all
reasonable speed refloat and remove said vessel and all debris so as not to
interfere with the use of any such mooring facility or channel, or otherwise
impede safe navigation to and from Port Xxxxxx facilities; provided, however,
that nothing herein contained shall prevent Lessee from recovering its costs and
damages from the party causing, or contributing to the cause, of such sinking or
disablement.
6. This lease is made upon the express condition that the Lessor shall
be free from all liabilities and claims for damages and suits for or by reason
of any injury or injuries to any person or persons or property of any kind
whatsoever, whether the person or property of Lessee, its agents, or employees,
or third persons, from any cause or causes whatsoever while in or upon the
leased premises or any part thereof during the term of this agreement or
occasioned by any occupancy or use of the leased premises or any activity
carried on by Lessee in connection therewith; provided, however, Lessee shall
not be liable for the negligence of the Lessor or any of its agents, guests,
servants or employees. Each party covenants and agrees to indemnify and save
harmless the other party from all liabilities, charges, expenses (including
attorneys' fees) and costs on account of or by reason of any such injuries,
liabilities, claims, suits or losses however occurring or damages growing out of
same, for which the parties are liable hereunder.
7. The Lessee agrees to procure and to constantly maintain in force, at
its expense, comprehensive general liability and property damage insurance, in
companies satisfactory to the Lessor, the policies thereof to name the Lessor as
an additional assured and to have limits of not less than $500,000.00 for death
or injury of any one person and $1,000,000.00 for death or injury to persons
from any one accident, and property damage
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of not less than One Million Dollars ($1,000,000.00).
8. Except as provided in paragraph 4 above, the Lessee shall keep the
leased premises and all improvements erected thereon at all times in good
condition and repair, shall pay all water, gas, electric, and other utility
expenses incident to the occupation and use of the leased premises, and shall
pay all taxes and assessments levied upon or assessed against the land described
on Exhibit "A" hereof and any improvements thereon during the primary term
hereunder, or any extension or renewal thereof.
9. The Lessee shall not permit the leased premises or any improvements
thereon or the estate of the Lessee in the same to become subject to any lien,
charge, or encumbrance whatsoever and shall indemnify and keep indemnified the
Lessor against all such liens, charges, and encumbrances; it being expressly
stipulated that the Lessee shall have no authority, express or implied, to
create any lien, charge or encumbrance upon the leased premises or the
improvements now or hereafter located thereon or upon the estate of the Lessee
in the same. Nothing herein contained shall restrict Lessee from selling the
facilities constructed by it on the leased premises; and in the event of such a
sale, the purchaser thereof shall be relieved of any obligations hereunder, but
Lessee shall continue to be bound by the terms and conditions hereof.
10. The Lessee shall permit the Lessor and its agents at all reasonable
times to enter upon the leased premises to view the condition of the premises
and any improvements thereon.
11. The Lessee shall not make or suffer any use or occupancy of the
leased premises contrary to any law or ordinance now or hereafter in force, and
shall strictly comply with all laws, ordinances, and rules of any governmental
authorities, bodies, or commissions having jurisdiction. The Lessee shall
conduct its business and operations on the leased premises in such a manner so
as not to create a nuisance, or interfere with
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or cause any damages or inconvenience to other tenants of the Lessor, their
agents or employees.
12. The Lessee agrees that if by reason of its failure to perform any
of the covenants or provisions of this lease, the Lessor shall be compelled to
do so or shall do any act which requires the payment of money, then the sum or
sums so paid or required to be paid, together with the legal interest and any
penalties and costs and attorney's fees shall be considered as so much
additional rental and if not paid by Lessee to Lessor upon ten (10) days written
demand then the Lessor shall have the same rights and remedies as in the case of
the failure of the Lessee to pay the rental.
13. The Lessee shall indemnify the Lessor against all costs and
expenses, including counsel fees, lawfully and reasonably incurred in
enforcing the terms and conditions of this lease, or in the defense of any
action or proceeding involving this lease, or in discharging the premises from
any charge, lien or encumbrance, or in obtaining possession after default of the
Lessee or the determination of this lease.
14. Upon the expiration of this lease or any extension or renewal
hereof, or upon any earlier termination of this lease, Lessee shall yield up and
surrender the leased premises in the same condition as they were at the time it
originally took possession thereof, reasonable fair wear and tear excepted. The
Lessee is specifically given the right at termination of this lease if not in
default, to remove from said premises all improvements, machinery, equipment and
other personal property placed thereon by Lessee, but, if Lessee removes any
part of a permanent improvement or structure, the Lessee must remove the whole
of such improvement or structure and restore the site upon which structure or
improvement was located to its original condition. Any property remaining on the
leased premises ninety (90) days after the termination of this lease shall
become the property of the Lessor without process of law, but this provision
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shall not limit the Lessor's right under the preceding sentence to require the
Lessee to complete the removal of any improvement or structure theretofore
partially removed by the Lessee, and should the Lessee fail to so restore the
premises, the Lessor may do so at the expense of the Lessee.
15. The Lessor covenants that the Lessee, on paying the rental herein
reserved and performing the covenants on its part to be performed, shall and may
peaceably and quietly have, hold and enjoy the leased premises during the term
hereof; provided, however, should the Lessee fail to make the rental payments
hereby required and the same shall remain unpaid after thirty (30) days'
written notice to pay the same, or if the Lessee shall neglect or fail to
perform or observe any of the covenants contained in this instrument which are
on its part to be performed and after thirty (30) days' written notice the same
have not been performed or observed, or if the leasehold interest shall be taken
on execution or other process of law and such proceedings are not dismissed and
the premises returned to the Lessee within sixty (60) days, or if the Lessee
shall petition to be or shall be declared a bankrupt or insolvent according to
law, or if any assignment shall be made of its property for the benefit of
creditors, then and in any of the said cases the Lessor lawfully may,
immediately or at any time thereafter, and without further notice or demand,
enter into and upon the said premises or any part thereof in the name of the
whole, and repossess the same as its own fee simple estate, and expel the Lessee
and those claiming under it, and remove their effects (forcibly, if necessary)
without being taken or deemed guilty of any manner of trespass, and without
prejudice to any remedies which might otherwise be used for arrears of rental or
preceding breach of covenant, and that upon entry as aforesaid this lease shall
be terminated; and the Lessee covenants and agrees that, notwithstanding the
termination of this lease and possession regained by the Lessor, it will be and
remain liable to the Lessor, after
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such possession regained, for any loss sustained by the Lessor on account of the
premises being let for the remainder of the original term or any extension
thereof for a less sum than before, or at the election of the Lessor, the Lessee
will, on and after such termination and so long as the demised premises have not
been relet, pay to the Lessor, at the times and in the proportions herein named
for the payment of rental, a sum equal to the rental and other payments herein
named as liquidated damages for so much of the unexpired term as expires with
each such payment, or at the election of the Lessor made upon the termination as
aforesaid, or after such payment of liquidated damages as hereinbefore
provided, the Lessee will pay to the Lessor as damages such a sum as at the time
of such termination represents the difference between the rental value of the
leased premises for the remainder of the said term and the rental and other
payments herein named. No waiver by the Lessor of any covenant contained in this
lease shall be a waiver of any succeeding breach of the same covenant.
16. Neither the Lessor nor the Lessee shall be deemed to be in default
on account of any failure or delay of performance of any obligation hereunder
when such failure or delay shall be due to any cause or causes beyond its
reasonable control; provided that the party so failing or delaying shall
exercise due diligence to try to remove promptly such cause or causes, excepting
only disputes involving the settlement of strikes or other labor disputes;
provided further, however, that this paragraph 16 shall not relieve Lessee of
the obligation to remit the sums provided in paragraph 1 of the agreement. In
the event Lessee's inability to use the leased premises is due to Lessor's labor
disputes, strikes or other labor difficulty, then Lessee's obligations under
paragraph 1(b) and 1(c) shall be reduced pro rata for the period of
non-utilization caused by Lessor.
17. All notices to the Lessee shall be sent by registered or certified
mail addressed to Xxxx Xxxxxx Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx, 00000, or at such
other address as the Lessee shall designate in writing.
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18. All notices to the Lessor shall be sent by registered mail to the
Lessor at Xxxx Xxxxxx Xxx "X", Xxxxx, Xxxxxxx, 00000, or at such other address
as the Lessor shall designate in writing. Notwithstanding any provisions in this
lease to the contrary concerning modifications, a change in address may be
effected by a registered or certified letter sent by either party to the other.
19. All payments to the Lessor under the terms of this lease shall be
made at the address designated for notice to the Lessor.
20. Lessor has good right and authority to enter into this lease and
shall warrant and defend its right to do so. Lessor further warrants that there
are no liens, charges, or encumbrances upon the leased premises, except current
taxes, and that it will indemnify and keep indemnified the Lessee against any
and all future liens, charges, and encumbrances, other than taxes to be paid by
Lessee as hereinbefore provided.
21. This Lease may not be assigned by the Lessee without prior written
permission of the Lessor, which permission shall not be unreasonably withheld.
22. The Lessor owns vacant land west of the leased premises which are
[illegible] for future terminals of liquid products. Lessee [illegible]
hereinbefore mentioned are for the non-exclusive use on a berth-in-turn basis;
except that Lessee shall not have a permit for the unloading of more than one
vessel of any other tenant. In order to facilitate availability of the berth,
Lessee will furnish Lessor a schedule of expected vessel movements affecting its
terminal, and, in any case, will notify Lessor at least seventy-two (72) hours
prior to each arrival or at the time of Lessee's vessel sails from its last port
of call, whichever is later.
Lessor will permit no use of the berth by vessels requiring more than
thirty-six (36) hours to load or unload and will require that each vessel
unloading or loading at the berth to expeditiously discharge at the maximum
capacity of the vessel
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compatible with the terminal facilities and to vacate the berth as soon as
possible after discharge.
In the event Lessee's vessel is delayed as a result of a previous
vessel occupying the berth for more than thirty-six (36) hours, or, in the
event Lessor fails to make available the berth as hereinabove provided, Lessor
will pay the full demurrage charges incurred by the Lessee as a result of the
delay.
Lessee further agrees that it will expeditiously start and complete its
unloading at the maximum pumping capacity of the vessel compatible with the
terminal facilities and vacate the berth as soon as possible after discharge
upon the request of the Lessor. If Lessee fails to vacate the berth after
thirty-six (36) hours as provided above, Lessee will pay to Lessor any demurrage
Lessor is obligated to pay other tenants using the berth due to Lessee's failure
to vacate.
23. Lessee shall have two successive options of renewing and extending
this lease, each such renewal and extension to be for a period of ten years
beginning with the date of termination of the preceding ten year lease. Each
such option shall be exercised by giving written notice to the lessor no less
than ninety (90) days prior to the expiration of the lease then in effect. Each
such lease or extension entered into pursuant to an exercise of such option
shall be on the same terms and conditions as those expressed herein, except that
the rental rate, wharfage and minimum wharfage, shall be increased or decreased
for the next ensuing ten years by an amount calculated by multiplying the base
rental set forth in paragraph 1 above by a fraction whose numerator is The
Consumer Price Index, U. S. City Average, All Items (Base Year 1967) published
by the Bureau of Labor Statistics, U.S. Department of Labor, for the third month
prior to expiration of such 10-year period whose denominator shall be said
consumer price index (U. S. City Average, All Items) for the first month of the
original term of this lease. Should the Bureau of Labor Statistics change the
manner of computing The Consumer Price Index, the Bureau shall be requested to
furnish a conversion factor designated to adjust the new Index to the one
previously
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in use, and adjustment to the new Index shall be made on the basis of such
conversion factor. Should the publication of the Consumer Price Index be
discontinued by the Bureau of Labor Statistics, then such other Index as may be
published by such Bureau most nearly approaching said discontinued Index shall
be used in making the adjustments herein provided. Should the Bureau discontinue
the publication of an Index approximating the Index herein contemplated, then
such Index as may be published by another United States Government agency as
most nearly approximates the Index herein first above mentioned shall govern and
be substituted as the Index to be used, subject to the application of an
appropriate conversion factor to be furnished by the governmental agency
publishing the adopted Index. In the event of any valid delay caused by seeking
the proper adjustment for rental payments, as herein provided, Lessee shall
continue paying the rental under the last preceding rental adjustment as herein
provided, until such time as said proper adjustment has been made, at which time
an adjustment shall be made retroactive to the beginning of the year in which
the adjustment should have been made.
In any event, the land rent, wharfage, and annual minimum payment shall
be no less than specified in Paragraph 1 above.
24. The Lessor agrees to provide and maintain a road for Lessee's
non-exclusive use from the southeast corner of the leased property described in
Exhibit "A" to Highway U.S. 41. Such road shall be suitable for the two-way
traffic of the largest trucks allowed on State of Florida highways. Should
lessor dedicate said road to public usage, and a governmental entity accept the
road for maintenance providing lessee with ingress and egress, then lessor shall
be relieved of its responsibility.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
properly executed by their proper officers
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in due form of law, the day and year first above written.
LESSOR: LESSEE:
PORT XXXXXX, INC. EASTERN SEABOARD PETROLEUM
COMPANY, INC.
BY /s/ XXXXXX XXXXXX BY /s/ XXXX X. XXXXXXXX XX.
------------------------------- -------------------------------
President President
ATTEST:
BY XXXXXXX X. XXXXXX BY W. XXXXX XXXXXX
------------------------------- -------------------------------
Assistant Secretary Assistant Secretary
STATE OF FLORIDA )
COUNTY OF HILLSBOROUGH ) ss
I HEREBY CERTIFY, That on this 15th day of December, 1976, before me,
the undersigned authority, personally appeared Xxxxxx Xxxxxx and Xxxxxxx X.
Xxxxxx to me known to be the persons described in and who executed the foregoing
instrument as President and Secretary, respectively, of PORT XXXXXX, INC., a
Florida corporation, and who severally and duly acknowledged the execution of
such instrument as such officers aforesaid, for and on behalf of and as the act
and deed of said corporation for the uses and purposes therein expressed,
pursuant to authority lawfully conferred upon them by said corporation and that
the seal affixed thereto is the true and genuine corporate seal of said
corporation and was affixed thereunto by the said Secretary, under like
authority, he being the proper custodian thereof.
WITNESS my hand and official seal the date aforesaid,
/s/ XXXXXX X. XXXXX
---------------------------------------
Notary Public for State of Florida
at Large
My commission expires:
Notary Public State of Florida at Large
My Commission Expires Nov. 5, 0000
-00-
XXXXX XX XXXXXXX )
COUNTY OF XXXXX ) ss
I HEREBY CERTIFY, That on this 16th day of December, 1976, before me
the undersigned authority personally appeared Xxxx X. Xxxxxxxx Xx. and W. Xxxxx
Xxxxxx to me known to be the persons described in and who executed the foregoing
instrument as President and Secretary, respectively, of EASTERN SEABOARD
PETROLEUM COMPANY, INC., a Florida corporation, and who severally and duly
acknowledged the execution of such instrument as such officers aforesaid, for
and on behalf of and as the act and deed of said corporation, for the uses and
purposes therein expressed, pursuant to authority lawfully conferred upon them
by said corporation; and that the seal affixed thereto is the true and genuine
corporate seal of said corporation and was affixed thereunto by the said
Assistant Secretary under like authority, he being the proper custodian thereof.
WITNESS my hand and official seal the date aforesaid.
/s/ XXXX X. XXXXX
------------------------------------
Notary Public
My commission expires:
Notary Public, State of Florida at Large
My commission expires July 27, 1980
-13-
[PROPERTY BOUNDARIES]
Exhibit A to Lease
Agreement between Port
Xxxxxx, Inc. and Eastern
Seaboard Petroleum Company
Inc. dated December 16,
1976
Beginning at the NE corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx,
Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, run South 2,020 feet parallel to the East boundary
of said Section 4; Thence run West 4,160 feet parallel to the North boundary of
said Section 4 to the Point of Beginning of the tract hereinbelow described:
Thence continue West parallel to the North boundary of said Section 4 a distance
of 650 feet; Thence run South parallel to the East boundary of said Section 4 a
distance of 724.9 feet more or less; Thence run northeasterly a distance of
720.8 feet more or less to a point 4,110 feet West and 2,573 feet South of said
Section 4; Thence run North parallel to the East boundary of said Section 4 a
distance of 503 feet; Thence run northwesterly a distance of 70.71 feet more or
less to the Point of Beginning. An area containing 9.94 +/- acres.
FIRST AMENDMENT TO AGREEMENT OF LEASE
This First Amendment to Agreement of Lease made and entered into this
21st day of May, 1980, by and between Port Xxxxxx, Inc., a Florida corporation
("Lessor") and Eastern Seaboard Petroleum Company, Inc., a Florida corporation,
("Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee previously entered into an Agreement of
Lease (the "Agreement of Lease") dated December 16, 1976 covering certain real
property situated at Port Xxxxxx, southeast of the City of Tampa, in Hillborough
County, Florida together with nonexclusive easements, as described in said
Agreement of Lease, and
WHEREAS, Lessee has requested that the Lessor construct for the
Lessee's exclusive use a vessel mooring system described in Subparagraph 2(a)
below (the "Vessel Mooring System") adjacent to and west of the area covered by
the above referenced Agreement of Lease and grant to Lessee certain easement or
easements for the exclusive use of Lessee; and
WHEREAS, Lessor has agreed to construct the Vessel Mooring System to be
identified as Berth 25 and to grant the requested easements all to be located as
indicated on the sketch attached hereto and made a part hereof as Exhibit "C",
NOW THEREFORE, for and in consideration of the sum of One Dollar
($1.00) each to the other hand paid, receipt of which is hereby acknowledged,
and other valuable consideration, Lessor and Lessee stipulate and bind
themselves and agree as follows:
1. The definition of the Leased Premises in the Agreement of Lease is
modified to add the following after item (c):
"Together with: (i) The exclusive right to Lessee to use the
rectangular area outlined in red as shown on Exhibit C and being an area
starting where the new sea wall joins the existing sea wall at a point on
the westerly side of Berth 24 and whose easterly/westerly running parallel
sides are four hundred feet in length and whose northerly/southerly
running parallel sides are seventy-five feet in length and the southerly
most easterly/westerly line of which runs along the northern edge of the
new sea wall, and such exclusive right to be subject only to the right of
Lessor in accordance with the terms of the Agreement of Lease to permit
the mooring of ships at Berth 24 and to run mooring lines from such moored
ship to a mooring bollard located immediately south of this described area
as such bollard is shown on Exhibit C.
Exhibit B
(ii) The exclusive use of the Vessel Mooring System to be
constructed in accordance with the terms of this amendment.
(iii) An exclusive easement, to be located as marked in yellow
on attached Exhibit C running from real property leased to Lessee by
Lessor as described in the Agreement of Lease and as shown In Exhibit A
to the Agreement of Lease to the new sea wall as described in this
amendment to be constructed by Lessor and along that sea wall to and
among the various facilities constituting the Vessel Mooring System
which easement shall be for the purpose of installation of below ground
and above ground petroleum products lines; water lines; electrical
lines; communication lines and other utilities or services reasonably
required by Lessee in connection with its use of the Vessel Mooring
System (such services being collectively referred to as "Lessee Support
Services"),
This easement includes the right exercisable by Lessee from
time to time, to install, replace, repair, maintain and operate the
Lessee Support Services, and
(iv) A non exclusive easement for ingress and egress to and
from the Lessee Support Services and the Vessel Mooring System and the
area described in Subparagraph (i) above, over roads, railroads and
other rights-of-way from time to time designated by the Lessor as
necessary or convenient for the Leased Premises."
2(a) Lessor shall construct and maintain in good repair for Lessee's
exclusive use and in accordance with the drawing and specifications attached
hereto and made a part hereof as Exhibit C the Vessel Mooring System adjacent to
and west of the portion of Leased Premises described in the Agreement of Lease,
which Vessel Mooring System shall consist of
(i) a 400 foot extension of the sea wall in a westerly
direction which shall be constructed in the same fashion and of the
same quality, materials and workmanship as the existing sea wall in the
Berth 24 area;
(ii) five mooring dolphins connected to the sea wall by
walkways; and
(iii) one loading platform.
(b) Lessee shall have the right from time to time to install on the
constituents of the Vessel Mooring System such equipment, pipe lines, machinery
and other facilities which Lessee finds desirable in accordance with its use of
the Vessel Mooring System (such facilities being collectively referred to as
"Lessee Support Facilities"), and Lessor shall not be responsible for the
maintenance or repair of the Lessee Support Services or the Lessee Support
Facilities except where damage is caused to such facilities or services as a
result of Lessor's fault or negligence. At any time during the continuance of
the effectiveness of this Amendment or within ninety (90) days after the
termination or nonrenewal hereof, however arising, Lessee will sever and remove
from the Leased Premises any Lessee Support Facilities or Lessee Support
2.
Services. If Lessee removes any part of such Lessee Support Facilities or
Lessee Support Services, Lessee, except as otherwise provided at Paragraph 8
hereof, shall be obligated to restore to its original condition, fair wear and
tear excluded, Lessor's property upon which the Lessee Support Services or
Lessee Support Facilities were located.
In the event that Lessee decides to install or attach any equipment
(i.e., pipelines, machinery or other facilities) on or to the Vessel Mooring
System, all permits, fees and construction costs shall be paid by Lessee.
Lessee agrees to hold harmless and indemnify Lessor against all claims
brought against Lessor which arise out of the fault or negligence of the Lessee
in connection with the installation or use of the equipment attached by Lessee
to the vessel mooring system and Lessor agrees to hold harmless and indemnify
Lessee against all claims brought against Lessee arising out of the fault or
negligence of the Lessor in the construction and maintenance of the vessel
mooring system. The foregoing indemnifications include reasonable legal fees and
costs incurred in defense of such claims.
(c) Lessor shall maintain a depth of at least ten (10) feet at mean low
water beginning immediately on the northerly side of the loading platform and
the breasting dolphins shown in Exhibit C attached hereto and continuing
northerly to the main ship channel of Port Xxxxxx channel.
3. Paragraphs 1 and 2 of the Agreement of Lease are deleted, effective
as of the first day of the first month after the date on which the Vessel
Mooring System has been completed in accordance with the provisions of this
Amendment and turned over to Lessee for Lessee's use, and replaced with the
following:
"l.(a) Lessee agrees to pay Lessor for performance of Lessor's
obligations under this Agreement and as rental for the Leased Premises,
including without limitation the rental of the premises described in
Exhibit A of the Agreement of Lease and Exhibit C of this Amendment and
the wharfage facilities and the easements described in the Lease
Agreement and this Amendment, the following amounts plus the amounts
prescribed in Paragraph 2 below:
(i) monthly land rent at the rate of Two Hundred and Fifty
Dollars ($250.00) per acre in the portion of the Leased Premises
described in Exhibit A to the Agreement of Lease which contains 10.24
acres for purposes hereof; plus
(ii) Wharfage for petroleum products brought into and taken from
Lessee's terminal located on the portion of the Leased Premises
described in Exhibit A to the Agreement of Lease and such wharfage to
be calculated as follows:
(A) for petroleum products brought into said portion of the
Leased Premises whether brought in by vessel, truck, rail car or pipe
line,
3.
$0.02 per barrel for the first 2,000,000 barrels per lease year,
$0.015 per barrel for the second 2,000,000 barrels per lease year, and
$0.01 per barrel for all amounts over 4,000,000 barrels per lease year
The wharfage to be charged pursuant of this Part (A) will aggregate a
minimum of Three Thousand Dollars ($3,000.00) per acre in the portion of the
Leased Premises described in Exhibit A to the Agreement of Lease (which
constitutes 10.24 acres for purposes hereof) in any Lease Year. For purposes of
this calculation a Lease Year shall be deemed to begin on the 16 day of December
and continue through the 15 day of the following December during the term of
this lease.
(B) for petroleum products taken out of said portion of the Leased
Premises by vessel: the rate shall be one-half the rate in effect in paragraph 1
(a) (ii) (A) above.
The wharfage to be charged pursuant to this Part (B) will aggregate a
minimum of Six Thousand Five Hundred Dollars ($6,500.00) per Amendment Year. For
purposes hereof an Amendment year shall start with the first day of the first
month after the date on which the Vessel Mooring System has been completed in
accordance with the provisions of this Amendment and turned over to Lessee for
Lessee's use and shall end with the last day of the twelfth calendar month
thereafter, said Amendment Year to consist of a total of twelve consecutive
calendar months.
(C) If at the end of any Lease Year or Amendment Year, whichever is
applicable, there has been insufficient volume of petroleum products either
brought into said portion of the Leased Premises or taken out of said portion of
the Leased Premises, as shall be applicable to the particular calculation, to
bring the wharfage to a sum equal to the minimum set forth in Part (ii) (A) or
(B), as applicable, Lessee will within the following fifteen (15) days remit an
additional amount sufficient to bring the annual payment for such Lease Year or
Amendment Year, whichever is applicable, up to said minimum.
(b)(i) In the event the docking facility on Port Xxxxxx Channel as
described in the Agreement of Lease becomes unuseable for more than ninety-six
hours through no fault of the Lessee, its agents or employees, or by vessel
serving the Lessee, the annual minimum wharfage set forth at Subparagraph
l(a)(ii)(A) above shall be reduced by the ratio of hours the docking facilities
is unuseable to the total hours in the Lease Year.
4.
(ii) In the event the Vessel Mooring System becomes unuseable for more
then ninety-six hours through fault of the Lessor, its agents or employees, the
annual minimum wharfage set forth at Subparagraph l(a)(ii)(B) and the dockage
set forth below in Subparagraph 2(b) shall each be reduced by the ratio of hours
the Vessel Mooring System is unuseable to the total hours in the Amendment Year.
In the event the Vessel Mooring System becomes unuseable through the
fault of Lessee; its agents or employees, the annual wharfage set forth at
subparagraph l(a)(ii)(B) and the dockage set forth below in subparagraph 2(b)
shall continue in full force and effect.
In the event that Lessor terminates this Amendment pursuant to
Paragraph 7 hereof, the annual minimum wharfage set forth at Subparagraph
l(a)(ii)(B) and the dockage set forth at Subparagraph 2(b) below shall be
prorated to the portion of the Amendment Year prior to the effective date of the
termination.
(iii) These reductions in minimum wharfages shall not alter the
dumurrage provisions of other sections in the Agreement of Lease.
2(a) In addition to the amounts specified in Paragraph 1 and in Part (b) of this
Paragraph 2, the Lessor will charge dockage to or against the various vessels
employed in the movement of petroleum products to and from the docking
facilities described on the sketch marked Exhibit B to the Agreement of Lease at
a rate not greater than the then current rates established by the applicable
tariff of the Tampa Port Authority. In the event the Tampa Port Authority ceases
to publish its tariffs, then the dockage charge will be established by mutual
agreement of the parties for the balance of any lease term or extensions
thereof.
(b) In addition to the amounts specified in Paragraph 1 and in Part (a)
of this Paragraph 2, Lessor will charge, in lieu of dockage relative to the
Vessel Mooring System, Twenty-two Thousand Dollars ($22,000.00) per Amendment
Year ($1,833.33 per month, payable monthly in advance.)
(c) Any wharfage amounts due pursuant to Subsection l(a)(ii) shall be
payable on a monthly basis within fifteen (15) days after the end of the month
to which the amounts apply.
(d) All wharfage calculations shall be based on Lessee's loading and
unloading records as maintained by Lessee, or such other mutually agreeable
method. Lessor shall have a right during normal business hours to have access
to, inspect and make copies of Lessee's loading records as are relevant to
wharfage amounts due pursuant to Subparagraph l(a)(ii)."
5.
4. The first seven words of Paragraph B of the Agreement of Lease
reading "except as provided in Paragraph 4 above," are deleted and replaced with
the following: "Except as provided in Subparagraph 2.(a) of this Amendment and
in Paragraph 4 of the Agreement of Lease,".
5. Paragraph 23 of the Agreement Lease is deleted and replaced with the
following:
"23 Lessee shall have two successive options of renewing and
extending this Lease, including this Amendment, each such renewal and
extension to be for a period of ten (10) years beginning with the date
of termination of the preceding ten (10) year lease. Each such option
shall be exercised by giving written notice to the Lessor no less than
ninety (90) days prior to the expiration of the term then in effect.
Alternatively, Lessee may elect to exercise this option as to the
Leased Premises described in the Agreement of Lease prior to change by
this Amendment and in such case the extension shall not apply to the
Leased Premises described above at Paragraph 1 of this Amendment and in
such case or in case of cancellation by Lessor in accordance with
Paragraph 7 of this Amendment, Lessee's obligation to make any further
payments as described at Subparagraphs l(a)(ii)(B) and 2(b) of the
Agreement of Lease as amended hereby shall terminate at the end of the
Lease Term then in effect or at the time of cancellation as applicable.
Except to the extent otherwise provided immediately above in this
section, each such lease or extension entered into pursuant to an
exercise of such option shall be on the same terms and conditions as
those expressed herein, except that the rental rate, wharfages and
minimum wharfages, described in Paragraph 1 of the Agreement of Lease
as amended hereby shall be increased or decreased for the next ensuing
ten years by an amount calculated by multiplying the base amount for
which the adjustment is being calculated as set forth at Paragraph 1 of
the Agreement of Lease as amended hereby by a fraction whose numerator
is The Consumer Price Index, U.S. City Average All Items (Base Year
1967) published by the Bureau of Labor Statistics, U.S. Department of
Labor, for the third month prior to expiration of the ten year lease
period then in effect, and (a) whose denominator shall be said Consumer
Price Index (U.S. City Average All Items) for the first month of the
original term of this lease insofar as calculation of the increase or
decrease of the amounts set forth at Subparagraphs (a)(i), (ii)(A) and
(ii)(B) of Paragraph 1 of the Agreement of Lease as amended hereby.
Should the Bureau of Labor Statistics change the manner of computing
the Consumer Price Index, the Bureau shall be requested to furnish a
conversion factor designated to adjust the new index to the one
previously in use, and adjustment to the new index will be made on the
basis of such conversion factor. Should the publication of the Consumer
Price Index be discontinued by the Bureau of Labor Statistics, then
such other index as may be published by said Bureau most nearly
approaching said discontinued index shall be used in making the
adjustments herein provided.
6.
Should the Bureau discontinue the publication of an index
approximating the index herein contemplated, then such index as may be
published by another United States Government Agency as most nearly
approximates the index herein first above mentioned shall govern and be
substituted as the index to be used, subject to the application of an
appropriate conversion factor to be furnished by the governmental
agency publishing the adopted index.
In the event of any valid delay caused by seeking the proper
adjustment for rental payments as herein provided, Lessee shall
continue paying the rental under the last preceding rental adjustment
as herein provided, until such time as said proper adjustment has been
made, at which time adjustment shall be made retroactive to the
beginning of the year in which the adjustment should have been made.
In any event, the land rent, wharfage and annual minimum
wharfage payment shall be no less than specified in Paragraph 1 of the
Agreement of Lease as amended hereby.
6. The lease term of the portion of the Leased Premises described in
this Amendment shall commence as of the first day of the first month after the
date the Vessel Mooring System has been completed in accordance with the
provisions of this Amendment and turned over to Lessee for Lessee's use and
shall run, subject to the termination provisions and opt[on rights of this
Amendment, with the term of the Agreement of Lease.
If the Lease Term of the portion of the Leased Premises described in
this Amendment has not begun, for any reason whatsoever except the default of
the Lessee in performance of its obligations under this Amendment, within one
year after the date hereof, Lessee shall have the right, on thirty (30) days
written notice to Lessor, to cancel this Amendment.
7. Lessor specifically reserves the right to terminate this Amendment
for the portion of the Leased Premises described in this Amendment by giving
Lessee six months prior written notice of such termination where Lessor must
build a deepwater dock for a prospective lessee or purchaser in order to lease
or sell the land immediately to the south of the Vessel Mooring System.
8. The fourth sentence of paragraph 3 of the Agreement of Lease which
sentence reads 'Any facilities placed within the wharf area shall be so placed
and maintained to facilitate the joint use of said wharf area by the Lessee and
the lessor or its licensees or other tenants' as applied to the Vessel Mooring
System shall mean that the facilities placed on the Vessel Mooring System by
Lessee shall not unreasonably hinder or prevent the use of the wharf area
adjacent to the east west dock known as Berth 24 by both Lessee and Lessor or
Lessor's licensees or other tenants as such use is contemplated by this
Agreement of Lease.
7.
9. In the event of termination of this Amendment pursuant to Paragraph 7
of this Amendment or in the event of expiration of the term of this Amendment
without termination of, or expiration of the term of the Agreement of Lease,
Lessee and Lessor shall be relieved of all obligations under this Amendment, and
the Agreement of Lease, unamended by this Amendment, shall remain in full force
and effect.
10. All the terms, provisions and conditions of the Agreement of Lease,
not amended or modified herein, shall apply to the Leased Premises described in
this Amendment as fully and completely as if such terms, provisions and
conditions were set forth in this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
LESSOR: Port Xxxxxx, Inc. LESSEE: Eastern Seaboard Petroleum
Company, Inc.
BY: /s/ XXXXXX XXXXXX BY: /s/ XXX X. XXXXXXX
------------------------------- -------------------------------
Its: President Its: Vice President
------------------------------ ------------------------------
Attest: /s/ [ILLEGIBLE] Attest: /s/ XXXX X. XXXXX
--------------------------- ---------------------------
Secretary-Treasurer Secretary-Treasurer
8.
STATE OF FLORIDA )
) ss.
COUNTY OF XXXXX )
I hereby certify that on this day before me, an officer duly authorized
in the state aforesaid and in the county aforesaid to take acknowledgements,
personally appeared Xxx X. Xxxxxxx and Xxxx X. Xxxxx, to me known and know to be
the persons described in and who executed the foregoing instrument as Vice
President and Secretary-Treasurer, respectively, of the corporation named
therein, and severally acknowledged before me that they executed the same as
such officers in the name and on behalf of said corporation.
Witness my hand and official seal in the county and state aforesaid
this 20th day of May, A.D. 1980.
/s/ XXXXXXX X. XXXXXXX
---------------------------------------
Notary Public
NOTARY PUBLIC STATE OF FLORIDA AT LARGE
MY COMMISSION EXPIRES OCT 20, 1983
[SEAL] BONDED THRU GENERAL INS. UNDERWRITERS
STATE OF FLORIDA )
) ss.
COUNTY OF HILLSBOROGH )
I hereby certify that on this day before me, an officer duly authorized
in the state aforesaid and in the county aforesaid to take acknowledgments,
personally appeared Xxxxxx Xxxxxx and Xxxxx Xxxxxx, to me known and known to be
the persons described in and who executed the foregoing instrument as President
and Secretary-Treasurer, respectively, of the corporation named therein, and
severally acknowledged before me that they executed the same as such officers in
the name and on behalf of said corporation.
Witness my hand and official seal in the county and state aforesaid
this 29th day of May, A.D. 1980.
/s/ XXXXX XXXXXX
---------------------------------------
Notary Public
Notary Public, Florida, State at Large
My Commission Expires Sept. 9, 1983
[SEAL]
9.
SECOND AMENDMENT TO BE ATTACHED
TO AGREEMENT OF LEASE DATED
DECEMBER 16, 1976, BETWEEN
PORT XXXXXX, INC. AND
EASTERN SEABOARD PETROLEUM COMPANY, INC. FOR
PREMISES LOCATED IN
PORT XXXXXX, HILLSBOROUGH COUNTY, FLORIDA
THIS SECOND AMENDMENT TO LEASE of December 16, 1976, by and between
PORT XXXXXX, INC., a Florida corporation, hereinafter called LESSOR, and EASTERN
SEABOARD PETROLEUM COMPANY, INC., a Florida corporation, hereinafter referred to
as LESSEE,
WITNESSETH: That for and in consideration of the terms and conditions
contained in the original Lease of December 16, 1976, which was amended by First
Amendment To Agreement Of Lease dated May 21 1980, and for the purpose of
further amending said Lease it is now agreed as follows:
1. Article 2(a)(ii) on page two of the First Amendment To Agreement Of
Lease is amended to the extent that the Vessel Mooring System shall consist of
six mooring dolphins connected to the sea wall by walkways.
2. Article 3, paragraph l(a)(ii)(B) on page four of the First Amendment
To Agreement Of Lease is amended to the extent that the wharfage to be charged
pursuant to this Part (B) will aggregate a minimum of Seven Thousand Dollars
($7,000.00) per Amendment Year.
3. Article 3, paragraph 2(b) on page five of the First Amendment To
Agreement Of Lease is amended to the extent that in addition to the amounts
specified in Paragraph 1 and in Part (a) of Paragraph 2 of said Amendment,
Lessor will charge in lieu of dockage relative to the Vessel Mooring System,
Twenty-three Thousand Two Hundred Fifty Dollars ($23,250.00) per Amendment Year
($1,937.50 per month, payable monthly in advance.)
4. Exhibit "C" attached to the First Amendment To Agreement Of Lease,
is revised, showing the addition of one (1) breasting dolphin, to be located on
the same east-west line as the original five (5) breasting dolphins and seventy
EXHIBIT C
feet (70') east of the easternmost original breasting dolphin. A copy of the
"revised" Exhibit C is attached hereto and made a part hereof.
5. In all other respects the original Agreement Of Lease of December
16, 1976, as amended by the First Amendment To Agreement Of Lease of May 21,
1980, between the parties is hereby confirmed and ratified.
Executed in multiple copies this the 10th day of October, 1980.
WITNESSES: LESSOR:
PORT XXXXXX, INC.
/s/ XXXXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
----------------------------- ----------------------------
/s/ XXXXX X. XXXXX Its: President
----------------------------- ---------------------------
ATTEST:
By: /s/ XXXXXX XXXXXX
----------------------------
Its: Secretary-Treasurer
---------------------------
WITNESSES: LESSEE:
EASTERN SEABOARD PETROLEUM
COMPANY INC.
/s/ XXXX X. TILLENHART By: /s/ XXX X. XXXXXXXX
----------------------------- ----------------------------
/s/ [ILLEGIBLE] Its: Vice President
----------------------------- ---------------------------
ATTEST:
By: /s/ XXXX X. XXXXX
----------------------------
Its: Secretary-Treasurer
---------------------------
STATE OF FLORIDA )
) ss.
COUNTY OF XXXXX )
I hereby certify that on this day before me, an officer duly authorized
in the state aforesaid and in the county aforesaid to take acknowledgements,
personally appeared Xxx X. Xxxxxxx and Xxxx X. Xxxxx, to me known and known to
be the persons described in and who executed the foregoing instrument as Vice
President and Secretary-Treasurer respectively, of the corporation named
therein, and severally acknowledged before me that they executed the same as
such officers in the name and on behalf of said corporation.
Witness my hand and official seal in the county and state aforesaid
this 6th day of October, A.D. 1980.
/s/ XXXXXXX X. XXXXXXX
---------------------------------------
Notary Public
NOTARY PUBLIC STATE OF FLORIDA AT LARGE
MY COMMISSION EXPIRES OCT 20, 1983
BONDED THRU GENERAL INS. UNDERWRITERS
-2-
EXHIBIT B
THE SUBLEASE
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "Sublease") is entered into as
of the 22nd day of November, 2000, by and between XXXXXX GAS SALES, INC., a
Texas corporation ("Sublessor"), and XX XXXXXX SULPHUR, LP, a Delaware limited
partnership ("Sublessee").
WITNESSETH:
WHEREAS, Sublessor currently leases from the Tampa Port
Authority, a body politic and corporate organized and existing under the laws of
the State of Florida ("Master Lessor"), approximately 10.274 acres of land
("Leased Premises") situated in Port Xxxxxx, southeast of the City of Tampa, in
Hillsborough County, Florida, and more particularly described in the Master
Lease (defined below), pursuant to that certain Agreement of Lease (assigned and
amended as described below) dated December 16, 1976 (the "Original Master
Lease"), by and between Port Xxxxxx, Inc., a Florida corporation ("Original
Master Lessor"), as lessor, and Eastern Seaboard Petroleum Company, Inc., a
Florida corporation (the "Original Master Lessee"), as lessee;
WHEREAS, the Original Master Lease has been: (i) amended by
that certain First Amendment to Agreement of Lease ("First Amendment") dated May
21, 1980; (ii) amended by that certain Second Amendment to Lease dated October
10, 1980; (iii) assigned by Original Master Lessee to Xxxxxxx Petroleum Company,
a Delaware corporation ("Second Master Lessee"), pursuant to that certain Lease
Assignment and Agreement effective August 14, 1984; (iv) amended by that certain
Third Amendment to Lease dated effective August 15, 1984; (v) assigned by
Original Master Lessor to Master Lessor by instrument effective September 21,
1984; (vi) amended by that certain Amendment No. 4 to Agreement of Lease
("Fourth Amendment") dated July 13, 1987; (vii) amended by that certain
Amendment No. 5 to Agreement of Lease ("Fifth Amendment") dated December 5,
1988; (viii) assigned by Second Master Lessee to Boliden Chemicals, Inc., a
Delaware corporation ("Third Master Lessee"), by instrument effective February
16, 1989; (ix) amended by that certain Amendment No. 6 to Agreement of Lease
("Sixth Amendment") dated February 16, 1989; (x) amended by that certain
Amendment No. 7 to Agreement of Lease ("Seventh Amendment") dated May 13, 1992;
(xi) assigned by Third Lessee to Sublessor pursuant to that certain Assignment
and Assumption Agreement dated March 28, 1995; and (xii) amended by Amendment
No. 8 to Agreement of Lease (the "Eighth Amendment") dated December 16, 1996
(the Original Master Lease, as so amended and assigned, the "Master Lease");
WHEREAS, a copy of said Master Lease is attached hereto as
Exhibit A; and
WHEREAS, Sublessor desires to sublet to Sublessee, subject to
and upon the terms and conditions contained herein, (i) for the exclusive use of
Sublessee, that certain portion of the Leased Premises described on the Legal
Description attached hereto as Exhibit B, and identified (by horizontal
hatching) on the Site Plan attached hereto as Exhibit C (each of which exhibits
is incorporated herein and made a part hereof for all purposes), which portion
contains
1
approximately 1.69 acres of land (hereinafter, the "Controlled Premises"), and
(ii) for the non-exclusive use of Sublessee, all easements and areas, and rights
of use and access necessary or pertaining to the Controlled Premises (except for
the Vessel Mooring System, defined and described in the First Amendment) which
are appurtenant to the Leased Premises under the Master Lease, as the same are
in part identified (by vertical hatching) on Exhibit C (hereinafter, the "Common
Areas"), to the extent to which the same are held by Sublessor pursuant to the
Master Lease (the Controlled Premises and the Common Areas are collectively
referred to hereinafter as the "Subleased Premises").
NOW, THEREFORE, for and in consideration of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Sublessor and Sublessee hereby
covenant and agree as follows:
1. DEFINED TERMS. All capitalized terms used herein and not defined
herein shall have the meanings ascribed thereto in the Master Lease.
2. SUBLEASE; USE. Sublessor hereby subleases and grants to Sublessee,
and Sublessee hereby subleases and accepts from Sublessor, the Subleased
Premises, on and subject to the terms and conditions contained in this Sublease.
Sublessee shall use the Subleased Premises only for the uses permitted under the
terms and provisions of the Master Lease (including, without limitation,
Paragraph 3 of the Original Master Lease, as modified by Paragraph 1 of the
Sixth Amendment and Paragraph 3 of the Eighth Amendment).
3. TERM. The term of this Sublease shall commence on October 31, 2000
("Sublease Commencement Date"), and shall terminate on December 14, 2006
("Sublease Term"); provided, however, the Sublease Term shall in no event extend
beyond the term of the Master Lease, and provided further, that this Sublease
may terminate or be terminated earlier pursuant to the terms of the Master Lease
or this Sublease.
4. CONDITION OF SUBLEASED PREMISES. The Subleased Premises shall be
delivered to Sublessee by Sublessor in its present condition existing on the
Sublease Commencement Date. Sublessor and Sublessee agree that none of the terms
contained in the Master Lease with respect to the construction or completion of
improvements (including, without limitation, the construction and maintenance of
the Vessel Mooring System) are applicable to the Subleased Premises or this
Sublease, except as expressly set forth in this Sublease below. From and after
the Sublease Commencement Date, Sublessee hereby assumes all risks associated
with the Controlled Premises and all improvements, equipment, fixtures or
facilities constructed or located therein or thereon (including the physical
condition of any of the foregoing), and Sublessee shall indemnify and hold
harmless Sublessor from and against any claim, loss, damage, expense (including
without limitation reasonable attorneys' fees and costs) or liability arising
out of or based upon any injury or damage to person or property occurring on the
Controlled Premises during the Sublessee's occupancy of the Controlled Premises
under this Sublease, unless caused by the negligence or intentional torts of
Sublessor, or its agents, servants or employees.
2
Furthermore, except as otherwise expressly provided in this Sublease to
the contrary, Sublessor shall not be liable to Sublessee, or to Sublessee's
agents, servants or employees for any claim, loss, damage, expense or liability
arising out of or based upon any injury or damage to person or property
occurring on the Common Areas which is caused by the negligence or intentional
torts of Sublessee, or its agents, servants or employees, and Sublessee shall
indemnify and hold Sublessor harmless from and against all liability and claims
(including, without limitation, reasonable attorneys' fees and costs) for or
related to the same. Except as otherwise expressly provided in this Sublease to
the contrary, Sublessee shall not be liable to Sublessor, or to Sublessor's
agents, servants or employees for any claim, loss, damage, expense or liability
arising out of or based upon any injury or damage to person or property
occurring on the Common Areas which is caused by the negligence or intentional
torts of Sublessor, or its agents, servants or employees, and Sublessor agrees
to indemnify and hold Sublessee harmless from and against all liability and
claims (including, without limitation, reasonable attorneys' fees and costs) for
or related to the same.
5. MASTER LEASE. This Sublease is subject and subordinate to the Master
Lease. Except as may be inconsistent with the terms and provisions hereof and of
any consent to this Sublease executed by Sublessor, Sublessee and the Master
Lessor, the terms and provisions of the Master Lease (including, without
limitation, any and all terms or provisions concerning hazardous waste and/or
environmental condition, compliance, inspection, liability and/or indemnity,
and/or rights of removal concerning improvements, machinery, equipment and other
personal property on the Subleased Premises; specifically including, without
limitation, Paragraphs 5 and 6 of the Fourth Amendment, and Paragraph 14 of the
Original Master Lease, respectively) shall be applicable to this Sublease as and
to the extent that such provisions relate to the Subleased Premises, and shall
be incorporated into this Sublease (i) as if Sublessor were Lessor under the
Master Lease and Sublessee were Lessee under the Master Lease, and (ii) as if
the Subleased Premises were the Leased Premises under the Master Lease, except
to the extent inconsistent with the agreements and understandings expressed in
this Sublease or to the extent prior to the Sublease Commencement Date or after
the expiration of the Sublease term. Notwithstanding the foregoing, the
following provisions of the Master Lease are expressly not incorporated herein
and such provisions shall have no application to Sublessee or the Subleased
Premises:
A. Paragraphs 17, 18 and 20, the first sentence of Xxxxxxxxx
00, Xxxxxxxxx 23 and any provision creating construction or maintenance
obligations contained in Paragraph 24 (it being understood that
Sublessor shall have no such obligations and that Sublessee shall have
access to the road described therein) of the Original Master Lease;
B. Any provision creating construction or maintenance
obligations, and/or any provision passing an "exclusive" use, contained
in Paragraphs 1 and/or 2 (it being understood that Sublessor shall have
no such obligations and that Sublessor and Sublessee shall share the
rights to access, ingress and egress and any other rights of use or
easements created or described therein), Paragraph 5 and the second
paragraph of Paragraph 6 of the First Amendment;
C. Paragraph 4 of the Fourth Amendment;
3
D. Paragraph 5 of the Fifth Amendment; and
E. Paragraphs 5, 6 and 7 the Seventh Amendment.
Where reasonably necessary, the terms of the Master Lease, as
incorporated into this Sublease as aforesaid, shall be construed in light of the
fact that Sublessor (unlike Master Lessor) does not own a fee interest in the
Subleased Premises but only a leasehold interest under the Master Lease.
Sublessor and Sublessee anticipate that Master Lessor's performance in
accordance with the Master Lease shall fulfill the equivalent obligation of
Sublessor hereunder, and in the event of Master Lessor's default under the
Master Lease, Sublessee's rights shall be limited as provided in the following
subparagraph of this Section 5. As between Sublessor and Sublessee, if the terms
of this Sublease conflict with the terms of the Master Lease, then the terms of
this Sublease shall control. Sublessee shall perform and observe all the
obligations, covenants and conditions contained in the Master Lease on
Sublessor's part that are incorporated hereinabove by reference and to the
extent that the obligations, covenants and conditions apply and accrue from and
after the Sublease Commencement Date. Each of Sublessor and Sublessee will not
cause or allow to be caused any default under the Master Lease as to its
respective portion thereof. Sublessee hereby indemnifies and holds Sublessor
harmless from and against any claim, loss, damage, expense (including without
limitation reasonable attorneys' fees and costs) or liability arising under the
Master Lease with respect to the Subleased Premises, from and after the Sublease
Commencement Date, from or related to Sublessee's failure to perform Sublessee's
obligations under this Sublease, including, without limitation, those
obligations of Sublessor pursuant to the Master Lease which are incorporated
herein by reference. Sublessee acknowledges that it has received and reviewed
the Master Lease, in the form attached hereto as Exhibit A. Except as may be
expressly set forth in Section 4 above, Sublessee is not relying on, and
Sublessor has made no representations, warranties or statements regarding, the
interpretation or application of the terms of the Master Lease.
At Sublessee's written request, Sublessor will exercise the rights and
remedies Sublessor has under the Master Lease with respect to the Subleased
Premises, and at law or in equity, so designated by Sublessee in its request.
Such rights and remedies shall be pursued diligently by Sublessor; however,
Sublessee shall be obligated to reimburse Sublessor for Sublessor's reasonable
out-of-pocket costs of exercising such rights or remedies. Notwithstanding
anything to the contrary contained in this Sublease, Sublessor shall not be
deemed in default under this Sublease if Master Lessor fails to perform its
obligations under the Master Lease. Sublessee shall indemnify, hold harmless and
defend (with counsel reasonably satisfactory to Sublessor) Sublessor from and
against any claim, loss, damage, expense or liability arising from or in
connection with Sublessor's assertion of rights or pursuit of remedies under the
Master Lease either (a) at the request of Sublessee or (b) following Sublessee's
assertion of the same right or pursuit of the same remedy against Sublessor
under this Sublease upon grounds which, if proven, would justify the pursuit of
the same right or remedy under the Master Lease (e.g., termination in the event
of condemnation). The foregoing notwithstanding, Sublessor shall not be required
to do or perform any act which would constitute a default by Sublessor under the
Master Lease.
In the event that Sublessor receives notice of default from Master
Lessor under the Master Lease, Sublessor shall immediately notify Sublessee of
the same, and Sublessee shall have the right, but not the obligation, to attempt
to cure such default, in which event Sublessor
4
shall reimburse Sublessee for all reasonable costs related to such cure expended
by Sublessee. If Sublessee cures such default, and Sublessor fails to reimburse
Sublessee for the cost of such cure within thirty (30) days of Sublessee's
demand therefor, Sublessee shall be entitled to demand and receive an assignment
by Sublessor of all of Sublessor's right, title and interest under the Master
Lease, and Sublessor agrees to execute and deliver such assignment to Sublessee
within thirty (30) days following Sublessor's receipt of Sublessee's demand for
such assignment, pursuant to the terms of this paragraph.
Notwithstanding any provision to the contrary of this Sublease or of
any consent to this Sublease executed by Sublessor, Sublessee and the Master
Lessor, in no event shall Sublessee be entitled to receive assignment of the
Master Lease pursuant the terms of this Section 5 (or of any such consent) if
(i) the default under the Master Lease giving rise to such right of assignment
shall occur as a result of any act or omission of the Sublessee (including,
without limitation, any act or omission constituting a default by Sublessee
under Section 14 of this Sublease), or (ii) this Sublease has been terminated
(in accordance with the terms of this Sublease) prior to the date of such
default.
6. SECURITY DEPOSIT. Sublessee shall not be required to deposit a
security deposit as a condition to this Sublease.
7. RENT. Sublessee hereby accepts this Sublease and agrees that
Sublessee shall be obligated to pay to Sublessor all amounts due under the
Master Lease respecting the use and/or possession of the Subleased Premises,
including, without limitation, (i) monthly bare land rent (which rent Sublessee
shall be obligated to pay pro rata, based on the proportion of the amount of
area constituting the Controlled Premises compared to the amount of area
constituting the Leased Premises, which proportion is hereby deemed to be
15.7680%), (ii) any and all wharfage for products brought onto or shipped out of
the Controlled Premises, including any and all minimum wharfage guarantees (as
the same may be adjusted), (iii) any and all dockage charges charged and/or
owing with respect to vessels employed in the movement of materials to and from
the Controlled Premises, (iv) any and all Vessel Mooring Charges (if any)
applicable to Sublessee, and (v) any and all real and personal property taxes,
sales taxes and other taxes payable by Sublessor with respect to the Controlled
Premises or activities related thereto pursuant to the terms of the Master
Lease. All of the foregoing sums shall be paid by Sublessee to Sublessor in
accordance with the terms and provisions of the Master Lease, as if Sublessor
were Lessor under the Master Lease and Sublessee were Lessee under the Master
Lease; subject, however, to shortening of time limits as provided in Paragraph
14(b) below, and provided, that the sums owing under subclauses (ii), (iii),
(iv) and (v) above shall not be due and payable by Sublessee to Sublessor until
five (5) days after delivery by Sublessor to Sublessee of an invoice therefor.
8. NOTICES. Notices required by this Sublease shall be in writing. All
such notices shall be served personally or sent by United States certified mail,
return receipt requested, or private air courier, postage or charge prepaid,
addressed to Sublessor or Sublessee, as the case may be, at its address set
forth below, or at such other place as Sublessee or Sublessor may from time to
time designate in a written notice to the other. Notices may also be sent by
facsimile transmission, provided a duplicate copy is sent to the addressee by
certified mail. Such
5
notices shall be deemed sufficiently served or given when faxed, two (2) days
after deposit in any U.S. Post Office, or by overnight air courier service on
actual receipt by the recipient.
If to Sublessor: Xxxxxx Gas Sales, Inc.
XX Xxx 000
0000 Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Fax: 000.000.0000
Attn: Xxxxx X. Xxxxxx, III
If to Sublessee: XX Xxxxxx Sulphur, LP
XX Xxx 000
0000 Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
--------------------------------------
Attn: Xxxxx X. Xxxxxx, III
--------------------------------------
With a copy to: CF Industries, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Attn: Xxxxxxx X. Xxxxxx
And: CF Industries, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Attn: Xxxx X. Xxxxxxxxxx
9. SERVICES. Without limiting the provisions of Section 5
above, Sublessor shall have no liability or responsibility for the provision of
any services to the Subleased Premises. Rather, Master Lessor will provide such
services in accordance with, and only to the extent required by, the terms of
the Master Lease. No failure of Master Lessor to provide services to the
Subleased Premises, and no interruption in the provision of such services, shall
cause Sublessor to be in default under this Sublease; nor shall Sublessee have a
right to an abatement of rent or a right to terminate this Sublease with respect
to the same, except to the extent such rights are held by Sublessor under the
Master Lease.
10. SUBLESSOR RESTORATION AND REPAIRS. Without limiting the
provisions of Section 5 above, as between Sublessor and Sublessee, Sublessor
shall have no liability or responsibility for maintenance, repairs, rebuilding
or restoration of the Subleased Premises, except to the extent that any such
maintenance, repairs, rebuilding or restoration are made necessary by the
negligent act or omission of Sublessor or its agents, employees, or contractors.
Rather, Master Lessor will provide and conduct such maintenance, repairs,
rebuilding and/or restoration in accordance with, and only to the extent
required by, the terms of
6
the Master Lease. No failure of Master Lessor to provide such maintenance,
repairs, rebuilding or restoration shall cause Sublessor to be in default under
this Sublease nor shall Sublessee be entitled to an abatement of rent or to
terminate this Sublease unless and to the extent that Sublessor is entitled to
an abatement of rent under the Master Lease or to terminate the Master Lease.
11. ASSIGNMENT AND SUBLETTING. Subject to the provisions of
this Section 11 set forth below, Sublessee shall not, without Sublessor's prior
written consent (which may be withheld in Sublessor's absolute discretion), and
the consent of Master Landlord (i) assign, convey, mortgage, pledge, encumber,
or otherwise transfer this Sublease or any interest hereunder; (ii) allow any
lien to be placed upon Sublessee's interest hereunder; (iii) sublet the
Subleased Premises or any part thereof; or (iv) permit the use or occupancy of
the Subleased Premises or any part thereof by any one other than Sublessee (all
of the foregoing, an "Assignment"). Any attempt to consummate an Assignment
without Sublessor's consent shall be of no force or effect and shall be an event
of default under this Sublease. Notwithstanding the foregoing, Sublessee may,
without Sublessor's prior written consent, assign any or all of its rights,
interests and obligations hereunder if such Assignment (x) is made to a
wholly-owned subsidiary of Sublessee, provided that any such subsidiary agrees
in writing to be bound by all of the terms, conditions and provisions contained
herein, or (y) occurs by operation of law. Notwithstanding any provision to the
contrary contained herein, no Assignment shall relieve Sublessee of its
obligations hereunder.
12. SUBORDINATION. Sublessee accepts this Sublease subject and
subordinate to any mortgages and/or deeds of trust now or at any time hereafter
constituting a lien or charge on the Subleased Premises or the improvements
situated thereon; provided, however, Sublessee's subordination of this Sublease
to any such mortgage hereafter placed by Sublessor is expressly conditioned upon
the delivery to Sublessee, simultaneously with the closing of such mortgage, a
written agreement of the applicable mortgagee (in a form reasonably acceptable
to Sublessee and to such mortgagee) that so long as Sublessee is not in default
under the provisions of this Sublease (including all applicable grace periods),
Sublessee's rights under this Sublease and possession of the Subleased Premises
shall not be disturbed by such mortgagee or by any persons or parties claiming
by, through or under such mortgagee (whether or not such persons or parties
acquired its or their rights as a result of foreclosure); and, provided further,
that any mortgagee, trustee, or holder of any mortgage or deed of trust may
elect at any time to cause its interest to be subordinate and junior to
Sublessee's interest under this Sublease by filing an instrument in the real
property records of the county in the state where the Subleased Premises is
located, effecting such election and providing Sublessee with notice of such
election. Sublessee, at any time hereafter on demand, shall execute any
instruments, releases or other documents that may be required by any present or
future mortgagee, trustee, or holder of any mortgage or deed of trust for the
purpose of subjecting and subordinating this Sublease to the lien of any
mortgage or deed of trust.
13. ASSIGNMENTS BY SUBLESSOR. Sublessor shall have the right
to transfer and/or assign, in whole or in part, all its rights and obligations
hereunder, subject to this Sublease and Sublessee's rights hereunder. Upon
request by Sublessee, Sublessor shall provide Sublessee with prompt written
notice of any such transfer or assignment by Sublessor. Sublessee
7
agrees to execute a certificate certifying such facts (if true) as Sublessor may
reasonably require in connection with any such transfer and/or assignment by
Sublessor.
14. SUBLESSEE DEFAULTS.
(a) In the event that Sublessee shall (i) default in
the performance of any of the terms, covenants and conditions of this Sublease
(including those portions of the Master Lease incorporated herein by reference)
beyond any applicable notice and grace period provided for in the Master Lease
and incorporated herein by reference (as shortened by subparagraph (b) below),
and/or (ii) Sublessee performs or permits the performance of any other act or
event which would constitute or cause an event of default by Sublessor, as
Lessee, under the Master Lease, Sublessor shall be entitled to exercise any and
all of the rights and remedies to which it is entitled by law, including,
without limitation, the remedy of summary proceeding, and also any and all of
the rights and remedies specifically provided for in the Master Lease and
incorporated herein by reference.
(b) The time limits contained in the Master Lease for
the giving of notices, making of demands or performing any act, condition or
covenant on the part of Lessee thereunder, or for the exercise by Lessee
thereunder of any right, remedy or option, are changed for the purposes of
incorporation herein by reference by shortening the same in each instance by
three (3) days so that in each instance Sublessee shall have three (3) days less
time to observe or perform hereunder than Sublessor has as Lessee under the
Master Lease; this provision shall not be applicable to any time limit contained
in the Master Lease which is equal to or less than five (5) days, but in such
event such time limit shall be shortened by two (2) days so that in such
instances Sublessee shall have two (2) days less time to observe or perform
hereunder than Sublessor has as the Lessee under the Master Lease.
15. PEACEFUL ENJOYMENT. So long as Sublessee is not in default
hereunder (including applicable grace periods), Sublessor covenants that
Sublessee shall have, subject to the terms and provisions of this Sublease and
the Master Lease, quiet and peaceful possession of the Subleased Premises and
enjoy all of the rights herein granted without interference from Sublessor or
anyone acting by, through or under Sublessor.
16. SURRENDER OF SUBLEASED PREMISES. Sublessee shall surrender
the Subleased Premises on the expiration or earlier termination of this Sublease
in the same or better condition as existed on the Sublease Commencement Date,
reasonable, ordinary wear and tear and damage by casualty and condemnation
excepted.
17. SUCCESSORS. This Sublease shall be binding upon and inure
to the benefit of Sublessor, its successors and assigns, and shall be binding
upon and inure to the benefit of Sublessee, its successors and, to the extent
assignment is permitted hereunder, Sublessee's assigns.
18. EXCLUDED RIGHTS. Sublessor shall have no right to modify
the Master Lease, terminate the Master Lease, or expand or otherwise alter,
modify or make any improvements to the Subleased Premises without first
obtaining Sublessee's consent thereto. If
8
Sublessor acquires any rights to extend the term of, or to renew, the Master
Lease, then, upon Sublessee's request therefor, Sublessor shall exercise such
rights and shall grant to Sublessee the right to extend the term of, or to
renew, this Sublease (as the case may be), but only to the extent to which
Sublessor has the right to do so under the terms of the Master Lease (as
modified), and subject to the prior consent of the Master Lessor.
19. LIMITATION OF SUBLESSOR'S LIABILITY. Notwithstanding
anything in this Sublease or the Master Lease to the contrary, Sublessee
specifically agrees to look to solely to Sublessor's interest in the Subleased
Premises for the recovery of any judgment from Sublessor, it being agreed by
Sublessee that neither Sublessor (or its successors) nor Sublessor's (or its
successors') partners, shareholders, officers, directors, managers, agents and
employees shall ever be personally liable for any such judgment.
20. ENTIRETY. This instrument and, to the extent incorporated
herein by reference, the Master Lease constitute the entire agreement between
Sublessor and Sublessee and may not be modified orally or in any manner other
than by an agreement in writing signed by Sublessor and Sublessee or their
respective permitted successors in interest. No prior or contemporaneous
promises, inducements, representations or agreements, oral or otherwise, between
Sublessor and Sublessee not embodied herein shall be binding or have any force
or effect.
21. MISCELLANEOUS.
(a) If Sublessee is a corporation, partnership or other
entity, Sublessee warrants that all consents or approvals required of third
parties (including but not limited to its Board of Directors or partners, to the
extent applicable) for the execution, delivery and performance of this Sublease
have been obtained and that Sublessee has the right and authority to enter into
and perform its covenants contained in this Sublease. Likewise, if Sublessor is
a corporation, partnership or other entity, Sublessor warrants that all consents
or approvals required of third parties (including but not limited to its Board
of Directors or partners) for the execution, delivery and performance of this
Sublease have been obtained and that Sublessor has the right and authority to
enter into and perform its covenants contained in this Sublease.
(b) Time is of the essence in this Sublease.
(c) The terms and provisions of the Exhibit(s) attached hereto
are hereby made a part hereof for all purposes.
(d) This Sublease shall not be deemed or construed to create
or establish any relationship (other than that of landlord and tenant) or
partnership or joint venture or similar relationship or agreement between
Sublessor and Sublessee hereunder.
[The signature page follows immediately hereafter.]
9
EXECUTED effective as of the day and year
first above written.
SUBLESSOR:
Executed in the presence of: XXXXXX GAS SALES, INC., a Texas corporation
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx, III
------------------------------------ ---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx, III
------------------------------- Title: President
/s/ X. X. Xxxxxxxx
------------------------------------
Name: X. X. Xxxxxxxx
-------------------------------
SUBLESSEE:
Executed in the presence of: XX XXXXXX SULPHUR, LP, a Delaware limited
partnership
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx By: XX XXXXXX SULPHUR, LLC, a Delaware limited
------------------------------- liability company, its general partner
/s/ X. X. Xxxxxxxx
------------------------------------
Name: X. X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx, III
------------------------------- ----------------------------------------
Name: Xxxxx X. Xxxxxx, III
-------------------------------------
Title: President
-------------------------------------
00
XXX XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 17th day of November,
2000, by Xxxxx X. Xxxxxx, III as President of XX XXXXXX SULPHUR, LLC, a Delaware
limited liability company, general partner of XX XXXXXX SULPHUR, L.P., a
Delaware limited partnership, on behalf of said company and partnership.
/s/ F. Xxxxx XxXxxxxxx
------------------------------------------
Notary Public in and for the State of Texas
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 17th day of
November, 2000, by Xxxxx X. Xxxxxx, III , as President of
XXXXXX GAS SALES, INC., a Texas corporation, on behalf of said corporation.
/s/ F. Xxxxx XxXxxxxxx
--------------------------------------------
Notary Public in and for the State of Texas
11
EXHIBIT A
MASTER LEASE
[SEE ATTACHED]
A
EXHIBIT B
LEGAL DESCRIPTION OF SUBLEASED PREMISES
BEGINNING AT THE NE XXXXXX XX XXXXXXX 0, XXXXXXXX 00 XXXXX, XXXXX 19 EAST,
HILLSBOROUGH COUNTY, FLORIDA, THENCE RUN SOUTH 2,020 FEET PARALLEL TO THE EAST
BOUNDARY OF SAID SECTION 4; THENCE RUN WEST 4,160 FEET PARALLEL TO THE NORTH
BOUNDARY OF SAID SECTION 4; THENCE RUN SOUTH PARALLEL TO THE EAST BOUNDARY OF
SAID SECTION 4, A DISTANCE OF 552.74 FEET RUN THENCE S.76 degrees11'33"W., A
DISTANCE OF 681.41 FEET; TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED
PARCEL; RUN THENCE N.02 degrees38'35"W., A DISTANCE OF 21.11 FEET; RUN THENCE
N.76 degrees01'28"E., A DISTANCE OF 396.08 FEET; RUN THENCE N.33
degrees24'18"W., A DISTANCE OF 81.26 FEET; RUN THENCE N.00 degrees00'00"W.,
PARALLEL TO THE EAST BOUNDARY OF SAID SECTION 4, A DISTANCE OF 163.68 FEET; RUN
THENCE N.90 degrees00'00"W., A DISTANCE OF 171.94 FEET; RUN THENCE S.00
degrees00'00"W., PARALLEL TO THE EAST BOUNDARY OF SAID SECTION 4, A DISTANCE OF
200.66 FEET; RUN THENCE S.89 degrees58'25"W., A DISTANCE OF 224.95 FEET; RUN
THENCE S.00 degrees00'00"W., PARALLEL TO THE EAST BOUNDARY OF SAID SECTION 4, A
DISTANCE OF 161.83 FEET; RUN THENCE N.76 degrees11'33"E., A DISTANCE OF 59.98
FEET TO THE POINT OF BEGINNING, CONTAINING 1.69 ACRES MORE OR LESS.
B
EXHIBIT C
SITE PLAN OF SUBLEASED PREMISES
[SEE ATTACHED]
C
