Exhibit 10.9
LEASE
This Lease Agreement (the "LEASE") is made and entered into by and
between XXXXXXXX SERVICES GROUP, INC., a South Carolina corporation, referred to
in this LEASE as LANDLORD and SOUTHWEST MARINE, INC., a California corporation,
referred to in this LEASE as TENANT.
In consideration of the mutual covenants and agreements set forth in
this LEASE, and other good and valuable consideration, LANDLORD does hereby
demise and lease to TENANT, and TENANT does hereby lease from LANDLORD a portion
of certain real property and the Improvements thereon located at Xxxxx Xxxxx
Xxxxx, Xxxxx Xxxxxxx 0000, Xxxxxxxxx, Texas, being generally described in
Exhibit "AA" attached to this LEASE. These premises are referred to in this
LEASE as "the LEASED PREMISES."
ARTICLE 1. TERM
TERM OF LEASE
Section 1.01. The term of this LEASE and TENANT'S right to possession
of the LEASED PREMISES shall commence on a date thirty (30) days following the
date of the award to TENANT of U.S. Government Solicitation No. N00024-94-8508,
as amended (the MCM-PMP Contract), but in no event later than November 1, 1995
and shall continue through October 31, 2002, unless sooner terminated as herein
provided. The award of the MCM-PMP Contract to TENANT shall be evidenced by an
authorized representative of the U.S. Government executing and delivery to
TENANT of a Form SF-33 for the MCM-PMP Contract. LANDLORD and TENANT shall
execute an addendum to this LEASE confirming the term commencement date when the
same has been established.
HOLDOVER
Section 1.02. If TENANT holds over and continues in possession of any
portion the LEASED PREMISES after expiration of the term of this LEASE, or any
extension of that term, TENANT will be deemed to be occupying the LEASED
PREMISES on the basis of a month-to-month tenancy, subject to all of the terms
and conditions of this LEASE. Such month-to-month tenancy shall be charged
rental at 150% of the Base Rent, as hereinafter defined.
TENANT'S OPTION TO TERMINATE
Section 1.03. In the event, and for any reason whatsoever, the U.S.
Government cancels or terminates the MCM-PMP Contract during the term of this
LEASE, then TENANT shall have the option to terminate this LEASE effective upon
TENANT giving LANDLORD thirty (30) days' written notice of TENANT'S election to
exercise such option.
ARTICLE 2. RENT
BASE RENT
Section 2.01. During the TERM of this Lease, TENANT will pay to
LANDLORD the sum of $25,000.00 (the "Base Rent") plus 1.5% of all Gross Revenue
(the "Gross Revenues Rent") generated by TENANT by and through TENANT'S
operations on the LEASED PREMISES, payable in consecutive monthly installments
from the commencement of the term of this LEASE and continuing throughout the
lease term. The Base Rent shall be due and payable in advance on the first of
each month. The Gross Revenues Rent shall be paid quarterly, with such payment
due and payable within thirty (30) days following the end of each quarter.
"Gross Revenue" as such term is used herein, shall mean cash proceeds received
by TENANT from the MCM-PMP contract (as defined herein) and from other work
performed by TENANT at the LEASED PREMISES, specifically including any fees and
commissions made or earned by TENANT from its assignees, sublessees, licensees,
and permittees for work they perform at the LEASED PREMISES, but excluding (i)
retail sales taxes, (ii) the amount resulting from any sale of trade fixtures or
operating equipment after use thereof in the conduct of TENANT'S business at the
LEASED PREMISES, (iii) refunds to TENANT'S customers, (iv) all sums and credits
received in settlement of claims for loss or damage to merchandise, (v) the
proceeds of casualty insurance and (vi) contingent revenues from contract or
other claims until actually received by TENANT.
ANNUAL ADJUSTMENT OF BASE RENT
Section 2.02. a. TENANT agrees to pay LANDLORD, as additional rental,
but prorated for any fractional portion of any calendar year during the term
hereof, 30% of the total increase in real property taxes and assessments due and
assessed against the following described property owned by LANDLORD:
BEING Tracts 2 through 9 and a portion of Xxxxx 00, Xxxxx X,
Xxxxxxxxx Xxxx at Old Ingleside, as shown by map recorded in
Volume 4, Page 31, Map Records, San Xxxxxxxx County, Texas,
also including a portion of a tract consisting of submerged
and formerly submerged, now filled or otherwise built-up land
situated in San Xxxxxxxx County and Nueces County, Texas, in
the waters of Xxxxxx Bayou and Caruther's Cove off Corpus
Christi Bay, created by certain mutual agreement conveyances
recorded in Volume 205, Pages 99-112, inclusive, Volume 206,
Pages 133-145, inclusive, Volume 204, Pages 530-542,
inclusive, San Xxxxxxxx County, Texas and Volume 776, Pages
102-114, inclusive, Volume 707, Pages 487-499, inclusive and
Volume 707, Pages 474-487, inclusive, Volume 1456, Pages
859-870, inclusive, Nueces County, Texas and also being a
portion of the State of Texas Submerged Tract No. 5 adjoining
said Tracts 2 through 10, patented to the Nueces County
Navigation District No. 1 recorded in Volume 522, Page 201,
Deed Records, Nueces County, Texas.
Beginning at the common southeast corner of said Tract 2 and
the northeast corner of Tract 1, a 5/8" iron rod found, said
point being on the west right-of-way line of Farm to Xxxxxx
Xxxx Xx. 0000, for the southeast corner and POINT OF BEGINNING
of this tract;
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THENCE, along the south line of said Tract 2 and the
projection thereof, S 87 degrees 30' 27" W, 1,909.19 feet to
the southeast bulkhead line of Xxxxxx Xxxxxx Canal, as
established by said mutual conveyance agreements to a point
for the southwest corner of this tract;
THENCE, along said bulkhead line, N 50 degrees 41' 10" E,
1,441.28 feet to a point for the northwest corner of this
tract;
THENCE, S 58 degrees 34' 56" E, 320.97 feet to a drill hole
found, for a corner of this tract;
THENCE, N 87 degrees 30' 27" E, 711.92 feet to a 5/8" iron rod
found, said point being on said West right-of-way line of Farm
to Xxxxxx Xxxx Xx. 0000, for the northeast corner of this
tract;
THENCE, along said right-of-way line, S 15 degrees 30' 27" W,
720.20 feet to the POINT OF BEGINNING; containing 25.621
acres, more or less;
using 1994 as a base year. LANDLORD shall, within sixty (60) days following the
close of any calendar year for which additional rental is due hereunder, give
written notice thereof to the TENANT. The notice shall include a computation of
the additional rent, in reasonable detail. TENANT shall have the right to
receive copies of relevant tax bills from LANDLORD concerning additional rentals
due under this paragraph.
b. TENANT agrees to pay such additional rental within thirty (30) days
after notice from LANDLORD that such additional rental is due, together with
one-twelfth (1/12) of such amount for each month of the then current year which
has passed prior to the date of such payment. TENANT also agrees that the
monthly Base Rent provided for herein shall thereafter be increased by
one-twelfth (1/12) of such additional rental for the remainder of the then
current calendar year, and thereafter until the next annual adjustment of Base
Rent. Credit shall be given for such monthly increases, which are paid during a
current year, in computing the amount to be paid by TENANT following the close
of such year.
c. Notwithstanding anything hereinabove to the contrary, the Base Rent
shall not be increased by the amount of any increase in real property taxes and
assessments caused solely by the sale by LANDLORD or any successor of all or a
portion of the above-described property.
PAYMENTS
Section 2.03. All amounts due from TENANT to LANDLORD under this LEASE
shall be due and payable without notice or demand, including, but not limited
to, the total amount of Base Rent due for the full term of the LEASE. Payment
shall be made to the address designated by LANDLORD at the time the Lease is
executed, or to such other address as designated in writing by LANDLORD to
TENANT.
NET LEASE
Section 2.04. TENANT shall pay all utility and service charges related
to the LEASED PREMISES and TENANT'S business operations on the LEASED PREMISES.
SWM shall
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add at its sole expense such separate meters as may be required to determine the
utility and service charges related to its use of the LEASED PREMISES.
ARTICLE 3. USE OF LEASED PREMISES
PERMITTED USE
Section 3.01. TENANT will use the LEASED PREMISES only for marine and
industrial construction and repair purposes, unless LANDLORD shall give TENANT
prior written consent for a different use. All restrictions upon use are made
and intended solely for the benefit of LANDLORD, and LANDLORD shall be the only
party entitled to enforce same.
INSURANCE HAZARDS
Section 3.02. TENANT shall not use, or permit the use of, the LEASED
PREMISES in any manner that will cause a cancellation of, or an increase in the
existing rates for, fire, liability, or other insurance policies insuring the
LEASED PREMISES or any improvements on the LEASED PREMISES, or insuring, the
LANDLORD for any liability in connection with ownership of the LEASED PREMISES.
WASTE, NUISANCE, OR ILLEGAL USES
Section 3.03. TENANT shall not use, or permit the use of, the LEASED
PREMISES in any manner that results in waste of the LEASED PREMISES or
constitutes a nuisance. Nor shall TENANT use, or permit the use of, the LEASED
PREMISES for any illegal purpose. TENANT at its own expense will comply, and
will cause its officers, employees, agents, and invitees to comply, with all
applicable laws and ordinances, and with all applicable rules and regulations of
governmental agencies concerning the use of the LEASED PREMISES.
ARTICLE 4. MAINTENANCE AND SURRENDER
MAINTENANCE AND SURRENDER BY TENANT
Section 4.01. Except as otherwise provided in Section 16.17, TENANT
shall maintain the LEASED PREMISES throughout the lease term, and keep them free
from waste or nuisance. At the termination of the LEASE, TENANT shall deliver
the LEASED PREMISES in as good a state of repair and condition as they were in
at the time LANDLORD delivered possession to TENANT, reasonable wear and tear
and damage by fire, tornado, hurricane, or other casualty excepted. In the event
TENANT should neglect to reasonably maintain the LEASED PREMISES, LANDLORD shall
have the right, but not the obligation, to cause repairs or corrections to be
made, and any costs incurred for such repairs or corrections for which TENANT is
responsible under this section shall be payable by TENANT to LANDLORD as
additional rental on the next rental installment date.
ARTICLE 5. TAXES ON TENANT'S PROPERTY
TENANT shall be liable for all taxes levied or assessed against
personal property, furniture, or fixtures placed by TENANT in or on the LEASED
PREMISES. If any such taxes
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for which TENANT is liable are levied or assessed against LANDLORD or LANDLORD'S
property, and if LANDLORD elects to pay the same, or if the assessed value of
LANDLORD'S property is increased by inclusion of personal property, furniture,
or fixtures placed by TENANT in the LEASED PREMISES, TENANT shall pay to
LANDLORD upon demand that part of such taxes for which TENANT is primarily
liable under this article.
ARTICLE 6. ALTERATIONS, ADDITIONS, IMPROVEMENTS AND FIXTURES
CONSENT OF LANDLORD
Section 6.01. TENANT shall not make any alterations, additions, or
improvements to the LEASED PREMISES without the prior written consent of
LANDLORD, which consent will not be unreasonably withheld. All plans and
specifications must be submitted to LANDLORD not less than 30 days prior to the
desired date of beginning of construction for LANDLORD'S approval.
PROPERTY OF LANDLORD
Section 6.02. All alterations, additions, or improvements made by
TENANT and not removed prior to the end of the lease term shall become the
property of LANDLORD at the termination of this LEASE. Alterations, additions,
or improvements, as used herein shall mean any changES TO the real property made
by TENANT including buildings, fixtures, utilities, or any modification thereto,
but specifically excludes personal property. However, TENANT shall promptly
remove, at the end of the lease term and if LANDLORD so elects, all alterations,
additions, and improvements, and any other property placed in or on the LEASED
PREMISES by TENANT, and TENANT shall repair any damage caused by such removal.
COMPLIANCE WITH LAWS
Section 6.03. TENANT is responsible, at TENANT'S sole cost and expense,
to assure that the LEASED PREMISES and all improvements constructed therein
comply at any and all times with all applicable laws, rules, regulations and
ordinances, including, but not limited to the American With Disabilities Act of
1990, 42 U.S.C.Section 12101 et seq. (and the Final Rule thereunder, 28 C.F.R.
Part 36), and Texas State Architectural Barriers Statute, Tex. Civ. Stat.
Article 9102 (1992).
ACCEPTANCE OF PREMISES
Section 6.04. By taking possession of the LEASED PREMISES, TENANT
acknowledges and affirms that same are acceptable to TENANT, and are in
conformity with TENANT'S requirements and suitable for TENANT'S intended use,
without reservation or limitation.
ARTICLE 7. DAMAGE OR DESTRUCTION
TOTAL/PARTIAL DESTRUCTION
Section 7.01. TENANT shall promptly repair any damage to the
Improvements which damage is caused by TENANT, its employees or business
invitees and shall return the LEASED
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PREMISES and the Improvements to the LANDLORD at the end of the term of the
LEASE in the same condition as when originally leased, reasonable wear and tear
and damage caused by any uninsured casualty excepted. In the event the
Improvements are damaged by any casualty insured against under any policy of
insurance required to be provided by TENANT hereunder, then the proceeds of such
insurance shall, upon receipt of same, be promptly expended to repair such
damage. In the event 50% or more of the Improvements are damaged by any
uninsured casualty, then TENANT shall have the option to terminate this LEASE
effective upon TENANT giving LANDLORD thirty (30) days' written notice of
TENANT'S election to exercise such option. Should the Improvements be so damaged
and TENANT elects to remain in possession, there shall be no abatement of the
rent or other charges required to be paid hereunder by TENANT, it being
specifically understood and agreed that LANDLORD shall have no responsibility to
repair, replace or maintain any portion of the Improvements, other than to
participate in the distribution and application of any insurance proceeds as may
be required by any insurer.
ARTICLE 8. CONDEMNATION
TOTAL CONDEMNATION
Section 8.01. If during the term of this LEASE, or any extension or
renewal of the LEASE, all of the LEASED PREMISES should be taken for any public
or quasi-public use under any governmental law, ordinance, or regulation, or by
right of eminent domain, or should be sold tO THE condemning authority under
threat of condemnation, this LEASE shall terminate, and the rent shall be abated
during the unexpired portion of this LEASE, effective as of the date of the
taking of the LEASED PREMISES by the condemning authority.
PARTIAL CONDEMNATION
Section 8.02. If less than all, but more than 25 percent, of the LEASED
PREMISES is taken for any public or quasi-public use under any governmental law,
ordinance, or regulation, or by right of eminent domain, or is sold to the
condemning authority under threat of condemnation, either party may terminate
the LEASE by giving written notice to the other party within 30 days after
possession of the condemned portion is taken by the entity exercising the power
of condemnation.
If the LEASED PREMISES are partially condemned and neither party elects
to terminate the LEASE or, if less than 25 percent of the LEASED PREMISES is
condemned, this LEASE shall not terminate, but the rent shall be adjusted
pro-rata, based on the ratio to the amount taken to the total LEASED PREMISES,
during the unexpired portion of this LEASE.
CONDEMNATION AWARD
Section 8.03. LANDLORD shall receive the entire award from any
condemnation, and TENANT shall have no claim to that award or for the value of
any unexpired term of this LEASE.
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ARTICLE 9. RULES AND REGULATIONS
TENANT and TENANT'S officers, employees, agents, and invitees will
comply fully with all of the rules and regulations attached to this LEASE as
Exhibit B, and are made a part of the LEASE as though fully set out in this
LEASE. LANDLORD shall at all times have the right to make reasonable changes,
additions, or deletions to these rules and regulations for the purpose of
ensuring or enhancing the safety, care, cleanliness, maintenance, or
preservation of the LEASED PREMISES. TENANT and its officers, employees, agents,
and invitees will be bound by any such changes, additions, or deletions to the
rules and regulations upon receipt by TENANT of written notice from LANDLORD
setting forth the change, addition, or deletion except that such rules and
regulations can not materially change this LEASE. TENANT shall be responsible
for the compliance of its officers, employees, agents, and invitees with all
such rules and regulations.
ARTICLE 10. INSPECTION BY LANDLORD
LANDLORD and its officers, agents, employees, and representatives shall
have the right to enter into and upon any and all parts of the LEASED PREMISES
at all reasonable hours for purposes of inspection, cleaning, maintenance,
repairs, alterations, or additions as LANDLORD may deem necessary (but without
any obligation to perform any of these functions except as expressly provided in
this LEASE), or to show the LEASED PREMISES to prospective tenants, purchasers,
or lenders. TENANT shall not be entitled to any abatement or reduction of rent
by reason of the entry of LANDLORD or any of its officers, agents,
representatives, or employees pursuant to this article, nor shall such entry be
deemed an actual or constructive eviction.
ARTICLE 11. MECHANIC'S LIEN
TENANT will not permit any mechanic's lien or liens to be placed upon
the LEASED PREMISES or the Improvements on the LEASED PREMISES. If a mechanic's
lien is filed on the LEASED PREMISES or on Improvements on the LEASED PREMISES,
TENANT will promptly pay the lien or file suit in a court of competent
jurisdiction to compel the removal of such lien. Such suit shall be diligently
prosecuted. If default in payment of the lien continues for 10 days after same
is filed with the County Clerk of Nueces County, Texas, and TENANT does not file
suit within the ten (10) day period in a Court of proper jurisdiction to contest
same, LANDLORD may, at its option, pay the lien or any portion of it without
inquiry as to its validity. Any amounts paid by LANDLORD to remove a mechanic's
lien caused to be filed against the LEASED PREMISES or against Improvements on
the LEASED PREMISES by TENANT, including expenses and interest, shall be due
from TENANT to LANDLORD and shall be repaid to LANDLORD immediately on rendition
of notice, together with interest at the highest rate permitted by law until
repaid.
ARTICLE 12. INDEMNITY
INDEMNITY
Section 12.01. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
TENANT AGREES TO INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS
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LANDLORD, AND ANY SUCCESSORS, ASSIGNS, HEIRS, PERSONAL REPRESENTATIVES,
DEVISEES, AGENTS, STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AND AFFILIATES
OF LANDLORD (COLLECTIVELY "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL
LIABILITIES, DAMAGES, CLAIMS, SUITS, LOSSES, CAUSES OF ACTION, LIENS, JUDGMENTS
AND EXPENSES (INCLUDING COURT COSTS, ATTORNEYS' FEES, AND COSTS OF
INVESTIGATION), OF ANY NATURE, KIND OR DESCRIPTION ARISING OR ALLEGED TO ARISE
BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY
(1) OCCURRING ON, IN, OR ABOUT THE LEASED PREMISES OR (2) BY REASON OF ANY OTHER
CLAIM WHATSOEVER OF ANY PERSON OR PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED
IN WHOLE OR IN PART BY ANY ACT OR OMISSION ON THE PART OF TENANT OR ANY INVITEE,
LICENSEE, EMPLOYEE, DIRECTOR, OFFICER, SERVANT, CONTRACTOR, SUBCONTRACTOR OR
TENANT OF TENANT, OR (3) BY ANY BREACH, VIOLATION, OR NONPERFORMANCE OF ANY
COVENANT OF TENANT UNDER THIS LEASE (COLLECTIVELY "LIABILITIES"), PROVIDED SUCH
LIABILITIES ARE NOT ATTRIBUTABLE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY
INDEMNITEE. THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY TO ALL ACTIVITIES OF
TENANT WITH RESPECT TO THE LEASED PREMISES OR IMPROVEMENTS, WHETHER OCCURRING
BEFORE OR AFTER THE COMMENCEMENT DATE OF THE TERM AND BEFORE OR AFTER THE
EXPIRATION OR TERMINATION OF THIS LEASE. TENANT'S OBLIGATIONS UNDER THIS
PARAGRAPH SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION OR BENEFITS PAYABLE
UNDER INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENEFIT ACTS OR
OTHER EMPLOYEES' BENEFIT ACTS. THIS INDEMNITY SHALL SURVIVE TERMINATION OR
EXPIRATION OF THE LEASE.
ARTICLE 13. ASSIGNMENT AND SUBLEASE
ASSIGNMENT AND SUBLETTING BY TENANT
Section 13.01. TENANT shall not have the right to assign the LEASE, or
any interest in the LEASE, or to sublet the LEASED PREMISES, or any part of
them, or any right or privilege pertinent to the LEASE or the LEASED PREMISES
without the prior, written consent of LANDLORD which approval shall not be
unreasonably withheld.
ASSIGNMENT BY LANDLORD
Section 13.02. LANDLORD shall have the right to transfer and assign, in
whole or in part, LANDLORD'S rights and obligations hereunder, as well as in the
PREMISES or any portion thereof, and the land on which it is located, and in
such event the transferor or assignor SHAlL have no further liability or
obligation hereunder.
ARTICLE 14. DEFAULT
TENANT'S DEFAULT
Section 14.01. The following events shall be deemed to be events of
default by TENANT under the LEASE:
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a. TENANT fails to pay any funds due under this LEASE on the due date
thereof.
b. TENANT fails to comply with any term, provision, or covenant of this
LEASE, other than the payment of funds or fails to correct and comply with such
term, provision, or covenant within thirty (30) days of written notice from the
LANDLORD thereof.
c. TENANT makes an assignment for the benefit of creditors.
d. TENANT deserts or vacates any substantial portion of the LEASED
PREMISES for a period of five (5) or more consecutive days.
LANDLORD'S REMEDIES
Section 14.02. Upon the occurrence of any event of default specified in
Section 14.01, LANDLORD shall have the option to pursue any one or more of the
following remedies:
a. LANDLORD may terminate this LEASE, in which event TENANT shall
immediately surrender the LEASED PREMISES to LANDLORD, and if TENANT fails to do
so, LANDLORD may, without prejudice to any other remedy that it may have for
possession or arrearages in rent, enter upon and take possession and expel or
remove TENANT and any other person who may be occupying the LEASED PREMISES or
any part of them, by force if necessary, without being liable for prosecution or
any claim of damages for such entrance and expulsion or removal. TENANT agrees
to pay LANDLORD on demand the amount of all loss and damage that LANDLORD
suffers by reason of such termination, whether through inability to relet the
LEASED PREMISES on satisfactory terms or otherwise.
b. LANDLORD may enter upon and take possession of the LEASED PREMISES
and expel or remove TENANT and any other person who may be occupying the LEASED
PREMISES or any part of them, by force if necessary, without being liable for
prosecution or any claim for damages for such entrance and expulsion or removal,
relet the LEASED PREMISES on such terms as LANDLORD deems advisable, and receive
the rent for the reletting. TENANT agrees to pay LANDLORD on demand any
deficiency that may arise by reason of such reletting.
c. LANDLORD may enter upon the LEASED PREMISES, by force if necessary,
without being liable for prosecution or any claim for damages for such entry,
and do whatever TENANT is obligated to do under the terms of this LEASE to
correct the default. TENANT agrees to reimburse LANDLORD on demand for any
expenses that LANDLORD may incur in effecting compliance with TENANT'S
obligations under this LEASE in this manner, and TENANT further agrees that
LANDLORD shall not be liable for any damages resulting to TENANT from such
action.
No reentry or taking possession of the LEASED PREMISES by LANDLORD
shall be construed as an election on its part to terminate this LEASE, unless a
written notice of such intention be given to TENANT. Notwithstanding any such
reletting or reentry or taking possession, LANDLORD may at any time thereafter
elect to terminate this LEASE for a previous default. The loss or damage that
LANDLORD may suffer by reason of termination of
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this LEASE, or the deficiency from any reletting as provided for above, shall
include the expense of repossession.
LANDLORD'S LIEN - SECURITY AGREEMENT
Section 14.03. LANDLORD shall have, at all times, a valid security
interest to secure payment of all rentals and other sums of money becoming due
under this LEASE from TENANT, and to secure payment of any damages or loss that
LANDLORD may suffer by reason of the breach by TENANT of any covenant,
agreement, or condition contained in this LEASE, upon all goods, inventory,
accounts, chattel paper, bills of lading, warehouse receipts, equipment,
fixtures, furniture, and other personal property of TENANT which is now on the
LEASED PREMISES or which is placed on the LEASED PREMISES at some later date,
and all proceeds from such personal property. This property shall not be removed
from the LEASED PREMISES unless in the ordinary course of business without the
consent of LANDLORD until all arrearages in rent and all other sums of money
then due to LANDLORD under this LEASE have been paid and discharged, and all the
covenants, agreements, and conditions of this LEASE have been fully complied
with and performed by TENANT. Upon the occurrences of an event of default by
TENANT, LANDLORD may, in addition to any other remedies provided in this LEASE
or by law, after giving reasonable notice of the intent to take possession and
giving an opportunity for a hearing on the issue, enter upon the LEASED PREMISES
and take possession of any and all goods, wares, equipment, fixtures, furniture,
and other personal property of TENANT situated on the LEASED PREMISES, without
liability for trespass or conversion, and sell the same at public or private
sale, with or without having such property at sale, after giving TENANT
reasonable notice of the time and place of any public sale or of the time after
which any private sale is to be made. LANDLORD or its assigns may purchase any
items to be sold at such a sale unless they are prohibited from doing so by law.
Unless otherwise provided by law, and without intending to exclude any other
manner of giving TENANT reasonable notice, the requirement of reasonable notice
shall be met if such notice is given at least five (5) days before the time of
sale. The proceeds from any such disposition, less any and all expenses
connected with the taking of possession, holding, and selling of the property
(including reasonable attorney's fees and other expenses), shall be applied as a
credit against the indebtedness secured by the security interest granted in this
section. Any surplus shall be paid to TENANT or as otherwise required by law;
and TENANT shall pay any deficiencies immediately. Upon request by LANDLORD,
TENANT agrees to execute and deliver to LANDLORD a financing statement in form
sufficient to perfect the security interest of LANDLORD in the aforementioned
property and proceeds under the provisions of the Uniform Commercial Code in
force in the State of Texas. The statutory lien for rent is not waived, the
security interest granted in this article being in addition, and supplementary,
to that lien.
LANDLORD'S DEFAULT
Section 14.04. a. TENANT'S RIGHTS. In the event of any default by
LANDLORD, TENANT must give written notice of same to LANDLORD. LANDLORD shall
have 30 days from LANDLORD'S receipt of such notice to either (i) cure such
default, or (ii) undertake a course of conduct thaT will reasonably be expected
to cure such default in the ordinary course of business. LANDLORD shall not be
deemed in default on this LEASE unless LANDLORD shall fail to act in accordance
with this Subsection a.
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b. LIMITATIONS ON LANDLORD'S LIABILITY. Notwithstanding anything to the
contrary contained in this LEASE, in the event of any default or breach by
LANDLORD with respect to any of the terms, covenants and conditions of this
LEASE to be observed, honored or performed by LANDLORD, TENANT shall look solely
to the estate and interest of LANDLORD in the PREMISES for the collection of any
judgment (or any other judicial procedures requiring the payment of money by
LANDLORD) and no other property or assets of LANDLORD shall be subject to levy,
execution, or other procedures for satisfaction of TENANT'S remedies. Under no
circumstances shall LANDLORD or LANDLORD'S officers, agents, shareholders,
directors and employees ever be liable hereunder for consequential or special
damages. This subsection shall not limit any right of TENANT to obtain specific
performance by LANDLORD of LANDLORD'S obligations hereunder.
c. INDEPENDENT COVENANTS. The respective covenants and agreements of
LANDLORD and TENANT are independent, and TENANT shall not be allowed to setoff
or recoup any amounts due LANDLORD in the event of LANDLORD'S default.
CUMULATIVE REMEDIES
Section 14.05. Pursuit of any of the remedies provided in this LEASE by
either LANDLORD or TENANT shall not preclude pursuit of any of the other
remedies provided in this LEASE. Pursuit of any remedy provided in this LEASE or
by law by either party shall not constitute a forfeiture or waiver of any
damages accruing to either party by reason of the violation of any of the terms,
provisions, and covenants contained in this LEASE. Nor shall pursuit of any
remedies provided in this LEASE by LANDLORD constitute a waiver or forfeiture of
any rent due to LANDLORD under this LEASE.
WAIVER OF DEFAULT
Section 14.06. No waiver by either party of any default or violation or
breach of any of the terms, provisions, and covenants contained in this LEASE
shall be deemed or construed to constitute a waiver of any other violation or
breach of any of the terms, provisions, and covenants of the LEASE. Forbearance
by either party to enforce one or more of the remedies provided in this LEASE or
by law upon an event of default shall not be deemed or construed to constitute a
waiver of such default. LANDLORD'S acceptance of rent following an event of
default under this LEASE shall not be construed as LANDLORD'S waiver of the
default.
SURRENDER OF LEASED PREMISES
Section 14.07. No act or thing done by LANDLORD or its agents during
the lease term shall be deemed an acceptance of a surrender of the LEASED
PREMISES, and no agreement to accept a surrender of the LEASED PREMISES shall be
valid unless the same is in writing and subscribED BY LANDLORD.
ARTICLE 15. BINDING ARBITRATION
Any controversy or claim arising out of, or related to, this LEASE, any
act or omission of LANDLORD with respect to TENANT, and any act or omission of
TENANT with respect to LANDLORD, shall be decided and determined by binding
arbitration in accordance with the
11
Commercial Arbitration Rules of the American Arbitration Association. The
location of any arbitration proceeding hereunder shall be in Nueces County,
Texas. The arbitration proceeding shall be commenced at any time after either
party files a demand for arbitration upon the other party or parties, with a
copy being furnished to the American Arbitration Association. The arbitrator
shall be a person who is qualified to make decisions in commercial lease matters
and shall be an attorney. The award of the arbitrator shall be final and binding
on all parties. Any and all proceedings hereunder shall be subject to the terms
and provisions of the Texas General Arbitration Act, Tex. Rev. Civ. Stat. Xxx.
Art. 224, et seq.
ARTICLE 16. MISCELLANEOUS
MORTGAGES
Section 16.01. TENANT accepts this LEASE subject to any deeds of trust,
security interests, or mortgages that might now or later constitute a lien upon
the LEASED PREMISES or on LANDLORD'S interest in Improvements on the LEASED
PREMISES. TENANT must, on demand, execute any instruments, releases, or other
documents that are reasonably required by any mortgagee for the purpose of
subjecting and subordinating this LEASE to the lien of any such deed of trust,
security interest, or mortgage. LANDLORD agrees to cooperate with TENANT in
obtaining an agreement from any such mortgagee recognizing TENANT'S occupancy of
the LEASED PREMISES under this LEASE and agreeing that TENANT'S occupancy of the
LEASED PREMISES will not be disturbed in the event LANDLORD defaults under any
such deed of trust, security interest or mortgage.
NOTICES AND ADDRESSES
Section 16.02. Any such notice to be given by either party to the other
shall be in writing and may be transmitted either by personal delivery, by
facsimile or by mail, registered or certified, postage prepaid with return
receipt requested. Mailed notices shall be sent to the respective parties at the
below listed addresses, or such other address as a party may designate by
written notice made pursuant to this Article. Notices delivered personally shall
be deemed communicated as of the date of actual receipt; mailed notices shall be
deemed communicated three (3) business days after the date of mailing; notices
transmitted by facsimile shall be deemed communicated upon dispatch provided
that it is during regular business hours, if not, receipt shall be deemed to be
on the next business day.
LANDLORD: Xxxxxxxx Services Group, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
With Copy to: Xxxxxxxx Services Group, Inc.
Attention: Xx. Xxxxxx X. Xxxx
X.X. Xxx 000
Xxxxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
00
XXXXXX: Xxxxx Xxxx Marine, Inc.
Attention: Xxxxx Xxxxxxxxxx
X.X. Xxx 00000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Either party may change the address to which notices are to be sent it
by giving the other party written notice of the new address.
PARTIES BOUND
Section 16.03. This agreement shall be binding upon, and inure to the
benefit of, the parties to the agreement and their respective heirs, executors,
administrators, legal representatives, successors, and assigns when permitted by
this agreement.
TEXAS LAW TO APPLY
Section 16.04. This agreement shall be construed under, and in
accordance with, the laws of the State of Texas, and all obligations of the
parties created by this agreement are performable in Nueces County, Texas.
LEGAL CONSTRUCTION
Section 16.05. In case any one or more of the provisions contained in
this agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision of the agreement, and this agreement shall
be construed as if such invalid, illegal, or unenforceable provision had never
been included in the agreement.
PRIOR AGREEMENTS SUPERSEDED
Section 16.06. This agreement constitutes the sole and only agreement
of the parties to the agreement and supersedes any prior understandings or
written or oral agreements between the parties respecting the subject matter of
this agreement.
AMENDMENT
Section 16.07. No amendment, modification, or alteration of the terms
of this agreement shall be binding unless the same is in writing, dated
subsequent to the date of this agreement, and duly executed by the parties to
this agreement.
JOINT AND SEVERAL LIABILITY
Section 16.08. If there is more than one TENANT, the obligations
imposed upon TENANTS by virtue of this LEASE shall be joint and several. If
there is a guarantor of TENANT'S obligations under this LEASE, the obligations
imposed upon TENANT shall be the joint and several obligations of TENANT and the
guarantor. LANDLORD need not first proceed against
13
TENANT before proceeding against the guarantor, nor shall any such guarantor be
released from its guaranty except by an expressed written Release of Liability
signed by LANDLORD.
ATTORNEY'S FEES AND COSTS
Section 16.09. If, as a result of a breach of this agreement by either
party, the other party employs an attorney or attorneys to enforce its right
under this LEASE, then the breaching or defaulting party agrees to pay the other
party the reasonable attorney's fees and costs incurred to enforce this LEASE.
FORCE MAJEURE
Section 16.10. Neither LANDLORD nor TENANT shall be required to perform
any term, condition, or covenant in this LEASE so long as such performance is
delayed or prevented by force majeure, which shall mean acts of God, strikes,
lockouts, material or labor restrictions by ANY governmental authority, civil
riot, floods, and any other cause not reasonably within the control of LANDLORD
or TENANT and which by the exercise of due diligence LANDLORD or TENANT is
unable, wholly or in part, to prevent or overcome.
TIME OF ESSENCE
Section 16.1 1. Time is of the essence of this agreement.
SIGNS
Section 16.12. TENANT may not install or erect any sign on or about the
LEASED PREMISES without first obtaining the written approval of LANDLORD with
regard to the size, type, shape, design, color, material, content, and method of
attachment of the sign. Such approval will not be unreasonably withheld.
LANDLORD may not dictate or object to the content of any sign to be installed or
erected by TENANT, except that LANDLORD may object to and prevent the
installation or erection of any sign the content of which is obscene or
otherwise offensive.
REMOVAL OF SIGNS
Section 16.13. TENANT must, at its sole expense, remove any signs
installed or erected on or about the LEASED PREMISES by TENANT and repair any
damage done to the LEASED PREMISES, the Improvements or the land surrounding the
LEASED PREMISES by the installation, erection, or removal of the signs. This
removal and repair must be completed no later than the termination of this
LEASE.
SECURITY DEPOSIT
Section 16.14. Concurrently with the execution of this LEASE, TENANT
shall deposit with LANDLORD in cash the sum of $ 20,000.00 to be held as
Security Deposit. LANDLORD shall not be obligated to deposit such sum in any
separate account, nor shall TENANT be entitled to any interest earned on such
deposit, if any, in the event such Security Deposit is held in an interest
bearing account. Such Security Deposit shall constitute a security fund insuring
14
TENANT'S faithful performance of TENANT'S obligations hereunder. If TENANT fails
to pay Rent or other charges due hereunder, or otherwise defaults with respect
to any provision of this LEASE, LANDLORD may use, apply and retain all or any
portion of such deposit for the payment of any rent or other charge resulting
from the default or for the payment of any other sum to which LANDLORD may
become entitled by reason of TENANT'S default, or to compensate LANDLORD for any
loss or damage which LANDLORD may suffer thereby. If LANDLORD so uses or applies
all or any portion of such deposit, TENANT shall, within fifteen (15) days after
written demand therefor, deposit cash with LANDLORD in an amount sufficient to
restore such deposit to the full amount hereinabove stated and TENANT'S failure
to do so shall be a material breach of the LEASE. If TENANT performs all of
TENANT'S obligations hereunder, such deposit, or so much hereof as has not
theretofore been applied by LANDLORD, shall be returned to TENANT at the
expiration of the LEASE. LANDLORD and their authorized agents, shall be entitled
to enter the LEASED PREMISES at all reasonable times for the purpose of (i)
serving and posting thereon such notices as LANDLORD may deem necessary or
appropriate for protection of LANDLORD, including, without limitation, notice of
non-responsibility; (ii) inspecting the LEASED PREMISES or any portion thereof;
and (iii) making necessary repairs to the LEASED PREMISES and performing any
work therein which LANDLORD may elect, or be required, to make hereunder, or
which may be necessary to comply with any laws, ordinances, rules, regulations
or requirements of any public authority, or which LANDLORD may deem necessary or
appropriate to prevent waste, loss, damage or deterioration to the LEASED
PREMISES.
INSURANCE
Section 16.15. (a) PUBLIC LIABILITY INSURANCE. TENANT shall, at
TENANT'S own cost and expense, secure and maintain during the entire term of
this LEASE (and immediately furnish proof of coverage to LANDLORD) a broad form
comprehensive coverage policy of public liability insurance issued by an
insurance company authorized to issue liability insurance in the State of Texas,
and reasonably satisfactory to LANDLORD, insuring TENANT and LANDLORD against
loss or liability caused by or connected with TENANT'S occupation and use of the
LEASED PREMISES under this LEASE in amounts not less than $1,000,000.00 combined
single limit of liability per occurrence, bodily injury and property damage
liability.
(b) CASUALTY INSURANCE. TENANT shall carry at its own expense (and
immediately furnish proof of coverage to the LANDLORD) fire and extended
coverage insurance, and other casualty insurance available to fully protect the
building identified in Exhibit "AA" which constitutes a portion of the
Improvements located on the LEASED PREMISES, including Plate Glass, from any
loss due to casualty or damage, and shall exercise diligence and good faith to
review annually such coverage so as to cause said insurance to be maintained at
a rate of ninety percent (90%) of the full current fair market replacement value
of said building. LANDLORD and any beneficiary under any trust deed or mortgage
encumbering TENANT'S leasehold estate shall be named as loss payee and an
additional insureds as their interests may appear.
(c) PAYMENT OF PREMIUMS AND DELIVERY OF CERTIFICATE. TENANT shall pay
all premiums and charges on all of the insurance required to be carried by it
under this LEASE promptly when such premiums become due and furnish LANDLORD
with satisfactory evidence of the payment of the premiums as they become due and
payable. All original policies of
15
insurance herein provided to be held by TENANT, and certificates thereof shall
be delivered to LANDLORD. TENANT shall, at its sole cost and expense, comply
with any and all requirements pertaining to the LEASED PREMISES of any insurance
company necessary for the maintenance of insurance required to be provided
hereunder.
(d) CANCELLATION NOTICE. Each insurance policy which TENANT is required
to obtain pursuant to this LEASE shall contain a provision that such insurance
carrier may not be canceled or subject such policy to reduction of coverage,
modification or nonrenewal for any reason unless fifteen (15) days prior written
notice thereof has been delivered to LANDLORD and to the holders of any mortgage
or deed of trust to whom loss thereunder may be payable and authorized by this
LEASE.
(e) WAIVER OF RIGHT OF SUBROGATION. Anything in this LEASE to the
contrary notwithstanding, LANDLORD and TENANT each hereby waive any and all
rights of recovery, claims, actions, or causes of action against the other, its
agents, officers and employees for any loss or damage that may occur to the
LEASED PREMISES or any part thereof, or any of the personal property of such
parties therein by reason of fire, the elements, or any other cause which is
insured against under the terms of the policies of fire and extended coverage
insurance carried by either LANDLORD or TENANT in respect thereof, to the
extent, and only to the extent, of any proceeds actually received by LANDLORD
and TENANT respectively, with respect thereto, regardless of its cause or
origin, including negligence of either party hereto, its agents, officers, or
employees, and each party covenants that no insurer shall hold any right of
subrogation against the other. TENANT agrees to furnish LANDLORD with written
waivers of subrogation, in form satisfactory to LANDLORD, with respect to
TENANT'S fire and extended coverage insurance policies.
WAIVER OF WARRANTIES AND ACCEPTANCE OF CONDITION
Section 16.16. Except as otherwise provided in Section 16.17, TENANT
acknowledges and agrees that neither LANDLORD nor any employee, agent, officer,
director or shareholder of LANDLORD has made any representation or warranty,
either expressed or implied, as to the habitability, merchantability,
suitability, quality, condition or fitness for particular purpose with regard to
the LEASED PREMISES. TENANT hereby waives, to the extent permitted by law, any
defects in the LEASED PREMISES and any claim or cause of action based upon any
warranties, either expressed or implied as to habitability, merchantability,
suitability, quality, condition or fitness for any particular purpose with
regard to the LEASED PREMISES. TENANT'S possession of the LEASED PREMISES shall
be conclusive evidence that (a) TENANT has inspected (or caused to be inspected)
the LEASED PREMISES, (b) TENANT accepts the LEASED PREMISES and the Improvements
as being in good and satisfactory condition and suitable for TENANT'S use and
(c) the LEASED PREMISES fully comply with LANDLORD'S covenants and obligations
hereunder.
ENVIRONMENTAL COVENANTS
Section 16.17. TENANT will not commit any act or omission, and will not
permit any activity or omission which will cause the Improvements or the LEASED
PREMISES to violate, or bring LEASED PREMISES within the ambit of any
environmental law, including, but not
16
limited to, the Resource Conservation and Recovery Act of 1976 ("RCRA", 42
U.S.C. Section 6901, et seq., as amended, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986 ("XXXX") 42 U.S.C. Section 9601, et
seq., as amended, the Federal Water Pollution Control Act, 33 U.S.C. Section
1251, et seq., the Clean Air Act, 42 U.S.C. Section 7401, et seq., and/or the
Texas Solid Waste Disposal Act, and Chapter 361 of the Texas Health and Safety
Code, or any similar state law or local ordinance or any other environmental
law. TENANT will immediately give LANDLORD written notice of any violation, or
suspected violation, by TENANT or TENANT'S agents, employees, officers and
contractors of such environmental laws, and shall immediately take action (as
approved by LANDLORD) to remediate any problems and/or comply with any
applicable financial responsibility requirements of such laws. Article 12,
INDEMNITY, shall apply to this Section 16.17. TENANT'S remediation and indemnity
obligations as required herein shall be limited to those violations caused by
TENANT and its invitees, licensees, employees, directors, officers, servants,
contractors and subcontractors and shall specifically exclude those items of
potential contamination identified in the environmental reports referred to in
Section 16.19(b).
CAPTIONS
Section 16.18. The captions appearing at the beginning of paragraphs
and subparagraphs are for convenience only, and to not in any way limit or
amplify the terms and provisions of this instrument.
LANDLORD'S DISCLOSURE
Section 16.19. a. LANDLORD hereby discloses to TENANT that certain
other landowners appurtenant to, or in the area of, the LEASED PREMISES have
sued the City of Ingleside and other parties regarding the zoning of the LEASED
PREMISES. This lawsuit has been filed in the 36th Judicial District Court of San
Xxxxxxxx County, Texas, as Cause No. 24,102. TENANT is hereby advised to consult
with TENANT'S own legal advisors regarding the impact and effect of such lawsuit
inasmuch as LANDLORD makes no warranty or representation regarding the outcome
of same, or the future joinder of any additional parties in such lawsuit.
b. LANDLORD has delivered copies of the following environmental reports
to TENANT, and has advised TENANT to consult with TENANT'S own advisors and
experts regarding same:
(1) Phase I and Partial Phase II Environmental Site
Assessment Lots 2 through 10, Block A, Xxxxxxxxx
Cove, Old Ingleside, San Xxxxxxxx County, Texas
performed by Everest Environmental Services
Corporation, for Xxxxxxxx Builders, Inc., dated
November 1992, No. 921001.
(2) Phase II Environmental Site Assessment Report for the
Ingleside Offshore Services Facility located on Xxx.
0000, Xxxxxxxxx, Xxxxx, prepared for Braswell
Services Group, Inc. by Everest Environmental
Services Corporation, dated March 24, 1994, No.
940201.
17
EXCEPTIONS TO LANDLORD'S TITLE
Section 16.20. Landlord hereby advises Tenant that the following
exceptions were taken to Landlord's title insurance coverage in the Owner's
Title Policy issued to Landlord on the date Landlord acquired fee simple title
to the property of which the LEASED PREMISES form a PART:
(1) Any titles or rights asserted by anyone, including, but not limited
to, persons, the public, corporations, governments or other entities,
a. to tidelands, or lands comprising the shores or beds
of navigable or perennial rivers and streams, lakes,
bays, gulfs or oceans, or
b. to lands beyond the line of the harbor or bulkhead
lines as established or changes by any government, or
c. to filled-in lands, or artificial islands, or
d. to statutory water rights, including riparian rights,
or
e. to the area extending from the line of mean low tide
to the line of vegetation, or the right of access to
that area or easement along and across that area.
(2) Standby fees and taxes for the year 1994 and subsequent years, and
subsequent assessments for prior years due to change in land usage or ownership.
(3) Reservation of all oil, gas and other minerals contained in Deed
dated June 9, 1952, from Xxxxxx Xxxxxx to Xx. Xxxxxx X. Xxxxx et ux recorded in
Volume 176, Page 533, Deed Records, San Xxxxxxxx County, Texas. Together with
all rights incident to the owners and lessees of the minerals. Title to said
interest not checked subsequent to date of aforesaid instrument.
(4) Easement and Right-of-Way dated April 26, 1979 from X. X. Xxxxxx
and wife, Xxxxxxx Xxxxxx, to Central Power and Light Company, recorded in Volume
608, Page 746, Deed Records, San Xxxxxxxx County, Texas, covers Lot 5.
(5) Easement and Right-of-Way dated May 18, 1984, executed by Ingleside
Offshore Services' Partnership to Central Power and Light Company, a Texas
Corporation, File No. 328937, Official Public Records of Real Property of San
Xxxxxxxx County, Texas.
(6) Easement and Right-of-Way dated April 30, 1979, executed by
Ingleside Marine, Inc. to Central Power and Light Company, a Texas Corporation,
filed for record under Clerk's File No. 280815, Official Public Records of Real
Property, San Xxxxxxxx County, Texas. Covering Tracts 6, 7 and 0, Xxxxxxxxx
Xxxx, Xxxxxxxxx.
(7) Rights of reverter, tariffs, littoral and riparian rights and
restrictions as contained in Mutual Conveyance Agreements between Nueces County
Navigation District No. 1 and
18
various parties, said instruments recorded in the following volumes and pages of
the Deed Records in the respective counties in the State of Texas, as follows:
VOLUME PAGE COUNTY
1. 205 99-112 San Xxxxxxxx
2. 206 133-145 San Xxxxxxxx
3. 1456 859-870 Nueces
4. 707 487-499 Nueces
5. 204 530-542 San Xxxxxxxx
6. 707 474-487 Nueces
7. 204 569-582 San Xxxxxxxx
8. 776 102-114 Nueces
(8) Oil, gas, and mineral lease from State of Texas to Xxxx X. Xxxxx
dated October 3, 1972, recorded in File No. 897274, Volume 298, Page 299, Oil
and Gas Records of Nueces County, Texas, (Covers Tract 5, Corpus Christi Bay)
together with all rights incident to the owners and lessees of the minerals;
Title to said interest not checked subsequent to date of aforesaid instrument.
(9) Declaration of Unit, The State of Texas and Lessees, Xxxx X. Xxxxx
and X. X. Xxxxxxxx Development Company, dated December 20, 1973, File No.
960338, Volume 303, Page 787, Oil and Gas Records, Nueces County, Texas.
(Covering Tract 5, Corpus Christi Bay).
(10) Exception and Reservation by Grantors of all minerals and the
entire mineral interest and estate as set forth in Warranty Deed from Xxx Xxxxxx
Xxxxxx, a widow and Xxxxxx Xxxxxx Xxxxxx to Xxxxx Xxxxx Stahistrom and Xxxxx
Xxxxxxxxx Stahlstrom, dated June 15, 1955, filed for record under Clerk's File
No. 103787, and recorded in the Official Public Records of Real Property of San
Xxxxxxxx County, Texas. Together with all rights incident to the owners and
lessees of the minerals. Title to said interest not checked subsequent to date
of aforesaid instrument. (Covering Xxxxx 0, Xxxxx X, Xxxxxxxxx Xxxx at Old
Ingleside).
(11) Oil, gas, and mineral lease from State of Texas to MWJ Corporation
dated February 7, 1978, recorded in File No. 87790, Volume 321, Page 96, Oil and
Gas Records of Nueces County, Texas, together with all rights incident to the
owners and lessee of the minerals; Title to said interest not checked subsequent
to date of aforesaid instrument.
(12) Terms set forth in Ordinance No. 444 establishing Industrial
Development areas and Ingleside Industrial Development District by the City of
Ingleside, Texas, dated December 10, 1985, filed for record under Clerk's File
No. 344829, Official Public Records of Real Property, San Xxxxxxxx County,
Texas.
(13) The location of other's concrete bulkhead onto subject property
along South property line and the location of other's chain link fence and water
tank onto subject property along North property line; all as shown by survey
dated February 20, 1994, prepared by Maverick Engineering, Job No. C 34687.
19
(14) Reservation by State of Texas of all oil, gas and other minerals
in Patent # 106, dated 07-31-51, to Nueces County Navigation District, recorded
in Volume 18-B, and Volume 522, Pages 201-203, Deed Records, Nueces County,
Texas, together with all rights incident to owners and lessees of said minerals.
Title to said interest not checked subsequent to date of aforesaid instrument.
(15) Easement and Right-of-Way dated 09-22-82, from Ingleside Offshore
Services, Partnership to Central Power and Light Company, recorded in Volume
1845, Page 843, Deed Records, Nueces County, Texas.
The undersigned LANDLORD and TENANT execute this agreement as of
October 24, 1995, at Corpus Christi, Nueces County, Texas.
TENANT: LANDLORD:
SOUTHWEST MARINE, INC. XXXXXXXX SERVICES GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ X.X. Xxxxxxxx
--------------------------------- ------------------------------------------
Xxxxxxx X. Xxxxx, President X.X. Xxxxxxxx, President
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxxxxx X. Xxxxxx
--------------------------------- ------------------------------------------
Xxxxx X. Xxxxxxxx, Secretary Xxxxxxxxxx X. Xxxxxx, Assistant Secretary
20
FIRST AMENDMENT TO LEASE
THIS AGREEMENT is made and entered into as of this 12th day of
December, 1995, by and between XXXXXXXX SERVICES GROUP, INC., a South Carolina
corporation ("LANDLORD") and SOUTHWEST MARINE, INC., a California corporation
("TENANT").
RECITALS:
WHEREAS, by agreement dated as of October 24, 1995 (the "Lease")
LANDLORD leased to TENANT a portion of certain real property and the
improvements located thereon in Ingleside, Texas, North Shore Docks, 0000 Xxxx
Xxxxxx, Xxxxx Xxxxxxx 0000; and
WHEREAS, LANDLORD and TENANT desire to modify and amend the Lease, all
upon certain specified terms and conditions.
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the parties hereto agree, effective as of the date hereof, as
follows:
1. The last sentence of Paragraph 3 of Exhibit "B", Rules and
Regulations of the Lease is deleted in its entirety and the following
substituted therefor:
"TENANT shall not manufacture on the LEASED PREMISES any
materials or substances which are hazardous to human health or
the environment. In addition, TENANT shall not use or store on
the LEASED PREMISES any materials or substances which are
hazardous to human health or the environment except in the
ordinary course of the operation of TENANT'S business on the
LEASED PREMISES and provided that at all times such use or
storage is accomplished by TENANT in compliance with all
applicable federal, state and local laws and regulations
including the securing by TENANT of the necessary permits
required thereunder."
21
SECOND AMENDMENT TO LEASE
THIS AGREEMENT is made and entered into as of this _27_ day of
__October__, 1997, by and between Xxxxxxxx Services Group, Inc., a South
Carolina corporation ("LANDLORD"), and Southwest Marine, Inc., a California
corporation ("TENANT").
RECITALS:
WHEREAS, by agreement dated as of October 24, 1995, as amended by
agreement dated as of December 12, 1995 (collectively the "LEASE"); LANDLORD
leased to TENANT a portion of certain real property and the improvements located
thereon in Ingleside, Texas, North Shore Docks, 0000 Xxxx Xxxxxx, Xxxxx Xxxxxxx
0000; and
WHEREAS, LANDLORD and TENANT desire to document certain oral agreements
and changes to the LEASE made as of March 1, 1996, including, but not limited
to, the construction by LANDLORD of a one story metal building for TENANT'S use
in lieu of the two story metal building occupied by TENANT previously.
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the parties hereto agree, effective as of March 1, 1996, as follows:
1. The following is added immediately after Article 1. TERM,
Section 1.03:
"Option to Extend Term of Lease
Section 1.04. Provided TENANT is not then in default under the
terms of this LEASE, TENANT shall have the right and option to
extend the Term of the LEASE for an additional period of two
years and two months commencing November 1, 2002 and ending
December 31, 2004 (the "Extended Term"), such option to be
exercised, if at all, by TENANT giving LANDLORD not less than
ninety (90) days' written notice of such election. All of the
terms and conditions of this LEASE shall be applicable during
the Extended Lease, except for those dealing with Term and
Rent, the latter to be negotiated and documented in a separate
writing to be executed by LANDLORD and TENANT within sixty
(60) days following LANDLORD'S receipt of TENANT'S notice
exercising its option as provided herein. Should LANDLORD and
TENANT fail within said period to negotiate and document a
Rent satisfactory to both parties, then, and in such event,
TENANT'S exercise of its option shall be null and void and the
Term of this LEASE shall expire on October 31, 2002."
2. The singular paragraph of Exhibit AA "LEASED PREMISES" is
deleted in its entirety and the following substituted therefore:
"See Exhibit AA-2 "SWM" identified portions and
existing and newly constructed buildings, utility systems,
fencing, 562 lineal feet of sheet pile bulkhead and all other
improvements located thereon, together with a non-exclusive
right of ingress and egress to all areas identified on Exhibit
AA-2 as being leased to SWM, along and across the real
property identified as
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"Common Access Road" and including a non-exclusive right of
ingress and egress over Xxxxxxxx'x real property for access to
the separate area identified on Exhibit AA-2 as SWM's
Government Furnished Material (GFM) warehouse."
Except as hereinabove and as previously modified and amended, the LEASE
shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of this day and year first above written.
XXXXXXXX SERVICES GROUP, INC., SOUTHWEST MARINE, INC.,
A SOUTH CAROLINA CORPORATION A CALIFORNIA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx Xx. By: /s/ B. Xxxxxx Xxxxx
---------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxxxx Xx., President B. Xxxxxx Xxxxx, President
By: /s/ Xxxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------- ----------------------------------
Assistant Secretary Xxxxx X. Xxxxxxxx, Secretary
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Except as hereinabove modified and amended, the Lease shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXXX SERVICES GROUP, INC., SOUTHWEST MARINE, INC.,
A CALIFORNIA CORPORATION A SOUTH CAROLINA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxxx, President Xxxxxxx X. Xxxxx, President
By: /s/ Xxxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------- -------------------------------
Xxxxxxxxx X. Xxxxxx, Assistant Secretary Xxxxx X. Xxxxxxxx, Secretary
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