Exhibit 10.1
ASSIGNMENT OF LEASE
THE STATE OF TEXAS )
)
COUNTY OF MATAGORDA )
RECITALS
1. THAT WHEREAS, the MATAGORDA COUNTY NAVIGATION DISTRICT NO. 2 ("MCND"), as
Xxxxxx, executed and delivered to XXXXX X. XXXXXXXX, XX. ("Xxxxxxxx"), as
Lessee, that one certain Agreement of Lease dated June 22, 1972, as modified on
June 16, 1982, covering the tract of land in Matagorda County, Texas as
described therein, a true and correct copy of said Xxxxx being attached hereto
as EXHIBIT "A" and incorporated herein by reference for all purposes.
2. WHEREAS, Xxxxxxxx, individually and as General Partner of BAY-TEX TERMINAL,
LTD. ("BAY-TEX"), as Xxxxxx, did assign said Lease to FUEL OIL SUPPLY &
TERMINALING, INC. ("FOSTI") on the 7th day of February, 1979, said Assignment
being recorded in Volume 684 at Page 425 of the Real Property Records of
Matagorda County, Texas.
3. WHEREAS, FOSTI did assign the Lease to CRYSEN TRADING & MARKETING, INC., a
California Corporation ("Crysen"), with Crysen assuming payment of sums due on a
Note secured by a Deed of Trust recorded at Book 187, Page 505, of the Deed of
Trust Records of Matagorda County, Texas.
4. WHEREAS, Crysen did assign the Lease to THE WAY ENERGY, INC., a Delaware
Corporation ("Energy") on the 16th day of April, 1984, and said Assignment being
made subject to, but not the assumption of, the unpaid principal balance and
interest accrued on the Note described in Paragraph 3 above. A true and correct
copy of said Assignment is attached hereto as Exhibit "B" and incorporated
herein by reference for all purposes.
5. WHEREAS, on the 12th day of April, 1990, the PORT OF BAY CITY AUTHORITY, a
political subdivision organized under the laws of the State of Texas, and WAY
ENERGY, INC. entered into an Amendment of Lease Agreement whereby the Lease
Agreement was amended to include as part of the Leased Premises, that certain
parcel of land containing 0.40 acres. A true and correct copy of said Amendment
of Lease Agreement along with a meets and bounds description and survey plat of
the added 0.40 acres is attached as Exhibit "C" and incorporated herein by
reference for all purposes.
6. WHEREAS, on the 16th day of August, 1993, the PORT OF BAY CITY AUTHORITY, and
WAY ENERGY, INC. entered into a Second Amendment To Lease Agreement whereby the
Lease Agreement was amended to include as part of the Leased Premises, that
certain parcel of land containing 4.902 acres. A true and correct copy of said
Second Amendment To Lease Agreement along with a meets and bounds description
and survey plat of the added 4.902 acres is attached as Exhibit "D" and
incorporated herein by reference for all purposes.
7. NOW THEREFORE, the undersigned WAY ENERGY, INC, in consideration of (i) the
sum of TEN DOLLARS ($10.00) and other good and valuable consideration receipt of
which is hereby acknowledged, (ii) the agreement of CSS to waive interest on the
herein described Modified Notes until June 1st, 2003, (iii) the agreement of CSS
to reduce in an amount of TWO MILLION DOLLARS ($2, 000, 000.00) the amount due
and owing on the herein described Modified Notes which were executed by XXXXX
SYSTEMS, INC., the Parent company of WAY ENERGY, INC. in favor of XXXX, XXXXX &
STRONG, L.P., a Delaware Limited Partnership on the 20th day of June, 2002, and
(iv) the covenant and agreement of CSS to timely perform all obligations of
payment and performance of the Lessee pursuant to the Lease; has granted, sold,
transferred, and assigned, and does hereby grant, sell, transfer, and assign
unto CSS LAKE XXXXXXX PROPERTY, L.P.("CSS") the Lease, together with all
leasehold and other rights, title, and interest that the undersigned has by
virtue of said Xxxxx in and to the property conveyed thereby.
TO HAVE AND TO HOLD the above described premises, together with all and
singular the rights and appurtenances thereto in anyway belonging, unto CSS, its
successors and assigns, forever; and WAY ENERGY, INC. does hereby bind itself,
its successors and assigns, to warrant and forever defend all and singular the
leasehold interest transferred herein unto CSS, its successors and assigns,
against every person whomsoever lawfully claiming or to claim the same or any
part thereof, by, through, and under WAY ENERGY, INC., but not otherwise.
CSS hereby assumes all obligations, payment and otherwise of WAY ENERGY,
INC. and its predecessors in interest under the Lease, and agrees to perform the
same promptly and faithfully, and to indemnify and hold WAY ENERGY, INC.
harmless with regard to the same.
WAY ENERGY, INC. agrees to indemnify, defend, and hold CSS harmless against
all environmental claims, damages, and liabilities of whatever nature, foreseen
or unforeseen, under any state or federal Environmental Laws. However, such
obligation to indemnify shall only apply to those environmental conditions which
came into existence, or which were created after June 22, 2002 and prior to the
effective date of this instrument. All environmental conditions existing prior
to June 22, 2002, and all environmental conditions created after the effective
date of this instrument shall not be indemnified by WAY ENERGY, INC.
This Agreement may be executed in multiple counterparts, each of which
shall be binding upon the signing part or parties thereto as fully as if all
parties had executed one instrument, and all such counterparts shall constitute
one and the same instrument. The signature pages of the parties as affixed to
the counterparts may be combined, treated, and given effect for all purposes,
including recordation, into one single instrument.
Executed this 13th day of January, 2003.
WAY ENERGY, INC.
By: /s/ Xxxxx Xxxxx
----------------------------------
Xxxxx Xxxxx, President
CSS LAKE XXXXXXX PROPERTY, L.P.
By: CSS Lake Xxxxxxx Property, L.L.C.,
General Partner of CSS Lake Xxxxxxx
Property, L.P.
By: /s/ Xxxxx Xxxx
----------------------------------
Xxxxx Xxxx, Manager
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx, Manager
THE STATE OF TEXAS )
)
COUNTY OF XXXXXXX )
This instrument was acknowledged before me on January 13, 2003, by Xxxxx
Xxxxx, President of WAY ENERGY, INC., a Delaware Corporation.
/s/ Xxxxxxx Xxxxx
-------------------------------------
Notary Public, State of Texas
THE STATE OF ARIZONA )
)
COUNTY OF MARICOPA )
This instrument was acknowledged before me on January 16, 2003, by Xxxxx
Xxxx, Manager of CSS Lake Xxxxxxx Property, L.L.C, a Delaware Limited Liability
Company and General Partner of CSS LAKE XXXXXXX PROPERTY, L.P., a Delaware
Limited Partnership.
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Notary Public, State of Arizona
THE STATE OF TEXAS )
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on January 17, 2003, by Xxxxxx
Xxxxxx, Manager of CSS Lake Xxxxxxx Property, L.L.C, a Delaware Limited
Liability Company and General Partner of CSS LAKE XXXXXXX PROPERTY, L.P., a
Delaware Limited Partnership.
/s/ Xxxx X. Xxxxxx
------------------------------------
Notary Public, State of Texas
