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EXHIBIT 10.3
AGREEMENT REGARDING LEASES
THIS AGREEMENT dated as of the Effective Date, is by and among SALT
FORK COMPANY, INC. ("Salt Fork"), a Texas corporation, ANADARKO DEVELOPMENT
COMPANY ("Anadarko"), a Texas corporation, DAKOTA LAND COMPANY ("Dakota"), a
Texas corporation (Anadarko, Salt Fork and Dakota collectively referred to as
"Landlord"), XXXXXX PETROLEUM, INC. ("Tenant"), a Texas corporation, and THE
FIRST NATIONAL BANK OF BOSTON, a national banking association (the "Bank"), and
executed by E-Z SERVE CORPORATION ("E-Z Serve"), a Delaware corporation, and
XXXXX X. XXXXXX ("Xx. Xxxxxx").
WITNESSETH:
WHEREAS, the real property and personal property located on the real
property described more fully on Exhibit A attached hereto and incorporated
herein for all purposes (individually a "Mortgaged Property" and collectively
the "Mortgaged Properties") is subject to first and prior liens and security
interests in favor of the Bank to secure certain indebtedness and other
obligations from Landlord to the Bank; and
WHEREAS, Landlord and Tenant have entered into certain lease
agreements covering the Mortgaged Properties, and in connection with such
leases, Landlord and the Bank have executed that certain Assignment of Leases
and Rents of even date herewith covering the leases between Landlord and Tenant
described more fully on Exhibit A (the "Assigned Leases"); and
WHEREAS, Landlord, Tenant and the Bank wish to agree among themselves
as to certain matters concerning rights and obligations as to the Mortgaged
Properties and the Assigned Leases.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions herein contained, the receipt and sufficiency of which are hereby
acknowledged, Landlord, Tenant and the Bank have agreed that during the term
hereof:
1. NO OFFSET RIGHTS. Tenant will not exercise any right, including but
not limited to rights under Section 3.05 of any of the Assigned Leases, it
might have to offset any present or future obligations to make payments to
Landlord under the Assigned Leases.
2. NOTICES. The Bank shall be provided with copies of all exhibits,
notices, records, schedules and lists, including but not limited to those
specified in Sections 1.01, 1.02, 4.01, 5.02, 6.05, 7.01, 9.02, 9.03, 9.04,
10.01, 10.02, 12.01, 12.04, 14.01, 14.02, 15.01, 16.02 and 16.07 of any of the
Assigned Leases, that either Landlord or Tenant provide to the other under the
Assigned Leases, or
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that is to be attached to any of the Assigned Leases. The party required under
the Assigned Leases to provide such exhibits, notices, records, schedules and
lists shall provide a copy to the Bank.
3. ASSIGNMENT OR SUBLEASE. In the event tenant assigns its rights under
any Assigned Lease or sublets the leased premises to any Assigned Lease, in
whole or in part, Tenant shall not be released from any further obligation
under any such Assigned Lease unless it first obtains the express written
consent of the Bank.
4. PURCHASE OPTION. In the event Tenant exercises the purchase option as
to a Mortgaged Property provided in the Assigned Leases (as defined therein)
and the purchase price for such Mortgaged Property is less than forty-five (45)
times the monthly base rent payable under the Assigned Lease applicable to that
Mortgaged Property, the Bank shall not be required to release its lien against
the Mortgaged Property.
5. SUBORDINATION. Subject to the provisions of the Mortgagee-Tenant
Non-Disturbance and Attornment Agreement executed by and among Landlord, Tenant
and the Bank, all rights of Tenant under the Assigned Leases, including but not
limited to Sections 14.01, 14.02 and 14.03, shall be subordinate to the lien of
the Bank.
6. COLLATERAL ACCOUNT. Until further written notice from Landlord and
the Bank, all payments of rent under the Assigned Leases shall be made from
Tenant directly into an account at the Bank in the name of the Bank. As long as
payments are made in accordance with this agreement or other written
instructions of both Landlord and Bank, Landlord shall have no claim against
Tenant for non-payment of rent.
7. FORECLOSURE OR DEED IN LIEU. The acquisition by the Bank or other
party of a Mortgaged Property, whether by foreclosure, deed in lieu or
otherwise, shall not be an offer for the purchase or acquisition of such
Mortgaged Property and will not give rise to any right of tenant to acquire
such Mortgaged Property pursuant to the provisions of the Assigned Leases.
8. SALE OR REFINANCING. When and as a Mortgaged Property is sold or
refinanced so that it no longer is subject to the liens and security interests
of the Bank, such Mortgaged Property and the Assigned Lease covering such
Mortgaged Property shall no longer be subject to terms of this agreement. This
provision shall not be deemed to authorize any sale or refinance that is
contrary to the terms of any of the documents evidencing the Bank's liens and
security interests against the Mortgaged Properties or the indebtedness secured
thereby.
9. NOTICES. Except as otherwise specifically provided in this agreement,
any notice or other information required to be given by a party shall be in
writing and shall be sufficient if personally delivered or sent certified mail,
return receipt requested, postage prepaid to the following addresses:
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LANDLORD
AND XX. XXXXXX: X.X. Xxx 00000
Xxxxxxxx, Xxxxx 00000
TENANT
AND E-Z SERVE: 00000 Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
BANK: Loan Review Department
Mail Stop 02-12-04
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
ATTN: Xxxxxx X. Xxxxx
Any notice shall be deemed delivered on the date mailed in the manner set out
above. The designation or address of the person to be notified may be changed
at any time by delivery of notice of that change to the other parties.
10. MISREPRESENTATION. As to each of the Assigned Leases, an additional
event of default shall be if any representation or warranty made by or on
behalf of E-Z Serve to either Landlord or the Bank shall be proved to have been
knowingly or intentionally (i) false, (ii) misleading or (iii) incorrect in any
material respect when made.
11. EXECUTION BY XX. XXXXXX AND E-Z SERVE. Xx. Xxxxxx and E-Z Serve have
guaranteed the obligations of the Tenant under the Assigned Leases and execute
this agreement solely in connection with their capacity as a guarantor of the
obligations of Tenant under the Assigned Leases.
12. SEVERABILITY. Should any clause, sentence, paragraph or provision of
this agreement be judicially declared to be invalid, unenforceable or void,
such decision will not have the effect of invalidating or voiding the remainder
of this agreement, and the parties hereto agree that the part or parts of this
agreement so held to be invalid, unenforceable, or void shall be deemed to have
been stricken herefrom by the parties hereto, and the remainder will have the
same force and effect as if such stricken part or parts have never been
included herein.
13. NO CLOUD ON TITLE. As to any party to this agreement in whom title to
the Mortgaged Property or any part thereof is not vested, the execution of this
agreement by such party shall not Constitute a claim of title by such
party against a Mortgaged Property or any owner thereof.
14. INUREMENT. The agreement shall be binding upon and inure to the
benefit of the parties, their respective heirs, successors and permitted
assigns.
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15. EFFECTIVE DATE AND TERM. The effective date of this agreement is
March 1, 1992 ("Effective Date"). This agreement shall remain in full force and
effect as to all paragraphs except paragraphs 2, 3, 6 and 7 until August 31,
1993. This Agreement shall remain in full force and effect as to Paragraph 2,
3, 6 and 7 as to an Assigned Lease for so long as the Bank has a lien and
security interest in the Mortgaged Property applicable to that Assigned Lease.
The expiration of this Agreement (except for paragraphs 2, 3, 6 and 7 hereof)
on August 31, 1993, shall in no manner be interpreted or construed to amend or
modify the Credit Agreement by and between Landlord and Bank or to reduce or
limit the rights of the Bank under the security documents relating to the
Credit Agreement.
ATTEST: [SEAL] SALT FORK COMPANY, INC.,
a Texas corporation
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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, Secretary Xxxxx X. Xxxxxx, President
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XXXXXX PETROLEUM, INC.,
a Texas Corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
E-Z SERVE CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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THE FIRST NATIONAL BANK
OF BOSTON,
a national banking association
By: /s/ Xxxxxx Xxxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
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ATTEST: [SEAL] ANADARKO DEVELOPMENT
COMPANY, a Texas corporation
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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, Secretary Xxxxx X. Xxxxxx, President
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ATTEST: [SEAL] DAKOTA LAND COMPANY,
a Texas corporation
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxx . Xxxxxx
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Assistant , Secretary Xxxxx X. Xxxxxx, President
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/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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