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EXHIBIT 10.7
ATTORNMENT AGREEMENT
THE STATE OF TEXAS )
)
COUNTY OF GALVESTON )
This Attornment Agreement (the "Agreement") is entered into by and
between Newpark Marine Fabricators, Inc. ("Tenant"), The Board of Trustees of
the Galveston Wharves, a separate utility and agency of the City of Galveston,
Texas, organized pursuant to the provisions of Article 1187f, Vernon's Texas
Civil Statutes, as amended, and Article XII of the Charter of the City of
Galveston, Texas ("Landlord'), and the City of Galveston, Texas ("City").
WHEREAS, Landlord and Tenant have entered into (i) an Assignment and
Assumption of Lease ("Assignment") and (ii) an Amended and Restated Lease
("Lease"), each dated effective November 1, 1997, covering a certain 110 acre,
more or less, tract of land (including submerged lands) located on Pelican
Island in Galveston County, Texas, and shown on Exhibit A (the "Land"); and
WHEREAS, the City is the owner of the fee simple title to the Land;
and
WHEREAS, as a condition to entering into the Assignment and the Lease,
Tenant has requested that City enter into this Agreement; and
WHEREAS, capitalized terms not defined in this Agreement have the
definitions given to them in the Lease.
NOW, THEREFORE, in consideration of the premises, the covenants set
forth herein and other good and valuable consideration, receipt whereof is
hereby acknowledged, the parties do hereby mutually covenant and agree as
follows:
1. So long as Tenant is not in default (beyond any period given
Tenant to cure such default) in the payment of rent or other sums due under the
Lease, Tenant's possession under the Lease and Tenant's rights and privileges
thereunder, shall not be diminished or interfered with by City, and
accordingly, Tenant's occupancy shall not be disturbed by City during the term
of the Lease, except in accordance with the terms of the Lease or the City's
exercise of its governmental authority, including the power of eminent domain
and its general police powers.
2. If City (i) dissolves Landlord without creating a replacement
utility and agency of the City to act as the landlord under the Lease,
whereupon City becomes the successor landlord under the Lease, or if the City
(ii) sells the Land, or (iii) succeeds to the interests of Landlord under the
Lease in any other manner, Tenant shall attorn and be bound to such party
(whether City or another party) upon any such succession in interest, sale, or
otherwise and shall
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recognize such party as the Landlord under the Lease. Such attornment shall be
effective and self-operative without the execution of any further instrument on
the part of any of the parties hereto. Tenant agrees, however, to execute and
deliver at any time and from time to time, upon the request of City or any
purchaser, any instrument or certificate which, in the sole judgment of the
requesting party may be necessary or appropriate (in any such sale or
otherwise) to evidence such attornment.
3. If City succeeds to the interest of Landlord under the Lease,
City shall be bound to Tenant under all of the terms, covenants and conditions
of the Lease, and Tenant shall, from and after City's succession to the
interest of Landlord under the Lease, have the same remedies against City for
the breach of any agreement contained in the Lease that Tenant might have had
under the Lease against Landlord if City had not succeeded to the interest of
Landlord. Tenant acknowledges and agrees that, from and after City's
succession to the interest of Landlord under the Lease, Tenant shall be bound
to City as Landlord under all of the terms, covenants and conditions of the
Lease, and City as Landlord shall, from and after City's succession to the
interest of Landlord under the Lease, have the same remedies against Tenant for
the breach of any agreement contained in the Lease as are available thereunder
to Landlord.
4. For purposes of this Agreement, City will be deemed to have
succeeded to the interest of Landlord under the Lease upon (i) the transfer of
management and control of the Leased Premises to City, whether by virtue of
dissolution of Landlord, or pursuant to the exercise of any rights and remedies
under the law or otherwise, or (ii) any other means by which City may acquire
the right, title and interest of Landlord in and to the Lease or the Leased
Premises.
5. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their successors and assigns. All references
herein to "City" shall be deemed to include also any person or entity who
claims by, through or under City.
6. This Agreement may not be modified orally or in any other
manner other than by an agreement in writing signed by the parties hereto or
their respective successors in interest.
7. Except in the event described in Paragraph 2, clause (i)
above, nothing contained in this Agreement shall be construed to impose any
duty upon City under any circumstances to succeed to the interest of Landlord
under the Lease by dissolution of Landlord.
8. This Agreement may be simultaneously executed in a number of
counterparts, each of which for all purposes shall be deemed an original and
all of which, when taken together, shall constitute but one and the same
instrument.
EXECUTION PAGE FOLLOWS
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Effective as of the 1st day of November, 1997.
TENANT:
NEWPARK MARINE FABRICATORS, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Chairman & CEO
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LANDLORD:
THE BOARD OF TRUSTEES OF THE
GALVESTON WHARVES
By: /s/ XXX X. XXXXXXX
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Name: Xxx X. Xxxxxxx
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Title: Port Director
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CITY:
THE CITY OF GALVESTON, TEXAS
By: /s/ XXXXX XXXXXXX
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Xxxxx XxXxxxx, City Manager
By: /s/ XXXXX XXXXXXXXXXX, III
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Xxxxx Xxxxxxxxxxx, III, Mayor
APPROVED:
/s/ XXXXXXX XXXXXXXX
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City Secretary
STATE OF LOUISIANA )
PARISH OF EAST BATON PARISH )
This instrument was acknowledged before me on this the 30th day of
October, 1997, by Xxxxxx X. Xxxxx, Chairman and CEO of Newpark Marine
Fabricators, Inc., a Texas corporation, on behalf of said corporation.
/s/ XXXXXX X. XXXXXXX
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Notary Public, State of Louisiana
My Commission expires at death.
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Exhibit A
[Plat showing Leased Tract and surrounding tracts]
