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ASSIGNMENT, ASSUMPTION, AND CONSENT AGREEMENT This ASSIGNMENT, ASSUMPTION, AND CONSENT AGREEMENT (“Agreement”) is made effective this 21 day of March, 2017 (“Effective Date”), by and among BILLY PUGH COMPANY, INC., (“Assignor”), whose principal address is P. O. Box 802, Corpus Christi, Texas 78403 and PORT CORPUS TERMINAL, INC. (“Assignee”), a Texas corporation whose principal address is 210 South Carancahua, Ste. 600, Corpus Christi, Texas 78401, and the PORT OF CORPUS CHRISTI AUTHORITY OF NUECES COUNTY, TEXAS (“Authority”), whose principal place of business is at 222 Power Street, Corpus Christi, Texas 78401. The Authority, the Assignee, and the Assignor may be referred to herein individually as a “Party” or collectively as the “Parties.” RECITALS A. Authority, as lessor, and Assignor, as lessee, entered into a Lease Agreement dated the 14th day of January, 2003, a true copy of which is attached hereto as “Exhibit One” and incorporated herein by reference (the “Lease Agreement”). B. Under the Lease Agreement, Assignor leased from Authority the surface estate of that certain 2.13 acres of land, more or less, located in Nueces County, Texas, which is more particularly described in the Lease Agreement Leased (“Leased Premises”). C. Assignor desires to transfer and assign to Assignee all of Assignor’s rights, title and interest in the Lease Agreement, and Assignee desires to accept the Lease Agreement and assume Assignor’s obligations thereunder. D. Authority desires to consent to such assignment of the Lease Agreement to Assignee upon the terms and conditions set forth herein. NOW THEREFORE, in consideration of the foregoing recitals and the mutual promises, covenants and agreements contained herein, the parties hereto agree as follows: 1. Assignment. Assignor hereby assigns, transfers, grants and conveys unto Assignee all of Assignor’s right, title and interest in and to the Lease Agreement. As a material inducement to obtain Assignee’s acceptance of the Lease Agreement and assumption of Assignor’s obligations thereunder, Assignor hereby represents and warrants to Assignee that the Lease Agreement is unmodified and in full force and effect, that all terms of the Lease Agreement required to be observed or performed by Assignor thereunder have been observed and performed, and the Assignor has received no notice from Authority of any default under the Lease Agreement. 2. Assumption. Assignee hereby accepts the foregoing assignment and assumes and agrees to timely pay all rent or fees and timely perform all covenants and agreements of the Assignor under the Lease Agreement becoming due or to be performed on or after the date hereof; provided, however, Assignor shall remain bound to the Authority on the terms and conditions of the Lease notwithstanding the assignment.
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3. Hold Harmless and Indemnification. Assignee hereby agrees to hold assignor harmless from and indemnify it against any and all liability, loss or damage, including reasonable attorney fees, that Assignor may incur as a result of the failure of Assignee to timely comply with the obligations assumed hereunder for actions of Assignee that occur after the effective date of this Agreement. Assignee’s hold harmless and indemnification of Assignor herein does not extend to liability or obligations of Assignor under the Lease Agreement for the period in which Assignor occupied the Leased Premises. 4. Consent of Authority. Authority hereby consents to the foregoing Assignment of the Lease Agreement to Assignee under the terms of this Agreement on the express condition that neither this consent, nor the acceptance of rent from Assignee, shall be construed as a wavier or relinquishment of any covenant in the Lease Agreement requiring Authority’s consent to any future assignment or subletting by the lessee under the Lease Agreement. 5. Continuing Effectiveness of Lease. This Agreement is made with the understanding that all other terms and conditions of the Lease Agreement shall remain in full force and effect, including the prohibition against further assignments and subleases without the Authority’s express written consent. 6. Assignor’s Continuing Obligations under the Lease. Assignor acknowledges and agrees that, notwithstanding the assignment of the Lease, Assignor remains directly and primarily liable for the performance of all of the obligations of the lessee under the Lease, and the Authority shall be permitted to enforce the Lease Agreement against Assignor or Assignee, or both of them, without prior demand upon or proceeding in any way against any other persons. 7. Interpretation/Modification. In interpreting the language of this Agreement, the Parties shall be treated as having drafted this Agreement after meaningful negotiations. The language in this Agreement shall be construed as to its fair meaning and not strictly for or against either Party. No amendment, addendum, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties. 8. Assignor’s Representation to Authority. Assignor represents to Authority that it will receive no rent from Assignee with respect to the Leased Premises or activities thereon after the Effective Date of this Agreement. 9. Governing Law. This Agreement shall be governed by the laws of the State of Texas. In the event that litigation results from or arises out of this Agreement or the performance thereof, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred by the prevailing party in such litigation, including reasonable attorneys’ fees, in addition to any other relief to which the prevailing party may be entitled. 10. Counterparts/Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the
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same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature. 11. Entire Agreement. This Agreement, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties. IN WITNESS WHEREOF, this Agreement was executed as of the day and year first above written.
ASSIGNOR: BILLY PUGH COMPANY, INC.
By: ______________________________ Frank Liberato Vice President and General Manager
ASSIGNEE: PORT CORPUS TERMINAL, INC. By: ______________________________ Lawrence A. Valls President
AUTHORITY: PORT OF CORPUS CHRISTI AUTHORITY OF NUECES COUNTY, TEXAS By: ____________________________________ John P. LaRue Executive Director
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EXHIBIT ONE (Copy of the Lease)
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3. Hold Harmless and Indemnification. Assignee hereby agrees to hold assignor harmless from and indemnify it against any and all liability, loss or damage, including reasonable attorney fees, that Assignor may incur as a result of the failure of Assignee to timely comply with the obligations assumed hereunder for actions of Assignee that occur after the effective date of this Agreement. Assignee’s hold harmless and indemnification of Assignor herein does not extend to liability or obligations of Assignor under the Lease Agreement for the period in which Assignor occupied the Leased Premises. 4. Consent of Authority. Authority hereby consents to the foregoing Assignment of the Lease Agreement to Assignee under the terms of this Agreement on the express condition that neither this consent, nor the acceptance of rent from Assignee, shall be construed as a wavier or relinquishment of any covenant in the Lease Agreement requiring Authority’s consent to any future assignment or subletting by the lessee under the Lease Agreement. 5. Continuing Effectiveness of Lease. This Agreement is made with the understanding that all other terms and conditions of the Lease Agreement shall remain in full force and effect, including the prohibition against further assignments and subleases without the Authority’s express written consent. 6. Assignor’s Continuing Obligations under the Lease. Assignor acknowledges and agrees that, notwithstanding the assignment of the Lease, Assignor remains directly and primarily liable for the performance of all of the obligations of the lessee under the Lease, and the Authority shall be permitted to enforce the Lease Agreement against Assignor or Assignee, or both of them, without prior demand upon or proceeding in any way against any other persons. 7. Interpretation/Modification. In interpreting the language of this Agreement, the Parties shall be treated as having drafted this Agreement after meaningful negotiations. The language in this Agreement shall be construed as to its fair meaning and not strictly for or against either Party. No amendment, addendum, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties. 8. Assignor’s Representation to Authority. Assignor represents to Authority that it will receive no rent from Assignee with respect to the Leased Premises or activities thereon after the Effective Date of this Agreement. 9. Governing Law. This Agreement shall be governed by the laws of the State of Texas. In the event that litigation results from or arises out of this Agreement or the performance thereof, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred by the prevailing party in such litigation, including reasonable attorneys’ fees, in addition to any other relief to which the prevailing party may be entitled. 10. Counterparts/Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the
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same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature. 11. Entire Agreement. This Agreement, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties. IN WITNESS WHEREOF, this Agreement was executed as of the day and year first above written.
ASSIGNOR: BILLY PUGH COMPANY, INC.
By: ______________________________ Frank Liberato Vice President and General Manager
ASSIGNEE: PORT CORPUS TERMINAL, INC. By: ______________________________ Lawrence A. Valls President
AUTHORITY: PORT OF CORPUS CHRISTI AUTHORITY OF NUECES COUNTY, TEXAS By: ____________________________________ John P. LaRue Executive Director
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EXHIBIT ONE (Copy of the Lease)
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