Exhibit 10.66
LEASE AGREEMENT
THE STATE OF TEXAS ss.
COUNTY OF JEFFERSON ss.
This Lease Agreement is made and entered into this the 25 day of July 2002,
by and between, Mickey Phelan B Land L.P., hereinafter called Owner, and
Petrocon Engineering, Inc., hereinafter called Tenant.
In consideration of the mutual covenants and agreements herein set forth,
and other good and valuable consideration, Owner does hereby demise and lease to
Tenant, and Tenant does hereby lease from Owner, the premises at 3255 Executive,
Blvd., Suite 108, Beaumont, Jefferson County, Texas further described in Exhibit
A attached hereto and hereinafter called the "Leased Premises" and being part of
the Office/Warehouse Facility situated on the property described in Exhibit B
attached hereto ("Office/Warehouse Facility" shall refer only to the property
described in the attached Exhibit B together with such additions and other
changes as Owner from time to time may expressly designate as included within
the Office/Warehouse Facility); under the terms and conditions hereinafter
contained.
ARTICLE 1. TERM
Term of Lease
1.01 The term of this Lease shall be One year commencing August 1, 2002 and
ending on July 31, 2003 unless sooner terminated as herein provided.
Prorated Rent for Partial Month
1.02 In the event said commencement falls on a day other than the first day
of a month, then the Tenant shall pay a prorated rent for said partial month and
the of the Lease shall be adjusted to run from the first day of the following
month.
Lease Year Defined
1.03 The term "lease year," as used herein, shall mean a period of twelve
(12) consecutive full calendar months beginning on the commencement date if said
day is the first day of a month, or beginning on the first day of the following
month if the commencement date is other than the first day of a month. Each
succeeding lease year shall commence on the anniversary date of the first lease
year.
ARTICLE 2. RENT
Guaranteed Minimum Rent
2.01 (a) Tenant agrees to pay to Owner without any prior demand therefor
and without any deduction or set off whatsoever, and as a Guaranteed Minimum
Rent, the sum of Four thousand one hundred nine dollars and no/00 ($4,109.00) in
advance on the first day of each calendar month of each lease year. If the term
shall commence on a day other than the first day of a calendar month, then
Tenant shall pay, on the commencement date of the term, a pro rata portion of
the Guaranteed Minimum Rent described above, prorated on a per diem basis with
respect to such fractional calendar month.
ARTICLE 3. USE AND CARE OF LEASED PREMISES
3.01 Tenant shall operate the Leased Premises for the use and purposes for
which it is let, to-wit: engineering office, under the trade name: Petrocon
Engineering, continuously during the term of this Agreement and shall not use or
permit the Leased Premises to be used for any other reason or under any other
name without the prior written consent of Owner. Tenant shall not at any time
leave the Leased Premises vacant, but shall in good faith continuously
throughout the term of the Lease conduct and carry on in the entire Leased
Premises the type of business for which the Leased Premises are leased. Tenant
shall keep the Leased Premises reasonably stocked with merchandise, and
reasonably staffed to serve the patrons thereof, comparable to stores doing a
similar business in the trade area of the Leased Premises. Tenant is not
required to operate its business on Sundays or legal holidays, nor during any
time when such operations must be suspended because of casualty loss to the
building, strike, insurrection, or other cause beyond the control of Tenant.
3.02 Tenant will comply, and will cause its employees, agents, and invitees
to comply with all applicable laws and ordinances, and with all rules and
regulations of governmental agencies. Tenant shall procure at its sole expense
any permits and licenses required for the transaction of business in the Leased
Premises.
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Exhibit 10.66
3.03 Tenant shall not do or Permit anything to be done in or about the
Leased Premises nor bring or keep anything therein which will in any way
increase the existing rate of or affect any fire or other insurance upon the
Office/Warehouse Facility or any of its contents, or cause a cancellation of any
insurance policy covering said Office/Warehouse Facility or any part thereof or
any of its contents.
3.04 Tenant shall take good care of the Leased Premises and shall keep the
same free from waste at all times. Tenant shall keep the Leased Premises and
sidewalks, hallways, restrooms, service-ways, and loading areas adjacent to the
Leased Premises neat, clean, and free from dirt, rubbish, insects, and pests at
all times, and shall store all trash and garbage within the Leased Premises,
arranging for the regular pickup of such trash and garbage. Tenant will store
all trash and garbage within the area designated by Owner for such trash pickup
and removal and only in receptacles of the size, design, and color from time to
time prescribed by Owner. Receiving and delivery of goods and merchandise and
removal of garbage and trash shall be only in the manner and areas from time to
time prescribed by Owner.
3.05 Tenant shall not do or permit anything to be done in or about the
Leased Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Office/Warehouse Facility or injure or annoy
them or use or allow the Leased Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Office/Warehouse Facility. Tenant shall not
commit or allow to be committed any waste in or upon the Leased Premises. Tenant
shall not do anything that would tend to injure the reputation of the
Office/Warehouse Facility.
3.06 Tenant will not conduct any auction or bankruptcy or fire or "lost our
lease" or "going out of business" or similar sale or operate within the Leased
Premises a "wholesale" or "factory outlet" store, a cooperative store, a "second
hand" store, a "surplus" store, or a store commonly refereed to as a "discount
house". Tenant shall not advertise its products or services at "discount", "cut
price", or "cut-rate" prices.
3.07 Tenant may not display or sell merchandise or allow grocery carts or
other similar devices within the control of Tenant to be stored or to remain
outside the defined exterior walls and permanent doorways of the Leased
Premises. Tenant further agrees not to permit any objectable or unpleasant odors
to emanate from the Leased Premises nor place or permit any exterior lighting,
awning, antenna, amplifiers or similar devices or use in or about the Leased
Premises any advertising medium which may be heard or seen outside the Leased
Premises, such as flashing lights, searchlights, loudspeakers, phonographs or
radio broadcasts.
3.08 Tenant shall not place a load on the floor of the Leased Premises
exceeding the floor load per square foot which such floor was designed to carry
and which is allowed by law. Owner reserves the right to prescribe the weight
and position of all safes which must be placed so as to distribute the weight.
Business machines and mechanical equipment shall be placed and maintained by
Tenant, at Tenant's expense in setting sufficient in Owner's judgment to absorb
and prevent vibration, noise and annoyance. Water and wash closets and oilier
plumbing fixtures shall not be used for any other purposes other than those for
which they were designed and constructed, and no sweepings, rubbish, rags,
acids, or oilier such substances shall be deposited therein.
ARTICLE 4. COMMON AREAS
4.01 The "Common Area" is the part of the Office/Warehouse Facility
designated by Owner from time to time for the common use of all tenants,
including among other facilities, parking areas, sidewalks, landscaping, curbs,
loading areas, private streets and alleys, lighting facilities, hallways, malls,
restrooms, and other areas and improvements provided by Owner for the common use
of all tenants, all of which shall be subject to Owner's sole management and
control and shall be operated and maintained in such manner as Owner, in its
discretion, shall determine. Owner reserves the right to change from time to
time the size, dimensions, and location of the Common Area, as well as the size,
dimensions, location, identity, and type of any buildings that are a part of the
Office/Warehouse Facility, and to construct additional buildings or additional
stories on existing buildings, or other improvements in the Office Warehouse
Facility, and to eliminate buildings that are currently part of the
Office/Warehouse Facility. Tenant and its employees, customers, subtenants,
licensees, and concessionaires shall have the non-exclusive right and license to
use the Common Area as constituted from time to time, such use to be in common
with Owner, other tenants of the Office/Warehouse Facility, and other persons
permitted by Owner to use the same, and subject to such rules and regulations
governing use as Owner may from time to time prescribe, including but not
limited to, specific areas within the Office/Warehouse Facility or in proximity
thereto in which automobiles owned by Tenant, its employees, customers,
subtenants, licensees, and concessionaires shall be parked. Owner shall have at
all times the right to change such rules and regulations or to promulgate other
rules and regulations in such manner as may be deemed advisable for safety, care
of cleanliness of the Office/Warehouse Facility and for preservation of good
order therein, all of such rules and regulations, changes and amendments will be
forwarded to Tenant and shall be carried out and observed by Tenant. Tenant
shall further be responsible for the compliance with such rules and regulations
by the employees, servants, agents, visitors, and invitees of Tenant. Owner may
close any part of the Common Area as may be necessary to prevent the public from
obtaining prescriptive rights or to make repairs or alterations.
4.02 Nothing in this Article shall or elsewhere in this Lease shall be
construed as constituting the Common Area, or any part thereof, as any part of
the Leased Premises.
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Exhibit 10.66
ARTICLE 5. ADDITIONAL RENT
Not applicable
ARTICLE 6. MAINTENANCE AND SURRENDER
Maintenance
6.01 (a) Owner shall maintain the roof, foundation, and the structural
soundness of the exterior walls (excluding all windows, window glass, plate
glass, and all doors,) Tenant shall at its expense and risk maintain all oilier
parts of the building and other improvements on the Leased Premises in good
repair and condition, including but not limited to, repairs (including all
necessary replacements) to the interior plumbing, windows, window glass, plate
glass, doors, electrical wiring, hot water system, heating system, air
conditioning equipment, fire protection sprinkler system, and the interior and
exterior of the building in general.
(b) Maintenance of the air-conditioning and heating equipment shall be
solely the responsibility of Tenant throughout the entire term of this Lease.
Tenant shall, at its own expense, enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor for servicing all hot
water, healing, and air-conditioner systems and equipment within the Leased
Premises. The maintenance contractor and the contract must be approved by Owner.
The service contract must include all services suggested by (he equipment
manufacturer within the operation/maintenance manual and must become effective
(and a copy thereof delivered to Owner) within thirty (30) days of the date
Tenant takes possession of the Leased Premises. Tenant shall from time to time
upon request furnish proof reasonably satisfactory to Owner that all such
systems and equipment are being serviced in accordance with the
maintenance/service contract. Within the thirty (30) day period preceding
move-out by Tenant. Tenant shall have the systems and equipment checked and
serviced to insure proper functioning and shall furnish Owner satisfactory proof
thereof upon request.
Surrender
6.02 Tenant shall throughout the lease term maintain the building and other
improvements constituting the Leased Premises and keep them free from waste or
nuisance, and shall deliver up the Leased Premises in a clean and sanitary
condition at the termination of this Lease and in good repair and condition,
reasonable wear and tear and damage by fire, tornado, or other casualty excepted
and shall surrender all keys for the Leased Premises to Owner and shall inform
Owner of all combinations on locks, safes, and vaults, if any, in the Leased
Premises, in the event Tenant should neglect to reasonably maintain the Leased
Premises, Owner shall have the right, but not the obligation, to cause repairs
or corrections to be made, and any reasonable costs thereof plus a charge equal
to fifteen percent (15%) of such cost shall be payable by Tenant to Owner as
additional rental on the next rental installment date or upon demand if said
Lease has expired.
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Exhibit 10.66
ARTICLE 7. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS
7.01 Tenant shall not create any openings in the roof or exterior walls,
nor make any alterations, additions, or improvements to the Leased Premises
without the prior written consent of Owner. Consent for nonstructural
alterations, additions, or improvements shall not be unreasonably withheld by
Owner. Tenant shall have the right at all times to erect or install shelves,
bins, machinery, air conditioning or heating equipment, and trade fixtures,
provided that Tenant complies with all applicable governmental laws, ordinances,
and regulations. Tenant shall have the right to remove at the termination of
this Lease such items so installed (other than replacement items for
air-conditioning or heating equipment or permanently installed fixtures, which
shall become the property of Owner) provided Tenant is not in default: however,
Tenant shall, prior to the termination of this Lease, repair any damage caused
b~ such removal.
7.02 All alterations, additions, or improvements made by Tenant, other
than shelves, bins, machinery and trade fixtures which are not actually removed
from the Leased Premises by Tenant under the provisions of the preceding
paragraph, shall become the property of Owner at the termination of this Lease:
however, the Tenant shall promptly remove, if Owner so elects, all alterations,
additions, and improvements, and any other property placed in the premises by
Tenant, and Tenant shall repair any damage caused by such removal.
ARTICLE 8. SIGNS
8.01 Tenant shall not, without Owner's prior written consent, (a) make any
changes to or paint the building, or (b) install any exterior lighting,
decorations, or paintings or (c) erect or install any signs, window or door
lettering, placards, decoration, or advertising media of any type which can be
viewed from the exterior of the Leased Premises, excepting only dignified
displays of customary type for its display windows. All signs, lettering,
placards, decorations, and advertising media shall conform in all respects to
the sign criteria established by Owner from time to time in the exercise of its
sole discretion, and shall be subject to the prior written approval of Owner as
to the construction, method, of attachment, size, shape, height, lighting,
color, and general appearance. All signs shall be in good repair and in proper
operating order at all times. Tenant shall remove all signs at the termination
of this Lease, and shall repair any damage and close any holes caused by such
removal.
ARTICLE 9. UTILITY CHARGES
9.01 Tenant shall pay all utility charges for water, garbage collection,
sewer charges, electricity, heat, gas, and power used in and about the Leased
Premises, all such charges to be paid by Tenant to the utility company or
municipality furnishing the same, before the same shall become delinquent.
ARTICLE 10. FIRE AND CASUALTY DAMAGE
10.01 If the building or oilier improvements on the Leased Premises should
be damaged or destroyed by fire, tornado, or other casualty. Tenant shall give
immediate written notice thereof to Owner.
Total Destruction
(a) If the building on the Leased Premises should be totally destroyed by
fire, tornado, or other casualty, or if it should be so damaged that rebuilding
or repairs cannot reasonably be completed within one hundred eighty (1 80)
working days from the date of written notification by Tenant to Owner of the
occurrence of the damage, this lease shall terminate and rent shall be abated
for the unexpired portion of this Lease, effective as of the date of said
written notification. The provisions of Article 23.10 hereof shall operate to
extend said one hundred eighty (180) day period if rebuilding or repairs are
delayed by force majeure.
Partial Damage
(b) If the building or other improvements on the Leased Premises should be
damaged by fire, tornado, or other casualty, but not to such an extent that
rebuilding or repairs cannot reasonably by completed within one hundred eighty
(180) working days from the date of written notification by Tenant to Owner of
the occurrence of the damage, this Lease shall not terminate but Owner shall, if
the casualty has occurred prior to the final two (2) years of the lease term, at
his sole cost and risk proceed forthwith to rebuild or repair such building and
other improvements to substantiate the condition in which they existed prior to
such damage. If the casualty occurs during the final two (2) years of the lease
term. Owner shall riot be required to rebuild or repair such damage. If the
building and other improvements are to be rebuilt or repaired and are
untenantable in whole or in part following such damage, the rent payable
hereunder during the period in which they are untenantable shall be adjusted
equitably. In the event that Owner should fail to complete such rebuilding or
repairs within one hundred eighty (180) working days from the date of written
notification by Tenant to Owner of the occurrence of the damage. Tenant may at
its option terminate this Lease by written notification at such time to Owner,
whereon all rights and obligations hereunder shall cease. The provisions of
Article 23.10 hereof shall operate to extend said one hundred eighty (180) day
period if rebuilding or repairs are delayed by force majeure.
ARTICLE 11. CONDEMNATION
11.01 If during the term of this Lease or any extension or renewal hereof,
all of the Leased Premises should be taken by right of eminent domain, 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 said premises by the
condemning authority.
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Exhibit 10.66
If less than all of the Leased Premises shall be taken by right of eminent
domain, Owner shall have the option to terminate this Lease on the date of
taking by giving written notice to Tenant within sixty (60) days after the
filing of the action in eminent domain, in which event Owner shall be entitled
to all proceeds, and Tenant shall have no claim to any part of the award in
condemnation, or, in the alternative. Owner, by failing to give the above notice
within the time above specified, may elect to the Lease in full force and effect
and have (he proceeds divided according to law.
ARTICLE 12. SECURITY DEPOSIT
Not applicable.
ARTICLE 13. INDEMNITY
13.01 Tenant agrees to indemnify and hold Owner harmless against any and
all claims, demands, damages, costs and expenses, including reasonable
attorney's fees for the defense thereof, arising from the conduct or management
of Tenant's business in the Leased Premises or from any breach on the part of
Tenant of any conditions of this Lease, or from any act or negligence of Tenant,
its agents, contractors, employees, subtenants, concessionaires, or licensees in
or about the Leased Premises. In case of any action or proceeding brought
against Owner by reason of any such claim, Tenant, upon notice from Owner,
covenants to defend such action or proceeding by counsel acceptable to Owner.
In addition to the foregoing, and not by way of limitation thereof, Tenant
agrees to indemnify and hold Owner harmless from any and all liability, damages
or costs of any kind or character for injury to persons or property in the
Leased Premises or about or around the Leased Premises. Tenant also agrees to
indemnify and hold Owner harmless from all liability, damages and costs of any
and every kind and character, that may arise from the Tenant's improper care of
the Leased Premises, or arising out of Tenant's use and occupancy of the Leased
Premises, it being specifically agreed that Owner shall not be liable for any
damage or injury to Tenant or any other person or persons, or to his or their
property, goods or chattels caused by water, rain or snow, gas, steam or
electricity, flooding, or by reason of breakage, leakage or obstruction of any
pipes or leakage of any character, including roof leakage.
It is expressly agreed that in the event Tenant violates any regulation,
ordinance or law that results in Owner being cited by the city or any other
regulatory or enforcing authority, Tenant agrees to hold Owner harmless in all
respects.
13.02 Tenant, at its own cost and expense, shall provide and maintain in
force during the term of this Lease commercial general liability insurance
coverage (Owner's, Landlord's and Tenant's coverage), with one or more
responsible insurance companies duly authorized to transact business in Texas,
in an amount of not less than One Million Dollars ($1,000,000.00) combined
single limit or such other amount that Owner, in its sole judgement, may
require, which such commercial general liability policy shall include (i)
coverage for bodily injury and death, property damage, and products liability
coverage: (ii) contractual liability coverage insuring the obligations of Tenant
under the terms of this Lease: amid (iii) fire legal liability coverage with
respect to the Leased Premises and the buildings to which they are a part in the
amount of at least twenty-five thousand dollars ($25,000.00). Such policy shall
name Owner (and any of its affiliates, subsidiaries, successors, and assigns
designated by Owner) and Tenant as the insured. Tenant shall furnish Owner with
certificates of all insurance required by this section. If Tenant does not
maintain such insurance in full force and effect, Owner may notify Tenant of
such failure and if Tenant does not deliver to Owner within ten (10) days after
such notice certification showing all such insurance to be in full force and
effect, Owner may, at his options, take out the necessary insurance to comply
with the provisions hereof and pay the premiums on the items specified in such
notice, and Tenant covenants thereupon on demand to reimburse and pay Owner any
amount so paid or expended in the payment of the insurance premiums required
hereby and specified in the notice, with interest thereon at the rate of ten per
cent (10%) per annum from the date of such payment by Owner until repaid by
Tenant.
ARTICLE 14. HAZARDOUS MATERIALS
14.01 Tenant agrees and warrants that the nature of its enterprise will
not, as a result of noise, emissions, materials or substances received at,
stored upon or shipped from the Leased Premises or by virtue of any other
activities of Tenant, create a nuisance upon the Leased Premises, and that no
activity of Tenant shall result in the emissions or spillage of pollutants of
an)' nature. Tenant warrants that no hazardous substances, fluids, solvents or
solid waste or other product or material subject to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Resource
Conservation and Recovery Act, the Federal Clean Air Act, the Texas Clean Air
Act, the Texas Solid
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Exhibit 10.66
Waste Disposal Act, or similar environmental act, statutes or regulations, will
be received, accumulated or shipped from the Leased Premises. In the event that
any spillage of any contaminant or pollutant should occur, Tenant agrees to
immediately notify Owner and the appropriate governmental agency, and shall
immediately proceed to clean and remove such contaminants or pollutants at
Tenant's sole cost amid expense, to the satisfaction of Owner and to the
satisfaction of the appropriate governmental authority having jurisdiction
thereof. The provisions of this paragraph shall expressly survive the
termination of the lease term.
ARTICLE 15. DEFAULT AND REMEDIES
15.01 The following events shall be deemed to be events of default by
Tenant under this Lease:
(1) Tenant shall fail to pay any installment of rental or any other
amount payable to Owner as herein provided and such failure shall continue
for a period of five (5) days.
(2) Tenant shall fail to comply with any term, provision or covenant
of this Lease, other than the payment of rental or any other amount payable
to Owner and shall not cure such failure within ten (10) days after written
notice thereof to Tenant.
(3) Tenant or any guarantor of Tenant's obligations under this Lease
shall become insolvent, or shall make a transfer in fraud of creditors, or
shall make an assignment for the benefit of creditors.
(4) Tenant or any guarantor of Tenant's obligations under this Lease
shall file a petition under any section or chapter of the National
Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any State thereof: or Tenant or any guarantor of Tenant's
obligations under this Lease shall be adjudged bankrupt or insolvent in
proceedings filed against Tenant or any guarantor of Tenant's obligations
under this Lease.
(5) A receiver or Trustee shall be appointed for all of the Leased
Premises or for all or substantially all of the assets of Tenant or any
guarantor of Tenant's obligations under this Lease.
(6) Tenant shall desert or vacate any portion of the Leased Premises.
(7) Tenant shall do or permit to be done anything which creates a lien
upon the Leased Premises.
(8) The business operated by Tenant shall be closed for failure to pay
any State sales tax as required or for any other reason.
(9) Tenant shall fail to comply with any terms or conditions of any
other contract or agreement by amid between Owner and Tenant which relate
to the Leased Premises.
Upon the occurrence of any such event of default, Owner shall have the
option to pursue any one or more of the following remedies without any notice or
demand whatsoever:
A. Terminate this Lease in which event Tenant shall immediately surrender
the Leased Premises to Owner, and if Tenant fails to do so, Owner may, without
prejudice to any other remedy which Owner may have for possession or arrearages
in rental, enter upon and take possession of the Leased Premises and expel or
remove Tenant and any other person who may be occupying said Leased Premises or
any part thereof, by force if necessary, without being liable for prosecution or
any claim of damages therefore.
B. Enter upon and take possession of the Leased Premises and expel or
remove Tenant and another person who may be occupying said Leased Premises or
any part thereof, by force it necessary, without being liable for prosecution or
any claim for damages therefore with or without having terminated the Lease.
C. Do whatever Tenant is obligated to do under the terms of this Lease (and
enter upon the Leased Premises in connection therewith if necessary) without
being liable for prosecution or any claim for damages therefore, and Tenant
agrees to reimburse Owner on demand for any expenses which Owner may incur in
thus effecting compliance with Tenant's obligations under this Lease, plus
interest thereon at the lesser of the highest rate permitted by law or eighteen
percent (18%) per annum, and Tenant further agrees that Owner shall not be
liable for any damages resulting to the Tenant from such action.
D. Alter all locks and other security devises at the Leased Premises
without terminating this Lease.
E. Exclude Tenant from the Leased Premises by changing all door locks
located thereon amid thereafter Owner or its agent shall place a written notice
on Tenant's front door stating the name and address or telephone number of the
individual from whom a new key may be obtained and that such key may only be
obtained during the hours stated. Owner shall, however, have absolutely no
obligation to furnish a new key unless and until Tenant (I) cures all existing
defaults and (ii) delivers to Owner a sum of money determined by Owner in its
sole discretion which shall be added to and become a part of the security
deposit of Tenant hereunder. Owner and Tenant intend that this subparagraph (E)
expressly supersedes any conflicting provisions contained in Section 93.002 of
the Texas Property Code, or any successor statute.
15.02 Exercise by Owner of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
Leased Premises by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by' the written agreement of
Owner and Tenant. No such alteration of locks or other security devices and no
removal or other exercise of dominion by Owner over the property of Tenant or
others at the Leased Premises shall be deemed unauthorized or constitute a
conversion, Tenant hereby consenting, after any event of default, to the
aforesaid exercise of dominion over Tenant's property
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Exhibit 10.66
within the Leased Premises. All claims for damages by reason of such re-entry
and/or repossession and/or alteration of locks or other security devices are
hereby waived, as are all claims for damages by reason of any distress warrant,
forcible detainer proceedings, sequestration proceedings or other legal process.
Tenant agrees that any re-entry by Owner may be pursuant to judgment obtained in
forcible detainer proceedings or other legal proceedings or without the
necessity for any legal proceedings, as Owner may elect, and Owner shall not be
liable in trespass or otherwise.
15.03 In the event Owner elects to terminate the Lease by reason of an
event of default, then notwithstanding such termination, Tenant shall be liable
for and shall pay to Owner at the address specified for notice to Owner herein
the sum of all rental amid other amounts payable to Owner pursuant to the terms
of this Lease which have accrued to date of such termination, plus, as damages,
an amount equal to the total rental plus Tenant's Additional Rent Payment
hereunder for the remaining portion of the lease term (had Such term not been
terminated by Owner prior to the date of expiration stated in Article 1).
15.04 In the event that Owner elects to repossess the Leased Premises
without terminating the Lease, then Tenant shall be liable for and shall pay to
Owner at the address specified for notice to Owner herein all rental and other
amounts payable to Owner pursuant to the terms of this Lease which have accrued
to the date of such repossession, plus total rental amid Tenant's Additional
Rent Payment required to be paid by Tenant to Owner during the remainder of the
lease tern until the date of expiration) of the term as stated in Article 1,
diminished by any net sums thereafter received by Owner through reletting the
Leased Premises during said period (after deducting expenses incurred by Owner
as provided in Section 15.05 hereof). In no event shall Tenant be entitled to
any excess of any rental obtained by reletting over and above the rental herein
reserved, Actions to collect amounts due by Tenant to Owner as provided in this
Section 15.04 may be brought from time to time, on one or more occasions,
without the necessity of Owner's waiting until expiration of the lease term.
15.05 In case of any event of default, Tenant shall also be liable for and
shall pay to Owner, in addition to any sum provided to be paid above, broker's
fees incurred by Owner in connection with reletting the whole or any part of the
Leased Premises; the costs of removing and storing Tenant's or other occupant's
property: the cost of repairing, altering, remodeling or otherwise putting the
Leased Premises into condition acceptable to a new tenant or tenants, and all
reasonable expenses incurred by Owner in enforcing or defending Owner's rights
and/or remedies including reasonable attorneys' fees which shall be riot less
than fifteen percent (15%) of all sums then owing by Tenant to Owner.
15.06 Owner may, but need not, relet the Leased Premises or any part
thereof for such rent and upon such terms as Owner, in its sole discretion,
shall determine (including the right to relet the Leased Premises for a greater
or lesser term than that remaining under this Lease, the right to relet the
Leased Premises as a part of a larger area, amid the right to change the
character or use of the Leased Premises), if Owner elects to relet the Leased
Premises, it shall only be required to use the same efforts it then uses to
lease oilier space or properties which it owns or manages; provided however that
Owner shall riot he required to give any preference or priority' to the showing
or leasing of the Leased Premises oven any other space that Owner ma~' be
leasing or have available and may place a suitable prospective tenant in any'
such available space regardless of when such alternative space becomes
available; provided, further, the Owner shall not be required to observe any
instruction given by Tenant about such reletting or accept any tenant offered by
Tenant unless such offered tenant has a credit worthiness acceptable to Owner,
leases the entire Leased Premises, agrees to use the Leased Premises in a manner
consistent with the Lease and leases the Leased Premises at the same rent, for
no more than the current term and on the same terms and conditions as in this
Lease without any expenditure by Owner for tenant improvements or broker's
commissions. In any such case, Owner may, but shall not be required to, make
repairs, alterations and additions in or to the Leased Premises and redecorate
the same to the extent Owner deems necessary or desirable.
15.07 In the event Tenant is comprised of more than one person and/or
entities, all such persons and/or entities shall be jointly and severally'
liable for all of the obligations and liabilities of Tenant under this Lease.
15.08 Upon receipt from Tenant of the sum stated in Article 12 above, such
sum shall be held by Owner without interest as security' for the performance by
Tenant of Tenant's covenants and obligations under this Lease, it being
expressly understood that such deposit is not an advance payment of rental or a
measure of Owner's damages in case of default by Tenant. If at any time during
the term of this Lease any of the rental herein reserved shall be overdue and
unpaid, or any other sum payable by Tenant to Owner hereunder shall be overdue
and unpaid then Owner may at its option apply any portion of said deposit to the
payment of any such overdue rental or other sum. In the event of the failure of
Tenant to keep and perform any of the other terms, covenants and conditions of
this Lease to he kept and performed by Tenant, then the Owner a its option may
apply the security deposit, or so much thereof as may be necessary, to
compensate the Owner for loss, cost or damage sustained, incurred or suffered by
Owner due to such breach on the part of Tenant. Should the security deposit, or
any portion thereof be applied by' Owner as herein provided, Tenant shall, upon
written demand of Owner, remit to Owner a sufficient amount in cash to restore
the security deposit to the original sum deposited, and Tenant's failure to do
so within five days after receipt of such demand shall constitute a default
under this Lease. Any remaining balance of such deposit shall be returned by
Owner to Tenant at such time after termination of this Lease and all of Tenant's
obligations under this Lease have been fulfilled.
15.09 In the event of any default by Owner, Tenant will give Owner written
notice specifying such default with particularity, and Owner shall thereupon
have thirty (30) days (or such longer period
7
Exhibit 10.66
as may be required in the exercise of due diligence) in which to cure any such
default. Unless and until Owner fails to so cure any default after such notice,
Tenant shall not have any remedy or cause of action by reason thereof. All
obligations of Owner hereunder will be construed as covenants, not conditions.
The term "Owner" shall mean only the Owner, for the time being, of the Leased
Premises, and in the event of the transfer by such Owner of its interest in the
Leased Premises, such Owner shall thereupon be released and discharged from all
covenants and obligations of the Owner thereafter accruing, but such covenants
and obligations shall be binding during the lease term upon each new owner for
the duration of such ownership. Notwithstanding any other provision hereof, in
the event of any breach) or default by Owner in any term or provision of this
Lease, Tenant agrees to hook solely to the equity' or interest then owned by'
Owner in the land and improvements which constitute the Leased Premises:
however, in no event shall any deficiency judgment or any money judgment of any
kind be sought or obtained against Owner.
15.10 In the event that Owner shall have taken possession of the Leased
Premises pursuant to the authority herein granted, then Owner shall have the
right to keep in place and use all of the furniture, fixtures amid equipment at
the Leased Premises, including that which is owned by or leased to Tenant at all
times prior to any foreclosure thereon by Owner or repossession thereof by any
lessor thereof or third party having a lien thereon. Owner shall also have the
right to remove from the Leased Premises (without the necessity of obtaining a
distress warrant, writ of sequestration or other legal process and without being
liable for Prosecution or any claim for damages therefore) all or any portion of
such furniture, fixtures, equipment and other property located thereon and place
same in storage at an~ place within the County in which the Leased Premises is
located; and in such event, Tenant shall be liable to Owner for costs incurred
by Owner in connection with such removal and storage and shall indemnify and
hold Owner harmless from all loss, damage, cost, expense and liability in
connection with such removal and storage. Owner shall also have the right to
relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") claiming to be entitled
to possession) thereof who presents to Owner a copy of any instrument
represented to Owner by Claimant to have been executed by Tenant (or any
predecessor of Tenant) granting Claimant the right under various circumstances
to take possession of such furniture, fixtures, equipment or other property,
without the necessity on the part of Owner to inquire into the authenticity of
said instrument and without the necessity' of Owner's making any nature of
investigation or inquiry as to the validity of the factual or legal basis upon
which Claimant purports to act; and Tenant agrees to indemnify and hold Owner
harmless from all cost, expense. loss, damage and liability incident to Owner's
relinquishment of possession of all or any portion of such furniture, fixtures,
equipment or other property no Claimant.
15. 11 The rights and remedies of Owner herein stated shall be in addition
to any and all other rights amid remedies which Owner has or may hereafter have
at law or in equity; and Tenant stipulates and agrees that the rights herein
granted Owner are commercially reasonable.
15.12 Tenant hereby expressly waives any and all rights Tenant may have
under Section 93.002 and 93.003 of the Texas Properly Code (as amended or
superseded from time to time), to (i) either recover possession of the Leased
Premises or terminate this Lease, and (ii) recover from Owner and amount equal
to the sum of its actual damages, one month's remit, and reasonable attorney's
fees, less any delinquent rents or other sums for which Tenant is liable. Tenant
hereby waives any and all liens (whether statutory, contractual, constitutional
or otherwise) it may have or acquire as a result of a breach by Owner under this
Lease. Tenant also waives and releases any statutory lien and offset rights it
may have against Owner, including without limitation the rights conferred upon
Tenant pursuant to Section 91.004 of the Texas Property Code, as amended or
superseded from time to time, or other applicable law.
ARTICLE 16. LANDLORD LIEN
16.01 OWNER SHALL HAVE AND TENANT HEREBY GRANTS TO OWNER A CONTINUING
SECURITY INTERESTS FOR ALL RENTALS AND OTHER SUMS OF MONEY BECOMING DUE
HEREUNDER FROM TENANT, UPON ALL GOODS, WARES, EQUIPMENT. FIXTURES, FURNITURE,
INVENTORY, ACCOUNTS, CONTRACT RIGHTS CHATTEL PAPER, AND OTHER PERSONAL PROPERTY
TENANT SITUATED ON THE LEASED PREMISES, WHICH IS LOCATED AT 3255 EXECUTIVE BLVD,
SUITE 108, BEAUMONT. JEFFERSON COUNTY, TEXAS, AND SUCH PROPERTY SHALL NOT BE
REMOVED THEREFROM WITHOUT THE CONSENT OF OWNER UNTIL ALL ARREARAGES IN RENT AS
WELL AS ANY AND ALL OTHER SUMS OF MONEY THEN DUE TO OWNER HEREUNDER SHALL FIRST
HAVE BEEN PAID AND DISCHARGED. PRODUCTS OF COLLATERAL ARE ALSO COVERED. IN THE
EVENT OF A DEFAULT UNDER THIS LEASE, OWNER SHALL HAVE, IN ADDITION TO ANY OTHER
REMEDIES PROVIDED HEREIN OR BY LAW, ALL RIGHTS AND REMEDIES UNDER THE UNIFORM
COMMERCIAL CODE. INCLUDING WITHOUT LIMITATION THE RIGHT TO SELL THE PROPERTY
DESCRIBED IN THE PARAGRAPH AT PUBLIC OR PRIVATE SALE UPON FIVE (5) DAYS NOTICE
TO TENANT. TENANT HEREBY AGREES TO EXECUTE SUCH OTHER INSTRUMENTS NECESSARY OR
DESIRABLE IN OWNER'S DISCRETION TO PERFECT THE SECURITY INTEREST HEREBY CREATED.
ANY STATUTORY LIEN FOR RENT IS NOT HEREBY WAIVED, THE EXPRESS CONTRACTUAL LIEN
HEREIN GRANTED BEING IN ADDITION AND SUPPLEMENTAL THERETO. OWNER AND TENANT
AGREE THAT THIS LEASE AND SECURITY AGREEMENT SERVES AS A FINANCING STATEMENT AND
THAT
8
Exhibit 10.66
A COPY OR PHOTOGRAPHIC OR OTHER REPRODUCTION OF THIS PORTION OF THE LEASE MAY BE
FILED OF RECORD BY OWNER AND HAVE THE SAME FORCE AND EFFECT AS THE ORIGINAL.
THIS SECURITY AGREEMENT AND FINANCING STATEMENT ALSO COVERS FIXTURES LOCATED AT
THE PREMISES DESCRIBED IN EXHIBIT "A" ATTACHED HERETO, AND MAY BE FILED FOR
RECORD IN THE REAL ESTATE RECORDS. THE RECORD OWNER OF THIS PROPERTY IS MICKEY
PHELAN B LAND L.P. TENANT WARRANTS THAT THE COLLATERAL SUBJECT TO THE SECURITY
INTEREST GRANTED HEREIN IS NOT PURCHASED OR USED BY TENANT FOR PERSONAL, FAMILY,
OR HOUSEHOLD PURPOSES.
ARTICLE 17. OWNER'S RIGHT TO ACCESS; RELOCATION
17.01 Tenant shall permit Owner and his agents to enter into and upon the
Leased Premises at all reasonable times for the purpose of inspecting the same
or for the purpose of maintaining or making repairs or alterations to the
building.
17.02 During the term of this lease, or any renewal term, Owner may exhibit
the Leased Premises to prospective tenants or purchasers, upon reasonable notice
to the local manager of this office: and, during the three months prior to the
expiration) of the term of this lease, or any renewal term, Owner may place upon
said premises the usual notices "For Lease" or "For Sale," which notices Tenant
shall permit to remain thereon without molestation
17.03 Owner hereby reserves the right at any time and from time to time to
make alterations or additions to the building in which the Leased Premises is
located.
17.04 Owner hereby reserves the right at any time and from time to time to
relocate the Leased Premises to other premises within the Office/Warehouse
Facility upon sixty (60) days prior written notice to Tenant, Such relocation of
the Leased Premises shall be at Owner's sole costs and expense, and in no way
shall effect the obligations of either Owner or Tenant hereunder. In the event
that Tenant shall fail to promptly occupy, and open for business to the public
in accordance with this Lease in the new location within the Office/Warehouse
Facility designated by Owner, Owner may, at its option and in addition to any
other remedies that Owner may have hereunder, at law or in equity on account of
such breach by Tenant of its obligations hereunder, terminate this Lease upon
thirty (30) days prior written not ice to `Tenant.
ARTICLE 18. ASSIGNMENT AND SUBLEASE
Assignment and Subletting by Tenant
18.01 Neither Tenant nor Tenant's legal representative or successor in
interest by operation or law or otherwise shall assign this Lease, and any
interest therein, or sublet the Leased Premises, or any part thereof, or right
or privilege pertinent thereto, without the prior written consent of Owner. Any
assignee approved by Owner must assume in writing all of Tenant's obligations
under this Lease, and Tenant (and any Guarantor(s), if any) shall remain liable
for each and every obligation under this Lease. The Owner will be paid by each
Tenant a minimum charge of $100.00 for each assignment or subletting.
Assignment by Owner
18.02 Owner is expressly given the right to assign any or all of its
interest under the terms of this Lease.
ARTICLE 19. HOLDING OVER
19.01 If Tenant remains in possession of the Premises or any part
thereof after the expiration of the term hereof, without the execution of a new
lease, such occupancy shall be a tenancy from month-to-month. The monthly
Guaranteed Minimum Rent for such holdover period shall be an amount equal to
twice the monthly Guaranteed Minimum Rent of the final month prior to such
holdover, plus all other charges payable hereunder, and upon all the terms
hereof applicable to a month-to-month tenancy.
19.02 The above described tenancy from month-to-month may be terminated by
either party upon thirty (30) days notice to the other.
ARTICLE 20. LIENS
20.01 Tenant shall keep the Leased Premises and the property in which the
Leased Premises are situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by Tenant. Owner may
require, at Owner's sole option, that Tenant shall provide to Owner, at Tenants
sole cost and expense. a lien and completion bond in an amount equal to one and
one-half (1.5) times the estimated cost of any improvements, additions, or
alterations in the Leased Premises which the Tenant desires to make, to insure
Owner against any liability for mechanics' and materialmen's lien and to insure
completion of the work.
ARTICLE 21. BROKERS
21.01 Tenant warrants that it has had no dealings with any real estate
broker or agents in connection with the negotiation of this Lease and it knows
of no real estate broker or agent who is entitled to a commission in connection
with this Lease.
ARTICLE 22. LATE CHARGES
22.01 In the event Tenant fails to pay to Owner when due any installment of
rental or other sum
9
Exhibit 10.66
to be paid to Owner which may become due hereunder, Owner will incur additional
expenses in an amount not readily ascertainable and has riot been elsewhere
provided for between Owner and Tenant. If `Tenant shall fail to pay to Owner
when due any installment of rental or other sum to be paid hereunder. Tenant
will pay Owner on demand a late charge equal to the greater of (i) one hundred
dollars ($100.00), or (ii) ten percent (10%) of the past due amount. Failure to
pay such late charge upon demand therefore shall be an event of default
hereunder. Provision for such late charge shall be in addition to all oilier
rights and remedies available to Owner hereunder or at law or in equity and
shall not be construed as liquidated damages or limiting Owner's remedies in any
manner.
22.02 If Tenant pays any installment of the Guaranteed Minimum Rent or any
other sum by check and such check is returned for insufficient funds or other
reason not the fault of Owner, then Tenant shall pay' to Owner on demand a
processing fee of fifty dollars ($50.00) per returned check.
ARTICLE 23. MISCELLANEOUS
Notices and Addresses
22.01 All notices provided to be given under this Agreement shall be given
by certified mail or registered mail, addressed to the proper party, at the
following address:
Owner: Tenant:
Mickey Phelan B Land L.P. Petrocon Engineering, Inc.
P.O. Box 1390 3255 Executive Blvd, Suite 108
Beaumont. Texas 77704 Beaumont, Texas
Parties Bound
23.02 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors, and assigns where permitted by this Agreement.
Texas Law to Apply
23.03 This Agreement shall be construed under and in accordance with the
laws of the State of Texas, and all obligations of the parties created hereunder
are performable in Jefferson County, Texas.
Legal Construction
23.04 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 thereof and this Agreement shall be construed as if such
invalid, illegal, or unenforceable provision had never been contained herein.
Landlord and Tenant Relationship
23.05 Nothing in this Lease shall be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship as principle and
agent or of partnership or of joint venture between the parties hereto. it being
understood and agreed that neither the method of computation of rent, nor any
other provision contained herein, nor any acts of the parties hereto, shall be
deemed to create any relationship between the parties hereto other than the
relationship of landlord and tenant.
Amendment
23.06 No amendment, modification, or alteration of the terms hereof shall
be binding unless the same he in writing, dated subsequent to the date hereof
and duly executed by the parties hereto.
Rights and Remedies Cumulative
23.07 The rights and remedies provided by' this Lease Agreement are
cumulative and the use of any one right or remedy by either party shall not
preclude or waive its right to use any or all other remedies. Said rights and
remedies are given in addition to any other rights the parties may have by law,
statute, ordinance, or otherwise.
Waiver of Default
23.08 No waiver by the parties hereto of any default or breach of any term,
condition, or covenant of this Lease shall be deemed to be waiver of any other
breach of the same or any other term, condition. or covenant contained herein.
Attorneys' Fees
23.09 In the event Owner or Tenant breaches any of the terms of this
Agreement whereby the Party not in default employs attorneys to protect or
enforce its rights hereunder and prevails, then the defaulting party agrees to
pay the other party reasonable attorneys' fees so incurred by such other part.
Force Majeure
23.l0 Owner shall not 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, shortage or unavailability of
labor or materials, civil riot, floods, and any oilier cause not reasonably
within the control of Owner and which by the exercise of due diligence Owner is
unable, wholly or in part, to prevent or overcome.
Time of Essence
23.11 Time is of the essence of this Agreement.
Condition of Premises
23.12 The premises and improvements have been examined by Tenant, or
accepted by Tenant in "as is" condition, and are accepted by Tenant as being fit
for the purposes for which such premises are leased.
Subordination to Existing and Future Mortgages
23.13 This Lease shall be subject and subordinate at all times to the lien
of existing mortgages and of mortgages which hereafter may be made a lien on the
leased property. Although no instrument or act on the part of the Tenant shall
be necessary to effectuate such subordination, the Tenant will,
10
Exhibit 10.66
nevertheless, execute and deliver such further instruments subordinating this
Lease to the lien of any such mortgages as may he desired by the mortgagee. The
Tenant hereby appoints the Owner his attorney-in-fact, irrevocably, to execute
and deliver any such instrument for the Tenant.
Estoppel Certificates
23.14 (a) Tenant shall from time to time, upon written request by Owner or
Owner's lender, deliver to Owner or Owner's lender, within ten (10) days after
receipt of such request, a statement in writing certifying: (i) that this Lease
is unmodified and in full force and effect (or if there have been modifications.
identifying such modifications and certifying that the Lease, as modified, is in
full force and effect): (ii) the dates to which any rent or other payments have
been paid; (iii) that Owner is not in default under any provision of this Lease
(or if Owner is in default, specifying each such default); and, (iv) the address
to which notices to Tenant shall be sent; it being understood that any such
statement so delivered may be relied upon in connection with any lease, mortgage
or transfer.
(b) Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant that: (i) this Lease is in full force and effect and not
modified except as Owner may represent; (ii) not more than one month's rent or
other payments have been paid in advance; (iii) there are no defaults by Owner:
and, (iv) notices to Tenant shall be sent to Tenant's Address as set forth in
Article 23.01 of this Lease. Notwithstanding the presumptions of this Article,
Tenant shall not be relieved of its obligation to deliver said Statement.
Security
23.15 Tenant specifically acknowledges that Owner has no duly whatsoever to
provide security for any portion of the Shopping Center including, including
without limitation, the Leased Premises and the Common Areas, and Tenant has
assumed sole responsibility for the security of itself, its Permittees and their
respective property, in or about the Shopping Center including, including
without limitation, the Leased Premises and the Common Areas.
Financial Data
23.16 Tenant warrants and represents that (a) all financial
statements, operating statements and other financial data at any time given to
Owner by or on behalf of Tenant or any Guarantor are, or will be. as of their
respective dates, true and correct in all material respects and do not (or will
not) omit any
Prior Agreements Superseded
23.17 This agreement constitutes the sole and only agreement of the
parties hereto and supersedes any prior understandings or written or oral
agreements between the parties respecting the within subject matter.
Arbitration
23.18 ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO ARISING
OUT OF OR RELATING TO THIS LEASE, INCLUDING ANY CLAIM BASED ON OR ARISING FROM
AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH
THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE. THE APPLICABLE STATE LAW),
THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES
OR JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (J.A.M.S.) AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGEMENT UPON ANY ARBITRATION AWARD MAY BRING AN ACTION,
INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY
CONTROVERSY OR CLAIM TO WHICH THIS LEASE APPLIES IN ANY COURT HAVING
JURISDICTION OVER SUCH ACTION.
(A) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN BEAUMONT. TEXAS
AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR. IF J.A.M.S. IS
UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE
AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 60 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR
SHALL ONLY. UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF
SUCH HEARING FOR AN ADDITIONAL 60 DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS LEASE SHALL BE DEEMED TO (1)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS LEASE: OR (2) LIMIT THE RIGHT OF THE
LESSOR HERETO (A) TO EXERCISE SELF HELP REMEDIES, OR (B) TO OBTAIN FROM A COURT
PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE
RELIEF, DISTRESS WARRANT, FORCIBLE DETAINER, WRIT OF POSSESSION OR THE
APPOINTMENT OF A RECEIVER. THE LESSOR MAY EXERCISE SUCH SELF HELP RIGHTS OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS LEASE. NEITHER
THE EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN
ACTION FOR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE
RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO ARBITRATE THE
MERITS OF THE CONTROVERSY OCCASIONING RESORT TO SUCH REMEDIES.
11
Exhibit 10.66
IN WITNESS WHEREOF, the undersigned Owner and tenant hereto execute this
Agreement as of the day and year first above written.
Tenant:
PETROCON ENGINEERING, INC.
- - a Texas corporation
By: /s/ David W. Smith
-------------------------------------
Name: David W. Smith
Its: President
Landlord:
MICKEY PHELAN LAND B L.P.
By: ELEVEN PHELAN B L.L.C.
ITS: GENERAL PARTNER
By: /s/ Michael A. Phelan
----------------------------------
Michael A. Phelan, Manager
12
Exhibit 10.66
STATE OF TEXAS ss.
COUNTY OF JEFFERSON ss.
Before me, the undersigned authority, on this day personally appeared David
W. Smith, President of Petrocon Engineering, Inc., a Texas corporation, known to
me to be the persons whose names are subscribed to the foregoing instrument, and
acknowledged to me that they executed the same for the purposes and
consideration therein expressed, in the capacity therein stated and as the act
and deed of said corporation.
Given under my hand and seal of office on this the 25 th day of July, A.D.
2002.
/s/ Cheryl A. Glach
-------------------------------------
Notary Public
CHERYL A GLACH
NOTARY PUBLIC
Comm. Exp.06-17-2005
STATE OF TEXAS ss.
COUNTY OF JEFFERSON ss.
Before me, the undersigned authority, on this day personally appeared
Michael A. Phelan, Manager of Eleven Phelan L,L.C., a Texas limited liability
company, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he! she executed the same for the
purposes and consideration therein expressed, in the capacity therein stated and
as the act and deed of said company.
Given under my hand and seal of office on this the 26th day of July, A.D.
2002.
/s/ Melanie Williams
-------------------------------------
Notary Public
13
Exhibit 10.66
SPECIAL PROVISIONS ADDENDUM
I CONDITION OF LEASED PREMISES
I. Except as expressly stated below, the Leased Premises and improvements
have been examined by Tenant, or accepted by Tenant in its current, "as is"
condition, and are accepted by Tenant as being fit for the purposes for which
such Leased Premises are leased. Owner agrees to perform to the Leased Premises
as part of the consideration of this Lease, the following improvements.
I. Walls-Owner agrees to remove four (4) existing doors (in locations as
specified by Tenant) and patch the wall were such doors are removed. Owner
to repaint each wall were these doors are removed.
2. Doors. Owner to install two (2) new door opening (with doors) in locations
specified by Tenant.
3. Electrical Outlets. Owner to install eight (8) new electrical duplex
outlets in locations specified by Tenant.
4. HVAC NOT WORKING IN OFFICES AS OF 7/24/02
Owner: Tenant:
Initial: Initial: /s/ DWS
-------------------------
14
EXHIBIT A
EXECUTIVE PARK PLAZA
[Executive Park Plaza Map Appears Here]
15
EXHIBIT B
PROPERTY DESCRIPTION
Lot No. Four (4), Five (5) and Six (6), in Block No. Four (4) of Executive
Business Plaza, an Addition to the City of Beaumont, Jefferson County, Texas,
according to the map or plat of record in Volume 12, Page' 75, Map Records in
the office of the County Clerk of Jefferson County, Texas, and also known as
3255 Executive Boulevard, Beaumont, Texas.
16
EXHIBIT C
Guaranty
In consideration of the making by Owner of this Lease with Tenant, the
undersigned (Guarantors) hereby guarantee to Owner:
1. the payment of Rent and all other required payments to be paid by Tenant
under this Lease; and,
2. the performance of all of Tenant's obligations, both monetary and
non-monetary, under this Lease; and,
3. the Owner's expenses, including reasonable attorney's fees, incurred in
enforcing this Guaranty.
The Guaranty shall be for a period to begin with the commencement date of the
Lease and to end upon either the term duration of the Lease or upon the time
that the final obligations of Tenant under the Lease are satisfied, whichever is
to occur last.
The Guarantor agree that they have received a copy of this Lease and that they
are fully knowledgeable of all of Tenant's monetary and non-monetary obligations
under this lease.
This Guarantor shall remain in full force and effect as to any alterations,
amendments, or modifications of the Lease and as to any assignment or subletting
of Tenant's interest under the Lease.
The Guarantors agree that no bankruptcy, reorganization or similar proceedings
by the Tenant which may limit its obligations under the Lease shall limit the
Guarantor's obligations.
The Guarantors agree that this Guaranty shall be a joint and several liability
and obligation of each individual together with their individual administrators,
assigns, executors, heirs, personal representatives and successors.
This Guaranty shall be construed under the laws of the State of Texas and venue
for any action shall be in Jefferson County, Texas.
In witness whereof, the undersigned have executed this Guaranty to be effective
simultaneously with the Lease.
PETROCON, INC. - a Texas corporation
/s/ David W. Smith
- -----------------------------------------
By: David W. Smith
Its: President
STATE OF TEXAS ss.
COUNTY OF JEFFERSON ss.
Before me, the undersigned authority, on this day personally appeared David
W. Smith, President of Petrocon, Inc., a Texas corporation, known to me to be
the persons whose names are subscribed to the foregoing instrument, and
acknowledged to me that they executed the same for the purposes and
consideration therein expressed, in the capacity therein stated and as the act
and deed of said corporation.
Given under my hand and seal of office on this the 25 th day of July, A.D.
2002.
/s/ Cheryl A. Glach
----------------------------------
Notary Public
[Notary Seal Appears Here]
17