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EXHIBIT 10.13
LEASE AGREEMENT
THE STATE OF TEXAS (
)
COUNTY OF DALLAS )
THIS LEASE AGREEMENT, made and entered into by and between the
Landlord and Tenant hereinafter named.
WITNESSETH:
1. DEFINITIONS AND BASIC PROVISIONS. The following definitions
and basic provisions shall be used in conjunction with and limited by the
reference thereto in the provisions of this Lease:
(a) "Landlord":Sterling Plaza Ltd., by Sterling Projects,
Inc., General Partner
(b) "Tenant":Xxxxxxx Oil & Gas, L.P. (A Delaware Limited
Partnership)
(c) "Premises": Consisting of approximately 6,038
square feet located in the Sterling Plaza Building (the "Building") as shown
on Exhibit "B" attached hereto.
The Building Address is:
0000 Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
(d) "Lease Term": A period of sixty ( 60 ) months,
commencing on June 1, 1992, (the "Commencement Date").
(e) "Basic Rental": $ 365,670.00
(f) "Monthly Rental Installment":$ 7,170.00* *except
that months
8, 11, 14,
20, 26, 32,
38, 44 and
56 the
Monthly
Installment
shall be
$0.00
(g) "Security Deposit": $ -0-
(h) "Permitted Use": General Office
(i) "Lease Year": A period of twelve months beginning on
the day and month on which the Commencement Date occurred and ending twelve
months thereafter.
(j) "Building Holidays": New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
2. LEASE GRANT. Landlord, in consideration of the Basic Rental
and the additional rental to be paid and the other covenants and agreements to
be performed by Tenant and upon the terms and conditions hereinafter stated,
does hereby lease, demise and let unto Tenant the Premises (as defined in
Paragraph 1(c) hereof) commencing on the Commencement Date (as defined in
Paragraph 1(d) hereof, or as adjusted as hereinafter provided and ending on the
last day of the Lease Term, unless sooner terminated as herein provided.
Should Tenant occupy the Premises prior to the Commencement Date specified in
Paragraph 1(d), the Commencement Date shall be altered to coincide with the
date of said occupancy, with the ending date of the Lease remaining unchanged;
provided, however, Basic Rental shall remain unchanged. By occupying the
Premises, Tenant shall be deemed to have accepted the same as suitable for the
purpose herein intended and to have acknowledged that the same comply fully
with Landlord's covenants and obligations hereunder. Notwithstanding anything
in this Lease to the contrary. Tenant's acceptance of the Premises will not
constitute a waiver of any latent defects in the Premises.
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The exact amount of rentable square feet in the Premises shall
be determined by the parties within 60 days of the Commencement Date. The
calculation of rentable space shall be done in accordance with the American
National Standard of the Building Owners and Managers Association International
as set forth in the Standard Method for Measuring Floor Area in Office
Buildings. ANSI 265.1-1980 (the "BOMA Standard)". The Building of which the
Premises are a part currently contains approximately 302,747 rentable square
feet calculated in accordance with the BOMA Standard whereby Tenant's
proportionate share is 1.9944% of the building. This percentage shall be
utilized in calculation of Tenant's pro rata share of excess operating expenses
described in paragraph 4 of this Lease. In the event the recalculation of
rentable square feet in the Premises discloses that the Premises does not
contain exactly 6.038 rentable square feet, the parties shall execute a written
amendment to this lease to change the number of rentable square feet in the
Premises, Tenant's revised proportionate share, and the calculation and amount
of rent payable hereunder (including a reconciliation as to rent already paid).
In the event of any change in the Building, any resulting adjustment in the
amount of rentable square feet in the Building shall not affect the
calculations of rent prior to the change.
3. RENT. In consideration of this Lease, Tenant promises and
agrees to pay Landlord the Basic Rental (as defined in paragraph 1(e) hereof)
without deduction or setoff. It is agreed that, notwithstanding anything to
the contrary, the Premises herein are leased for the Basic Rental for the Lease
Term, payable monthly beginning at the time of the making of this Lease. Basic
Rental has been adjusted to reflect that the initial leasehold improvement
costs are being borne by Tenant.
One such Monthly Rental Installment together with the Security Deposit
(as defined in Paragraph 1(g) hereof) shall be payable by Tenant to Landlord
contemporaneously with the execution hereof and a like Monthly Rental
Installment shall be due and payable without demand on or before the first day
of each calendar month during the term hereof beginning July 1, 1992. A
Monthly Rental Installment for any fractional month at the beginning or the end
of the Lease Term shall be prorated by multiplying said Monthly Rental
Installment times a fraction, the numerator of which is the number of days in
said fraction month which fall within the Lease Term and the denominator of
which is the total number of days in such calendar month.
If the Monthly Rental Installment is not received by the Landlord
within ten (10) days of the date said Monthly Rental Installment is due, a
service charge of 1% of the Monthly Rental Installment owed shall become due
and payable in addition to the Monthly Rental Installment owed. Said service
charge is for the purpose of reimbursing Landlord for the extra costs and
expenses incurred in connection with the handling and processing of late
Monthly Rental Installment payments. All sums of money which are or which
become owed to Landlord pursuant to any of the terms, covenants and conditions
of this Lease, whether or not so specified, shall be deemed "rent" or
"additional rent" and, if not timely paid, shall be subject to the 1% service
charge specified herein. Additionally, any Monthly Rental Installment not paid
within twenty (20) days of the due date thereof shall, in addition to the 1%
service charge specified herein, bear interest at the maximum lawful rate from
the due date until paid.
4. EXPENSE ESCALATION. In the event the operating expenses (as
defined below) of Landlord for the building of which the Premises are a part
shall, in any calendar year during the term of this Lease, exceed the sum of
the actual operating expenses for 1992 per square foot grossed up to reflect a
95% occupancy, Tenant agrees to pay as additional rental Tenant's pro rata
share of such excess operating expenses. Landlord shall, within nine months
following the close of any calendar year for which additional rental is due
under this paragraph, invoice Tenant for the additional rental. The invoice
shall include in reasonable detail all computations of the additional rental,
and Tenant agrees to pay the additional rental within thirty days following
receipt of the invoice. If this Lease shall terminate on a day other than the
last day of a year, the amount of any additional rental payable by Tenant
applicable to the year in which such termination shall occur shall be prorated
on the ratio that the number of days from the commencement of such year to and
including such termination date bears to 365. If at any time during the term
of this Lease, Landlord has reason to believe the per square foot operating
expenses for the calendar year will exceed the sum set forth above, Landlord
may invoice Tenant to prepay monthly one-twelfth of an amount equal to the
additional rental paid in the previous year. If the invoice delivered within
nine months following the close of a calendar year in accordance with this
paragraph shows an amount owing by Tenant that is less than the sum of the
monthly payments made by Tenant in the previous calendar year, the invoice
shall be
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accompanied by a refund of the excess by Landlord to Tenant. If such invoice
shows an amount owing by Tenant which is more than the sum of the monthly
payments made by Tenant in the previous calendar year, Tenant shall pay such
deficiency to Landlord within thirty days after receipt of the invoice. During
the year in which this Lease terminates, Landlord shall have the option to
invoice Tenant for Tenant's pro rata share of the excess operating expenses
based upon the previous year's excess operating expenses. Landlord shall
invoice Tenant under this option within thirty days prior to the termination of
this Lease. Tenant shall have the right, at its own expense and at a
reasonable time, to audit Landlord's books relevant to the additional rentals
due under this paragraph.
The term "Operating Expenses" as used above includes all reasonable
expenses incurred with respect to the maintenance and operation of the building
of which the leased premises are a part, including, but not limited to,
maintenance and repair costs, electricity, fuel, water, sewer, gas and other
utility charges, security, window washing, janitorial services, trash and snow
removal, landscaping and pest control, management fees (not to exceed 4.5%),
wages and fringe benefits payable to employees of Landlord whose duties are
connected with the operation and maintenance of the Building and/or Premises,
amounts paid to contractors or subcontractors for work or services performed in
connection with the operation and maintenance of the Building and/or Premises,
all services, supplies, repairs, replacements or other expenses for maintaining
and operating the Building and/or Premises, including common area, parking
area, recreation area and plaza area maintenance. The term "Operating
Expenses" also includes all real property taxes and installments of special
assessments, including special assessments due to deed restrictions and/or
owners' associations, which accrue against the Building of which the Premises
are a part during the term of this Lease as well as all insurance premiums
Landlord is required to pay or deems necessary to pay, including public
liability insurance, with respect to the Building and/or Premises. The term
"Operating Expenses" does not include any capital improvement to the Building,
nor shall it include repairs, restoration or other work occasioned by fire,
windstorm or other casualty, income and franchise taxes of Landlord, expenses
incurred in leasing to or procuring of Tenants, leasing commissions,
advertising expenses, expenses for the renovating of space for new Tenants,
interest or principal payments on any mortgage or other indebtedness of
Landlord or any depreciation allowance. Operating Expenses shall be deemed,
for purposes of this Lease, not to include any of the following: (i) costs of
a type for which Tenant is required to pay itself directly or to provide
reimbursement under other provisions of this Lease (i.e., there shall be no
double counting), (ii) costs paid by insurance or by other parties (other than
payment by other tenants pursuant to provisions in their leases comparable to
those contained herein), (iii) debt service or ground lease payments, (iv)
costs incurred to lease or otherwise transfer any interest in the Building or
the adjacent land or any portion thereof, (v) expenditures for improvements to
the Building which should be capitalized according to generally accepted
accounting principles, (vi) costs incurred for the benefit of or because of a
dispute with a particular tenant or prospective tenant (in contrast to costs
incurred for the benefit of the tenant in the Building generally), (vii) costs
resulting from any breach or claimed breach by Landlord of its contractual
obligations to other parties, (viii) costs of correcting violations of
applicable laws resulting from actions of Landlord or anyone claiming by,
through or under Landlord (other than Tenant), or correcting construction
defects or deficiencies affecting the Building, (ix) depreciation and other
noncash expenses, (x) overhead or administrative costs of Landlord or any other
factor added to cover overhead and administrative costs or to provide Landlord
or any of its partners or affiliates an additional profit, or (xi) costs of
bringing the Building into compliance with the Americans with Disabilities Act.
5. SERVICES.
(a) During the Building Operating Hours (8:00 a.m. - 6:00
p.m. on Mondays through Fridays and 8:30 a.m. - 1:00 p.m. on Saturdays
[excepting Building Holidays]) Landlord shall furnish to Tenant
heating and air conditioning at such temperatures and in such amounts
as are reasonably considered to be standard unless otherwise required
by governmental regulation. Any usage by Tenant of heating or air
conditioning other than during Building Operating Hours, if permitted
by Landlord, shall be paid for by Tenant, as additional rental, upon
receipt by Tenant of a statement therefor from Landlord, at rates set
by Landlord from time to time. The after hours heating and air
conditioning charge in 1992 is $50.00 per hour. Landlord shall only
have the right to increase such charge based upon any increased
utility costs of Landlord.
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(b) Landlord shall further furnish to Tenant the
following:
(i) Hot and cold water, for normal office use
only, at those points of supply provided for
the general use of Tenants; and
(ii) Janitorial service on Mondays through Fridays
(building Holidays excepted), provided,
however, if Tenant's floor covering or other
improvements require special treatment,
Tenant shall pay the additional cleaning cost
attributable thereto, as additional rental,
upon presentation of a statement therefor;
(iii) Elevator service seven days a week.
(c) Landlord shall furnish electrical power to the
Premises through the existing feeders and electrical distribution
facilities servicing the Building. Landlord shall not bear the
utility costs (including meter installation and air conditioning
costs) occasioned by electrodata processing machines, computers and
similar machines of high electrical consumption. In the event that
Tenant's electrical requirements exceed the capacities available in
the Building, then all costs associated with increasing such
capacities in order to satisfy Tenant's electrical requirements shall
be borne by Tenant. Landlord shall provide replacement of fluorescent
light bulbs, tubes and ballasts in the Premises and fluorescent and
incandescent bulbs in the common areas. Tenant shall advise Landlord
of the equipment to be installed by Tenant in the Premises prior to
the commencement of this Lease and Landlord acknowledges and agrees
that such equipment shall not be considered equipment of high
electrical consumption so as to require Tenant to pay the utility
costs there for, so long as such equipment does not require electrical
capacity greater than that amount used by desktop personal computers
or other office equipment and/or appliances considered to be standard
use by other tenants in the building.
(d) Landlord shall provide security, in such form as
Landlord deems appropriate, in the form of limited access to the
Building during other than Building Operating Hours. Landlord shall
have no liability to Tenant, its employees, agents, invitees or
licensees for losses due to theft or burglary, or for damage done by
unauthorized persons on the Premises and shall not be required to
insure against any such losses. Tenant shall cooperate fully with
Landlord in Landlord's efforts to maintain security in the Building
and shall follow all regulations promulgated by Landlord with respect
thereto.
(e) Landlord does not warrant that any of said specified
services will be free from interruption or stoppage, but nevertheless
Landlord shall use reasonable diligence to resume any such interrupted
or stopped service. Anything to the contrary notwithstanding, neither
failure, to any extent, to furnish such services nor any stoppage or
interruption of these fined services shall render Landlord liable in
any respect for damages to either person, property or business, nor
shall any such failure, interruption or stoppage of such services be
deemed or construed as an eviction, actual or constructive, of Tenant,
nor work an abatement of rent nor relieve Tenant from the obligation
to fulfill any covenant or agreement contained in this Lease. Should
any of the equipment or machinery used in the provision of any of said
specified services for any cause cease to function properly, Tenant
shall have no claim for offset or abatement of rent or damages on
account of an interruption in service resulting therefrom and Landlord
shall not be liable therefor, except to the extent of gross negligence
or willful misconduct. Notwithstanding anything in this Lease to the
contrary, the failure by Landlord to furnish water, electricity,
heating, air conditioning or elevator service or the interruption or
the termination of any of such services shall, if the same continues
for more than three (3) consecutive days and materially affects
Tenants ability to conduct normal business operations in the premises,
give rise to any equitable abatement of rent during the continuance of
such failure, interruption or termination; and if such failure,
interruption or termination continues for more than thirty (30) days,
Tenant shall have the right to terminate this Lease.
6. LEASEHOLD IMPROVEMENTS. If construction to the Premises is to
be performed by Landlord prior to Tenant's occupancy, Landlord shall construct
and install in the
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Premises such Leasehold Improvements (herein so called) as are desired by
Tenant, subject to Landlord's prior written approval. Such Leasehold
Improvements shall be constructed and installed pursuant to plans and
specifications which are prepared by Landlord's representative in accordance
with Tenant's design criteria. Tenant agrees to cooperate fully with Landlord
or Landlord's representative in the design, construction and installation of
the Leasehold Improvements, so that Landlord shall have a reasonable period of
time to design, construct and install the Leasehold Improvements prior to the
Commencement Date. Such plans and specifications, together with the agreed
upon cost of constructing and installing the Leasehold Improvements depicted
therein shall be timely approved by Landlord and Tenant in writing, and when so
approved shall be deemed incorporated into this Lease by this reference
thereto. All costs and expenses of constructing and installing the Leasehold
Improvements to meet Tenant's specifications shall be paid by Tenant to
Landlord upon the substantial completion of such construction and upon receipt
of a statement from Landlord. The Commencement Date of this Lease shall not be
adjusted or delayed by virtue of the failure of Tenant to agree upon the final
plans and specifications for the construction of such Leasehold Improvements
nor by virtue of any delay caused by Tenant during the course of construction
or other failure, for whatever reason, of the Leasehold Improvements to be
fully completed prior to the Commencement Date. Tenant acknowledges that
Landlord has made no representations or promises as to the final cost of any
Leasehold Improvements to the Premises, and that no such costs can or will be
agreed upon between Landlord and Tenant until the final plans and
specifications have been approved by each. Tenant further acknowledges that
Landlord has made no representations or promises with respect to the time
needed to install and construct the Leasehold Improvements, and that any such
time periods suggested by Landlord or its representatives are only estimates
and shall not be binding on Landlord. The failure by Tenant to timely approve
final plans and specifications for Leasehold Improvements, the length of time
taken to construct and install the Leasehold Improvements, or the cost of
constructing and installing any such Leasehold Improvements, shall not
constitute grounds upon which Tenant may claim that this Lease is void,
voidable or otherwise not in full force and effect, any such claim being hereby
expressly waived by Tenant, and Tenant further agrees that such failure to
timely approve the plans and specifications, length of time or cost of
constructing and installation of the Leasehold Improvements shall not modify or
defer the Commencement Date or the payment of Rent hereunder. Upon the
expiration of the Lease Term, all Leasehold Improvements shall become the
property of the Landlord.
7. SIGNS.
If the Premises are within a multi-story building, Landlord
will furnish and install a suitable building directory and establish
suite numbers to facilitate locating and identifying the Premises. In
order to effect uniformity, to control the graphics, and to maintain
dignified aesthetics, Landlord will also furnish and install at the
entrance door to the Premises a uniform suite number plate and a name
plate. Signs, name plates or graphics which are wholly within the
Premises and not visible from the exterior of the building or from
public spaces within the building will be permitted.
Tenant agrees that no other sign (mobile or stationary) of any
description (other than signage in Tenant's reception area)shall be
erected, placed or painted in or about the Premises.
8. USE. Tenant shall use the Premises only for the Permitted Use
(as defined in Paragraph 1 (h) hereof). Tenant will not occupy or use the
Premises, or permit any portion of the Premises to be occupied or used for any
business or purpose other than the Permitted Use or for any use or purpose
which is unlawful in part or in whole or which violates any rule, regulation or
ordinance of any applicable governmental authority or deemed to be disreputable
in any manner or extrahazardous on account of fire, nor permit anything to be
done which will in any way increase the rate of fire insurance on the Building
or its contents. In the event that, by reason of acts of Tenant, there shall
be any increase in the rate of insurance on the Building or its contents or
which create additional cost or expense to Landlord because of Tenant's acts or
conduct of business, Tenant hereby agrees to pay to Landlord the amount of such
increase on demand and acceptance of such payment shall not constitute a waiver
of any of Landlord's other rights provided herein. Tenant will conduct its
business and control its agents, employees and invitees, in such a manner as
not to create any nuisance, nor interfere with, annoy or disturb other Tenants
or Landlord in its management of the Building. Tenant will maintain the
Premises
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in a clean, healthful and safe condition and will comply with all laws,
ordinance, orders, rules and regulations (state, federal, municipal and other
agencies or bodies having any jurisdiction thereof) with reference to the use,
condition or occupancy of the Premises. Tenant shall not install any vending
machines or cooking apparatus (with the exception of coffee makers and
microwave ovens) in the Premises nor shall it sell, purchase or give away (or
permit anyone else to sell, purchase, or give away) within the Premises any
food, cigars, cigarettes, tobacco, sundries, refreshments, office supplies,
commercial photocopying services or similar items. Tenant will not, without
the prior written consent of Landlord, paint, install lighting, window
coverings or decorations, or install any signs, window or door lettering or
advertising media of any type on or about the Premises or any part thereof.
Tenant shall not, without Landlord's prior written consent, place any safes, or
other inordinately heavy objects in the Premises or the Building or in any
manner exceed the floor loading design for the Building as determined by
Landlord in its sole discretion. Should Landlord agree in writing to any
agents of the foregoing items in the preceding sentences, Tenant will maintain
such permitted items in good condition and repair at all times.
Notwithstanding anything in this Lease to the contrary, in no event shall
Tenant be responsible for compliance with laws, ordinances, rules and
regulations that require structural or other changes to the Premises or the
Building unless due to the particular use or manner of occupancy by Tenant.
Further, Tenant shall be obligated to remove only those hazardous substances or
wastes or solid wastes that are deposited on or in the Premises by Tenant or
its agents, employees, or licensees and all other hazardous substances or
wastes or solid wastes shall be removed by Landlord at its expense.
During the Lease Term, Tenant and its employees, guests, agents,
visitors and invitees shall have the nonexclusive use in common with Landlord,
other Tenants of the Building, their employees, guests, agents, visitors and
invitees, of the non-reserved common automobile parking areas, driveways, and
footways, subject to rules and regulations for the use thereof as prescribed
from time to time by Landlord. Landlord shall have the right to reserve
parking spaces as it elects and condition use thereof on such terms as it
elects.
9. REPAIRS AND MAINTENANCE.
(a) By Landlord: Landlord shall at its expense maintain
the roof, foundation, and the structural soundness of the exterior
walls except for reasonable wear and tear. Tenant shall give
immediate written notice to Landlord of the need for repairs or
corrections and, if Landlord shall deem it appropriate, Landlord shall
proceed promptly to make such repairs or corrections. Landlord's
liability hereunder shall be limited to the cost of such repairs or
corrections. Landlord shall maintain in good order, condition and
repair in accordance with applicable laws the Building systems and
exterior landscaping, parking areas, ground floor lobbies and other
common areas.
(b) By Tenant: Tenant shall, at its expense and risk,
maintain the Premises in good repair and condition, including but not
limited to repairs (including all necessary replacements) to plate
glass doors and the interior of the Premises in general. Tenant will
not in any manner deface or injure the Building, the Premises or
related facilities and will pay the cost of repairing any damage or
injury done by Tenant or Tenant's agents, employees or invitees.
Tenant shall throughout the Lease Term take good care of the Building,
the Premises and related facilities and keep them free from waste and
nuisance of any kind. If Tenant shall fail to make any repairs
required hereunder (including all necessary replacements) within
fifteen (15) days after written notification to do so, Landlord may,
at its option, make such repair, and the cost thereof shall be
additional rental immediately due hereunder by Tenant to Landlord.
10. ALTERATIONS AND IMPROVEMENTS. At the end or other termination
of this Lease, Tenant shall deliver possession of the Premises to Landlord with
all improvements located therein, (except as otherwise herein provided) in good
repair and condition, reasonable wear and tear excepted, and shall deliver to
Landlord all keys to the Premises. The cost and expense of any repairs
necessary to restore the condition of the Premises to said condition in which
they are to be delivered to Landlord shall be borne by Tenant. Tenant will not
make or allow to be made any alterations or physical additions in or to the
Premises without the prior written consent of Landlord, which consent shall not
be unreasonably withheld as to nonstructural alterations. In making any such
alterations, additions or improvements, Tenant shall utilize only such
contractors and subcontractors which have been approved, in writing, by
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Landlord. All alterations, additions or improvements (whether temporary or
permanent in character) made in or upon the Premises, either by Landlord or
Tenant, shall, at Landlord's option be Landlord's property on termination of
this Lease and shall remain on the Premises without compensation to Tenant or,
if required by Landlord, shall be removed by Tenant, at Tenant's sole cost and
expense, upon termination of the Lease. All furniture, movable trade fixtures
and equipment installed by Tenant may be removed by Tenant, at Tenant's sole
cost and expense, at the termination of this Lease provided Tenant is not then
in default, and shall be so removed if required by Landlord, or if not so
removed shall, at the option of Landlord, become the property of Landlord or
shall be removed by Landlord at Tenant's sole cost and expense. All such
installations, removals and restoration shall be accomplished in a good and
workmanlike manner so as not to damage the Premises or the primary structure or
structural qualities of the Building or the plumbing, electrical lines or other
utilities of the Building.
11. ASSIGNMENT AND SUBLETTING. In the event Tenant desires to
assign or sublet the Premises or any part thereof, Tenant shall give Landlord
written notice of such desire at least ten (10) days prior to the date on which
Tenant desires to make such assignment or sublease. Landlord shall within five
(5) days following receipt of such notice notify Tenant in writing that
Landlord elects either (i) to permit or (ii) not to permit Tenant to assign or
sublet such space, subject, however, to subsequent written approval of the
proposed assignee or sublessee by Landlord and written approval of all
documents which will evidence or relate to such subleasing or assignment such
permission not to be unreasonably withheld or delayed. Notwithstanding
anything in this Lease to the contrary, Tenant may, without the prior written
consent of Landlord, but only after giving Landlord at least ten (10) days
prior written notice, sublet the Premises or any part thereof to an Affiliate
(hereinafter defined) or permit occupancy of any portion of the Premises by an
Affiliate. The term "Affiliate" shall mean (i) any corporation which, directly
or indirectly, controls or is controlled by Tenant or is under common control
with a general partner of Tenant, (ii) any corporation not less than fifty
percent (50%) of whose outstanding stock shall, at the time be owned directly
or indirectly by a general partner of Tenant or (iii) any partnership or joint
venture in which Tenant or a general partner of Tenant is a general partner or
joint venturer (with joint and several liability for all of the partnership's
or venture's obligations). If Landlord should fail to notify Tenant in
writing, of such election within said five (5) day period, Landlord shall be
deemed to have elected (i) above, but subsequent written approval by Landlord
of the proposed assignee or sublessee shall be required, unless not received
within the ten (10) day period. Consent by Landlord to one or more assignments
or sublettings shall not operate as a waiver of Landlord's rights as to any
subsequent assignments and sublettings. Notwithstanding any assignment or
subletting, Tenant, and any guarantor of Tenant's obligations under this Lease,
shall at all times remain fully responsible and liable for the payment of the
rent herein specified and for compliance with all of Tenant's other obligations
under this Lease unless otherwise agreed in writing. In the event of the
transfer and assignment by Landlord of its interest in this Lease and the
Building, Landlord shall thereby be released from any further obligations
hereunder if, and only if, Landlord's successor assumes all existing
obligations under the Lease, and Tenant agrees to look solely to such successor
in interest of the Landlord for performance of such obligations. Tenant shall
not mortgage, pledge or otherwise encumber its interest in this Lease or in the
Premises.
12. INDEMNIFY. Landlord shall not be liable for and Tenant will
indemnify and hold Landlord harmless of and from all fines, suits, claims,
demands, losses and actions (including attorneys' fees) for any injury to
person or damage to or loss of property on or about this Premises caused by the
negligence or misconduct or breach of this Lease by Tenant, its agents,
employees, subtenants, invitees or by any other person entering the Building,
the Premises, or related facilities under the express or implied invitation of
Tenant, or arising out of Tenant's use of the Building, the Premises, or
related facilities. Landlord shall not be liable or responsible for any loss
or damage to any property or death or injury to any person occasioned by theft,
fire, Act of God, public enemy, injunction, riot, strike, insurrection, war,
court order, requisition of any governmental body or authority, by other
Tenants of the Building or related facilities or any other matter beyond the
control of Landlord, or for any injury or damage or inconvenience which may
arise through repair or alteration of any part of the Building, the Premises or
related facilities, or failure to make repairs or from any cause whatsoever
except Landlord's gross negligence. Notwithstanding anything in this Lease to
the contrary, Tenant shall not be liable for the acts or omissions of
"invitees" other than Persons within the Premises at the invitation of Tenant.
The exculpation of Landlord's liability and the indemnification of Landlord by
Tenant as set forth in Paragraph 12 of this Lease shall not be applicable in
cases
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where such damage or injury is caused by or attributable to the negligence or
willful misconduct of Landlord. Further, in no event shall Tenant indemnify
Landlord form any loss, expense or claims arising out of damage or injury
occurring in or about an area other than the Premises unless such damage or
injury is caused by Tenant or its employees, agents or subtenants.
Landlord shall indemnify and hold Tenant harmless from all fines,
suits, cost and liability of every kind arising because of: (i) any violation
or nonperformance by Landlord of any representation or covenant contained in
this Lease which continues beyond any applicable cure period; (ii) any bodily
injury, death and/or damage to property (excluding damage to Tenant's personal
property within the Building) occurring in or resulting from any occurrence in
the common areas of the Building during the term of this Lease; and (iii) any
bodily injury, death and/or property damage that is proximately caused by the
negligence or willful misconduct of Landlord or any of its agents, employees or
contractors. The indemnity set out in the preceding sentence will not apply to
matters caused in whole or in part by negligence on the part of Tenant or
anyone acting for Tenant.
13. MORTGAGES AND GROUND LEASES. This lease shall be subject and
subordinate at all times to ground or underlying leases which now exist or may
hereafter be executed, modified or extended, affecting the Building or the land
upon which the Building is situated or both, and to the lien of any mortgages
or deeds of trust in any amount or amounts whatsoever now or hereafter placed
on or against the land and Building or either thereof, or on or against
Landlord's interest or estate therein, or on or against any ground or
underlying leases without the necessity of the execution and delivery of any
further instruments on the part of Tenant to effectuate such subordination.
Notwithstanding the foregoing, Tenant covenants and agrees to execute and
deliver, upon demand, such further instruments evidencing such subordination of
the Lease to such ground or underlying leases and to the lien of any such
mortgages or deeds of trust as may be required by Landlord. Landlord is hereby
irrevocably appointed and authorized as agent and attorney-in-fact of Tenant,
which appointment shall be deemed a power coupled with an interest, to execute
and deliver all such subordination instruments in the event Tenant fails to
execute and deliver same within five (5) days after notice from Landlord
requesting the execution thereof. Tenant shall, upon request by Landlord from
time to time made, execute and deliver instruments stating and certifying that
this Lease is in full force and effect and unmodified (or if modified stating
the nature of such modification), the date through which the rental has been
paid, the termination date of this Lease, that no defaults exist under this
Lease and the Tenant has no claims or offsets against Landlord.
13.a. NONDISTURBANCE AGREEMENT. Notwithstanding anything in this
Lease to the contrary, this Lease shall not be subject or subordinate to any
mortgage or deed of trust lien which hereafter encumbers the Premises unless
Landlord obtains a nondisturbance agreement from the holder of such mortgage or
deed of trust, wherein such holder agrees not to disturb Tenant's Possession of
the Premises (subject to the terms, conditions and provisions of this Lease) so
long as Tenant is not in default or breach of this Lease. Further, within
thirty (30) days after the complete execution of this Lease Landlord shall use
best efforts to obtain a similar nondisturbance agreement from the holder of am
current mortgage or deed of trust which encumbers the Premises by requesting
such agreement from the current mortgage holder.
14. INSURANCE. During the Lease Term, Landlord shall maintain a
policy or policies of insurance issued by and binding upon some solvent
insurance company, to insure the Building against loss or damage by fire,
explosion, or other hazards and contingencies in such amounts as Landlord may
determine in the exercise of its discretion provided that Landlord shall not be
obligated to insure any furniture, equipment, machinery, goods or supplies not
covered by this Lease which Tenant may bring or place upon the premises, or any
additional improvements which Tenant may construct thereon. Such insurance
shall be maintained at the expense of Landlord (as part of the operating
expenses defined in this Lease) and payments for losses thereunder shall be
made solely to Landlord or to others having an interest in the Building, as
their interest shall appear. If the annual premiums to be paid by Landlord
shall exceed the standard rates because of Tenant's operations, contents of the
Premises, or improvements with respect to the Premises beyond building
standard, or results in extrahazardous exposure, Tenant shall promptly pay the
excess amount of the premium upon request by Landlord. Tenant shall maintain
at all times and at its own expense, in an amount equal to full replacement
cost, fire and extended coverage insurance on all of its personal property,
including removable trade fixtures located in the Premises, together with
liability
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insurance in an amount of not less than $1,000,000 for any one occurrence in
form acceptable to Landlord and with insurers licensed to issue such insurance
coverage in the State of Texas which policy of liability insurance shall extend
to include Landlord as an additional named insured. Tenant shall, upon
request, provide Landlord with a certificate of insurance as written evidence
of the insurance in force and Tenant shall obtain the agreement of Tenant's
insurance in force and Tenant shall obtain the agreement of Tenant's insurers
to notify Landlord that a policy is due to expire at least ten (10) days prior
to such expiration.
15. INSPECTION. Landlord or its representatives shall have the
right to enter into and upon any and all parts of the Premises at reasonable
hours to (i) inspect same or clean or make repairs or alternations or additions
as Landlord may deem necessary (but without any obligation to do so, except as
expressly provided for herein), or (ii) show the Premises to prospective
Tenants anytime after 120 days prior to expiration, purchasers or lenders, and
Tenant shall not be entitled to any abatement or reduction of rent by reason
thereof, nor shall such be deemed to be an actual or constructive eviction.
Landlord shall provide Tenant with reasonable notice of any entry by Landlord
(except in the case of an emergency); and Landlord shall not unreasonably
interfere with Tenant or the operation of Tenant's business (except in the
event of an emergency) by reason of any such entry.
16. CONDEMNATION. If, during the term of this Lease, or any
extension or renewal thereof, all of the Premises or the Building should be
taken for any public or quasi-public use under any governmental law, ordinance,
regulation or by right of eminent domain or by private purchase in lieu
thereof, this Lease shall terminate and the rent shall be abated during the
unexpired portion of this Lease, effective on the date physical possession is
taken by the condemning authority, and Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease.
In the event a portion but not all of the Premises or the Building
(whether or not the Premises are affected) shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right or eminent domain or by private sale in lieu thereof, then Landlord shall
have the option, in its reasonable discretion, of terminating this Lease, or,
at Landlord's sole risk and expense, if the Premises are affected, of restoring
and reconstructing the Premises to the extent necessary to make same reasonably
tenantable. Should Landlord elect to restore, the Lease shall continue in full
force and effect with the rent payable during the unexpired portion of this
Lease adjusted to such an extent as may be fair and reasonable under the
circumstances, and Tenant shall have no claim against Landlord for the value of
any interrupted portion of this Lease.
In the event of any condemnation or taking, total or partial, Tenant
shall not be entitled to any part of the award or price paid therefor, and
Landlord shall receive the full amount of such award or price, Tenant hereby
expressly waiving any right or claim to any part thereof.
17. FIRE OR OTHER CASUALTY. In the event that the Premises should
be totally destroyed by fire, tornado or other casualty or in the event the
Premises or the Building should be so damaged that rebuilding or repairs cannot
be completed within ninety (90) days after the date of such damage, either
Landlord or Tenant may at its option terminate this Lease, in which event the
rent shall be abated during the unexpired portion of this Lease effective with
the date of such damage. In the event the Premises should be damaged by fire,
tornado or other casualty, but only to such extent that rebuilding or repairs
can be completed within ninety (90) days after the date of such damage, or if
the damage should be more serious but neither Landlord nor Tenant elects to
terminate this Lease, in either such event Landlord shall within, thirty (30)
days after the date of such damage, commence to rebuild or repair the Premises
and shall proceed with reasonable diligence to restore the Premises to
substantially the same condition in which they were immediately prior to the
happening of the casualty, except that Landlord shall not be required to
rebuild, repair or replace any part of the furniture, equipment, fixtures and
other improvements which may have been placed by Tenant or other Tenants within
the Building or the Premises, or related facilities. In the event that the
Premises are totally untenantable, Landlord shall xxxxx the rent during the
time the Premises are unfit for occupancy. If the Premises are not totally
untenantable, Landlord shall allow Tenant a fair diminution of rent during the
time the Premises are partially unfit for occupancy. Any insurance which may
be carried by Landlord or Tenant against loss or damage to the Building or to
the Premises shall be for the sole benefit of the party carrying such insurance
and under its sole control.
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18. HOLDING OVER. Should Tenant or any of its successors in
interest hold over the premises, or any part thereof, after the expiration of
the term of this Lease, unless otherwise agreed in writing, such holding over
shall constitute and be construed as a tenancy at will only at a daily rental
equal to (i) one-thirtieth of the sum of, the Monthly Rental Installment,
together with the most current rental adjustment which may have been made
thereto pursuant to Paragraph 4 hereof, plus (ii) twenty-five percent (25%) of
such amount. The inclusion of the preceding sentence shall not be construed as
Landlord's consent for the Tenant to hold over.
19. TAXES ON TENANT'S PROPERTY. Tenant shall be liable for all
taxes levied or assessed against personal property, furniture or fixtures
placed by Tenant in the Premises. If any such taxes for which Tenant is liable
are levied or assessed against Landlord or Landlord's property and if Landlord
elects to pay the same or if the assessed value of Landlord's property is
increased by inclusion of personal property, furniture or fixtures placed by
Tenant in the Premises, and Landlord elects to pay the taxes based on such
increase, Tenant shall pay to Landlord upon demand that part of such taxes for
which Tenant is primarily liable hereunder.
20. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this Lease:
(a) Tenant shall fail to pay any Monthly Rental
Installment, any portion of the Basic Rental hereby reserved or any
other rental or additional rental when due and such failure shall
continue for a period of ten (10) days after written notice thereof to
Tenant;
(b) Tenant shall fail to comply with any term, provision,
or covenant of this Lease, other than the payment of rent, and shall
not cure such failure within thirty (30) days after written notice
thereof to Tenant or if such failure is not reasonably susceptible of
being cured within thirty (30) days, Tenant shall fail to commence the
curing thereof within thirty (30) days after Landlord gives written
notice to Tenant thereof, or having commenced the curing thereof,
Tenant shall fail to diligently pursue the curing of such default to
completion;
(c) Tenant shall make a general assignment for the
benefit of creditors;
(d) Tenant shall file a petition under any section or
chapter of the Federal Bankruptcy Code, as amended, or under any
similar law or statute of the United States or any State thereof, or
Tenant shall be adjudged bankrupt or insolvent in any proceeding filed
against Tenant thereunder and such adjudication shall not be vacated
or set aside within thirty (30) days;
(e) A receiver, trustee or liquidator shall be appointed
for all or substantially all of the assets of Tenant and such
receivership shall not be terminated or stayed within thirty (30)
days; or
21. REMEDIES. Upon the occurrence of any event of default
specified in Paragraph 20 hereof, Landlord shall have the option to pursue any
one or more of the following remedies without "ny notice or demand whatsoever:
(a) Terminate this Lease in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails to
do so, Landlord may, without prejudice to any other remedy which it
may have for possession or arrearages in rent, enter upon and take
possession and expel or remove Tenant and any other person who may be
occupying said Premises or any part thereof, without being liable for
prosecution or any claim for damages relating thereto. Tenant agrees
to pay to Landlord on demand the amount of all loss and damage which
Landlord may suffer by reason of such termination, whether through
inability to relet the Premises on satisfactory terms or otherwise,
including the loss of the Basic Rental then remaining unpaid;
(b) Enter upon and take possession of the Premises and
expel or remove Tenant and any other person who may be occupying the
Premises or any part thereof without being liable for prosecution or
any claim for damages therefor, and if Landlord so elects, relet the
Premises on such terms as Landlord shall deem advisable and receive
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the rent therefor. Tenant agrees to pay to Landlord on demand any
deficiency in Basic Rental that may arise by reason of such reletting,
and
(c) Enter upon the Premises without being liable for
prosecution or any claim for damages therefor, and do whatever Tenant
is obligated to do under the terms of this lease, and Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur
in thus effecting compliance with Tenant's obligations under this
lease, and Tenant further agrees that Landlord shall not be liable for
any damages resulting to the Tenant from such action.
No reentry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention be given to Tenant. Notwithstanding any such
reletting or re-entry or taking possession, Landlord may at any time thereafter
elect to terminate this lease for previous uncured default. Pursuit of any of
the foregoing remedies shall not preclude pursuit of any other remedies
otherwise available to Landlord at law or in equity, nor shall pursuit of any
remedy herein provided constitute a forfeiture or waiver of any rent due to
Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained.
Landlord's acceptance of rent following an event of default hereunder shall not
be construed as Landlord's waiver of such event of default. No waiver by
Landlord of any violation of breach of any of the terms, provisions, and
covenants herein contained shall be deemed or construed as Landlord's waiver of
any other violation or breach of any of the terms, provisions, and covenants
herein contained. Forbearance by Landlord to enforce one or more or the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of any other violation or default. The loss
or damage that Landlord may suffer by reason of termination of this Lease or
the deficiency from any reletting as provided for above shall include the
expense of repossession and any repairs or remodeling undertaken by Landlord
following possession. Should Landlord at any time terminate this lease for any
default, in addition to any other remedy Landlord may have, Landlord may
recover from Tenant all damages Landlord may incur by reason of such default,
including the cost of recovering the Premises and the loss of the Basic Rental
then remaining unpaid.
In the event Landlord shall be in default under this Lease as a result
of its failure to perform one of its obligations hereunder, Tenant shall have
the right, but shall not be obligated, to Perform such obligation on behalf of
Landlord, and Landlord shall reimburse Tenant within thirty (30) days after
demand by Tenant for all expenses incurred by Tenant in performing such
obligation. In the event Landlord shall fail to reimburse Tenant for any such
expenses so incurred and Tenant shall obtain a final judgment in its favor
against Landlord, Tenant shall have the right to set off the amount of such
judgment against any installment of rent payable by Tenant to Landlord (or any
future landlord) under this Lease.
22. SURRENDER OF PREMISES. No act or thing done by the Landlord
or its agents during the Lease Term shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless the same be made in writing and subscribed by
the Landlord.
23. ATTORNEY'S FEES. In the event either party defaults in the
performance of any of the terms of this Lease and the other party employs an
attorney in connection therewith, the defaulting party shall pay the prevailing
party's reasonable attorneys' fees and costs (including court costs).
24. LANDLORD'S LIEN. In addition to the statutory Landlord's
lien, Landlord shall have, at all times, a valid security interest to secure
payment of all rentals and other sums of money becoming due hereunder from
Tenant, and to secure payment of any damages or loss which Landlord may suffer
by reason of the breach by Tenant of any covenant, agreement or condition
contained herein, upon all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Tenant presently or which may
hereafter be situated in the Premises and all proceeds therefrom and such
property shall not be removed therefrom without the consent of Landlord until
all arrearages in rent as well as any and all other sums of money then due to
Landlord hereunder shall first have been paid and discharged and all the
covenants, agreements and conditions hereof have been fully complied with and
performed by Tenant. Upon the occurrence of an event of default by Tenant,
Landlord may, in addition to any other
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remedies provided herein, enter upon the Premises and take possession of any
and all goods, wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant situated in the Premises, without liability for
trespass or conversion, and sell the same at public or private sale, with or
without having such property at the sale, after giving Tenant reasonable notice
of the time and place of any public sale or of the time after which any private
sale is to be made, at which sale the Landlord or its assigns may purchase
unless otherwise prohibited by law. Unless otherwise provided by law and
without intending to exclude any other manner of giving Tenant reasonable
notice, the requirement of reasonable notice shall be met if such notice is
given in the manner prescribed in this Lease at least five (5) days before the
time of sale. The proceeds from any such disposition, less any and all
expenses connected with the taking of possession, holding and selling of the
property (including reasonable attorneys' fees and other expenses), shall be
applied as a credit against the indebtedness secured by the security interest
granted herein. Any surplus shall be paid to Tenant or as otherwise required
by law and the Tenant shall pay any deficiencies forthwith. Upon request by
Landlord, Tenant agrees to execute and deliver to Landlord UCC-1 financing
statement in form sufficient to perfect the security interest of Landlord in
the aforementioned property and proceeds thereof under the provisions of the
Uniform Commercial Code in force in the State of Texas. The statutory lien for
rent is not hereby waived, the security interest herein granted being in
addition and supplementary thereto. Notwithstanding anything herein contained
to the contrary, Landlord shall neither sell nor withhold from Tenant, Tenant's
business records. Notwithstanding anything in this Lease to the contrary, the
lien granted to Landlord herein and the statutory landlord's lien granted to
Landlord pursuant to the Texas Property Code shall be subject and subordinate
to any and all purchase money security interests in and to any furniture,
fixtures and equipment of Tenant.
25. MECHANIC'S LIEN. Tenant will not permit any mechanic's
lien(s) to be placed upon the Premises or the Building or improvements thereon
during the term hereof caused by or resulting from any work performed,
materials furnished or obligation incurred by or at the request of Tenant, and
in the case of the filing of any such lien Tenant will promptly pay same. If
default in payment thereof shall continue for twenty (20) days after written
notice thereof from Landlord to the Tenant, then Landlord shall have the right
and privilege, at Landlord's option, of paying the same or any portion thereof
without inquiry as to the validity thereof, and any amounts so paid, including
expenses and interest, shall be so much additional rental hereunder due from
Tenant to Landlord and shall be due immediately on rendition of xxxx therefor.
26. WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, the parties hereto hereby waive any and all rights of
recovery, claim, action or cause of action, against each other, their agents,
officers, and employees, for any loss or damage that may occur to the Premises
hereby demised, or any improvements thereto, or to the Building, any
improvements thereto, or related facilities, by reason of fire, the elements,
or any other cause which could be insured against under the terms of a Texas
standard form fire and extended coverage insurance policy, or which actually is
insured against under the terms of a valid and collectible insurance policy,
regardless of cause or origin, including negligence of the parties hereto,
their agents, officers, and employees.
28. FORCE MAJEURE. Whenever a period of time is herein prescribed
for action to be taken by Landlord, the Landlord shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, Acts of God, shortages of
labor or materials, war, governmental laws, regulations restrictions or any
other causes of any kind whatsoever which are beyond the control of Landlord.
In the event performance by Tenant of any term, condition or covenant in this
Lease is delayed or prevented by any act of God, strike, lockout, shortage of
material or labor, restriction by any governmental authority, civil riot, flood
or any other cause not within the reasonable control of Tenant, the period for
performance as such to term, condition or covenant shall be extended for a
period equal to the period Tenant is so delayed or hindered, except that the
foregoing shall not apply to the payment of any monies due hereunder by Tenant.
29. SEVERABILITY. If any clause or provision of this Lease is
held to be illegal, invalid or unenforceable under present or future laws
effective during the term of this Lease, then and in that event, it is the
intention of the parties hereto that the remainder of this Lease shall not be
affected thereby, and it is also the intention of the parties to this Lease
that in lieu of each clause or provision of this Lease that is held to be
illegal, invalid, or unenforceable,
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there be added as a part of this Lease a clause or provision as similar in
terms to such illegal, invalid or unenforceable clause or provision as may be
possible and still be legal, valid and enforceable.
30. ENTIRE AGREEMENT: AMENDMENTS: BINDING EFFECT. This Lease
contains the entire agreement between the parties and may not be altered,
changed or amended, except by instrument in writing signed by both parties
hereto. No provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver be in writing signed by Landlord and addressed to
Tenant, nor shall any custom or practice which may grow up between the parties
in the administration of the terms hereof be construed to waive or lessen the
right of Landlord to insist upon the performance by Tenant in strict accordance
with the terms hereof. No payment by Tenant or receipt by Landlord of a lesser
amount than the Monthly Rental Installment or additional rental, which may then
be due under this Lease, shall be deemed to be other than on account of the
earliest rent due hereunder, nor shall any statement or endorsement on any
check or in any letter accompanying any check or payment of rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy in this Lease provided. The terms, provisions, covenants and
conditions contained in this Lease shall apply to, inure to the benefit of, and
be binding upon the parties hereto, and upon their respective successors in
interest and legal representatives, except as otherwise herein expressly
provided.
31. QUIET ENJOYMENT. Provided Tenant has performed all of the
terms, covenants, agreements and conditions of this lease, including the
payment of rent, to be performed by Tenant, Tenant shall peaceably and quietly
hold and enjoy the Premises for the term hereof, without hindrance from
Landlord, subject to the terms and conditions of this Lease.
32. RULES AND REGULATIONS. Tenant shall, and Tenant shall cause
Tenant's agents, employees, guests, visitors and invitees to, comply fully with
all requirements of the rules and regulations of the Building and related
facilities which are attached hereto as Exhibit "A" and made a part hereof as
though fully set out herein. Landlord shall at all times have the right to
change such rules and regulations or to promulgate such other rules and
regulations in such reasonable manner as Landlord may deem advisable for the
safety, care, or cleanliness of the Building, the Premises, or related
facilities, and for the preservation of good order therein, all of which rules
and regulations, changes and amendments will be forwarded to Tenant in writing
and shall be carried out and observed by Tenant. Tenant shall further be
responsible for the compliance with such rules and regulations by all
employees, servants, agents, visitors and invitees of Tenant. Notwithstanding
anything in this Lease to the contrary, Tenant shall have no obligation to
comply with any rules and regulations that are inconsistent with the terms,
conditions and provisions of this Lease, or to comply with any rules and
regulations that are uniformly applied and administered to all of the other
tenants of the Building or which materially interfere with the use and
operation of the business by Tenant. Further, Tenant shall be permitted to
operate microwave ovens as well as vending machines for the sale of food and
other items to its employees and guests, provided that such operation is only
incidental to the purpose for which the Premises are leased to Tenant under
this lease. Provisions of this Lease which prohibit Tenant from "permitting"
or "allowing" certain conduct or actions shall not be construed to render
Tenant liable for the actions of other tenants or third parties, except
Tenant's own employees, contractors and invited guests. This Lease shall
control in the event there is any express or implied conflict between this
Lease and the rules and regulations.
33. GENDER. Words of any gender used in this Lease shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires.
34. Deleted.
35. NOTICES. Each provision of this Lease, or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice, or with reference
to the making of any payment by Tenant to Landlord, shall be deemed to be
complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by
Tenant to Landlord hereunder shall be payable to Landlord in Dallas
County, Texas, at the address
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hereinbelow set forth, or at such other address as Landlord may
specify from time to time by written notice delivered in accordance
herewith;
(b) Any notice or document required to be delivered
hereunder shall be deemed to be delivered if actually received and
whether or not received when deposited in the United States mail,
postage prepaid, certified or registered mail, return receipt
requested, addressed to the parties hereto at the respective addresses
set out opposite their names below, or at such other address as they
have heretofore specified by written notice delivered in accordance
herewith:
Sterling Plaza Ltd., by
LANDLORD:Sterling Projects, Inc., General Partner TENANT: Xxxxxxx Oil & Gas, L.P.
0000 Xxxxxxx Xxx., Xxxxx 000 0000 Xxxxxx Xxxx, #0000
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
36. CAPTIONS. The captions contained in this Lease are for
convenience of reference only, and in no way limit or enlarge the terms and
conditions of this Lease.
37. PLACE OF PERFORMANCE. Tenant shall perform all covenants,
conditions and agreements contained herein, including but not limited to
payment of rent, in Dallas County, Texas. Any suits arising from or relating
to this Lease shall be brought in Dallas County, Texas.
38. PARKING. Landlord and Tenant agree that Landlord shall make
available to Tenant throughout the term of this Lease, and any renewals or
extensions of this Lease, on-site owner controlled covered parking for one auto
per 333 square feet of rentable area with a minimum of 16 spaces, 4 of which
will be reserved and 12 of which shall be unreserved. All parking for the
initial term of the Lease and any expansions thereof shall be at no charge to
Tenant. Any charge for parking during renewal or extension periods shall be
negotiated at that time.
39. RENEWAL OPTION. If, at the end of the primary term of this
Lease, the Tenant is not in default of any of the terms, conditions or
covenants of the Lease, Tenant, but not any assignee or subtenant of Tenant
unless affiliate company or if otherwise agreed to in writing, is hereby
granted an option to renew this Lease for an additional term of 60 months upon
the same terms and conditions contained in this Lease with the following
exceptions:
A. The renewal option term will contain no further renewal
options unless expressly granted by Landlord in writing, and
B. The rental for the renewed term shall be based upon the then
prevailing rental rates for properties of equivalent quality,
size, utility and location, with the length of the lease term
and credit standing of the Tenant to be taken into account,
but in no event shall the rental rate exceed $18.00 per
rentable square foot per year, with an adjusted Base Year for
operating expenses, and a refurbishment allowance of $3.00 per
rentable square foot.
If Tenant desires to renew this Lease, Tenant will notify the Landlord of its
intention to renew no later than six months prior to the expiration date of the
lease. Landlord shall, within the next fifteen days, notify Tenant in writing
of the proposed renewal rate and the Tenant shall, within the next fifteen days
following receipt of the proposed rate, notify the Landlord in writing of its
acceptance or rejection of the proposed rental rate.
40. Deleted.
41. SPECIAL PROVISIONS.
41.1 Landlord and Tenant agree that Tenant shall take occupancy of
the Premises on an "as is" basis, provided, however, that at any time during
the Lease Term, Tenant may request and upon such request, Landlord shall make
the following, improvements at Tenant's expense:
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1. Landlord shall recarpet and repaint throughout per
Tenant's selection, including replacement of existing
grey vinyl wall coverings with paint. Border carpet
installed in reception and conference room.
Grasscloth in two executive offices to be matched or
replaced with similar surface.
2. Landlord shall provide kitchen area complete with hot
and cold tap water, dishwasher, ice maker and
refrigerator.
3. Landlord shall install a new wall and door on the
west end of the space between the two executive
offices creating a new office and relocating both
entry doors to the executive offices.
4. Tenant shall have the right to delete any of these
requests.
41.2 Landlord and Tenant agree that Landlord shall provide, at its
sole expense, full space planning services for all "building standard" work,
including construction drawings and detailed plans and specifications,
reflected ceiling plans, telephone and electrical plans, and finish schedules.
41.3 Notwithstanding anything to the contrary contained in this
Lease, Landlord and Tenant agree that the Lease shall commence upon substantial
completion of the leased premises, unless such substantial completion is
delayed by Tenant beyond the projected commencement date, in which event the
Lease shall commence on the date that substantial completion would have
occurred but for such Tenant delays. Landlord acknowledges that Tenant desires
to occupy the leased premises on or before June 1, 1992, and Landlord will
endeavor to cause Tenant's initial leasehold improvements to be substantially
complete on or before such date.
Substantial completion shall mean:
a) all ceilings and lighting in the leased premises are
in and operative;
b) all walls and partitions in the leased premises have
been erected with final painting or wall covering
complete, and doors and hardware have been installed;
c) all built-in cabinetry, millwork, glass, kitchen
appliances, plumbing in the leased premises have been
completed and installed and are in good working
order;
d) all floor coverings in the lease premises have been
installed and cleaned;
e) telephone company has completed its base service to
the leased premises with all lines operative, and all
wiring within the leased premises for voice and data
communications has been installed and is operative;
f) building elevators, plumbing, HNIAC and electrical
systems serving the l leased premises have been
installed and are in good working condition;
electrical service is adequate for Tenant's lighting
fixtures and office equipment, in keeping with the
approved space plans and final working drawings; and
HVAC system has been balanced;
g) all debris has been removed from the leased premises,
and the leased premises cleaned;
h) a certificate of occupancy for the leased premises
has been granted by the City of Dallas;
i) all exterior door locks shall be changed or re-keyed;
and
j) minor "punch-list" type items which do not impede
Tenant's use and comfort will not serve to delay
"Substantial Completion";
Note: Any necessary changes or modifications to the space
required to meet applicable codes or laws are to be
performed by Landlord at Landlord's cost.
41.4 Landlord and Tenant agree that if the space is not
substantially complete through no fault of the Tenant is not able to occupy the
Premises by June 1, 1992, through no fault of Tenant, then Tenant shall have
the option to cancel this Lease.
41.5 Landlord and Tenant agree that Tenant shall have the option to
cancel this Lease after the end of the third (3rd) and fourth (4th) lease year
by giving Landlord four (4) months prior written notice.
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41.6 First Right of Refusal Landlord hereby grants to Tenant an
ongoing Right of First Refusal to lease the adjoining approximately 1,634
square feet of space to the east of the Premises. If Tenant elects to exercise
its Right of First Refusal to lease such space within the first two years of
the Lease Term, it shall be under the same terms and conditions of this Lease.
After the first two years if Landlord desires to lease such space to a third
party, Tenant shall have ten business days from receipt of such notice to
notify Landlord in writing of Tenant's intent to exercise its Right of First
Refusal. If Tenant does not exercise its Right of First Refusal, then Landlord
may lease such space to any third party. If Tenant elects to exercise its
Right of First Refusal to lease such space, the term for such space shall
expire simultaneously with the term of this Lease, and the rent for such space
shall be based on the lesser of the then prevailing rental rates for properties
of equivalent quality, size, utility and location, with the length of the Lease
term and credit standing of Tenant to be taken into account or a third party
offer, otherwise subject to all of the same terms, covenants, and conditions of
this Lease. Within thirty days from the date of Tenant's election to exercise
its Right of First Refusal, Tenant shall execute plans and specifications,
change orders showing construction costs to be paid by Tenant, if any, and a
Modification and Ratification of this Lease to include the additional space;
otherwise Tenant's Right of First Refusal shall terminate as to the space
described in the notice from Landlord to Tenant and Landlord may lease such
space to any third party. Landlord agrees not to lease the space subject to
the Right of First Refusal during tenant's first six months of occupancy.
Furthermore, Tenant will have the right throughout the term of the
Lease and any renewals or extensions to lease any space on the same floor on
terms and conditions no less favorable than are generally being offered and/or
concluded by Landlord to other prospective tenants or other tenants in the
buildings.
Improvements to Expansion Space: Should Tenant exercise its rights
granted under the lease to obtain additional area for expansion, then Tenant
shall receive the greater of whatever finish allowance is being offered a bona
fide third party or $2.00 per rentable square foot multiplied by the number of
years (or fraction thereof) remaining on the lease for remodeling the space
during the first three (3) years and $1.00 per rentable square foot per year
during the last two (2) years of occupancy.
41.7 Landlord and Tenant agree that Landlord shall pay a real
estate commission to Xxxx & Xxxxxx, Inc. in accordance with the Registration
Letter and Commission Agreement attached hereto as Exhibit "C". Notwithstanding
such agreement, Tenant agrees to pay the initial commission due Xxxx & Xxxxxx,
Inc.
41.8 Notwithstanding anything to the contrary contained in this
Lease, Tenant agrees to reimburse Landlord for the initial construction costs,
if any, incurred in remodeling the space to meet Tenant's specifications. Any
other costs specified herein beyond these initial costs shall be paid by
Landlord.
EXECUTED this 21st day of May, 1992.
LANDLORD: Sterling Plaza Ltd., by TENANT:Xxxxxxx Oil & Gas, L.P.
Sterling Projects, Inc., General Partner by Xxxxxxx Exploration
Company, General Partner
By: /s/ Xxxxx Xxxx By: /s/ Xxxx X. Xxxxxxx
------------------------------------ ------------------------------
Name: Xxxxx Xxxx Name: Xxxx X.Xxxxxxx
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Title: Vice President Title: Vice President
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