BUILDING LEASE
Exhibit
10.11
THIS BUILDING LEASE (this “Lease”) is made as of
March 31, 2009, by and between SEMGROUP ENERGY PARTNERS, L.L.C., a Delaware
limited partnership (“Landlord”), and
SEMCRUDE, L.P., a Delaware limited partnership (“Tenant”).
RECITALS
WHEREAS, Landlord owns the real
property described on the Exhibit A attached
hereto and made a part hereof (the “Real Property”), and
Landlord owns the buildings and improvements located on the Real Property,
including without limitation (i) a building comprising office space (the “Office Building”),
(ii) a building comprising laboratory space (the “Lab Building”), and
(iii) two warehouse buildings (the “Warehouse Buildings”,
and together with the Office Building and Lab Building, the “Buildings”).
WHEREAS, Landlord desires to lease to
Tenant, and Tenant desires to lease from Landlord, the Buildings, on the terms
and conditions set forth herein.
1. TERM.
The term
of this Lease (the “Term”) shall begin on
April 1, 2009 (the “Commencement Date”),
and shall terminate on March 31, 2014, unless sooner terminated or extended as
provided herein. “Term” shall include any Renewal Term. “Lease Year” means a
period of twelve (12) calendar months during the Term, the first of which shall
commence on the Commencement Date and end on the expiration of the twelfth
(12th) full calendar month thereafter. Each successive Lease Year
shall commence on the day following the last day of the prior Lease Year and end
twelve (12) calendar months thereafter.
2. PERMITTED
USE.
The
Leased Premises shall be used by Tenant, (i) as to the Office Building, for
general office purposes, (ii) as to the Lab Building, for laboratory and testing
purposes, and (iii) as to the Warehouse Buildings, for warehousing and storage
purposes, in each case in compliance with all Legal Requirements (as defined in
the next sentence) and the terms and provisions of this Lease (the “Permitted
Use”). For purposes hereof, the term “Legal Requirements”
shall mean all laws, rules, orders, ordinances, regulations, statutes,
requirements and codes of all governmental authorities, and all rules,
regulations and government orders with respect thereto, and of any applicable
fire rating bureau, or other body exercising similar functions, governing the
use and occupation of the Buildings; provided, however, Tenant shall not be
obligated to cause the Buildings to comply with Legal Requirements except and
only to the extent expressly provided herein.
3. RENT.
A. Base
Rent. Tenant shall pay to Landlord, as Base Rent, the amount
set forth on the Exhibit B attached
hereto and made a part hereof (the “Base
Rent”). Base Rent shall be paid monthly by Tenant to Landlord
in advance on the first day of each month of the Term, commencing on the
Commencement Date. In the event any of the Buildings is destroyed,
condemned or otherwise removed from this Lease, the Rent shall be reduced
accordingly. At the commencement of each Lease Year, the Base Rent
shall be adjusted for increases in CPI (as defined below) over the immediately
preceding Lease Year, provided, that if there shall be no increase, or there
shall be a decrease, in the CPI, then the Base Rent for the immediately
preceding Lease Year shall be the Base Rent for such new Lease
Year. “CPI” means the United
States Consumer’s Price Index for All Urban Consumers-Stillwater Area
(1982-84=100), as published by the United States Bureau of Labor Statistics
bi-monthly, or if such publication should be discontinued, “CPI” shall then
refer to such comparable statistics or changes in the cost of living for urban
consumers as the same may be computed and published (on the most frequent basis
available) by an agency of the United States or by a reasonable periodical of
recognized authority.
B. Additional
Rent. “Additional Rent”
shall mean all sums and amounts other than Base Rent payable by Tenant to
Landlord from time to time under this Lease, including without limitation Taxes
(as hereinafter defined), and any costs incurred by Landlord in order to cure
any Default by Tenant under this Lease. Tenant shall pay Additional
Rent at the times and in the manner set forth in this Lease. The term
“Rent”, as used
in this Lease, shall mean, collectively, Base Rent and Additional
Rent.
C. Proration of
Rent. Landlord and Tenant understand and agree that if the
Commencement Date or last day of the Term occurs on a date that is other than
the first or last day (as applicable) of a month, the Rent for that month shall
be prorated on a per diem basis.
D. Payment of
Rent. All Rent due and payable by Tenant under this Lease
shall be paid to Landlord at Two Xxxxxx Place, 0000 Xxxxx Xxxx Xxxxxx, Xxxxx
000, Xxxxx, Xxxxxxxx 00000-0000, or to such other address as Landlord may from
time to time designate in writing. Except as expressly provided
herein, all Base Rent shall be paid by Tenant without notice or demand, and
without any set-off, counterclaim, abatement or deduction whatsoever, in lawful
money of the United States by bank check or wire transfer of immediately
available funds.
4. TAXES. 1
Landlord
shall pay as billed all Taxes. Landlord shall invoice Tenant for
Tenant’s share of the Taxes so paid and Tenant shall pay Landlord within fifteen
(15) days of receipt of such invoice. In the event Landlord elects to
pay Taxes in installments, Landlord shall invoice Tenant only the amount paid
for each installment, as such installments are paid. “Taxes” shall mean all
real estate taxes, assessments, business improvement district charges, fees and
assessments, sewer and water rents or assessments (but not utility charges),
rates and other governmental levies, impositions or charges, whether general,
special, ordinary, extraordinary, foreseen or unforeseen, which may be assessed,
levied or imposed upon all or any part of the Real Property, (ii) all personal
property taxes, assessments, rates and charges and other governmental levies,
impositions or charges, whether general, special ordinary, extraordinary,
foreseen or unforeseen, which may be assessed, levied or imposed upon all or any
part of any personal property owned or held by Landlord and used solely in
operation and ownership of the Real Property, including, without limitation, any
fixtures, machinery, equipment, apparatus, plant, transformers, duct work,
cable, wires, and other facilities, equipment and systems designed to supply
heat, ventilation, air conditioning, humidity or any other services or
utilities, or comprising or serving as any component or portion of the
electrical, gas, steam, plumbing, sprinkler, communications, alarm, security or
fire/life/safety systems or equipment, and any other mechanical, electrical,
electronic, computer or other systems or equipment for the Real Property, all to
the extent that the same do not constitute part of the Real Property (the “Personal Property”),
and (iii) all expenses (including reasonable attorneys’ fees and reasonable
disbursements and experts’ and other witnesses’ fees) incurred in contesting the
assessed valuation of all or any part of the Real Property by Landlord to the
extent Tenant consents to such contest in advance. Notwithstanding
anything to the contrary contained in this Lease, Taxes shall not include (x)
interest or penalties incurred by Landlord as a result of Landlord’s late
payment of Taxes, except for interest payable in connection with the installment
payment of assessments pursuant to the next sentence or (y) franchise, transfer,
capital stock, inheritance, succession, gift, estate or other taxes to the
extent applicable to general or net income of Landlord. For purposes
hereof, “Taxes”
for any Lease Year shall be deemed to be the amount of Taxes assessed for such
Lease Year. If at any time the methods of taxation prevailing on the
date hereof shall be altered so that in lieu of the whole or any part of Taxes,
there shall be assessed, levied or imposed (1) a tax, assessment, levy,
imposition or charge based on the income or rents received from the Real
Property whether or not wholly or partially as a capital levy or otherwise, (2)
a Lease fee measured by the rents, or (3) any other tax, assessment, levy,
imposition, charge or Lease fee however described or imposed, then all such
taxes, assessments, levies, impositions, charges or Lease fees or the part
thereof so measured or based, to the extent and only to the extent assessed in
lieu of Taxes, shall be deemed to be Taxes. If this Lease is
terminated as to less than all of the Buildings, then Tenant shall only pay the
Taxes allocated to the Building(s) that continue to be subject to this Lease
after such termination.
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5. UTILITIES.
Landlord
shall pay as billed all utilities consumed by Tenant in the Buildings including,
without limitation, electricity, gas, oil, steam, water, air conditioning and
other fuel and utilities (collectively, the “Utilities”). Tenant
acknowledges that all deposits with all Utility providers, existing or
hereinafter made, are the property of Landlord. Landlord shall
invoice Tenant for Tenant’s share of the Utilities so paid and Tenant shall pay
Landlord within fifteen (15) days of receipt of such
invoice. Tenant’s share of Utilities shall be the cost of Utilities
used by Tenant within the Buildings subject to this Lease.
6. CONDITION OF LEASED
PREMISES.
Tenant
has examined the Buildings. Subject to Landlord’s obligations under
Section 7,
Tenant hereby accepts the condition of the Buildings in their AS-IS, WHERE-IS
CONDITION, WITH ALL FAULTS. Landlord has not agreed to pay for or
make any tenant or leasehold improvements as consideration for Tenant’s
execution and delivery of this Lease. Except as expressly set forth
in this Lease, Landlord and Landlord’s agents have made no warranties,
representations, statements or promises with respect to (a) the rentable or
usable square footage of the Buildings, or (b) the suitability of the Buildings
for any particular use or purpose. No rights, easements or licenses
are acquired by Tenant under this Lease except as expressly set forth herein or
to the extent such rights, easements or licenses have been or will be acquired
by Landlord through ownership of the Buildings and relate to the use of the
Buildings, in which event Tenant shall be entitled to the nonexclusive exercise
of the Landlord’s rights thereunder in its possession and use of the
Buildings. Notwithstanding any of the foregoing, in the event the
Buildings or any portion thereof, as of the date hereof, do not comply in all
material respects with Legal Requirements, and/or the current zoning for the
Buildings or any of them does not permit the use of the Buildings for their
Permitted Use, and Tenant deems it necessary to obtain another location for its
operations, then Tenant may terminate this Lease, without liability therefor as
to the Building(s) so affected. Upon such termination, this Lease
shall terminate as to the Buildings so affected and neither Landlord nor Tenant
shall have any further liability to each other hereunder as to the Building(s)
subject to such termination, except for such obligations that are expressly
stated to survive the termination hereof. If Tenant so terminates
this Lease as to less than all of the Buildings, then the Base Rent shall be
reduced to the amount allocated on Exhibit B to the
Building(s) that continue to be subject to this Lease after such
termination.
The
Tenant shall have the right to use all drives and parking areas in the vicinity
of the Buildings as reasonably required for the Tenant’s operation and use of
the Buildings.
7. MAINTENANCE;
SERVICES.
A. Tenant
agrees at its sole cost and expense, to keep and maintain the interior of the
Buildings in a clean and sanitary condition and in good repair, commensurate
with the conditions existing at the time this Lease is executed and thereafter
at all times during the Term hereof, subject to ordinary wear and
tear. Tenant may, at its sole cost and expense, during the Term,
redecorate the Buildings as required by Tenant (and as approved by Landlord in
accordance with Section 10
hereof). Tenant shall hire a janitorial service at Tenant’s cost to
clean the interior of the Buildings.
B. Tenant shall pay for its
telephone service in the Buildings.
C. Landlord shall
maintain, at Landlord’s cost and expense, in good repair the Real Property and
the Buildings and all systems of the Buildings, including without limitation the
roof, structure, load bearing and fire walls, foundation, water system, gas
system, sewer system, and electrical wiring, together with the heating and air
conditioning facilities and all controls, including the cutting and mowing of
grass and weeds, commensurate with the conditions existing at the time this
Lease is executed, normal wear and tear excepted, and thereafter at all times
during the Term hereof. Landlord shall gravel the parking and access
to the Office Building as needed and shall pack or grade as needed any parking
areas or driveways used for the Warehouse Buildings and Lab
Building. Landlord shall maintain the exterior lighting of the
Buildings and parking areas. Landlord shall maintain the alarm system
for the Buildings at Landlord’s cost as a part of Landlord’s alarm system for
its operations in the area, and Tenant shall be entitled to utilize such system
at the Buildings. In the event that Tenant becomes aware of a
structural problem with respect to any of the Buildings, Tenant will notify
Landlord of such problem. Landlord agrees to replace all broken or
cracked glass, in the windows and doors of the Buildings, with glass of the same
size and quality as that broken or cracked, and will replace all damaged
plumbing fixtures with others of equal quality. If any such
maintenance or repair, or any such services, are required due to the negligence
or willful misconduct of any member of the Tenant Group (as defined in Section 11 hereof),
Tenant shall pay Landlord for the cost of such maintenance or repair within
fifteen (15) days after receipt from Landlord of an invoice therefor, which
obligation shall survive the expiration or earlier termination of this
Lease.
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F. Landlord’s
covenants under Section 5 hereof
shall only impose on Landlord the obligation to use reasonable efforts to cause
the applicable utility providers to furnish the Utilities. Landlord
has made no representation, warranty or covenant of any kind regarding the
availability (or future availability) of any Utilities and services, and
interruption of any Utilities or services shall not give rise to any right or
remedy in favor of Tenant under this Lease, including, without limitation, a
claim for abatement or reduction of the Rent or damages, nor shall Tenant be
relieved of its obligations under this Lease. Notwithstanding the
foregoing, if an interruption of the Utilities occurs and such condition
prohibits Tenant from using all or a portion of any Building for its Permitted
Use and such condition exists for fifteen (15) consecutive days after Tenant
provides written notice of the condition to Landlord, then the Rent shall xxxxx
as to that portion of the Building that is rendered untenable for its Permitted
Use, as reasonably determined by Tenant. The abatement shall commence
upon the expiration of the fifteen (15) day period and continue for so long as
the condition exists; provided, however, if the condition continues for two (2)
consecutive months, Tenant shall have the right to terminate this Lease as to
the Building(s) so affected by written notice to Landlord (which notice may only
be given after the expiration of the two (2) month
period). Upon such termination, this Lease shall terminate as
to the Buildings affected by such termination and neither Landlord nor Tenant
shall have any further liability to each other hereunder as to the Building(s)
subject to such termination, except for such obligations that are expressly
stated to survive the termination hereof. If Tenant so terminates
this Lease as to less than all of the Buildings, then the Base Rent shall be
reduced to the amount allocated on Exhibit B to the
Building(s) that continue to be subject to this Lease after such
termination.
8. SURRENDER
OF LEASED PREMISES; RESTORATION.
Tenant
agrees that, upon termination of the Term of this Lease, whether by expiration
or otherwise, Tenant will peaceably quit and surrender the Buildings to
Landlord, and will, at its sole cost and expense, remove all Tenant’s personal
property, fixtures, structures and improvements, and will restore the interior
of the Buildings to substantially the same condition the interiors were in on
the date hereof (other than any improvements, installations and modifications
made by Landlord), subject to ordinary wear and tear. Any and all
property which may be removed from the Buildings by Landlord pursuant to the
authority of this Lease or of law, to which Tenant is or may be entitled, may be
handled, removed and stored, as the case may be, by or at the direction of
Landlord at the risk, cost and expense of Tenant, and Landlord shall in no event
be responsible for the value, preservation or safekeeping
thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord’s possession or under Landlord’s
control. Any such property of Tenant not retaken by Tenant from
storage within thirty (30) days after removal from the Buildings shall, at
Landlord’s option, be deemed conveyed by Tenant to Landlord under this Lease as
by a xxxx of sale without further payment or credit by Landlord to
Tenant. This Section 8 shall
survive the expiration or earlier termination of the Lease.
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9. COMPLIANCE WITH LAWS;
WASTE.
A. Tenant
covenants and agrees that it will not commit waste, loss or damage to the
Buildings.
B. Tenant acknowledges that
Landlord may incur costs as a result of the enactment of new Legal Requirements
relating to the Buildings, and/or changes in Legal Requirements relating to the
Buildings. Tenant agrees that any such costs incurred by Landlord for
complying with such new or changed Legal Requirements which are due to Tenant’s
use and/or occupancy of the Buildings shall be an expense recoverable by
Landlord from Tenant. Landlord shall notify Tenant in advance of the
estimated cost of any such compliance, and Tenant shall have the right to
terminate this Lease as to the Building so affected, by delivery of written
notice to Landlord on or prior to the date thirty (30) days after Tenant
receives such notice from Landlord (and failure to deliver any such notice by
the expiration of such thirty (30) day period shall be deemed Tenant’s waiver of
such right of termination. Upon such termination, this Lease shall
terminate and neither Landlord nor Tenant shall have any further liability to
each other hereunder as to the Building(s) subject to such termination, except
for such obligations that are expressly stated to survive the termination
hereof. If Tenant so terminates this Lease as to less than all of the
Buildings, then the Base Rent shall be reduced to the amount allocated on Exhibit B to the
Building(s) that continue to be subject to this Lease after such
termination. To the extent any such expense paid by Tenant is
subsequently recovered by or reimbursed to Landlord through insurance or
recovery from responsible third parties or other action, Tenant shall be
entitled to such recovery or reimbursement.
C. Each party shall promptly
provide to the other party with written notice: (i) upon its obtaining knowledge
of any material violation of any Legal Requirements relating to the Buildings or
Real Property, and/or (ii) of its receipt of any notice, correspondence, demand
or communication of any nature from any governmental authority alleging a
violation of any Legal Requirements relating to the Buildings or Real
Property.
D. Each party shall comply
with all Legal Requirements applicable to the Real Property and Buildings and
its use and occupation thereof.
E. Tenant shall not cause or
permit any “Hazardous
Substance” (defined as any chemical, pollutant, waste, compound or other
substance in such forms, concentrations, quantities or other conditions that are
prohibited, regulated or require assessment, monitoring, removal or remediation
under any law or regulation pertaining to health or the environment) to be used,
installed, stored, treated, generated, released or disposed on or in the
Buildings or Real Property. Tenant shall reimburse Landlord for all
costs and expenses incurred by Landlord (whether incurred before or after
termination of this Lease), within fifteen (15) days after demand, to correct
any violation of the preceding sentence, or to remove or render harmless any
Hazardous Substance resulting from such a violation, or to comply with
applicable regulatory requirements, in connection with any such removal, or to
contest such requirements. This Section 9.E shall
survive the expiration or earlier termination of this Lease.
F. Landlord shall not cause
or permit any Hazardous Substance to be used, installed, stored, treated,
generated, released or disposed on or in the Buildings or Real
Property. Landlord shall reimburse Tenant for all costs and expenses
incurred by Tenant (whether incurred before or after termination of this Lease),
within fifteen (15) days after demand, to correct any violation of the preceding
sentence, or to remove or render harmless any Hazardous Substance resulting from
such a violation, or to comply with applicable regulatory requirements, in
connection with any such removal, or to contest such
requirements. This Section 9.F shall
survive the expiration or earlier termination of this Lease.
10. ALTERATIONS.
Tenant
shall not make any alterations, installations, improvements, additions or other
physical changes (collectively, the “Alterations”) in or
about the Buildings without Landlord’s prior written consent in each instance,
which consent shall not be unreasonably denied or conditioned by
Landlord. Any Alterations shall be performed: (i) by Tenant, at
Tenant’s sole cost and expense (and Landlord shall have no duty or obligation
with respect thereto), (ii) pursuant to plans and specifications (including, as
applicable, layout, architectural, mechanical, electrical, plumbing, sprinkler
and structural drawings) reasonably approved in writing by Landlord, (iii) in
compliance with all Legal Requirements, and (iv) in a good and workmanlike
manner, free of all liens. Tenant shall, at Tenant’s sole cost and
expense, obtain any and all permits and approvals necessary for the performance
of any Alterations. During the performance of any Alterations, Tenant
shall carry, or shall cause its contractors and subcontractors to carry,
customary builder’s insurance.
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11. INDEMNITY.
A. By
Tenant. To the maximum extent permitted under Legal
Requirements, Tenant agrees to protect, indemnify, defend (with counsel
reasonably acceptable to Landlord) and hold harmless Landlord and its parents,
subsidiaries and affiliates, and their respective officers, directors,
shareholders, employees, representatives, agents, contractors, licensees,
lessees, guests, invitees, successors and assigns (collectively, the “Indemnified Parties”)
from and against any and all losses, costs, damages, liabilities, expenses
(including, without limitation, reasonable attorneys’ fees) and/or injuries
(including, without limitation, damage to property and/or bodily injury)
suffered or incurred by any of the Indemnified Parties (regardless of whether
contingent, direct, liquidated or unliquidated, but not including consequential)
(collectively, “Losses”), and any and
all claims, demands, suits and causes of action (collectively, “Claims”) brought or
raised against any of the Indemnified Parties, arising out of, resulting from,
relating to or connected with: (1) Tenant’s use of the Buildings or Real
Property, (2) any negligent act or omission or willful misconduct of Tenant or
its officers, directors, shareholders, employees, representatives, agents,
contractors, licensees, lessees, guests, invitees (collectively, “Tenant Group”) at, on
or about the Real Property or Buildings, or (3) the failure of any of them to
comply with Legal Requirements, and notwithstanding anything to the contrary in
this Lease, such obligation to indemnify, defend and hold harmless the
Indemnified Parties shall survive any termination of this Lease. This
indemnification shall include, without limitation, claims made under any
xxxxxxx’x compensation law or under any plan for employee’s disability and death
benefits (including, without limitation, claims and demands that may be asserted
by employees, agents, contractors and subcontractors).
B. By
Landlord. To the maximum extent permitted under Legal
Requirements, Landlord agrees to protect, indemnify, defend (with counsel
reasonably acceptable to Tenant) and hold harmless Tenant and its parents,
subsidiaries and affiliates, and their respective officers, directors,
shareholders, employees, representatives, agents, contractors, licensees,
lessees, guests, invitees, successors and assigns (collectively, the “Tenant Indemnified
Parties”) from and against any and all Losses incurred by any of the
Tenant Indemnified Parties, and any and all Claims brought or raised against any
of the Tenant Indemnified Parties, arising out of, resulting from, relating to
or connected with: (1) Landlord’s use of the Real Property or Buildings, (2) any
negligent act or omission or willful misconduct of Landlord or its officers,
directors, shareholders, employees, representatives, agents, contractors,
licensees, lessees, guests, invitees (collectively, “Landlord Group”) at,
on or about the Real Property or Buildings, or (3) the failure of any of them to
comply with Legal Requirements, and notwithstanding anything to the contrary in
this Lease, such obligation to indemnify, defend and hold harmless the Tenant
Indemnified Parties shall survive any termination of this Lease. This
indemnification shall include, without limitation, claims made under any
xxxxxxx’x compensation law or under any plan for employee’s disability and death
benefits (including, without limitation, claims and demands that may be asserted
by employees, agents, contractors and subcontractors).
C. Indemnity
Procedure. If an Indemnified Party or Tenant Indemnified Party
(in each case, the “Indemnitee”) receives
notice of any claim, action or proceeding (an “Action”) against
Indemnitee with respect to which indemnification is to be sought from the party
with the obligation to indemnify (the “Indemnitor”) under
this Section
11.C, Indemnitee shall promptly notify Tenant or Landlord, as indemnitor
and as applicable (in such capacity, “Indemnitor”) of
the Action in writing. Indemnitee may direct Indemnitor to assume the
defense of the Action and to pay all reasonable costs and expenses incurred as a
result thereof. If Indemnitee shall not have directed Indemnitor to
assume the defense of the Action, Indemnitor shall have the right to
participate at its own expense in the defense of any such Action. If
Indemnitor shall not have employed counsel to have charge of the defense of any
such Action following the notice and direction specified above, or if Indemnitee
shall have reasonably concluded that there may be defenses available to
Indemnitee which are different from or additional to those available to
Indemnitor (in which case Indemnitor shall not have the right to direct the
defense of such Action on behalf of the Indemnitee), the Indemnitee shall have
the right to retain its own counsel and all reasonable resulting legal and other
expenses incurred by Indemnitee shall be borne by Indemnitor, provided, that no
Indemnitee shall settle any claim, action or proceeding without the prior
written consent of Indemnitor, such consent not to be unreasonably withheld or
delayed.
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12. TENANT
TERMINATION.
Tenant
may terminate this Lease on not less than one hundred eighty (180) days advance
written notice to Landlord without penalty, which notice shall state the
proposed termination date therein. Upon such termination, this Lease
shall terminate and neither Landlord nor Tenant shall have any further liability
to each other hereunder, except for such obligations that are expressly stated
to survive the termination hereof, provided, however, that Tenant shall cure any
existing Default hereunder prior to such termination being
effective. In the event Landlord terminates this Lease pursuant to
any right granted to Landlord to do so on Exhibit C to that
certain Shared Services Agreement of even date herewith, this Lease shall
terminate as provided therein. Upon such termination, this Lease
shall terminate and neither Landlord nor Tenant shall have any further liability
to each other hereunder, except for such obligations that are expressly stated
to survive the termination hereof.
13. CASUALTY.
In the
event of any damage to or destruction of the Leased Premises, by fire or other
casualty, which materially and adversely affects Tenant’s use and enjoyment of
such Building for the purposes specified in this Lease, then either Landlord or
Tenant shall have the right, no later than ninety (90) days after such party
becomes aware of such damage or destruction, to terminate this Lease upon thirty
(30) days’ prior written notice to the other, with respect to the Building(s) so
affected. In the event of any damage or destruction which is not so
extensive, or in the event that neither Landlord nor Tenant elects to terminate
this Lease as to any Building pursuant to the preceding sentence, then this
Lease shall continue in full force and effect, and Landlord will, to the extent
proceeds of insurance are available therefor, repair, restore, rebuild and/or
replace the Building(s) and fixtures and building equipment destroyed in such
casualty, substantially to the condition they were in immediately prior to such
damage or destruction. Any such work shall be done in a good and
workmanlike manner and in accordance with all Legal Requirements and the terms
and provisions of this Lease. In no event shall Landlord be obligated
to incur costs which are not covered by Landlord’s property
insurance. In the event Landlord does not commence such repair,
restoration or replacement within a reasonable amount of time, but in any event
within one hundred sixty (160) days of such casualty, and/or does not pursue the
work to completion in a reasonably expeditious manner, Tenant shall give written
notice thereof to Landlord, and if Landlord does not thereafter commence or
resume such work as required hereunder within five (5) days, Tenant may
terminate this Lease, with respect to the Building(s) so affected, Lease by
further written notice to Landlord (such termination to be effective upon
Landlord’s receipt of such further written notice). Upon any
termination of this Lease as to any Building under this Section 13, this
Lease shall terminate as to such Building and neither Landlord nor Tenant shall
have any further liability to each other hereunder with respect thereto, except
for such obligations that are expressly stated to survive the termination
hereof. If Tenant so terminates this Lease as to less than all of the
Buildings, then the Base Rent shall be reduced to the amount allocated on Exhibit B to the
Building(s) that continue to be subject to this Lease after such
termination. As to any Building affected by such casualty, from the
date of such casualty until completion of the work (or until Tenant terminates
this Lease as permitted hereunder), the Base Rent for such Building shall be
proportionately reduced to reflect the portion of such Building rendered
unusable to Tenant as a result of such casualty.
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14. CONDEMNATION.
If any
Building, or a substantial part thereof (meaning twenty-five percent (25%) or
more thereof), or a portion thereof of the Real Property shall be taken or
condemned by any competent authority for any public use or purpose, and which
prevents use of such Building for the purposes specified herein by Tenant, the
Term of this Lease as to the Building(s) so affected shall end on the date when
the possession of the part so taken shall be required for such use or
purpose. Upon any termination of this Lease as to any Building under
this Section
14, this Lease shall terminate as to such Building and neither Landlord
nor Tenant shall have any further liability to each other hereunder with respect
thereto, except for such obligations that are expressly stated to survive the
termination hereof. If Tenant so terminates this Lease as to less
than all of the Buildings, then the Base Rent shall be reduced to the amount
allocated on Exhibit
B to the Building(s) that continue to be subject to this Lease after such
termination. Tenant shall have no right to share in the condemnation
award. Then current Rent shall be apportioned as of the date of such
termination. If any Building or a portion of any of the Buildings
shall be so taken so as not to render the remainder untenable for Tenant’s
business purposes, as reasonably determined by Tenant, this Lease shall continue
in full force and effect but all Rent shall xxxxx with respect to the portion so
taken.
15. INSURANCE.
A. Tenant shall maintain at
Tenant’s cost a policy of commercial property insurance on the
Buildings. Such insurance shall cover the full replacement cost of
the Buildings, fixtures, equipment, Building standard leasehold improvements,
including without limitation foundations of buildings, structures, machinery or
boilers, if the foundations are below the lowest basement floor, or the surface
of the ground, if there is no basement, walks, underground pipes, flues and
drains, and including the cost of excavations, grading backfilling and filling;
and will include the perils of flood, earthquake and windstorm, including
landslides, earth sinking, rising or shifting; and boiler and machinery or
equipment breakdown insurance for loss or damage caused by the explosion of
steam boilers or similar equipment. Landlord shall be named as an
additional insured on such policy.
B. Each party shall maintain
insurance on its personal property located within the Building or otherwise
located on the Real Property.
C. Tenant
shall maintain a policy of business interruption coverage, on a 100% (12-month)
actual loss sustained basis. Landlord shall be named as loss payee as
its interest may appear.
D. Each
party shall maintain commercial general liability insurance, and, if necessary,
commercial umbrella insurance with an aggregate limit of not less than
$10,000,000 each occurrence. Such insurance shall cover premises, all operations
by or on behalf of such party, its contractors and anyone directly or indirectly
employed by it or by anyone for whose acts it may be liable products-completed
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract). Such insurance shall be written on a claims made or
occurrence basis against claims for liability arising from bodily injury,
property damage, premises, operations, and other coverages and in such amounts
as customarily maintained in the industry by prudent operators.
E. Concurrently with the
execution of this Lease and upon renewal of coverage, each party shall provide
the other with Certificates of Insurance, executed by a duly authorized
representative of each insurer, showing compliance with the requirements set
forth above. Each Certificate of Insurance shall provide that the
insurance company will give the certificate holder thirty (30) days prior
written notice of the cancellation of any such insurance
policy. Failure of either party to demand such certificate or other
evidence of full compliance with these insurance requirements or failure of
either party to identify a deficiency from evidence that is
provided shall not be construed as a waiver of either party’s
obligation to maintain such insurance. The insurance required to be
provided pursuant to this Section 15 may be
provided under so called blanket policies of insurance so long as (i) the
coverage afforded to the other party to this Lease shall not be reduced or
diminished by reason of the use of such blanket policy and (ii) all of the
requirements set forth in this Section 15 with
respect to such insurance are otherwise satisfied. All required
insurance shall be maintained with responsible, solvent and reputable insurance
companies with an A.M. Best rating of A-9 or better and qualified to do business
in the State of Oklahoma.
8
F. ANYTHING IN THIS LEASE TO THE
CONTRARY NOTWITHSTANDING, LANDLORD AND TENANT HEREBY WAIVE ANY AND ALL RIGHTS OF
RECOVERY, CLAIM, ACTION OR CAUSE OF ACTION AGAINST THE OTHER, ITS AGENTS,
EMPLOYEES, OFFICERS, PARTNERS, SERVANTS OR SHAREHOLDERS FOR ANY LOSS OR DAMAGE
THAT MAY OCCUR TO THE BUILDINGS OR THE REAL PROPERTY, OR ANY
IMPROVEMENTS THERETO, OR ANY PERSONAL PROPERTY OF SUCH PARTY
THEREIN, BY REASON OF FIRE, THE ELEMENTS OR ANY OTHER CAUSE WHICH IS
OR COULD BE INSURED AGAINST UNDER THE TERMS OF THE FIRE AND EXTENDED COVERAGE
INSURANCE POLICIES REQUIRED TO BE OBTAINED PURSUANT TO THIS LEASE, REGARDLESS OF
CAUSE OR ORIGIN, INCLUDING NEGLIGENCE OF THE OTHER PARTY HERETO, ITS AGENTS,
EMPLOYEES, OFFICERS, PARTNERS, SERVANTS OR SHAREHOLDERS, AND EACH PARTY
COVENANTS THAT NO INSURER SHALL HOLD ANY RIGHT OF SUBROGATION AGAINST SUCH OTHER
PARTY.
16. SIGNAGE.
Landlord
and Tenant shall share the existing sign monuments, poles and other sign
supports at the present locations of all such signs on the Real Property, as
needed or required to properly identify its property or operations located on
the Real Property, and Tenant shall have the right to use signage on the
Buildings. Tenant shall not install any signage on the monuments, poles or other
locations without Landlord’s prior written consent as to specific location,
size, and installation methods in each instance, which consent shall not be
unreasonably denied or conditioned by Landlord. Any signage shall be
installed: (i) by Tenant, at Tenant’s sole cost and expense (and Landlord shall
have no duty or obligation with respect thereto), (ii) in compliance with all
Legal Requirements, and (iii) in a good and workmanlike manner, free of all
liens. Tenant shall, at Tenant’s sole cost and expense, obtain any
and all permits and approvals, if any, necessary for the installation of any
signage.
17. DEFAULT.
A. In
the event that any of the following shall occur (each, a “Default”):
(i) Tenant shall at any time
fail to make any payment of Rent (or any portion thereof) or any other payments
required of Tenant hereunder when required, and such failure continues for a
period of more than five (5) days after receipt of notice, which notice shall
not be required more than twice during any twelve-month period, thereafter, the
failure to make payment of Rent (or any portion thereof) shall be a Default if
such failure continues for more than five (5) days after it is due;
or
(ii) Tenant shall at any
time be in default in any other covenants and conditions of this Lease to be
kept, observed and performed by Tenant, which and such default continues for
more than thirty (30) days after receipt of notice; provided, however, except
for any Default by Tenant of its obligations to maintain insurance under Section 15 or
restrictions on transfer in Section 20, that if
Tenant commences work to cure the default and continues to work reasonably
diligently to complete same, such period shall be continued for so long as
necessary to cure such default, but in no event more than ninety (90) additional
days; or
(iii) this
Lease or Tenant’s interest therein shall be taken by execution, attachment
or other process of law, or if any execution or attachment shall be issued
against Tenant and not vacated within ninety (90) days;
then
Landlord may do any or all of the following:
(a) At
its option, at once, without notice to Tenant or to any other person, terminate
this Lease and at its option, require payment in full of the present value of
the Rent due for the unexpired term of the Lease, which obligation of Tenant
shall survive such termination (and upon such termination, this Lease shall
terminate and neither Landlord nor Tenant shall have any further liability to
each other hereunder, except for such obligations that are expressly stated to
survive the termination hereof);
9
(b) Enter
into the Buildings, and remove Tenant’s property and effects therefrom, and/or
take and hold possession thereof, without such entry and/or possession
terminating this Lease or releasing Tenant in whole or in part from Tenant’s
obligations to pay Rent and perform all its other obligations hereunder for the
full Term, and to relet the Buildings or any part or parts thereof, either in
the name of or for the account of Landlord or Tenant, for such rent and for such
term and terms as Landlord may see fit, which term may at Landlord’s option
extend beyond the balance of the Term of this Lease. Except to the
extent required under applicable Legal Requirements, Landlord shall not be
required to accept any tenant offered by Tenant or to observe any instructions
given by the Tenant about such reletting, provided that Landlord shall take
commercially reasonable efforts to mitigate its damages
hereunder. Tenant shall pay Landlord any deficiency between the Rent
hereby reserved and covenanted to be paid and the net amount of the rents
collected on such reletting, for the balance of the Term of this Lease, as well
as reasonable expenses incurred by Landlord in such reletting, including but not
limited to reasonable attorney’s fees, broker fees, the expenses of repairing,
and otherwise preparing the same for re-rental (but not for any tenant
improvements constructed for use by a specific tenant). All such
costs, other than Rent, shall be paid by Tenant upon demand by
Landlord. Any deficiency in Rent shall be paid in monthly
installments, upon statements rendered by Landlord to Tenant. Any
suit brought to collect the amount of the deficiency for any one or more months’
Rent shall not preclude any subsequent suit or suits to collect the deficiency
for any subsequent month’s Rent; or
(c) Require
that upon any termination of this Lease, whether by lapse of time, the exercise
of any option by Landlord to terminate the same, or in any other manner
whatsoever, or upon any termination of Tenant’s right to possession without
termination of this Lease, the Tenant shall at once surrender possession of the
Buildings to the Landlord and immediately vacate the same and remove all effects
therefrom, except such as may not be removed under other provisions of this
Lease. If Tenant fails to do so, Landlord may forthwith re-enter the
Buildings, with or without process of law, and repossess itself thereof as in
its former estate and expel and remove Tenant and any other persons and property
therefrom, using such force as may be necessary without being deemed guilty of
trespass, eviction or forcible entry, without thereby waiving Landlord’s rights
to Rent or any other rights given Landlord under this Lease or at law or in
equity; and Tenant will pay Landlord, upon demand, the reasonable expenses
incurred in such removal and also storage of said effects for any length of time
during which the same shall be in Landlord’s possession or in storage, or
Landlord may at its option, without, notice sell any or all of said effects in
such manner and for such price as the Landlord may deem best and apply the
proceeds of such sale upon any amounts due under this Lease from the Tenant to
Landlord, including the expenses of removal and sale (which
obligation of Tenant shall survive such termination);.
B. No
receipt of monies by the Landlord from or for the account of Tenant or from
anyone in possession or occupancy of the Buildings after termination in any way
of this Lease or after the giving of any notice, shall reinstate, constitute or
extend the term of this Lease or affect any notice given to the Tenant prior to
the receipt of such money, it being agreed that after the service of notice of
the commencement of a suit, Landlord may receive and collect any Rent or other
amounts due Landlord and such payment not waive or affect said notice or said
suit.
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C. Any
and all rights and remedies which Landlord may have under this Lease, at law or
in equity, shall be cumulative and shall not be deemed inconsistent with each
other, and any two or more or all of said rights and remedies may be exercised
at the same time or at different times and from time to time.
D. If
Landlord is required to incur expense, either legal, incidental, or
consequential, because of a Default by Tenant, the Tenant shall promptly
reimburse Landlord for such expense upon being given a written itemization and
explanation thereof. The provisions of this Section 17.D shall
survive the termination of this Lease.
E. The
failure of either party to enforce its rights under this Lease on one or
numerous occasions shall not affect such party’s ability to enforce that right
on any subsequent occasion or occasions.
F. In
the event that a Default shall occur and Landlord elects to terminate this
Lease, or upon expiration of this Lease, Tenant shall not be relieved of its
duties or obligations under this Lease so long as Tenant remains in possession
of the Buildings or any portion thereof.
G. In
the event Landlord shall fail to make any payment required of Landlord hereunder
when due, and such failure continues for a period of more than five (5) days
after receipt of notice, or Landlord shall refuse or fail to perform any of its
obligations under this lease for a period of thirty (30) days or more after
written notice by Tenant (provided, however, except for any default by Landlord
of its obligations to maintain insurance coverage under Section 15, that if
Landlord commences work to cure the default and continues to work reasonably
diligently to complete same, such period shall be continued for so long as
necessary to cure such default, but in no event more than ninety (90) additional
days), Tenant shall be entitled, at Tenant’s election: to (i) terminate this
Lease, and bring an action against Landlord for any out-of-pocket cost incurred
as a result of such breach, or (ii) maintain this Lease in full force and effect
and cure such failure on behalf of Landlord, and Landlord shall promptly
reimburse Tenant for such expense upon being given a written itemization and
explanation thereof. In addition, Tenant shall be entitled to offset
against any Rent due hereunder the amount of all sums due and payable to Tenant
hereunder and under that certain Shared Services Agreement of even date
herewith. Landlord’s obligations hereunder shall survive such
termination (and upon such termination, this Lease shall terminate and neither
Landlord nor Tenant shall have any further liability to each other hereunder,
except for such obligations that are expressly stated to survive the termination
hereof).
H. In
the event of a threatened breach by either party of any material obligation
under this Lease, the other party shall (without limiting any of such party’s
other rights or remedies hereunder, at law or in equity) have the right to
enjoin any such threatened breach by injunction.
18. LIMITATION
ON LIABILITY.
It is
expressly understood and agreed by Tenant that none of Landlord’s covenants,
undertakings or agreements contained in this Lease are made or intended as
personal covenants, undertakings or agreements by any entity which is affiliated
with Landlord, its parent or subsidiaries. No entity which is
affiliated with Landlord (nor any of their respective parents or subsidiaries,
nor any of their respective shareholders, venturers, officers, directors or
employees) shall be personally liable for any such sums, damages, awards or
judgments. It is expressly understood and agreed by Landlord that
none of Tenant’s covenants, undertakings or agreements contained in this Lease
are made or intended as personal covenants, undertakings or agreements by any
entity which is affiliated with Tenant, its parent or
subsidiaries. No entity which is affiliated with Tenant (nor any of
their respective parents or subsidiaries, nor any of their respective
shareholders, venturers, officers, directors or employees) shall be personally
liable for any such sums, damages, awards or judgments. Landlord’s liability
hereunder shall be limited to Landlord’s interest in the Real Property,
Buildings and other improvements located on the Real Property.
11
19. COVENANTS
AGAINST LIENS.
Tenant
hereby covenants and agrees that it will not cause or permit any lien
(including, without limitation, the filing of any mechanic’s lien) to be filed
or asserted against the Buildings as a result of any act or omission of Tenant
or any member of the Tenant Group. In the event any such lien or
notice of lien is filed, Tenant shall, within twenty (20) days of receipt of
notice from Landlord of the filing of the lien, contest such lien as permitted
by law if such contest is sufficient alone to prevent the lien from maturing, or
contest said lien as permitted by law and bond or insure over said lien, or
fully discharge the lien by settling the claim which resulted in the lien or by
bonding or insuring over the lien in the manner prescribed by applicable
law. If Tenant fails to so contest and/or discharge the lien, then,
in addition to any other right or remedy of Landlord, Landlord may bond or
insure over the lien or otherwise discharge the lien. Tenant shall
reimburse Landlord for any amount paid by Landlord to bond or insure over the
lien or discharge the lien, including without limitation reasonable attorney’s
fees, within fifteen (15) days of receipt of invoice therefor. Any
rights and obligations created under or by this Section 19 shall
survive termination or expiration of this Lease.
20. ASSIGNMENT
AND SUBLETTING.
Tenant
shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease
(or any interest of Tenant herein) and shall not sublet (or underlet), or permit
or suffer the Leased Premises or any part thereof to be used or occupied by
others, without Landlord’s prior written consent in each instance, which consent
may be withheld in Landlord’s sole discretion, except as to any proposed
transfer to an affiliate of Tenant, in which event Landlord’s consent shall not
be unreasonably withheld. Tenant shall specify the identity of any
proposed assignee or subtenant to Landlord in any written notice and request for
consent. Tenant shall provide notice of any transfer permitted
hereunder to Landlord in advance. Any assignment, sublease, mortgage,
pledge, encumbrance or transfer by Tenant in contravention of the provisions of
this Section 20
shall be void. Notwithstanding the foregoing, Tenant may assign this
Lease, in whole or in part, to any reorganized debtor entity of Tenant or any
person assuming the obligations of Tenant under the Shared Services Agreement
dated as of even date herewith.
21. QUIET
ENJOYMENT.
Landlord
represents that Landlord has good and indefeasible title to the Real Property
and Buildings. Tenant shall, and may peacefully have, hold and enjoy
the Buildings and the portion of the Real Property incidental to Tenant’s use of
the Buildings, upon the terms and conditions set forth herein.
22. LANDLORD’S
RIGHTS.
Landlord
shall have the right to enter the Buildings during business hours after notice
to Tenant to show the same to prospective mortgagees and/or purchasers, and to
place “For Sale” signs thereon. Commencing six (6) months prior to
the expiration of the Term, Landlord shall have the right to enter the Buildings
during business hours after notice to Tenant to show the same to prospective
tenants, and to place “For Rent” signs thereon. Landlord shall
cooperate with Tenant in such activities in order to minimize inconvenience to
Tenant.
23. RIGHT OF
ENTRY.
Tenant
agrees that Landlord and Landlord’s agents, representatives, employees,
contractors, licensees, invitees, tenants, successors and assigns (collectively,
“Landlord
Parties”), shall have the right to enter the Buildings after reasonable
advance written notice (except in an emergency) to Tenant, if necessary to
alter, modify, augment, supplement, improve, upgrade, repair, replace, install,
construct and maintain Landlord’s facilities and the Buildings, provided that
except in emergencies Landlord shall not perform any work on the Buildings
during business hours which would unreasonably disturb Tenant’s use and
enjoyment of the Buildings and Landlord shall cooperate with Tenant in
scheduling all work at the Buildings.
12
24. LANDLORD’S RIGHT TO
TRANSFER.
This
Lease shall not in any manner or to any extent limit or restrict the right of
Landlord to use or dispose of the Buildings or Real Property as Landlord may in
its discretion desire, subject to rights of Tenant
hereunder. Landlord shall have the right, without notice to or
consent from Tenant, to assign this Lease to any person or entity who succeeds
(directly, indirectly or by operation of law) to any of Landlord’s right, title
or interest in or to the Real Property (including, without limitation, to
encumber its interest in the Real Property and the Buildings by one or more
mortgages, deeds of trust, assignment of rents and leases, security agreements
or otherwise), provided that such transfer is made subject to the provisions of
this Lease and Tenant’s rights hereunder. Tenant shall not be
obligated to any such transferee for the payment of Rent or otherwise until
written notice of such transfer has been received by Tenant.
25. TENANT’S
PROPERTY.
It is
expressly understood and agreed that all equipment and other personal property
that Tenant may install within the Buildings during the Term shall remain the
property of Tenant and shall be removed by Tenant (as set forth in Section 8 hereof), at
its sole cost and expense, at the expiration of the Term of this Lease or at any
time prior thereto.
26. RENEWAL.
Tenant
has the right to renew the Term for one period of five (5) years (the “Renewal
Term”). In the event that Tenant elects to renew, Tenant shall
notify Landlord in writing thereof not less than one hundred eighty (180) days
prior to the expiration of the initial Lease Term (it being agreed that if
Tenant fails to timely provide such notice, Tenant shall be deemed to have
waived its right to renew this Lease). Thereafter
Landlord shall provide notice to Tenant, at least one hundred forty (140) days
prior to the end of the Term, setting forth the Base Rent rate for the Renewal
Term (the “Renewal
Notice”), which Base Rent rate shall be fair market rental for the type
of property and premises so rented on the terms and conditions of this
Lease. Tenant shall then have the right, by written notice to
Landlord within twenty (20) days after receipt of the Renewal Notice, to
withdraw its notice of extension of the Term (a “Withdrawal Notice”)
or to renew and accept the new Base Rent rate (an “Acceptance
Notice”). Tenant may elect to issue an Acceptance Notice
subject to the parties’ agreement on fair market rental, and in such event
Tenant shall so provide in the Acceptance Notice, and such Acceptance Notice
shall thereafter be irrevocable. The parties shall negotiate in good
faith to determine fair market rental for the leased Premises, and may hire a
broker, licensed in the State of Oklahoma and having not less than ten (10)
years experience within the Oklahoma City market, and otherwise mutually
acceptable to the parties, to establish fair market rental, which fair market
value shall be binding on Landlord and Tenant. If the parties are unable to
agree on a broker, each party shall hire a broker meeting such criteria, who
shall in turn select a third broker, and the determination of fair market rental
shall be determined by a majority of the brokers. The cost thereof
shall be shared equally by the parties.
Subject
to the provisions set forth above, in the event that the Lease is renewed, the
Renewal Term will be upon the same terms, covenants and conditions contained in
the Lease, except that any reference in the Lease to the Term will be deemed to
include the Renewal Term and the Base Rent rate will be the Base Rent rate set
in the Renewal Notice, or as later determined by agreement of the parties, as
applicable.
27. HOLDING
OVER.
Tenant
shall have no right to remain in possession of all or any part of the Buildings
after the expiration of the Term or any Renewal Term (as
applicable). In the event that Tenant remains in possession of all or
any part of the Buildings after the expiration or earlier termination of the
Term or any Renewal Term (as applicable), at Landlord’s option (exercised by
giving Tenant written notice): (a) such tenancy shall be deemed to be either (at
Landlord’s sole option) (i) a periodic tenancy from month-to-month only, or (ii)
a tenancy at sufferance terminable at will by Landlord; and (b) such tenancy may
be terminated by Landlord upon the earlier of thirty (30) days’ prior written
notice or the earliest date permitted by law. In the event Tenant
remains in possession after the expiration or earlier termination of the Term or
any Renewal Term (as applicable), then monthly Base Rent shall be increased to
an amount equal to one hundred fifty percent (150%) of the monthly Base Rent
payable during the last month of the Term, and any other sums due under this
Lease shall be payable in the amount and at the times specified in this
Lease. Any such month-to-month tenancy or tenancy at sufferance shall
be subject to every other term, condition, and covenant contained in this
Lease.
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28. SUBORDINATION;
ESTOPPEL.
A. This
Lease is subject and subordinate to all mortgages, deeds of trust and related
security instruments which may now or hereafter encumber the Project and to all
renewals, modifications, consolidations, replacements and extensions thereof and
to each advance made or hereafter to be made thereunder. This
subordination shall be self-operative and no further instrument of subordination
is required. In confirmation of such subordination, however, Tenant
shall, at Landlord’s request, certify in writing as to such subordination;
provided that such subordination is subject to delivery of a non-disturbance
agreement reasonably acceptable to the Tenant, Landlord, and any mortgagee (or
its successors or assigns). If any mortgagee (or its successors or
assigns), or any other person or entity, shall succeed to the rights of Landlord
under this Lease, whether through possession or foreclosure action or delivery
of a new ground lease or deed, then at the request of such party so succeeding
to Landlord’s rights (“Successor Landlord”),
Tenant shall attorn to and recognize Successor Landlord as Tenant’s Landlord
under this Lease, and such successor Landlord shall provide a non-disturbance
agreement to Tenant, and Tenant shall promptly execute and deliver a
subordination, non-disturbance and attornment agreement as Successor Landlord
may reasonably request. Upon such attornment this Lease shall
continue in full force and effect as, or as if it were, a direct lease between
Successor Landlord and Tenant upon all of the terms, conditions and covenants
hereof. The parties shall negotiate in good faith to expeditiously
deliver such subordination, non-disturbance and attornment agreement within
thirty (30) days of request therefor.
B. Tenant
agrees, at any time and from time to time, as requested by Landlord, upon not
less than ten (10) days’ prior notice, to execute and deliver to Landlord a
written statement executed and acknowledged by Tenant, (a) stating that this
Lease is then in full force and effect and has not been modified (or if
modified, setting forth all modifications), (b) setting forth the then current
Base Rent, (c) setting forth the date to which the Rent (including Base Rent)
has been paid, (d) stating whether or not, to the knowledge of the Tenant,
Landlord is in default under this Lease, and if so, setting forth the nature of
such default, and (e) stating whether there are any subleases affecting the
Buildings. Tenant acknowledges that any statement delivered pursuant
to this paragraph may be relied upon by Landlord, any purchaser of the Real
Property or mortgagee of Landlord.
C. Landlord
agrees, at any time and from time to time, as requested by Tenant, upon not less
than ten (10) days’ prior notice, to execute and deliver to Tenant a written
statement executed and acknowledged by Landlord, (a) stating that this Lease is
then in full force and effect and has not been modified (or if modified, setting
forth all modifications), (b) setting forth the then current Base Rent, (c)
setting forth the date to which the Rent (including Base Rent) has been paid,
(d) stating whether or not, to the knowledge of the Landlord, Tenant is in
default under this Lease, and if so, setting forth the nature of such default,
and (e) stating the address of Landlord to which all notices and communication
under the Lease shall be sent. Landlord acknowledges that any
statement delivered pursuant to this paragraph may be relied upon by Tenant, any
assignee or subtenant of the Buildings or by any lender providing credit to
Tenant.
29. MISCELLANEOUS.
A. Brokers. Tenant
represents and warrants to Landlord that Tenant has dealt with no broker, finder
or similar person or entity in connection with this Lease, or Tenant’s use or
occupancy of the Buildings. Tenant agrees to indemnify, defend (with
counsel acceptable to Landlord) and hold Landlord harmless from and against any
and all Claims and Losses brought against, sustained or incurred by Landlord by
reason of Tenant’s breach of the foregoing representation and
warranty. Landlord represents and warrants to Tenant that Landlord
has dealt with no broker, finder or similar person or entity in connection with
this Lease, or Landlord’s use or leasing of the Buildings. Landlord
agrees to indemnify, defend (with counsel acceptable to Tenant) and hold Tenant
harmless from and against any and all Claims and Losses brought against,
sustained or incurred by Tenant by reason of Landlord’s breach of the foregoing
representation and warranty. This Section 29.A shall
survive the expiration or earlier termination of the Lease.
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B. Notices. Whenever
notice is required to be given pursuant to this Lease, the same shall be in
writing, and either personally delivered, sent by a nationally recognized
overnight delivery service, postage prepaid, or sent via United States certified
mail, return receipt requested, postage prepaid, and addressed to the parties at
their respective addresses as follows:
If to
Landlord:
SemGroup
Energy Partners, L.L.C.
Two
Xxxxxx Place
0000
Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxxx 00000-0000
If to Tenant:
SemCrude,
L.P.
00000
Xxxxx X-00 Xxxxxxx Xxxx
Xxxxxxxx
Xxxx, Xxxxxxxx 00000
Telephone:
000-000-0000
Attention:
Xxxxx Xxxxxxxxxx
With copy
to:
SemCrude,
L.P.
Two
Xxxxxx Place
0000
Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxxx 00000-0000
or at
such other addresses as any party, by written notice in the manner specified
above to the other party hereto, may designate from time to
time. Unless otherwise specified to the contrary in this Lease, all
notices shall be deemed to have been given upon receipt (or refusal of receipt)
thereof.
C. Waiver of Jury
Trial. Landlord and Tenant, by this Section 29.C, waive
trial by jury in any action, proceeding, or counterclaim brought by either of
the parties to this Lease against the other on any matters whatsoever arising
out of or in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant’s use or occupancy of the Buildings, or any other claims, and any
emergency statutory or any other statutory remedy.
D. Captions. The
section headings appearing in this Lease are for convenience of reference only
and are not intended, to any extent and for any purpose, to limit or define the
text of any section or any subsection hereof.
E. Binding
Effect. The covenants, conditions, and agreements contained in
this Lease will bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors and
permitted assigns, including, with respect to the Tenant, any reorganized debtor
entity or plan administrator appointed pursuant to the plan of reorganization of
Tenant. In the event that Tenant is comprised of more than one
individual or entity, the obligations of such individuals or entities under this
Lease shall be joint and several.
15
F. Entire
Agreement. This Lease, the exhibits and addenda, if any,
contain the entire agreement between Landlord and Tenant regarding the subject
matter hereof, and fully supersede all prior written or oral agreements and
understandings between the parties pertaining to such subject
matter. No promises or representations, except as contained in this
Lease, have been made to Tenant respecting the condition or the manner of
operating the Buildings.
G. Further
Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to effectuate the purposes and intention of this
Lease.
H. No
Waiver. The failure of either party to enforce at any time any
provision of this Lease shall not be construed to be a waiver of such provision,
nor in any way to affect the validity of this Lease or any part hereof or the
right of such party thereafter to enforce each and every such
provision. No waiver of any breach of this Lease shall be held to
constitute a waiver of any other or subsequent breach.
I. No Third Party
Beneficiaries. Landlord and Tenant agree and acknowledge that,
except as expressly set forth in Section 11, there are
no intended third party beneficiaries of this Lease nor any of the rights and
privileges conferred herein.
J. Governing Law; Venue;
Jurisdiction. The terms and provisions of this Lease shall be
governed by and construed in accordance with the laws of the State of
Oklahoma. During the pendency of the Bankruptcy Cases (as defined
below), and without limiting any party’s right to appeal any order of the
Bankruptcy Court (as defined below), (i) the Bankruptcy Court shall retain
exclusive jurisdiction to enforce the terms of this Lease and to decide any
claims or disputes which may arise or result from, or be connected hereby, and
(ii) any and all actions related to the foregoing shall be filed and maintained
only in the Bankruptcy Court, and the parties hereby consent to and submit to
the jurisdiction and venue of the Bankruptcy Court and shall receive notices at
such locations as indicated in Section
29.B. “Bankruptcy Cases”
means the chapter 11 cases commenced by SemGroup, L.P. and certain of its direct
and indirect subsidiaries on July 22, 2008, jointly administered under Case No.
08-11525 (BLS). “Bankruptcy Court”
means the United States Bankruptcy Court for the District of Delaware or any
other court having jurisdiction over the Bankruptcy Cases from time to time.
Thereafter, the parties agree that action with respect to this Lease will be
brought in an Oklahoma state court or Federal Court of the United States sitting
in the county in which the Real Property is located and the parties hereby
submit to the exclusive jurisdiction of said court.
The
parties hereby unconditionally and irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of venue or any dispute arising out of or relating to this Lease
or any of the transactions contemplated hereby brought in any court specified in
paragraph (a) above, or any defense of inconvenient forum of the maintenance of
such dispute. Each of the parties hereto agrees that a judgment in
any such dispute may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.
K. Counterparts. This
Lease may be executed by the parties in counterparts. Each such
counterpart shall be deemed an original and all such counterparts, taken
together, shall constitute one and the same agreement.
L. Severability. If
any term, provision or condition in this Leased shall, to any extent, be invalid
or unenforceable, the remainder of this Lease (or the application of such term,
provision or condition to persons or circumstances other than in respect of
which it is invalid or unenforceable) shall not be affected thereby, and each
term, provision and condition of this Leased shall be valid and enforceable to
the fullest extent permitted by law.
16
M. Time of the
Essence. Time is of the essence of this Lease, and each and
every term and provision hereof.
N. No
Partnership. None of the terms or provisions of this Lease
shall be deemed to create a partnership between or among the parties hereto in
their respective businesses or otherwise, nor shall any of the terms or
provisions of this Lease cause them to be considered joint venturers or members
of any joint enterprise.
O. No Oral
Change. This Lease cannot be changed orally or by course of
conduct, and no executory agreement, oral agreement or course of conduct shall
be effective to waive, change, modify or discharge it in whole or in part unless
the same is in writing and is signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
P. Authority. Each
party represents and warrants that it has full right, power and authority to
execute and deliver this Lease, and to perform each and all of its duties and
obligations hereunder. If any party so requests, the other party
shall provide reasonable written evidence of such right, power and
authority.
Q. Attorney’s Fees;
Interest. The prevailing party in any dispute shall be
entitled, in addition to any other payment, to receive its reasonable attorney’s
fees, court costs and expenses. All payments due from a party hereto
which are not paid when due shall bear interest at a rate equal to the lesser of
the highest non-usurious rate permitted by applicable law, or ten percent (10%)
per annum from the date due until paid (the “Default
Rate”). This Section 29.Q shall
survive the expiration or earlier termination of the Lease.
R. Limitation on
Indemnity. Notwithstanding anything to the contrary contained
herein or in any other agreement or writing between the parties, no waiver,
indemnity or exculpation of Landlord or any member of the Landlord Group shall
be effective as to any Losses or Claims to the extent resulting from the gross
negligence or willful misconduct of Landlord or any member of the Landlord
Group, and no waiver, indemnity or exculpation of Tenant or any member of the
Tenant Group shall be effective as to any Losses or Claims to the extent
resulting from the gross negligence or willful misconduct of Tenant or any
member of the Tenant Group.
S. Parties Not
Affiliates. For purposes of this Lease, (i) Landlord shall not
be deemed to be an affiliate of Tenant, and Tenant shall not be deemed to be an
affiliate of Landlord; (ii) no SGLP Party (as such term is defined in that
certain Master Agreement of even date herewith) shall be considered an affiliate
of any SemGroup Party (as such term is defined in that certain Master Agreement
dated as of even date herewith), and (iii) no SemGroup Party shall be considered
an affiliate of any SGLP Party.
T. Negotiated. The
parties acknowledge that the parties and their counsel have reviewed and revised
this Lease and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Lease or any exhibits or amendments
hereto.
U. Partial Termination of
Lease. Landlord and Tenant acknowledge and agree that this
Lease provides that Tenant shall have the right, in certain circumstances more
fully set forth herein, to terminate this Lease as to less than all of the
Buildings. Tenant acknowledges and agrees that if this Lease is
terminated as to less than all of the Buildings, then (a) Tenant’s right to use
any part of the Real Property (other than the Building(s) then subject to this
Lease) shall be on a non-exclusive basis, (b) Landlord shall have the right to
grant third parties (including, without limitation, tenants of the Building(s)
not subject to this Lease) the right of vehicular and pedestrian ingress and
egress, parking, and other use of the portions of the Real Property not subject
to this Lease, provided that such grant shall not materially interfere with
Tenant’s use of the Real Property and access to the Building(s) then subject to
this Lease, and (c) Landlord shall have the right to subdivide the Real Property
or to subject the Property to such easements, covenants and/or restrictions as
may be determined by Landlord in its sole discretion, provided that same shall
not materially interfere with Tenant’s use of the Real Property or access to the
Building(s) then subject to this Lease.
[SIGNATURE
PAGE FOLLOWS]
17
1 If the Buildings are not taxed
separately from other improvements located on the same parcels of land, tax on
the Buildings will be paid by Tenant based on book value of the buildings, and
the statutory rate charged within the county.
IN WITNESS WHEREOF, the parties hereto
have executed this Lease as of the day and year first above
written.
LANDLORD:
SEMGROUP ENERGY PARTNERS,
L.L.C.
By:_/s/ Xxxx X.
Stallings________________
Name: Xxxx X.
Xxxxxxxxx
Title: Chief
Financial Officer and Secretary
IN WITNESS WHEREOF, the parties
hereto have executed this Lease as of the day and year first above
written.
TENANT:
SEMCRUDE, L.P.
By: SemOperating G.P.
L.L.C.,
its
general partner
By:_/s/ Xxxxxxxx
Ronan_______________
Name: Xxxxxxxx
Xxxxx
Title: President & CEO
EXHIBIT
A
Real
Property
See
attached.
EXHIBIT
B
Base
Rent
|
PERIOD
|
MONTHLY
INSTALLMENTS
|
ANNUAL
AMOUNT
|
|
Initial
Lease Year ($10.00 per square foot in Office Building and Lab
Building)
|
Total
$5,090.00
|
Total
$61,080.00
|
|
Office
Building
4,391
SF
|
$3,659.16
|
$43,910.00
|
|
Lab
Building
1,717
SF
|
$1,430.84
|
$17,170.00
|
|
Warehouse
Building
North
|
no
charge
|
no
charge
|
|
Warehouse
Building
South
|
no
charge
|
no
charge
|
