EXHIBIT 10.17
STANDARD OFFICE BUILDING
LEASE AGREEMENT
THE STATE OF TEXAS
COUNTY OF XXXXXX
THIS LEASE AGREEMENT made and entered into on this the 14TH day of
JANUARY, 1997 between XXXXXX ENTERPRISES TEXAS, INC. (hereinafter called
"Landlord"), whose address for purposes hereof is 14450 X.X. XXXXXX XXXX., XXXXX
000 Xxxxxxx, Xxxxx, 00000, and CLIFFWOOD OIL & GAS CORP., a Texas corporation
(hereinafter called "Tenant"). Tenant's address for purposes hereof until
commencement of the term of this Lease being 000 XXXXXXX XXXXXXX, XXXXX 000,
XXXXXXX, XXXXX, 00000 and thereafter being that of the "Building" (hereinafter
defined).
WITNESSETH:
1. LEASED PREMISES. Subject to and upon the terms, provisions and conditions
hereinafter set forth, Landlord does hereby lease, demise and let to Tenant and
Tenant does hereby lease from Landlord those certain premises (hereinafter
sometimes called the "Leased Premises") in the building (herein called the
"Building") situated upon the property described in Exhibit "A" attached hereto,
such premises being more particularly described as follows:
CYPRESS COURT OFFICE BUILDING
000 XXXXXXX XXXXXXX XXXXX, XXXXX 000 & 246
XXXXXXX, XXXXX 00000
as reflected on the floor plan of such premises attached hereto and made a part
hereof as Exhibit "B".
The total aggregate rentable area in the Leased Premises is hereby
stipulated for all purposes hereof to be approximately 5092 square feet, whether
the same should be more or less as a result of minor variations resulting from
actual construction and completion of the Leased Premises for occupancy so long
as such work is done in accordance with the terms and provisions hereof.
2. TERM. Subject to and upon the terms and conditions set forth herein, or in
any exhibit or addendum hereto, this Lease shall continue in force for a term of
approximately THIRTY SIX (36) MONTHS, beginning on the 16TH day of JANUARY,
1997, and ending on the 31ST day of JANUARY, 2000. In the event the Leased
Premises should not be ready for occupancy by said commencement date for any
reason, Landlord shall not be liable or responsible for any claims, damages or
liabilities in connection therewith or by reason thereof. This Lease Agreement
shall be effective only from the time that the Leased Premises are ready for
occupancy by Tenant which date shall be the date of commencement of the term of
this Lease. Should the term of this Lease commence on a date other than that
specified in this Section 2, Landlord and Tenant will, at the request of either,
execute a declaration specifying the beginning date of the term of this Lease
Agreement. In such event, rental under this Lease Agreement shall not commence
until said revised commencement date, and the stated term in this Lease
Agreement shall thereupon commence and the expiration date shall be extended so
as to give effect to the full stated term. Also, in such event, Landlord shall
give Tenant written notice of such revised commencement date at least fifteen
(15) days in advance thereof.
3. USE, COMMON AREAS, HAZARDOUS SUBSTANCES AND BUILDING RULES. (a) The Leased
Premises are to be used and occupied by Tenant solely
for the purpose of an office and for no other use without Landlord's prior
written consent. Tenant agrees not to occupy or use, or permit any portion of
the Leased Premises to be occupied or used for any business or purpose which is
unlawful, disreputable or
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deemed to be extra-hazardous on account of fire, or permit anything to be done
which would in any way increase the rate of fire insurance coverage on said
Building and/or its contents.
Tenant further agrees to conduct its business and control its agents,
employees, invitees and visitors in such manner as not to create any nuisance,
or interfere with, annoy or disturb any other tenant or Landlord in his
operation of the Building.
Tenant, by entry under this lease, acknowledges that it has examined the
Leased Premises and accepts them as being in good state of repair and in the
condition called for under this Lease. Tenant accepts the premises in its "AS
IS" condition, without further improvements by Landlord.
(b) The "COMMON AREA" of the premises is that part of the premises
designated by Landlord from time to time for the common use of all tenants,
including among other facilities, those interior and exterior portions of the
Building and such other areas, facilities and equipment serving the Building,
which are designated by Landlord for the common use and benefit of tenants,
their respective employees, customers and invitees and/or members of the public,
including, but not limited to: entrances; exits: lobbies; elevators; stairways:
corridors: passageways; public washrooms; parking facilities: loading areas;
plazas; private sidewalks; landscaped areas; walkways: mechanical, electrical
and telephone rooms; utility and service facilities; electrical, mechanical,
sprinkler, fire detection and fire prevention and security equipment and
facilities; duct shafts; operating, maintenance and storage areas; and service
areas, equipment and facilities. All of these "COMMON AREAS" are subject to
Landlord's sole management and control and shall be operated and maintained in
such manner as Landlord in his discretion shall determine. Landlord reserves the
right to change from time to time the dimensions and location of the "COMMON
AREAS", as well as the dimensions, identity and type of any buildings, and to
construct additional buildings or additional stories on existing buildings or
other improvements. Landlord also reserves the right to dedicate portions of the
"COMMON AREA" and other portions of the premises (excepting only the Demised
Premises) for street, park, utility and other public purposes. Tenant, and its
employees, customers, subtenants, licensees, and guests shall have the
non-exclusive right to use the "COMMON AREA" as constituted from time to time,
such use to be in common with Landlord, other tenants and other persons entitled
to use the same, and subject to such reasonable rules and regulations governing
such use as Landlord may from time to time prescribe. Landlord may elect
(without any obligation to do so) to designate from time to time, Tenant,
employee, subtenant, licensee and guests parking areas. Should Landlord so
designate such parking area, then Tenant, its employees, subtenants, licensees
and guests may have the non-exclusive use, along with other Tenants and their
employees, subtenants, licensees and guests, of only that available space so
designated by Landlord for such use and neither Tenant, nor Tenant's employees,
subtenants, licensees or guests shall use any other parking space. Upon request
of Landlord, Tenant will furnish to Landlord a complete list of the license
numbers of all automobiles operated by Tenant, its employees, subtenants,
licensees or guests. If any automobile or other vehicle owned by Tenant or any
of its employees or any of its subtenants, licensees or guests, or any of their
respective employees, shall at any time be parked in any part of Landlord's
premises, other than the specific areas designated by Landlord from time to time
for employee parking, Landlord shall be, and is hereby, authorized to cause such
automobile or other vehicle to be removed to such other location, either within
or beyond Landlord's premises, and Tenant shall, and does hereby, agree to
indemnify Landlord, his employees, and agents, and hold each of them harmless
from any and all claims of whatsoever sort which may arise by reason of such
removal. Tenant shall not solicit business or display merchandise within the
"COMMON AREA", or distribute handbills therein, or take any action which would
interfere with the rights of other persons to use the "COMMON AREA". Landlord
may temporarily close any part of the "COMMON AREA" for such periods of time as
may be necessary to prevent the public from obtaining prescriptive rights or to
make repairs or alterations.
(c) Hazardous Substances
(1) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS SUBSTANCE"
as used in this Lease shall mean any product, substance, chemical, or material
or waste whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Premises, is
either: (i) potentially injurious to the public health, safety or welfare, the
environment or the premises, (ii) regulated or monitored by any governmental
authority, or (iii) a basis for liability of Landlord to any governmental agency
or third party under any applicable statute or common law theory. Hazardous
Substance shall include, but not be limited to, hydrocarbons, petroleum,
gasoline, crude oil or any products or by-products or fractions thereof. Tenant
shall not engage in any activity in, on or about the Premises which constitutes
a Reportable Use (as hereinafter defined) of Hazardous Substances without the
express prior written consent of Landlord and compliance in a timely manner (at
Tenant's sole cost and expense) with all
Xxxxxx Office Form 1/97 2
Applicable Law (as defined in section 3(d)). "REPORTABLE USE" shall mean (i) no
installation or use of any above or below ground storage tank, (ii) the
generation, possession, storage, use, transportation, or disposal of a Hazardous
Substance that requires a permit from, or with respect to which a report,
notice, registration or business plan is required to be filed with, any
governmental authority. Reportable Use shall also include Tenant's being
responsible for the presence in, on or about the Premises of a Hazardous
Substance with respect to which any Applicable Law requires that a notice be
given to persons entering or occupying the Premises or neighboring properties.
Notwithstanding the forgoing, Tenant may, without Landlord's prior consent, but
in compliance with all Applicable Law, use any ordinary and customary materials
reasonably required to be used by Tenant in the normal course of Tenant's
business permitted on the Premises, so long as such use is not a Reportable Use
and does not expose the premises or neighboring properties to any meaningful
risk or contamination or damage or expose Landlord to any liability therefor. In
addition, Landlord may (but without any obligation to do so) condition its
consent to the use or presence of any Hazardous Substance, activity or storage
tank by Tenant upon Tenant's giving Landlord such additional assurances as
Landlord, in its reasonable discretion, deems necessary to protect itself, the
public, the Premises and the environment against damage, contamination or injury
and/or liability therefrom or therefor, including, but not limited to, the
installation (and removal on or before Lease expiration or earlier termination
or reasonably necessary protective modification to the Premises (such as
concrete encasements.) and/or the deposit of an additional Security Deposit
under Section 4(c) hereof.
(2) DUTY TO INFORM LANDLORD. If Tenant knows, or has reasonable
cause to believe, that a Hazardous Substance, or a condition involving or
resulting from same, has come to be located in, on, under or about the Premises,
other than as previously consented to by Landlord, Tenant shall immediately give
written notice of such fact to Landlord. Tenant shall also immediately give
Landlord a copy of' any statement, report, notice, registration, application,
permit, business plan, license, claim, action or proceeding given to, or
received from, any governmental authority or private party, or persons entering
or occupying the Premises, concerning the presence, spill, release, discharge
of, or exposure to, any Hazardous Substance or contamination in, on, or about
the Premises, including but not limited to all such documents as may be involved
in any Reportable Uses involving the Premises.
(3) INDEMNIFICATION. Tenant shall indemnify, protect, defend and
hold Landlord, its agents, employees, lenders and ground Landlord, if any, and
the Premises. harmless from and against any and all loss of rents and/or
damages, liabilities, judgments, costs, claims, liens, expenses, penalties,
permits and attorney's and consultant's fees arising out of or involving any
Hazardous Substance or storage tank brought onto the Premises by or for Tenant
or under Tenant's control. Tenant's obligations under this paragraph 3 shall
include, but not be limited to, the effects of any contamination or injury to
person, property or the environment created or suffered by, Tenant, and the cost
of investigation (including consultant's and attorney's fees and testing).
removal, remediation, restoration and/or abatement thereof, or of any
contamination therein involved, and shall survive the expiration or earlier
termination of this Lease. No termination, cancellation or release agreement
entered into by Landlord and Tenant shall release Tenant from its obligations
under this Lease with respect to Hazardous Substances or storage tanks, unless
specifically so agreed by Landlord in writing at the time of such agreement.
(d) TENANT'S COMPLIANCE WITH LAW. Except as otherwise provided in this
Lease, Tenant shall, at Tenant's sole cost and expense, fully, diligently and in
a timely manner, comply with all "APPLICABLE LAW," which term is used in this
Lease to include all laws, rules, regulations, ordinances, directives,
covenants, easements and restrictions of records, permits, the requirements of
any applicable fire insurance underwriter or rating bureau, and the
recommendations of Landlord's engineers and/or consultants, relating in any
manner to the Premises (including but not limited to matters pertaining to (i)
industrial hygiene, (ii) environmental conditions on, in, under or about the
Premises, including soil and groundwater conditions, and (iii) the use,
generation, manufacture. production, installation, maintenance, removal,
transportation, storage, spill or release of any Hazardous Substance or storage
tank), now in effect or which may hereafter come into effect, and whether or not
reflecting a change in policy from any previously existing policy. Tenant shall,
within five (5) days after receipt of Landlord's written request, provide
Landlord with copies of all documents and information, including, but not
limited to, permits, registrations, manifests, applications, reports and
certificates, evidencing Tenant's compliance with any Applicable Law specified
by Landlord, and shall immediately upon receipt, notify Landlord in writing
(with copies of any documents involved) of any threatened or actual claim,
notice, citation, warning, complaint or report pertaining to or involving
failure by Tenant or the premises to comply with any Applicable Law.
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(e) INSPECTION; COMPLIANCE. Landlord and shall have the right to enter the
Premises at any time, in the case of an emergency, and otherwise at reasonable
times, for the purpose of inspecting the condition of the Premises and for
verifying compliance by Tenant with this Lease and all Applicable Laws (as
defined in Section 3(d)), and to employ experts and/or consultants in connection
therewith and/or to advise Landlord with respect to Tenant's activities,
including but not limited to the installation, operation, use, monitoring ,
maintenance, or removal of any Hazardous Substance or storage tank on or from
the Premises. The costs and expenses of any such inspections shall he paid by
the party requesting same, unless a Default or Breach of this Lease, violation
of Applicable Law. or a contamination, caused or materially contributed to by
Tenant is found to exist or be imminent, or unless the inspection is requested
or ordered by a governmental authority as the result of any such existing or
imminent violation or contamination. In any such case, Tenant shall upon request
reimburse Landlord or Landlord's Lender, as the case may be, for the costs and
expenses of such inspections.
(f) Tenant and Tenant's agents, employees, and invitees, will comply fully
with all requirements of the rules of the building, parking area and related
facilities which are contained in section 23 of this lease. Landlord shall at
all times have the right to change such rules and regulations or to promulgate
other rules and regulations in such reasonable manner as may be deemed advisable
for safety, care and cleanliness of the Leased Premises and for 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 the employees, servants, agents and visitors of Tenant.
4. BASE RENTAL, ADJUSTMENTS AND LATE CHARGES.
(a) Tenant hereby agrees to pay a base annual rental (herein called "Base
Rental") in the sum of
RENT SCHEDULE
MONTHLY NO. OF AGGREGATE
PAYMENT NO. DUE DATES AMOUNT PAYMENTS AMOUNT
---------- -------------------- ----------- -------- -----------
1 1/16/1997-1/31/1997 $ 2,190.00 12 $ 2,190.00
2-13 2/1/1997-1/31/1998 $ 4,380.00 12 $ 52,560.00
14-25 2/1/1998-1/31/1999 $ 4,380.00 12 $ 52,076.00
26-37 2/1/1999-1/31/2000 $ 4,380.00 12 $ 52.076.00
Such Base Rental, together with any adjustments of rent provided for herein then
in effect, shall be due and payable in equal installments on the first day of
each calendar month during the initial term and any extensions or renewals
thereof, and Tenant hereby agrees to so pay such rent to Landlord at Landlord's
address as provided herein monthly in advance without demand, deduction or
set-off. If the term of this Lease Agreement as heretofore established commences
on other than the first day of a month or terminates on other than the last day
of a month, then the installment of Base Rental for such month or months shall
be prorated and the installment or installments so prorated shall be paid in
advance.
All Base Rental and all other sums hereunder provided to be paid by Tenant
shall be due and payable by Tenant without demand, deduction, abatement or
off-set except as expressly provided herein.
All other sums and charges of whatsoever nature required to be paid by
Tenant to Landlord pursuant to the terms of this Lease constitute additional
rent and failure by Tenant to timely pay such other sums or charges may be
treated by Landlord as a failure by Tenant to pay the Base Rental.
Tenant hereby acknowledges that late payments by Tenant to Landlord of
rent or other sums due hereunder will cause Landlord to incur costs not
contemplated by the Lease, the exact amount of which will be extremely difficult
to ascertain. Such costs include, but are not limited to processing and
accounting charges, and late charges which may be imposed upon Landlord by terms
of any mortgage or trust deed covering the Premises. In the event of any failure
to pay the Base Rental or to make any other payment due Landlord hereunder, in
the manner or time provided for herein, and such Base Rental or other payment is
not made by the tenth (10th) day following the date on which said payment was
due, Tenant shall pay to Landlord, in addition to the amounts then due and
without prior demand therefore and without any deduction or offsets, an
administrative charge in the amount of $100.00 per each
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occurrence, or 15% of the amount due, whichever is greater.
Acceptance by Landlord of any late rent payment and administrative
charge due therefor shall not constitute a waiver of any of Landlord's rights
and remedies available in connection with any subsequent failure of Tenant to
pay the Base Rental or to make any other payment due Landlord hereunder in the
manner or time provided for herein. if tender of late Base Rental or any other
payment due Landlord hereunder is made, Landlord at its sole discretion, shall
have the option to accept the tendered late Base Rental payment and
administrative charge computed as above specified, or to pursue the rights and
remedies provided in Section 14 of the Lease without the necessity of any
further notice or demand.
If within any six (6) month period during the term of this Lease, Tenant
shall fail for three (3) times to make timely payment to Landlord of any rental
payment and/or any other payment due Landlord hereunder on the date when due,
the Landlord shall have the immediate right, without the necessity of giving any
notice of default, to pursue the rights and remedies provided in Section 14
hereof
Tenant shall pay to Landlord upon demand a One Hundred and No/100 Dollar
($100.00) charge for each check tendered to Landlord in payment of Base Rental
or any other payment due Landlord hereunder which is returned uncollectible to
Landlord.
(b) In the event that operating expenses for any calendar year during the
term of this Lease (including without limitation the calendar year in which the
Lease term commences) exceeds $5.00 per square foot of net rentable area, the
Tenant agrees to pay to Landlord, as additional rental, a prorated share of such
increased expenses for the entire building, based on the ratio the Lease's net
rentable area bears to ninety-five percent (95%) of the total net rentable area
in the Building or to the total net rentable area leased in the Building (if
such total is greater than ninety-five percent (95%) of the total Building area)
as Follows:
Within one hundred eighty (180) days after the close of each calendar
year, Landlord shall give Tenant a statement of the operating expenses for the
Building for such calendar year. If such operating expenses exceed $5.00 per
square foot of net rentable area, Tenant will pay Landlord, within thirty (30)
days of receipt of such statement, tenant's proportionate share of such
increased expenses for the entire year immediately preceding issuance of said
statement and for the previous months in the then current year. Thereafter,
Tenant will pay an adjusted monthly rental which reflects the most recent year's
operating expense increases, subject to further increase as aforesaid, or, at
Landlord's option, Tenant will pay an adjusted monthly rental which reflects
projected operating expenses for the current year, subject to further increases
as aforesaid.
Should a discrepancy exist between the actual and estimated costs when
actual operating expenses are calculated at the end of the calendar year, a lump
sum payment will be made from Landlord to Tenant or from Tenant to Landlord, as
appropriate, within thirty (30) days of the delivery of a actual operating
expenses to Tenant outlining such discrepancy.
If at Lease commencement or termination a partial calendar year is
involved, operating expenses shall be computed as though a full calendar year
was involved and prorated for such partial year. If the lease terminates other
than at the end of a calendar year, an estimate of current annual operating
expenses shall be computed for the year of termination and any increased rental
based on such estimate shall be billed to the Tenant at termination.
For purposes of this Lease, operating expenses shall include those
expenses paid or incurred by the Landlord for maintaining, operating and
repairing the real property described in Exhibit "A", the Building and other
improvements thereon and the personal property used in conjunction therewith
(hereafter collectively referred to as "Project") including but not limited to
the cost of ad valorem taxes, electricity, natural gas, ventilation. heating and
air conditioning, water, window cleaning, janitorial service, insurance.
including but not limited to, fire, extended coverage, liability, workmen's
compensation, elevator or any other insurance carried in good faith by the
Landlord and applicable to the project, painting, uniforms, customary property
management tees, supplies, sundries, sales or use taxes on supplies or services,
cost of wages and salaries of all persons engaged in the operation, maintenance
and repair of the Project and so-called fringe benefits, or any other cost or
expenses which the Landlord pays or incurs to provide benefits for employees so
engaged in the operation, maintenance and repair of the Project, the charges of
any independent contractor who, under contract with the Landlord or its
representatives, does any of the work of operating, maintaining or repairing the
Project, legal and accounting expenses, including but not limited to such
expenses as related to seeking or obtaining reductions in and refunds of real
estate taxes, or any other expenses or charge, whether or not hereinbefore
mentioned, which in accordance with generally accepted accounting and management
principles would be considered as an expense of maintaining, operating or
repairing the Project. If any Project expense, though paid in one year, relates
to more than one calendar year, at the option of Landlord such expense may be
proportionately allocated among such related calendar years.
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Tenant at its expense shall have the right at all reasonable times to
audit Landlord's books and records relating to the Lease for any year or years
for which additional rental payments become due.
Notwithstanding any other provision herein to the contrary, it is agreed
that in the event the Building is not hilly occupied during any year of the
lease term, an adjustment shall be made in computing the Operating Expenses for
such year so that the Operating Expenses shall be computed for such year as
though the Building had been fully occupied during such year.
(c) At the time of execution of this Lease by Tenant, Tenant shall pay to
Landlord as and for a Security Deposit, $911.00 additional Security Deposit
($3469.00 on file) a total of $4380.00 which is equal to last month's rent
hereunder. The deposit shall be held by Landlord without liability for interest
and as security for the performance by Tenant of' Tenant's covenants and
obligations under this lease, it being expressly understood that such deposit
shall not be considered an advance payment of rental or a measure of Landlord's
damages in case or default by Tenant. Upon the occurrence of any event of
default by Tenant, Landlord may, from time to time, without prejudice to any
other remedy, use such deposit to the extent necessary to make good any
arrearages of Tenant and any other damage, injury, expense, or liability caused
to Landlord by such event of default. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount so applied
in order to restore the Security Deposit to its original amount. Any remaining
balance of such deposit shall be returned by Landlord to Tenant within thirty
(30) days after expiration of this lease. If Landlord transfers its interest in
the Premises during the Lease Term, Landlord may assign the Security Deposit to
the Transferee and thereafter Landlord shall have no further liability for the
return of such Security Deposit.
(d) Upon execution of this Lease, Tenant will pay to Landlord the first
month's rental as described in section 4(a) above.
5. SERVICES TO BE FURNISHED BY LANDLORD. Landlord covenants and agrees with
Tenant:
(a) To furnish the electricity and water utilized in operating the
facilities serving the Leased Premises, except as otherwise provided herein.
(b) So long as Lessee is not in default hereunder, Lessor shall furnish
the Leased Premises during reasonable and usual business hours (which hours
shall be from 8:00 A.M. to 6:00 P.M. Monday through Friday, excluding holidays),
the following services at Lessor's sole expense except as otherwise provided in
this lease.
(i) Air-conditioning as reasonably required for comfortable use
(subject to federal, state, and local regulations). Lessor retains the option of
whether to keep the building air-conditioned on Saturdays, Sundays, and/or legal
holidays. Whenever machines or equipment which generate unusual heat are used in
the Leased Premises and affect temperature otherwise maintained by the building
air-conditioning system, Lessor reserves the right to install supplementary
air-conditioning units in the Leased Premises and the costs thereof as well as
the cost of operation and maintenance thereof shall be paid by Lessee to Lessor
simultaneous with Lessor's incurring any such cost or expense.
(ii) Hot and cold water at those points of supply provided for
general use of other tenants in the Building; central heat and air conditioning
in season, at such times as Landlord normally furnishes these services to other
tenants in the Building and at such temperatures and in such amounts as are
considered by Landlord to be standard, but such service on Saturday, Sundays and
holidays to be furnished only upon the request of Tenant, who shall bear the
entire cost thereof; routine maintenance and electric lighting service for all
public areas and special service areas of the Building in the manner and to the
extent deemed by Landlord to be standard. Landlord will furnish janitor service
on a five (5) day week basis at no extra charge; provided, however, if Tenant's
floor covering or other improvements are other than building standard, Tenant
shall pay the additional cleaning cost attributable thereto as additional rent.
Failure by Landlord to any extent to furnish these defined services, or any
cessation thereof, resulting from causes beyond the control of Landlord, shall
not render Landlord liable in any respect for damages to either person or
property, nor be construed as an eviction of Tenant, nor work an abatement of
rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof.
Should any of the equipment or machinery break down, or for any cause cease to
function properly, Landlord shall use reasonable diligence to repair same
promptly, but Tenant shall have no claim for rebate of rent or damages on
account of any interruptions in service occasioned thereby or resulting
therefrom.
(iii) Proper electrical facilities to furnish sufficient power for
typewriters, voice writers, calculating machines and other machines of similar
low electrical consumption; but not including electricity required for
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electronic data processing equipment which (singly) consumes more than 0.5
kilowatts per hour at a rated capacity or require a voltage other than 120 volts
single phase. When hear generating machines, equipment, fixtures or other
devices of any nature whatsoever are used in the premises by Tenant which affect
the temperature otherwise maintained by the air conditioning system, Landlord
shall have the right to install supplementary air conditioning units in the
premises, and the cost thereof, including the cost of installation and the cost
of operation and maintenance thereof, shall be paid by Tenant to Landlord upon
demand by Landlord. Lessor has the right to meter and to charge Tenant for
excessive consumption as well as the cost of installing such meter.
(c) To use Landlord's best efforts to control access to the truck loading
area and provide security to the Building during the weekends and after normal
working hours during the week. Landlord shall not be liable to Tenant for losses
due to theft or burglary, or for damages done by unauthorized persons on the
premises.
(d) To furnish Tenant, free of charge, with two keys for each corridor
door entering the Leased Premises. and additional keys will he furnished at a
charge by Landlord equal to its cost plus 15% on an order signed by Tenant or
Tenant's authorized representative. All such keys shall remain the property of
Landlord. No additional locks shall be allowed on any door of Leased Premises
without Landlord's permission, and Tenant shall not make, or permit to be made,
any duplicate keys, except those furnished by Landlord. Upon termination of this
Lease, Tenant shall surrender to Landlord all keys to the Leased Premises, and
give to Landlord the explanation of the combination of all locks for safes, safe
cabinets and vault doors, if any, in the Leased Premises.
(e) To provide and install, at Tenant's cost, all letters or numerals by
or on doors in the Leased Premises; all such letters and numerals shall be in
the building standard graphics. Tenant will not paint, install lighting or
decorations, or install any signs, window or door lettering or advertising media
of any type on or about the Leased Premises or any part thereof, without the
prior written consent of Landlord.
6. REPAIRS BY LANDLORD. Unless otherwise expressly stipulated herein, Landlord
shall not be required to make any improvements or repairs of any kind or
character on the Leased Premises during the term of this Lease, except such
repairs as may be required for normal maintenance operations and such additional
maintenance as may be necessary because of damages, except damages caused by
Tenant, its agents, employees, invitees or visitors. The obligation of Landlord
to maintain and repair the Leased Premises shall be limited to building standard
items, provided that leasehold improvements which are not building standard
will, at Tenant's written request, be maintained by Landlord at Tenant's cost,
plus an additional charge of 15% of such cost to cover overhead.
7. REPAIRS BY TENANT. Tenant agrees, at its own cost and expense, to repair or
replace any damage or injury done to the Building, or any part thereof, caused
by Tenant or Tenant's agents, employees, invitees or visitors: provided,
however, if Tenant fails to make such repairs or replacement promptly, Landlord
may, at its option, make such repairs or replacements, and Tenant shall repay
the cost thereof to the Landlord on demand, plus an additional charge of 15% of
such cost to cover overhead. Tenant further agrees not to commit or allow any
waste or damage to be committed on any portion of the Leased Premises and at the
termination of this Lease, by lapse of time or otherwise, Tenant shall deliver
up said Leased Premises to Landlord in as good condition as at date of
possession by Tenant, ordinary wear and tear excepted, and upon such termination
of this Lease, Landlord shall have the right to re-enter and resume exclusive
possession of the Leased Premises.
8. ASSIGNMENT OR SUBLEASE.
(a) In the event Tenant should desire to assign this Lease or sublet the
Leased Premises or any part thereof, Tenant shall give Landlord written notice
of such desire at least sixty (60) days in advance of the date on which Tenant
desires to make such assignment or sublease. Landlord shall then have a period
of thirty (30) days following receipt of such notice within which to notify
Tenant in writing that Landlord elects either (1) to terminate this Lease as to
the space so affected as of the date so specified by Tenant in which event
Tenant will be relieved of all further obligation hereunder as to such space, or
(2) to permit Tenant to assign this Lease or sublet such space, subject,
however, to subsequent written approval of the proposed assignee or subtenant by
Landlord. If Landlord shall fail to notify Tenant in writing of such election
within said thirty (30) day period, Landlord shall be deemed to have elected
option (2) above, but subsequent written approval by Landlord of the proposed
assignee or subtenant shall be required. If Landlord elects to exercise option
(2) above, Tenant agrees to provide, at its expense, direct access from the
assignment or sublease space to a public corridor of the Building. No assignment
or subletting by Tenant shall relieve Tenant of any obligation under this Lease.
(b) Landlord shall have the right to transfer and assign, in whole or in
part, all its rights and obligations
Xxxxxx Office Form 1/97 7
hereunder and in the Building and property referred to herein, and in such event
and upon assumption by the transferee of Landlord's obligations hereunder (any
such transferee to have the benefit of, and be subject to, the provisions of
Section 20 hereof) no further liability or obligation shall thereafter accrue
against Landlord hereunder.
9. ALTERATIONS, ADDITIONS, IMPROVEMENTS. Tenant agrees not to make or allow to
be made any alterations or physical additions in or to the Leased Premises
without first obtaining the written consent of Landlord. Any and all such
alterations, physical additions, or improvements, shall only be made by
contractors and subcontractors approved in writing by Landlord, and when made to
the Leased Premises by Tenant, shall at once become the property of Landlord and
shall be surrendered to Landlord upon the termination of this Lease by lapse of
time or otherwise; provided, however, this clause shall not apply to movable
equipment or furniture owned by Tenant. Tenant agrees specifically that no food,
soft drink or other vending machine will be installed within the Leased
Premises.
10. ENTRY FOR REPAIRS AND INSPECTION. Tenant agrees to permit Landlord or its
agents or representatives to enter into and upon any part of the Leased Premises
at all reasonable hours to inspect same, clean or make repairs, alterations or
additions thereto, as Landlord may deem necessary or desirable, and Tenant shall
not be entitled to any abatement or reduction of rent by reason thereof.
11. CASUALTY INSURANCE DAMAGE.
(a) Landlord shall, at all times during the term of this Lease, maintain a
policy or policies of insurance with the premiums thereon fully paid in advance,
issued by and binding upon a insurance company, insuring the Building against
loss or damage by fire. explosion or other hazards and contingencies for at
least 80% of the full insurable value thereof; provided that Landlord shall not
be obligated to insure any furniture, equipment, machinery, goods or supplies
which Tenant may bring upon the Leased Premises or any additional improvement
which Tenant may construct thereon. If the annual premiums charged Landlord for
such casualty insurance exceed the standard premium rates because the nature of
Tenant's operations results in extra-hazardous exposure, then Tenant shall upon
receipt of appropriate premium invoices reimburse Landlord for such increases in
such premiums.
(b) In the event of a fire or other casualty in the Leased Premises,
Tenant shall immediately give notice thereof to Landlord. If the Leased
Premises, through no fault or neglect of Tenant, its agents, employees, invitees
or visitors, shall be partially destroyed by fire or other casualty so as to
render the premises untenantable, the rental herein shall xxxxx thereafter until
such time as the Leased Premises are made tenantable by Landlord. Landlord shall
not be required to rebuild, repair or replace any part of the partitions,
fixtures, and other improvements which may have been placed by Tenant or other
tenants within the Building. In the event of the total destruction of the Leased
Premises without fault or neglect of Tenant, its agents, employees, invitees or
visitors, or if from such cause the same shall be so damaged that Landlord shall
decide not to rebuild, then all rent owed up to the time of such destruction or
termination shall be paid by Tenant and henceforth this Lease shall cease and
come to an end. In the event any Mortgagee under a mortgage on the Building
should require that the insurance proceeds be used to retire the mortgage debt,
Landlord shall have no obligations to rebuild and this Lease shall terminate at
Landlord's option. Any insurance which may be carried by Landlord or Tenant
against loss or damage to the Building or to the demised premises shall be for
the sole benefit of the party carrying such insurance and under its sole
control.
(c) Anything in this Lease to the contrary notwithstanding, Landlord and
Tenant each hereby waives any and all rights of recovery, claim, action or cause
of action against the other, its agents, officers or employees, for any loss or
damage that may occur to the Leased Premises, or any improvements thereto, or
any personal property of such party therein, by reason of fire, the elements, or
any other insurance policies, regardless of cause or origin including negligence
to the other party hereto, its agents, officers or employees, and covenants that
no insurer shall hold any right of subrogation against such other party.
12. CONDEMNATION. If the lease premises shall be taken or condemned for any
public purpose to such an extent as to render Leased Premises untenantable, this
Lease shall, at the option of either party, forthwith cease and terminate. All
compensation awarded for any taking or condemnation proceedings (or sale in lieu
thereof) shall be the property of the Landlord.
13. 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 when due any rental or other sums payable by
Tenant hereunder (or under any
Xxxxxx Office Form 1/97 8
other lease now or hereafter executed by Tenant in connection with space in
the building);
(b) Tenant shall fail to comply with or observe any other provision of
this Lease (or any other lease now or hereafter executed by Tenant in connection
with space in the building);
(c) Tenant or any guarantor of Tenant's obligations hereunder shall make
an assignment for the benefit of creditors;
(d) Any petition shall be filed by or against Tenant or any guarantor of
Tenant's obligations hereunder under any section or chapter of the National
Bankruptcy Act, as amended, or under any similar law or statute of the United
States or any State thereof; or Tenant or any guarantor of Tenant's obligations
hereunder shall be adjudged bankrupt or insolvent in proceedings filed
thereunder;
(e) A receiver or Trustee shall be appointed for all or substantially all
of the assets of Tenant or any guarantor of Tenant's obligations hereunder;
(f) Tenant shall desert or vacate any portion of the Leased Premises.
14. REMEDIES. Upon the occurrence of any event of default specified in this
lease, Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever, not specifically provided for
herein:
(a) Terminate this lease, in which event Tenant shall immediately
surrender the Leased 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 of the Leased
Premises and expel or remove Tenant and any other person who may be occupying
the premises or any part thereof. This may be done, by self-help if necessary,
without being liable for prosecution or any claim of damages for such entrance
and expulsion or removal. 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. In the event Landlord elects to terminate the lease by reason of an
any event of default, then notwithstanding such termination, Tenant shall be
liable for and shall pay to Landlord, at the address specified for notice to
Landlord herein, the following: (i) the cost of recovering the premises, (ii)
the cost of removing and storing Tenant's property, (iii) the unpaid rental and
other indebtedness accrued hereunder at the date of termination plus interest at
the highest legal rate, (iv) all remaining rentals and other sums which would
have accrued to Landlord under this Lease for the remainder of the Lease Term if
the terms and provisions of this Lease had been fully complied with shall be
accelerated and immediately and automatically due and payable; Landlord and
Tenant agree that it is their mutual intent that Landlord shall receive the
"benefit of the bargain," (v) rental accruing subsequent to the date of
termination pursuant to the Holding Over provisions in Section 18, and (vi) any
increase in insurance premiums caused by the vacancy of the premises.
(b) Enter upon and take possession of the Leased Premises and expel or
remove Tenant and any other person who may be occupying the Leased Premises or
any part thereof, by self-help if necessary, without being liable for
prosecution or any claim for damages, and if Landlord so elects, relet the
Leased Premises on such terms as Landlord shall deem advisable and receive the
rent therefrom; and Tenant agrees to pay to Landlord on demand any deficiency
that may arise by reason of such reletting.
(c) Enter upon the Leased Premises, by self-help if necessary, without
being liable for prosecution or any claim for damages therefore, 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
Tenant from such action.
(d) Landlord may, without being liable for prosecution or any claim for
damages therefore, discontinue furnishing all or any part of the services
described in this lease, and no such discontinuance shall be deemed an eviction
or disturbance of Tenant's use of the premises.
(e) Landlord may enforce any or all of its rights provided in Section 17
(Landlord's Lien).
(t) The following provisions shall override and control any conflicting
provisions of Section 92.008 of the
XXXXXX OFFICE FORM 1/97 9
Texas Property Code, as well as any successor statute governing the right of
Landlord to change the door locks of commercial tenants. In the event of the
failure or refusal by Tenant to make the timely punctual payment of any rent or
other sums payable under this Lease when and as the same shall become due and
payable, or in the event of any default of this Lease by Tenant as described in
this lease. Landlord is entitled and is hereby authorized, without any notice to
Tenant whatsoever, to enter upon the Leased Premises by use of master key, a
duplicate key or other peaceable means, arid to change, alter and/or modify the
door locks on all entry doors of the Leased Premises, thereby permanently
excluding Tenant, and its officers, principals, agents, employees and
representatives therefrom.
In the event the Landlord has either permanently repossessed the Leased
Premises pursuant to the foregoing provisions of this Lease, or has terminated
the Lease by reason of Tenant's default, Landlord shall not thereafter be
obligated to provide Tenant with a key to the Leased Premises at any time,
regardless of any amounts subsequently paid by Tenant, provided, however, that
in any such instance, during Landlord's normal business hours and at the
convenience of Landlord, and upon receipt of written request from Tenant
accompanied by such written waivers and releases as the Landlord may require,
Landlord will either (at Landlord's option) (I) escort Tenant or its authorized
personnel to the Leased Premises to retrieve any personal belongings or other
property of Tenant not subject to the Landlord's lien or security interest
described in Section 17 hereof or (2) obtain a list from Tenant of such personal
property as Tenant intends to remove, whereupon Landlord shall remove such
property and make it available to Tenant at a time and place designated by
Landlord. However, if Landlord elects option (2), Tenant shall pay, in cash in
advance, all costs and expenses estimated by Landlord to be incurred in removing
such property and making it available to Tenant and all moving and/or storage
charges theretofore incurred by Landlord with respect to such property. If
Landlord elects to exclude Tenant from the Leased Premises without permanently
repossessing or terminating pursuant to the foregoing provisions of this Lease,
then Landlord shall not be obligated to provide Tenant a key to reenter the
Leased Premises until such time as all delinquent rental and other amounts due
under this Lease have been paid in frill and all other defaults, if any, have
been completely cured to Landlord's satisfaction (if such cure occurs prior to
any actual permanent repossession or termination), and Landlord has been given
assurance reasonably satisfactory to Landlord evidencing Tenant's ability to
satisfy its remaining obligations under this Lease. During any such temporary
period of exclusion, Landlord will, during Landlord's regular business hours and
at Landlord's convenience, upon receipt of written request from Tenant
(accompanied by such written waivers and releases as Landlord may require),
escort Tenant or its authorized personnel to the Leased Premises to retrieve
personal belongings of Tenant or its employees, and such other property of
Tenant as is not subject to the Landlord's lien and security interest described
in Section 17. This remedy of Landlord shall be in addition to, and not in lieu
of, any of its other remedies set forth in this Lease, or otherwise available to
Landlord at law or in equity.
No re-entry or taking possession of the Leased Premises by Landlord shall
be construed as an election on its part to terminate this Lease, unless a
written notice of such intention is given to Tenant. Notwithstanding any such
reletting or re-entry to take possession, Landlord may at any time thereafter
elect to terminate this Lease for a previous default.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law, 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 or breach of any of the terms, provisions, and
covenants herein contained shall be deemed or construed to constitute a 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 of the remedies
herein provided upon an event of default shall not be deemed or construed to
constitute a waiver of such 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 repossession.
No act or thing done by Landlord or its agents during the term hereby
granted 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 Landlord.
Notwithstanding any other remedy available to Landlord, in the event
Tenant vacates the Leased Premises voluntarily or at the instance and request of
Landlord after default by Tenant, or should Tenant give oral or written
Xxxxxx Office Form 1/97 10
notice of intent to vacate the Leased Premises prior to the end of the lease
term without the rent being paid in full for the entire remainder of the lease
term or renewal or extension period or without prior written consent of
Landlord, all remaining rents (Base Rent and Estimated Rental Escalation) for
the remainder of the lease term shall be accelerated immediately and
automatically. Such accelerated rents shall be due and delinquent without notice
before or after such acceleration. Such acceleration shall occur even if the
rent for the current month has been paid in full.
15. SURRENDER OF LEASED PREMISES. No act or thing done by Landlord or its agents
during the term hereby granted shall be deemed an acceptance of a surrender of
the premises shall be valid unless the same be made in writing and signed by
Landlord.
16. ATTORNEY'S FEES. In case it should be necessary or proper for Landlord to
bring any action under this Lease or to consult or place this Lease, or any
amount payable by Tenant hereunder, with an attorney concerning or for the
enforcement of any of Landlord's rights hereunder, then Tenant agrees in each
and any such case to pay to Landlord a reasonable attorney's fee.
17. LANDLORD'S LIEN. In consideration of the mutual benefits arising under this
Lease, Tenant hereby grants to Landlord a lien and security interest on all
properly of Tenant now or hereafter placed in or upon the Leased Premises, and
such property shall be and remain subject to such lien and security interest of
Landlord for payment of all rent and other sums agreed to be paid by Tenant
herein. Said lien and security interest shall be in addition to and cumulative
of the Landlord's liens provided by law. This Lease shall constitute a security
agreement under the Uniform Commercial Code so that Landlord shall have and may
enforce a security interest on all property of Tenant now or hereafter placed in
or on the Leased Premises, including but not limited to all fixtures, machinery,
equipment, furnishings and other articles of personal property now or hereafter
placed in or upon the Leased Premises by Tenant. Tenant and each of them agrees
to execute as debtor such financing statement or statements as Landlord may now
or hereafter request in order that such security interest or interests may be
protected pursuant to said Code. In the event Tenant fails to return such
financing statement within twenty-four (24) hours after request by Landlord,
Tenant agrees that Landlord may file a financing statement without Tenant's
signature or, at Landlord's sole option, Tenant hereby appoints Landlord as
Tenant's attorney-in-fact for the specific purpose of signing such financing
statement for and on behalf of Tenant. Landlord may at its election at any time
file a copy of this Lease as a financing statement. More specifically, the
current version of the Uniform Commercial Code-Financing Statement-form UCC- 1,
shall be executed by both Tenant and Landlord and registered with the State of
Texas, and The County wherein the Leased Premises are located, promptly upon
occupancy of the Leased Premises. Landlord, as secured party, shall be entitled
to all of the rights and remedies afforded a secured party under said Uniform
Commercial Code, which rights and remedies shall be in addition to and
cumulative of the Landlord's liens and rights provided by law or by the other
terms and provisions of this Lease.
Upon the occurrence of an event of default by Tenant, Landlord may, in
addition to any other remedies provided herein, enter upon the Leased Premises
and take possession of any and all goods, wares, equipment, fixtures, furniture,
improvements, and other personal property of Tenant situated on the Leased
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 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 attorney's fees and other expenses), shall be applied as a
credit against the indebtedness secured by the security interest granted in this
article. Any surplus shall be paid to Tenant or as otherwise required by law,
and the Tenant shall pay any deficiencies forthwith.
18. HOLDING OVER. In the event of holding over by Tenant after expiration or
termination of this Lease without the written consent of Landlord, Tenant shall
pay as liquidated damages double rent for the entire holdover period. No holding
over by this Tenant after the term of this Lease shall operate to extend the
Lease; in the event of such
Xxxxxx Office Form 1/97 11
holding over, Tenant shall indemnify Landlord against all claims for damages by
any other tenant or prospective tenant to whom Landlord may have leased or
entered into any agreement, either oral or written, for all or any part of the
premises covered hereby effective upon the termination of this Lease. Any
holding over with the consent of Landlord in writing shall thereafter constitute
this Lease a lease from month to month.
19. HOLD HARMLESS AND LIABILITY INSURANCE.
(a) Landlord shall not be liable or responsible to Tenant for any loss or
damage to any property or person occasioned by theft, act of God, public enemy.
injunction, riot, strike, insurrection, war, court order, requisition or order
of governmental body or authority, or for any damage or inconvenience which may
arise through repair or alteration of any part of the Building, or failure to
make any such repairs. Landlord shall not be liable to Tenant, or to Tenant's
agents, servants, employees, customers or invitees for any damage to person or
property caused by any act, omission or neglect of Tenant, and Tenant agrees to
hold Landlord harmless from all claims for any such damage. Tenant shall not be
liable to Landlord, or to Landlord's agents. servants. employees, customers or
invitees for any damage to person or property caused by any act, omission or
neglect of Landlord, and Landlord agrees to hold Tenant harmless from all claims
for such damage.
(b) Tenant shall, at its expense, maintain a policy or policies of
comprehensive general liability insurance pertaining to its use and occupancy of
the Leased Premises hereunder, with the premiums thereon fully paid in advance,
issued by and binding upon some solvent insurance company, such insurance to
name Landlord and Tenant as insureds and to afford minimum protection of not
less than One Hundred Thousand Dollars ($100,000.00) in respect of personal
injury or death to any one person, and of not less than Three Hundred Thousand
Dollars ($300,000.00) in respect to any one occurrence, and of not less than One
Hundred Thousand Dollars ($100,000.00) for property damage in one occurrence.
20. PEACEFUL ENJOYMENT. That Tenant shall, and may peacefully have, hold and
enjoy the Leased Premises, subject to the other terms hereof, provided that
Tenant pays the rental herein recited and performs all of Tenant's covenants and
agreements herein contained. It is understood and agreed that this covenant and
any and all other covenants of Landlord contained in this Lease shall be binding
upon Landlord and its successors only with respect to breaches occurring during
its and their respective ownerships of the Landlord's interest hereunder. In
addition, Tenant specifically agrees to look solely to Landlord's interest in
the Building for the recovery of any judgment from Landlord; it being agreed
that Landlord shall never be personally liable for any such judgment. The
provision contained in the foregoing sentence is not intended to, and shall not,
limit any right that Tenant might otherwise have to obtain injunctive relief
against Landlord or Landlord's successors in interest, or any other action not
involving the personal liability of Landlord to respond in monetary damages from
assets other than Landlord's interest in the Building.
21. SUBORDINATION TO MORTGAGE. This Lease is subject and subordinate to any
first lien mortgage or deed of trust which may now or hereafter encumber the
Building of which the Leased Premises form a part and to all renewals,
modifications, consolidations, replacements and extensions thereof. This clause
shall be self-operative and no further instrument of subordination need be
required by any mortgagee. In conformation of such subordination, however,
Tenant shall at Landlord's request execute promptly any appropriate certificate
or instrument that Landlord may request. Tenant hereby constitutes and appoints
Landlord as the Tenant's attorney-in-fact to execute any such certificate or
instrument for and on behalf of Tenant. In the event of the enforcement by the
trustee or the beneficiary under any such mortgage or deed of trust of the
remedies provided for by law or by such mortgage or deed of trust, Tenant will,
upon request of any person or party succeeding to the interest of Landlord as a
result of such enforcement, automatically become the Tenant of such successor in
interest without change in the terms or other provisions of this Lease;
provided, however, that such successor in interest shall not be bound by (i) any
payment of rent or additional rent for more than one month in advance except
prepayments in the nature of security for the performance by Tenant of its
obligations under this Lease or (ii) any amendment or modification of this Lease
made without the written consent of such trustee or such beneficiary or such
successor in interest. Upon request by such successor in interest, Tenant shall
execute and deliver an instrument or instruments confirming the attornment
herein provided for.
Xxxxxx Office Form 1/97 12
22. OPTION FOR SUBSTITUTE SPACE.
(a) Landlord shall have the right at any time from the date hereof through
the end of the term of this lease or any renewal or extension hereof to
substitute, instead of the Leased Premises, other space (of at least the area of
the Leased Premises) hereinafter referred to as " Substitution Space, " in a
Building within the subject property of this Lease.
(b) If Landlord desires to exercise such right, it shall give Tenant at
least sixty (60) days prior notice thereof specifying the effective date of such
substitution, whereupon, as of such effective date: (1)the description of the
Leased Premises set forth in this Lease shall, without further act on the part
of Landlord or Tenant. be deemed amended so that the Substitution Space shall,
for all intents and purposes be deemed the Leased Premises hereunder, and all of
the terms, covenants, conditions, provisions and agreements of this Lease shall
continue in full force and effect and shall apply to the Substitution Space
except that if the Substitution Space contains more square footage than the
presently Leased Premises, the annual rental appearing on the first page of this
Lease shall be increased proportionately (provided that such rental increase
shall not be in excess of five percent (5%) of the rental immediately preceding
such increase); and (2) Tenant shall move from the presently Leased Premises
into the Substitution Space and shall vacate and surrender possession to
Landlord of the presently Leased Premises after such effective date, and if
Tenant continues to occupy the presently Leased Premises after such date, then
thereafter, during the period of such occupancy, Tenant shall pay rent for the
presently Leased Premises at the rate set forth in this lease in addition to the
rent for the Substitution Space at the above-described rate.
(c) Tenant shall have the option to accept possession of the Substitution
Space in its "as is" condition as of such effective date or to require Landlord
to alter the Substitution Space in the same manner as the presently Leased
Premises were altered or were to be altered. Such option shall be exercised by
notice from Tenant to Landlord within ten (10) days after the aforesaid notice
from Landlord to Tenant of such proposed relocation. If Tenant fails to deliver
to Landlord within such ten (10) day period notice of its election, or if Tenant
is in default under any of the terms, covenants, conditions, provisions or
agreement of this lease, Tenant shall be deemed to have elected to accept
possession of the Substitution Space in its "as is" condition. If Tenant elects
to require Landlord to alter the Substitution Space, then (1) Tenant shall
continue to occupy the presently Leased Premises (upon all of the terms,
covenants, conditions, provisions, and agreements of this lease including the
covenant for the payment of rent) until the date on which work in the
Substitution Space is substantially complete, and (2) Tenant shall move from the
presently Leased Premises into the Substitution Space immediately upon the date
of such substantial completion by Landlord and shall vacate and surrender
possession to Landlord of the presently Leased Premises on such date and if
Tenant continues to occupy the presently Leased Premises after such date, then
thereafter, during the period of such occupancy, Tenant shall pay rent for the
presently Leased Premises at the rate set forth in this Lease, in addition to
the rent for the Substitution Space at the above-described rate. With respect to
such alteration work in the Substitution Space, if Tenant shall make changes in
the work and if such changes shall delay the work to be performed by Landlord,
or if Tenant shall otherwise delay the substantial completion of Landlord's
work, the happening of such delays shall in no event postpone the date for the
commencement of the payment of rent for such Substitution Space, beyond the date
on which such work would have been substantially completed but for such delay,
and, in addition, Tenant shall continue to pay rent for the presently Leased
Premises at the rate set forth in this Lease until it vacates and surrenders
same as aforesaid. Landlord at its discretion may substitute materials of like
quality for the materials originally utilized.
(d) If Landlord exercises this relocation right, Landlord shall reimburse
Tenant for Tenant's reasonable out- of-pocket expenses for moving Tenant's
furniture, equipment, supplies and telephones and telephone equipment from the
presently Leased Premises to the Substitution Space and for reprinting Tenant's
stationary of the same quality and quantity of Tenant's stationary supply on
hand immediately prior the Landlord's notice to Tenant of the exercise of this
relocation right. If the Substitution Space contains more square footage than
the presently Leased Premises, and if the Leased Premises were carpeted,
Landlord shall supply and install an equal amount of carpeting of the same or
equivalent quality and color.
23. BUILDING RULES AND REGULATIONS.
The following rules and regulations shall apply, where applicable, to the
premises, the Building, the parking garage or parking areas associated
therewith, the land situated beneath the Building and the appurtenances thereto:
Xxxxxx Office Form 1/97 13
(a) Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for any purpose
other than ingress and egress to and from the Leased Premises and for going from
one to another part of the Building. Corridor doors, when not in use, shall be
kept close.
(b) No signs, advertisements or notices shall be painted or affixed on or
to any windows or doors or other part of the Building or any "COMMON AREA" or in
or upon any vehicle in any parking area, except of such color, size and style
and in such places as shall be first approved in writing by Landlord. No nails,
hooks or screws shall be driven or inserted in any part of the Building except
by the Building maintenance personnel nor shall any part of the Building be
defaced by tenants. No curtains or other window treatments shall be placed
between the glass and the Building standard window treatments.
(c) Landlord will provide and maintain, at Tenant's cost. an alphabetical
directory board for all tenants in the first floor (main lobby) of the Building
and no other directory shall be permitted unless previously consented to by
Landlord in writing.
(d) With respect to work being performed by tenants in any Leased Premises
with the approval of Landlord, all tenants will refer all contractors,
contractors' representatives and installation rendering any service to them to
Landlord for Landlord's supervision and approval before the performance of any
contractual services. This provision shall apply to all work performed in the
building including, but not limited to, installation of telephones, telegraph
equipment, electrical devises and attachments, and any and all installations of
every nature affecting floors, walls, woodwork, trim, windows, ceilings,
equipments and any other physical portion of the Building. Should a tenant
require telegraphic, telephonic, annunciator or other communication service,
Landlord will direct the electrician where and how wires are to be introduced
and placed and none shall be introduced or placed except as Landlord shall
direct. Electric current shall not be used for power or heating without
Landlord's prior written permission.
(e) All deliveries of other than hand carried items must be made via the
service entrances and service elevator. Any deliveries, removals or relocations
of large, bulky or voluminous items, such as furniture, office machinery and
equipment, etc., can only be made after obtaining approval from the Landlord and
at those times specified by the Landlord. A tenant shall notify the Building
manager when safes or other heavy equipment are to be taken in or out of the
Building, and the moving shall be done under the supervision of the Building
manager, after written permission from Landlord. Persons employed to move such
property must be acceptable to Landlord. Landlord shall have the right to
prescribe the weight and position of safes and other heavy equipment or items,
which shall in all cases, to distribute weight, stand on supporting devices
approved by Landlord.
(f) All movement referenced in Section 23(e) above, shall be under the
supervision of Landlord and in the manner agreed between the tenants and
Landlord by prearrangement before performance. Such prearrangement initiated by
a tenant will include determination by Landlord, and subject to Landlord's
decision, as to the time, method, and routing of movement as to the limitations
for safety of other concern which may prohibit any article, equipment or any
other item from being brought into the Building. The tenants are to assume all
risks and indemnify and hold Landlord harmless, as to damage to articles moved
and injury to persons engaged and not engaged in such movement, including
without limitation equipment, property and personnel of Landlord if damaged or
injured as a result of acts in connection with carrying out this service for a
tenant from the time of entering the property to completion of work: and
Landlord shall not be liable for and the tenant shall indemnify and hold
harmless Landlord from and against, acts of any person engaged in, or any damage
or loss to any of said property or persons resulting from, any act in connection
with such service performed for a tenant. All damages done to the Building by
the installation or removal of any property of a tenant, or done by a tenant's
property while in the Building, shall be repaired at the expense of such tenant.
(g) Each tenant shall cooperate with Landlord's employees in keeping its
Leased Premises neat and clean. Tenants shall not employ any person for the
purpose of such cleaning other than the Building's cleaning and maintenance
personnel. Landlord shall be in no way responsible to the tenants, their agents,
employees or invitees for any loss of property from the Leased Premises or
public areas or for any damages to any property thereon from any cause
whatsoever.
Xxxxxx Office Form 1/97 14
(h) Plumbing, fixture, and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or placed therein. Damage resulting to any such fixtures or
appliances from misuse by a tenant or such tenant's agents, employees or
invitees, shall be paid by such tenant, and Landlord shall not in any case be
responsible thereof.
(i) To insure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc. shall be delivered to any leased area except by
persons appointed or approved by Landlord in writing.
(j) Tenants shall not make or permit any improper, objectionable or
unpleasant noise or odors in the Building or otherwise interfere in any way with
other tenants or persons having business with them.
(k) Nothing shall be swept or thrown into the corridors, halls. elevator
shafts or stairways. No birds or animals shall be brought into or kept in, on or
about the Building.
(l) No machinery of any kind shall be operated by any tenant on its leased
area without the prior written consent of Landlord.
(m) No portion of any tenant's leased premises shall at any time be used
or occupied as sleeping or lodging quarters, or for any unlawful or immoral
purpose.
(n) Tenant shall not do anything, or permit anything to be done, in or
about the Building, or bring or keep anything therein, including without
limitation any inflammable or explosive fluid or substance, that will in any way
increase the possibility of fire or other casualty, or do anything in conflict
with valid laws, rules or regulations of any governmental authority.
(o) Landlord will not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
(p) Landlord or its agents or employees shall have the right to enter the
leased premises to examine the same or to make such repairs, alterations, or
additions as Landlord shall deem necessary for the safety, preservation or
improvement of the Building.
(q) No additional locks or bolts shall be placed on any doors or shall
tenant alter any locks without the prior written consent of Landlord. If
Landlord shall give its consent, tenant shall in each case furnish the Landlord
a key for any such lock. All keys furnished by Landlord, or purchased from
Landlord by tenant, shall be surrendered upon termination of the Lease.
(r) Landlord grants Tenant a revocable license to park, in common with
other tenants, up to Tenant's Parking Allotment of automobiles in the parking
facilities appurtenant to the Building. Tenant agrees to pay Landlord, or
Landlord's designee, the regularly scheduled parking rates at such time and in
such manner as Landlord or Landlord's designee may, from time to time, establish
for tenants of the Building. Tenant's license shall be revoked and expire
concurrently with the termination of the Lease, unless sooner terminated
pursuant to the terms and conditions of this Lease. Tenant agrees to abide by
all of the rules and regulations for the parking facilities that Landlord, or
its designee, may from time to time establish. In the event Tenant is in default
under any term or condition of the Lease, Landlord may revoke this license in
whole or in part and prohibit Tenant's or any or all of its employee's,
servant's, agent's or contractor's use of the Parking facilities without
liability to Tenant. This Section creates only a revocable license to use such
parking facilities and does not convey to Tenant any estate in the Building, the
"COMMON AREAS'., the real property on which the Building is located or in any
parking facilities located at or on said real property. No bailment is created
hereby and Tenant, for itself, its agents, servants, employees, successors and
assigns, hereby releases Landlord and Landlord's agents, servants, employees and
independent contractors from all claims for loss or damage arising out of or
related to use of the parking facilities.
Xxxxxx Office Form 1/97 15
(s) No bicycles or vehicles of any kind shall be brought into, stored or
kept in or about the Premises. There shall not be used in any space, or in the
"COMMON AREAS" of the Building, either by Tenant or others, any hand trucks
except those equipped with rubber tires and rubber side guards or such other
material handling equipment as Landlord may approve.
(t) No cooking shall be done or permitted by Tenant on the Premises,
except that the preparation of coffee, tea, hot chocolate and similar items for
Tenant and its employees shall be permitted, provided the power requirement does
not exceed that amount which can be provided by a 30 amp circuit. Tenant shall
not cause or permit any unusual or objectionable odors to be produced or
permeate the Premises or the Building. No vending or similar machines shall be
installed, maintained or operated upon the Premises without the written consent
of Landlord.
(u) Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary to
properly distribute the weight. Business machines and mechanical equipment
belonging to Tenant, which cause noise or vibration that may be transmitted to
the structure of the Building, or to any space therein, to such a degree as to
be objectionable to Landlord, or to any tenants in the Building, shall be placed
and maintained by Tenant, at Tenant's expense, on vibration eliminators or other
devices sufficient to eliminate noise or vibration. The Landlord reserves the
right to inspect all safes, freight or other bulky articles to be brought into
the Building and to exclude from the Building all safes, freight or bulky
articles which violate any of these Rules and Regulations or the Lease.
(v) Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as an office building and, upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
(w) The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual. Employees
of Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord.
(x) Landlord reserves the right to rescind any of these rules and
regulations and to make such other and further rules and regulations as in its
judgement shall from time to time be needful for the safety, protection, care
and cleanliness of the Building, the operation thereof, the preservation of good
order therein and the protection and comfort of the tenants and their agents,
employees and invitees, which rules and regulations, when made and written
notice thereof is given to a tenant, shall be binding upon it and like manner as
if originally herein prescribed.
(y) Tenant shall, before leaving the leased premises unattended, close and
lock all outside doors and shut off all utilities; damage resulting from failure
to do so shall be paid by Tenant.
24. DELIVERY OF NOTICE. Any notice and/or document required to be delivered
hereunder shall be deemed to be delivered, whether actually received or not,
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 specified above, or at such other address as they have
set forth specified by written notice delivered in accordance herewith.
25. MISCELLANEOUS.
(a) This Lease may not be altered, changed or amended, except by an
instrument in writing, signed by both parties hereto. This lease and the
schedules and exhibits attached if any, form a part of this lease together with
the rules and regulations adopted and promulgated by the Landlord pursuant to
Section 3 and Section 23 hereof, and set forth all the covenants, promises,
assurances, agreements, representations, conditions, warranties, statements, and
understandings ("Representations") between the Landlord and the Tenant
concerning the Leased Premises, and there are no Representations, either oral or
written, between them other than those in this Lease.
Xxxxxx Office Form 1/97 16
This lease supersedes and revokes all previous negotiations, arrangements,
letters of intent, offers to lease, lease proposals, brochures. Representations,
and information conveyed, whether oral or in writing, between the parties hereto
or their respective representatives or any other person purporting to represent
the Landlord or the Tenant. The Tenant acknowledges that it has not been induced
to enter into this lease by any Representations not set forth in this Lease, it
has not relied on any such Representations, no such Representations shall be
used in the interpretations or construction of this Lease, and the Landlord
shall have no liability for any consequences arising as a result of any such
Representations.
Except as herein otherwise provided, no subsequent alteration, amendment
change, or addition to this Lease shall be binding upon the Landlord or the
Tenant unless in writing and signed by each of them.
(b) This Lease shall be binding upon and inure to the benefit of the
successors and assigns of Landlord, and shall be binding upon and inure to the
benefit of Tenant, its successors, and, to the extent assignment may be approved
by Landlord hereunder, Tenant's assigns. The pronouns of any gender shall
include the other genders, and either the singular or the plural shall include
the other.
(c) All rights and remedies of Landlord under this Lease shall be
cumulative and none shall exclude any other rights or remedies allowed by law;
and this Lease is declared to be a Texas contract, and all of the terms thereof
shall be construed to the laws of the State of Texas.
(d) 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 for any such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations, or restrictions or any other causes of any kind
whatsoever.
(e) At Landlord's request Tenant will execute either an estoppel
certificate addressed to Landlord's mortgagee or a three-party agreement among
Landlord, Tenant and said mortgagee certifying as to such facts (true) and
agreeing to such notice provisions and other matters as such mortgagee may
reasonably require in connection with Landlord's financing.
(f) Tenant warrants that it has had no dealings with any broker or agent
in connection with the negotiation or execution of this Lease and Tenant agrees
to indemnify Landlord and hold him harmless from and against any and all cost,
expense or liability for commissions or other compensation and charges claimed
by any broker or agent with respect to this Lease.
(g) Upon request from Landlord, Tenant and Guarantor agree by their
respective execution of this Lease and the Guaranty at Exhibit "C", to provide
current, signed financial statements (balance sheet and income statements) and
information to Landlord during the term of this Lease. Landlord may not in any
event, make such requests more frequently than semi-annually.
(h) BUILDING ACCESS CARDS. Prior to Lease Commencement Tenant shall submit
to Landlord a list of employees needing Building Access Cards. Based upon such
list, Landlord will provide Tenant a maximum of one (1) Building Access Card per
employee at a cost to Tenant of $20.00 per card. After the date Tenant first
occupies the premises, any replacement or additional cards will be furnished at
a cost to Tenant of $20.00 per card.
(i) Contingent upon Tenant satisfying all the following conditions, (the
"Conditions") Tenant is hereby granted an option to terminate the Lease Term, as
set forth in Section 2 of the Lease. The Conditions being that (i) Tenant shall
have fully performed all of its covenants, duties and obligations hereunder
during the term of this lease; (ii) Tenant shall have given written notice to
Landlord on or before NOVEMBER 30, 1997 that Tenant is exercising such Option;
(iii) that such written notice be delivered to Landlord at Landlord's business
office within normal business hours on or before NOVEMBER 30, 1997; and (iv)
Tenant shall reimburse Landlord at the time of written notification to terminate
the Lease for the unamortized portion of up front costs in the amount of
$3,689.00. Time is of the essence in the exercise of such Option, and the time
period within which such Option may be exercised shall not be extended or
enlarged by Tenant for any reason, including inability to exercise such Option.
In the event that Tenant satisfies all the Conditions and effectively
exercises such Option to Terminate, this Lease Agreement shall expire on JANUARY
31, 1998. Failure of Tenant to provide notice as specified herein shall cause
the lease term to continue unabated.
(b) Contingent upon Tenant satisfying all the following conditions, (the
"Conditions") Tenant is hereby granted an option to terminate the Lease Term, as
set forth in Section 2 of the Lease. The Conditions being that (i) Tenant shall
have fully performed all of its covenants, duties and obligations hereunder
during the term of this lease; (ii) Tenant shall have given written notice to
Landlord on or before NOVEMBER 30, 1998 that Tenant is exercising such Option:
(iii) that such written notice be delivered to Landlord at Landlord's business
office within normal business hours on or before NOVEMBER 30, 1998; and (iv)
Tenant shall reimburse Landlord at the time of
Xxxxxx Office Form /97 17
written notification to terminate the Lease for the unamortized portion of up
front costs in the amount of $1,845.00. Time is of the essence in the exercise
of such Option, and the time period within which such Option may be exercised
shall not be extended or enlarged by Tenant for any reason, including inability
to exercise such Option.
In the event that Tenant satisfies all the Conditions and effectively
exercises such Option to Terminate, this Lease Agreement shall expire on JANUARY
31, 1999. Failure of Tenant to provide notice as specified herein shall cause
the lease term to continue unabated.
IN TESTIMONY WHEREOF, the parties hereto have executed this Lease as of
the date of aforesaid.
LANDLORD
XXXXXX ENTERPRISES TEXAS, INC.
BY: /S/ XXXXXXX X. XXXXX
XXXXXXX X. XXXXX
PRESIDENT
XXXXXX ENTERPRISES TEXAS, INC.
DATE: /S/ JANUARY 22, 1997
TENANT
CLIFFWOOD OIL & GAS CORP.
BY: /S/ XXXXX X. XXXXXXXXX
XXXXX X. XXXXXXXXX
PRESIDENT
CLIFFWOOD OIL & GAS CORP.
DATE: /S/ JANUARY 21, 1997
Xxxxxx Office Form 1/97 18
