EXHIBIT 10.38
LEASE AGREEMENT
CYPRESS COURT
BY AND BETWEEN
CYPRESS COURT OPERATING ASSOCIATES, L.P.
("LANDLORD")
AND
Southern Bay Energy, L.L.C.,
("TENANT")
TABLE OF CONTENTS
Page
SEC. 1
LEASED PREMISES:
1
SEC. 2
TERM:
1
SEC. 3
USE:
2
SEC. 4
SECURITY DEPOSIT:
2
SEC. 5
BASE RENT:
2
SEC. 6
ADDITIONAL RENT:
3
SEC. 7
SERVICE AND UTILITIES:
7
SEC. 8
MAINTENANCE, REPAIRS AND USE:
9
SEC. 9
QUIET ENJOYMENT; RIGHTS RESERVED:
9
SEC. 10
ALTERATIONS:
10
SEC. 11
FURNITURE, FIXTURES AND PERSONAL PROPERTY:
11
SEC. 12
SUBLETTING AND ASSIGNMENT:
11
SEC. 13
FIRE AND CASUALTY:
13
SEC. 14
CONDEMNATION:
14
SEC. 15
DEFAULT BY TENANT:
14
SEC. 16
REMEDIES OF LANDLORD:
15
SEC. 17
LIEN FOR RENT:
17
SEC. 18
NON-WAIVER:
17
SEC. 19
LAWS AND REGULATIONS; RULES AND REGULATIONS:
17
SEC. 20
ASSIGNMENT BY LANDLORD; LIMITATION OF LANDLORD'S LIABILITY:
17
SEC. 21
SEVERABILITY:
17
SEC. 22
SIGNS:
17
SEC. 23
SUCCESSORS AND ASSIGNS:
18
SEC. 24
SUBORDINATION:
18
SEC. 25
TAX PROTEST:
19
SEC. 26
HOLDING OVER:
19
SEC. 27
INDEPENDENT OBLIGATION TO PAY RENT:
19
SEC. 28
INDEMNITY; RELEASE AND WAIVER:
19
SEC. 29
INSURANCE:
20
SEC. 30
ENTIRE AGREEMENT:
20
SEC. 31
NOTICES:
21
SEC. 32
COMMENCEMENT DATE:
21
SEC. 33
RELOCATION OF TENANT:
21
SEC. 34
BROKERS:
21
SEC. 35
ESTOPPEL CERTIFICATES:
21
SEC. 36
NAME CHANGE:
22
SEC. 37
BANKRUPTCY:
22
SEC. 38
TELECOMMUNICATIONS PROVIDERS:
22
SEC. 39
HAZARDOUS SUBSTANCES:
23
SEC. 40
NO MONEY DAMAGES FOR FAILURE TO CONSENT; WAIVER OF CERTAIN DAMAGES:
23
SEC. 41
ACKNOWLEDGMENT OF NON-APPLICABILITY OF DTPA:
23
SEC. 42
ATTORNEYS' FEES:
24
SEC. 43
AUTHORITY OF TENANT:
24
SEC. 44
INABILITY TO PERFORM:
24
SEC. 45
JOINT AND SEVERAL TENANCY:
24
SEC. 46
EXECUTION OF THIS LEASE AGREEMENT:
24
SEC. 47
WAIVER OF TRIAL BY JURY; COUNTERCLAIM:
24
SEC. 48
CALCULATION OF TIME PERIODS:
25
SEC. 49
EXHIBITS:
25
SEC. 50
ANTI-TERRORISM:
25
SEC. 51
GUARANTY:
25
SEC. 52
TERMINATION OPTION:
25
i
EXHIBITS:
EXHIBIT A - FLOOR PLAN OF THE LEASED PREMISES
EXHIBIT B - LEGAL DESCRIPTION OF THE LAND
EXHIBIT C - PARKING AGREEMENT
EXHIBIT D - RULES AND REGULATIONS
EXHIBIT E - ACCEPTANCE OF PREMISES MEMORANDUM
EXHIBIT F - TENANT'S ESTOPPEL CERTIFICATE
EXHIBIT G - LEASEHOLD IMPROVEMENTS
EXHIBIT H - AIR CONDITIONING AND HEATING SERVICES
EXHIBIT I - INSURANCE REQUIREMENTS
EXHIBIT J - GUARANTY
ii
LEASE AGREEMENT
Office Building
This Lease Agreement (this "Lease Agreement") is made and entered into as of the
date set forth on the signature page between Cypress Court Operating Associates,
L.P., a New Mexico limited partnership, hereinafter referred to as "Landlord",
and Southern Bay Energy, L.L.C., a Texas limited liability company, hereinafter
referred to as "Tenant":
WITNESSETH:
SEC. 1 LEASED PREMISES: In consideration of the mutual covenants as set forth
herein, Landlord and Tenant hereby agree as follows:
A. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord for
the rental and on the terms and conditions hereinafter set forth approximately
10,576 square feet of