EXHIBIT 10.17
OFFICE LEASE AGREEMENT
FASKEN CENTER
TOWER ONE, SUITE 500
000 XXXX XXXXX XXXXXX
XXXXXXX, XXXXX 00000
BETWEEN
FASKEN CENTER, LTD.
AND
TITAN EXPORATION, INC.
1
FASKEN CENTER OFFICE LEASE
TABLE OF CONTENTS
ARTICLE 1 - BASIC LEASE TERMS
-----------------------------
LESSOR 1
LESSEE 1
01 MANAGER 1
01 BUILDING 1
01 LEASED PREMISES 1
01 LEASE TERM 1
01 COMMENCEMENT DATE 1
01 BASE RENT 1
01 SECURITY DEPOSIT 1
01 PERMITTED USE 2
01 COMMON AREAS 2
01 GUARANTOR 2
01 OPERATING EXPENSE BASE 2
01 PARKING 2
ARTICLE 2 - GRANTING CLAUSE AND RENT PROVISIONS
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21 GRANT OF PREMISES 2
22 BASE RENT 2
21 OPERATING EXPENSES 2
21 DEFINITION OF OPERATING EXPENSES 3
21 LATE PAYMENT CHARGE 3
21 INCREASE IN INSURANCE PREMIUMS 3
21 DELETED 3
21 HOLDING OVER 3
21 PARKING 4
ARTICLE 3 - OCCUPANCY, USE AND OPERATIONS
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31 USE 4
31 SIGNS 4
31 COMPLIANCE WITH LAWS, RULES AND REGULATIONS 4
31 COMPLIANCE WITH ALL ENVIRONMENTAL LAWS, REGULATIONS,
POLICIES, ORDERS, ETC. 4
31 QUIET ENJOYMENT 4
31 ACCEPTANCE OF PREMISES 4
31 INSPECTION 5
31 SECURITY 5
31 PERSONAL PROPERTY TAXES 5
ARTICLE 4 - UTILITIES AND SERVICE
---------------------------------
41 BUILDING SERVICES 5
42 DELETED 5
41 JANITORIAL SERVICE 5
41 EXCESSIVE UTILITY CONSUMPTION 5
41 WINDOW COVERINGS 5
41 RESTORATION OF SERVICES; ABATEMENT 6
41 DELETED 6
ARTICLE 5 - REPAIRS AND MAINTENANCE
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51 LESSOR REPAIRS 6
52 LESSEE REPAIRS AND DAMAGES 6
ARTICLE 6 - ALTERATIONS AND IMPROVEMENTS
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61 CONSTRUCTION 6
62 LESSEE IMPROVEMENTS 6
61 COMMON AND SERVICE AREA ALTERATIONS 7
ARTICLE 7 - CASUALTY; WAIVERS; SUBROGATION AND INDEMNITY
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71 REPAIR ESTIMATE 7
72 LESSOR'S AND LESSEE'S RIGHTS 7
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71 LESSOR'S RIGHTS 7
71 REPAIR OBLIGATION 7
71 PROPERTY INSURANCE 7
71 WAIVER; NO SUBROGATION 7
71 DELETED 8
71 INSURANCE 8
71 AD VALOREM TAXES 8
ARTICLE 8 - CONDEMNATION
------------------------
81 TAKING - LESSOR'S AND LESSEE'S RIGHTS 8
82 TAKING - LESSOR'S RIGHTS 8
81 AWARD 8
ARTICLE 9 - ASSIGNMENT OR SUBLEASE; SUBORDINATION OR NOTICE
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91 SUBLEASE; CONSENT 8
92 DELETED 9
91 ADDITIONAL COMPENSATION 9
91 LESSOR ASSIGNMENT 9
91 RIGHTS OF MORTGAGEE 9
91 MORTGAGEE'S RIGHT TO CURE 9
91 ESTOPPEL CERTIFICATES 9
ARTICLE 10 - LIENS
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01 DELETED 9
ARTICLE 11 - DEFAULT AND REMEDIES
---------------------------------
01 EVENTS OF DEFAULT 9
02 REMEDIES 10
01 PAYMENT BY LESSEE 10
01 PERFORMANCE BY LESSOR 10
01 POST JUDGMENT INTEREST 11
ARTICLE 12 - RELOCATION
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01 DELETED 11
02 DELETED 11
ARTICLE 13 - DEFINITIONS
------------------------
01 DELETED 11
02 ACT OF GOD OR FORCE MAJEURE 11
01 DELETED 11
ARTICLE 14 - MISCELLANEOUS
--------------------------
01 WAIVER 11
02 ACT OF GOD 11
01 ATTORNEY'S FEES 11
01 SUCCESSORS 11
01 RENT TAX 12
01 INTERPRETATION 12
01 NOTICES 12
01 SUBMISSION OF LEASE 12
01 AUTHORITY 12
01 DELETED 12
01 DELETED 12
01 SEVERABILITY 12
01 LESSOR'S LIABILITY 12
01 SALE OF PROPERTY 12
01 TIME IS OF THE ESSENCE 13
01 SUBTENANCIES 13
01 NAME 13
01 CHOICE OF LAW 13
01 PRESUMPTIONS 13
01 EXHIBITS 13
01 BROKERS 13
ARTICLE 15 - SPECIAL PROVISIONS
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ARTICLE 16 - AMENDMENT AND LIMITATION OF WARRANTIES
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01 ENTIRE AGREEMENT 14
02 AMENDMENT 14
01 LIMITATION OF WARRANTIES 14
01 WAIVER AND RELEASES 15
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EXHIBIT "A" - LAND DESCRIPTION
EXHIBIT "B" - SUITE DESCRIPTION
EXHIBIT "C" - BASE RENTAL
EXHIBIT "D" - CONSTRUCTION RIDER
BUILDING RULES AND REGULATIONS
4
OFFICE LEASE
Fasken Center, Tower One , Suite 500
----- ---
000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000
This Lease ("Lease") is made as of the 4/th/ day of April , 1997
----- ------- ------- -
and between the Lessor and the Lessee named below.
ARTICLE 1 - BASIC LEASE TERMS
For the purposes of this Lease, the following terms shall have the meanings set
forth below:
1.1 Lessor.
------
Fasken Center, Ltd. , a Texas limited partnership whose address is X.X. Xxx
00000, Xxxxxxx, Xxxxx 00000.
1.2 Lessee.
------
Titan Exploration, Inc. , whose address is 000 Xxxx Xxxxx Xxxxxx, Xxxxx
------------------------- ----------------------------
500 , Xxxxxxx, Xxxxx 00000 .
----- --
1.3 Manager.
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Xxxxx Properties, Inc., a Texas corporation whose address is X.X. Xxx
00000, Xxxxxxx, Xxxxx 00000.
1.4 Building.
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The Building (including the Leased Premises) known as Fasken Center, 000
Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, located on the tract of land (the
"Land") described on Exhibit "A" hereto, together with all other buildings,
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structures, fixtures and other improvements located thereon from time to time.
The Building and the Land are collectively referred to herein as the "Property".
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1.5 Leased Premises.
---------------
Approximately 44,270 square feet of Net Rentable Area in the Building as
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more fully described in Article 15, Section 15.2 and as more fully diagrammed on
the floor plans of such premises attached hereto and made a part hereof as
Exhibit "B", on the floor(s) indicated thereon, together with a common area
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percentage factor determined by Lessor. Said demised space represents
approximately 10.501819 % of the Total Net Rentable Area, such Total Net
------------
Rentable Area of the Building being approximately 421,546 square feet.
1.6 Lease Term.
----------
Five (5) years and Zero (0) months, beginning on the Commencement
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Date.
1.7 Commencement Date.
-----------------
If improvements are to be erected upon the Leased Premises pursuant to a
separate Leasehold Improvements Agreement between Lessor and Lessee, as
described in Section 6.1, and the "Commencement Date" shall be the earlier of
the date Lessee begins operating its business in the Leased Premises or the
scheduled "Commencement Date" as stated herein; and if no improvements are to be
erected upon the Leased Premises pursuant to a Leasehold Improvements Agreement,
the Commencement Date shall be the earlier of the date Lessee begins operating
its business in the Leased Premises or March 15 , 1997 (the "Commencement
----------- - ------------
Date"). The Commencement Date shall constitute the commencement of the term of
----
this Lease for all purposes, whether or not Lessee has actually taken
possession. If this Lease is executed before the Leased Premises become vacant
or otherwise available and ready for occupancy by Lessee, or if any present
occupant of the Leased Premises holds over and Lessor cannot acquire possession
of the Leased Premises before the Commencement Date, then (a) Lessee's
obligation to pay rent hereunder shall be waived until Lessor tenders possession
of the Leased Premises to Lessee, (b) the term shall be extended by the time
between the scheduled Commencement Date and the date on which Lessor tenders
possession of the Leased Premises to Lessee (which date will then be defined as
the Commencement Date), (c) Lessor shall not be in default hereunder or be
liable for damages therefore, and (d) Lessee shall accept possession of the
Leased Premises when Lessor tenders possession thereof to Lessee.
1.8 Base Rent.
---------
During the term of this Lease, Lessee hereby agrees to pay a Base Rental
(herein called "Base Rental") in the amount set out in Exhibit "C", which
----------- ---
Exhibit is executed by Lessor and Lessee contemporaneously herewith and
incorporated herein by
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reference for all purposes.
1.9 Security Deposit.
----------------
Security Deposit is $ -0- .
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1.10 Permitted Use.
-------------
The Leased Premises are to be used and occupied by Lessee solely for the
purposes of office space and a health and shower facility and for no other
purpose without Lessor's expressed written consent.
1.11 Common Areas.
------------
Such parking areas, streets, driveways, aisles, sidewalks, curbs, delivery
passages, loading areas, lighting facilities, designated elevators, public
corridors, stairwells, lobbies, restrooms, and all other areas situated on or in
the Property which are designated by Lessor from time to time, for use by all
tenants of the Property in common.
1.12 Guarantor.
---------
The guarantor of Lessee's obligations under this Lease pursuant to a
Guaranty of Lease, if any, executed for the benefit of Lessor. Said Guarantor
is, as of the date of execution hereof: N/A .
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1.13 Operating Expense Base.
----------------------
Base Year 1997 .
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1.14 Parking.
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Lessor agrees to provide parking in the attached parking garage for up to
Eighty-Five (85) Contract parking spaces and up to Eight (8) Basement
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parking spaces at the rate of $ -0- per space per month. In addition, Two
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(2) Reserved spaces on the ground floor level shall be provided for Lessee's
pool cars.
ARTICLE 2. - GRANTING CLAUSE AND RENT PROVISIONS
2.1 Grant of Premises.
-----------------
In consideration of the obligation of Lessee to pay the rent and other
charges as provided in this Lease, and in consideration of the other terms and
provisions of this Lease, Lessor hereby leases the Leased Premises to Lessee
during the Lease Term, subject to the terms and provisions of this Lease.
2.2 Base Rent.
---------
Lessee agrees to pay monthly as base rent during the term of this Lease the
sum of money set forth in Section 1.8 of this Lease, which amount shall be
payable to Lessor at the address shown in Section 1.1 above or at such address
that Lessor in writing shall notify Lessee. One (1) monthly installment of rent
shall be due and payable on the date of execution of this Lease by Lessee for
the first month's rent and a like monthly installment shall be due and payable
on or before the first day of each calendar month succeeding the Commencement
Date during the term of this Lease, without demand offset or reduction;
provided, if the Commencement Date should be a date other than the first day of
a calendar month, the monthly rental set forth above shall be prorated to the
end of that calendar month, and all succeeding installments of rent shall be
payable on or before the first day of each succeeding calendar month during the
term of this Lease. Unless otherwise specified, Lessee shall pay as additional
rent all other sums due under this Lease at the same time and in the same manner
as the base rent due hereunder. No payment by Lessee or receipt by Lessor of a
lesser amount than the monthly installment of rents herein stipulated shall be
deemed to be other than a payment on account of the earliest stipulated rent
and/or additional rent; nor shall any endorsement of payment on any check or any
letter accompanying any check or payment as rent be deemed an accord or
satisfaction and Lessor may accept such check for payment without prejudice to
Lessor's right to recover the balance of such rent and/or additional rent or to
pursue any other remedy provided in this Lease and/or under applicable law.
2.3 Operating Expenses.
------------------
If Lessor's Operating Expenses per net rentable square foot for the
Property, in any calendar year during the term of this Lease exceeds the
Operating Expense Base, Lessee agrees to pay as additional rent Lessee's share
of such excess operating expenses. As used herein, the term "Lessee's share of
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such excess Operating Expenses" means the amount by which Lessor's Operating
------------------------------
Expenses per net rentable square foot exceed the Operating Expense Base,
multiplied by the net rentable square feet comprising the Leased Premises.
Lessor may invoice Lessee monthly for Lessee's share of the estimated operating
expenses for each calendar year, which amount shall be adjusted each year based
upon anticipated operating expenses. Within one-hundred twenty (120) days
following the close of each calendar year, Lessor shall provide Lessee an
accounting showing in reasonable
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detail all computations of additional rent due under this section. Failure of
Lessor to give Lessee said notice within said time period shall not be a waiver
of Lessor's right to collect said additional rent. If the accounting shows that
the total of the monthly payments made by Lessee exceeds the amount of the
additional rent due by Lessee under this section, the accounting shall be
accompanied by a refund. If the accounting shows that the total of the monthly
payments made by Lessee is less than the amount of additional rent due by Lessee
under this section, the accounting shall be accompanied by an invoice for the
additional rent. Notwithstanding any other provisions in this Lease, during the
year in which the Lease terminates, Lessor within six (6) months following the
termination date, shall have the option to invoice Lessee for Lessee's share of
the excess operating expenses based upon the previous year's operating expenses.
If this Lease shall terminate on a day other than the last day of a calendar
year, the amount of any additional rent payable by Lessee applicable to the year
in which such termination shall occur shall be prorated on the ratio that the
number of days from the commencement of the calendar year to and including the
termination date bears to 365. Lessee shall have the right at its own expense
and within a reasonable time, to audit during Lessor's regular business hours
Lessor's books relevant to the additional rent payable under this Section.
Notwithstanding anything to the contrary contained in this Lease, if the
Building is not occupied to the extent of ninety-five percent (95%) of the
rentable area thereof, during any calendar year, Lessee's additional rent under
this Section and the operating expenses shall be determined as if the Building
had been occupied to the extent of ninety-five (95%) of the rentable area during
such year. Lessee agrees to pay any additional rent due under this Section
within thirty (30) days following receipt of the invoice or accounting showing
additional rent due.
2.4 Definition of Operating Expenses.
--------------------------------
The term "Operating Expenses" includes all expenses incurred by Lessor with
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respect to the maintenance, servicing, repairing and operation of the Property,
including, but not limited to the following: maintenance, repair and replacement
costs (other than major or substantive repair, replacement and general
maintenance of the roof, foundation and exterior walls of the Building);
electricity, fuel, water, sewer, gas and other utility charges; security, window
washing and janitorial services; trash and snow and ice removal; landscaping and
pest control; management fees payable to Lessor or third parties; wages and
salaries of all employees employed by Manager or Lessor, engaged in the
operation, repair, replacement, maintenance, and security of the Building,
including taxes, insurance, and benefits relating thereto; all services,
supplies, repairs, replacement or other expenses for maintaining and operating
the Property including parking and common areas; the cost including interest,
amortized over a reasonable period, of any capital improvement made to the
Property by Lessor after the date of this Lease which is required under any
governmental law or regulation that was not applicable to the Property at the
time it was constructed; the cost, including interest, amortized over a
reasonable period, of installation of any device or other equipment which
improves the operating efficiency of any system applicable to the Leased
Premises or the Property and thereby reduces operating expenses; all other
expenses which generally would be regarded as operating and maintenance expenses
which would be reasonably amortized over a period not to exceed five (5) years;
all real property taxes and installments of special assessments, including dues
and assessments by means of deed restrictions and/or owner's associations which
accrue against the Property during the term of this Lease; governmental levies
or charges of any kind or nature assessed or imposed on the Property, whether by
state, county, city or any political subdivision thereof; and all insurance
premiums Lessor is required to pay or deems necessary to pay including public
liability insurance, with respect to the Property. The term operating expenses
does not include the following: expenses for repairs, restoration or other work
occasioned by fire, wind, the elements or other casualty to the extent they are
covered by insurance proceeds; income and franchise taxes of Lessor; expenses
incurred in leasing to or procuring of tenants, leasing commissions, advertising
expenses and expenses for the renovating of space for new tenants; interest or
principal payments on any mortgage or other indebtedness of Lessor; compensation
paid to any employee of Lessor above the grade of property manager; any
depreciation allowance or expense; operating expenses which are the
responsibility of Lessee; or that portion of after hours charges specifically
attributable to increased utility costs as calculated by Lessor.
For the term of this Lease, Operating Expenses may not be increased by
Lessor by more than the proportion of increase in the Consumer Price Index for
Urban Wage Earners (("CPI-U") maintained by the United States Department of
Labor, with a base month of December, 1997 for Operating Expenses within
Lessor's control. That portion of the Excess Operating Expenses made up of
Operating Expenses that are not within Lessor's control, i.e., Noncontrollable
Expenses [increases in real property and ad valorem taxes, insurance, utilities
(including water, sewer, electricity, natural gas fuel and trash hauling], third
party contractors such as janitorial and mechanical, and government levies or
charges of any kind or nature assessed or imposed on the property and directly
paid by Lessor, whether by state, county, city or any political subdivision
thereof, shall not be limited to the increase in the CPI as set forth above, and
Lessee shall pay its full share of any Excess Operating Expenses for
Noncontrollable Expenses.
2.5 Late Payment Charge.
-------------------
Other remedies for nonpayment of rent notwithstanding, if any monthly
rental payment is not received by Lessor on or before the fifth (5th) day of the
month for which the rent is due, or if any other payment hereunder due Lessor by
Lessee is not received by Lessor on or before the fifth (5th) day of the month
next following the month in which Lessee was invoiced, a late payment charge of
ten percent (10%) of such past due amount shall become due and payable in
addition to such amounts owed under this Lease. Alternatively, at Lessor's
election, all payments required of Lessee hereunder shall bear interest from the
date due until paid at the maximum lawful rate. In no event, however, shall the
charges permitted under this Section 2.5 or elsewhere in this Lease, to the
extent the same are considered to be interest under applicable law, exceed the
maximum lawful rate of interest.
2.6 Increase In Insurance Premiums.
------------------------------
If an increase in any insurance premiums paid by Lessor for the Property is
caused by Lessee's use of the Leased Premises or if Lessee vacates the Leased
Premises and causes an increase in such premiums, then Lessee shall pay as
additional rent the amount of such increase to Lessor and acceptance of such
payment shall not constitute waiver of any of Lessor's other rights. Lessee
agrees to pay any amount due under this Section within ten (10) days following
receipt of the invoice showing the additional rent due.
2.7 Deleted.
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2.8 Holding Over.
------------
If Lessee does not vacate the Leased Premises upon the expiration or
earlier termination of this Lease, Lessee shall be a tenant at will for the
holdover period and all of the terms and provisions of this Lease shall be
applicable during that period, except that Lessee shall pay Lessor (in addition
to additional rent payable under Section 2.3 and any other sums payable under
this Lease) as base rental for the period of such holdover an amount equal to
two times the base rent which would have been payable by Lessee had the holdover
period been a part of the original term of this Lease (without waiver of
Lessor's right to recover damages as permitted by law). Upon the expiration or
earlier termination of this Lease, Lessee agrees to vacate and deliver the
Leased Premises, and all keys thereto, to Lessor upon delivery to Lessee of
notice from Lessor to vacate. The rental payable during the holdover period
shall be payable to Lessor on demand. No holding over by Lessee, whether with
or without the consent of Lessor, shall operate to extend the term of this
Lease. Lessee shall indemnify Lessor against all claims made by any tenant or
prospective tenant against Lessor resulting from delay by Lessor in delivering
possession of the Leased Premises to such other tenant or prospective tenant.
2.9 Parking.
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The parking spaces set forth in Section 1.14 shall be for Lessee and/or
Lessee's employees and Lessor shall have the right to assign parking space as
conditions permit. However, Lessor shall not be required to police the use of
these spaces. Lessor may make, modify and enforce rules and regulations
relating to the parking of automobiles in the parking area(s), and Lessee shall
abide thereby. Lessor shall not be liable to Lessee or Lessee's agents,
servants, employees, customers, or invitees for damage to person or property
caused by any act omission or neglect of Lessee, and Lessee agrees to hold
Lessor harmless from all claims for any such damage.
ARTICLE 3. - OCCUPANCY, USE AND OPERATIONS
3.1 Use.
---
Lessee warrants and represents to Lessor that the Leased Premises shall be
used and occupied only for the purpose as set forth in Section 1.10. Lessee
shall occupy the Leased Premises, conduct its business and control its agents,
employees, invitees, licensees and visitors in such a manner as is lawful,
reputable and will not create a nuisance to other tenants in the Property.
Lessee shall not solicit business, distribute handbills or display merchandise
within the Common Areas, or take any action which would interfere with the
rights of other persons to use the Common Areas. Lessee shall not permit any
operation which emits any odor or matter which intrudes into other portions of
the Property, use any apparatus or machine which makes undue noise or causes
vibration in any portion of the Property or otherwise interfere with, annoy or
disturb any other tenant in its normal business operations or Lessor in its
management of the Property. Lessee shall neither permit any waste on the Leased
Premises nor allow the Leased Premises to be used in any way which would, in the
opinion of Lessor, be extra hazardous on account of fire or which would in any
way increase or render void the fire insurance on the Property, or permit the
storage of any hazardous materials or substances.
3.2 Signs.
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No signs of any type or description shall be erected, placed or painted in
or about the Leased Premises except those signs submitted to Lessor in writing
and approved by Lessor in writing, and which signs are in conformity with
Lessor's sign criteria established for the Property. Lessor reserves the right
to remove, at Lessee's expense, all signs other than signs approved in writing
by Lessor under this Section 3.2 without notice to Lessee and without liability
to Lessee for any damages sustained by Lessee as a result thereof.
Notwithstanding anything contained herein to the contrary, Lessor shall permit
Lessee to place a monument type sign on the premises. However, the size and
location of such sign must be approved by Lessor and further shall be erected at
Lessee's sole cost.
3.3 Compliance with Laws, Rules and Regulations.
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Lessee, at Lessee's sole cost and expense, shall comply with all laws,
ordinances, orders rules and regulations of state, federal, municipal or other
agencies or bodies having jurisdiction over the use, condition or occupancy of
the Leased Premises. Lessee shall procure at its own expense all permits and
licenses required for the transaction of its business in the Leased Premises.
Lessee will comply with the rules and regulations of the Property adopted by
Lessor which are set forth on a schedule attached to this Lease. If Lessee is
not complying with such rules and regulations, or if Lessee is in any way not
complying with this Article 3, then notwithstanding anything to the contrary
contained herein, Lessor, may, at its election, enter the Leased Premises
without liability therefor and fulfill Lessee's obligations. Lessee shall
reimburse Lessor on demand for any expenses which Lessor may incur in effecting
compliance with Lessee's obligations and agrees that Lessor shall not be liable
for any damages resulting to Lessee from such action. Lessor shall have the
right at all times to change and amend the rules and regulations in any
reasonable manner as it may deem advisable for the safety, care, cleanliness,
preservation of good order and operation or use of the Property or the Leased
Premises. All changes and amendments to the rules and regulations of the
Property will be forwarded by Lessor to Lessee in writing and shall thereafter
be carried out and observed by Lessee.
3.4 Compliance with all Environmental Laws, Regulations, Policies, Orders, etc.
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Lessee agrees that it will comply fully and promptly with any and all
environmental laws, regulations, statutes, ordinances, policies and orders
issued by any federal, state, county or local governmental authority; that it
will obtain, maintain in full force and effect, and strictly comply with any and
all governmental permits, approvals and authorizations necessary for the conduct
of its
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business operations; that it will supply Lessor with copies of any such permits,
approvals and authorizations; that it will promptly notify Lessor of the
expiration or revocation of any such permits, approvals and authorizations; and
that it will promptly notify Lessor and supply Lessor with a copy of any notice
of violation of any environmental law, regulation, statute, ordinance, policy or
order Lessee receives.
3.5 Quiet Enjoyment.
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Provided Lessee has performed all of the terms and conditions of this Lease
to be performed by Lessee, Lessee shall peaceably and quietly hold and enjoy the
Leased Premises for the term, without hindrance from Lessor or any party
claiming by, through, or under Lessor, subject to the terms and conditions of
this Lease and subject to all mortgages, deeds of trust, leases and agreements
to which this Lease is subordinate and to all laws, ordinances, orders, rules
and regulations of any governmental authority. Lessor shall not be responsible
for the acts or omissions of any other lessee or third party that may interfere
with Lessee's use and enjoyment of the Leased Premises.
3.6 Acceptance of Premises.
----------------------
By occupying the Leased Premises, Lessee shall be deemed to have accepted
the Leased Premises in their condition as of the date of such occupancy. Lessee
shall execute and deliver to Lessor, within ten (10) days after Lessor has
requested same, a letter confirming (i) the Commencement Date, (ii) that Lessee
has accepted the Leased Premises, and (iii) that Lessor has performed all of its
obligations with respect to the Leased Premises (except for items specified in
such letter) if applicable.
3.7 Inspection.
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Lessor or its authorized agents shall at any and all reasonable times have
the right to enter the Leased Premises to inspect the same, to supply janitorial
service or any other service to be provided by Lessor, to show the Leased
Premises to prospective mortgagees, purchasers or prospective tenants, and to
alter, improve or repair the Leased Premises or any other portion of the
Property. Lessee hereby waives any claim for abatement or reduction of rent or
for any damages for injury or inconvenience to or interference with Lessee's
business, for any loss of occupancy or use of the Leased Premises, and for any
other loss occasioned thereby. Lessor shall at all times have and retain a key
with which to unlock all of the doors in, upon and about the Leased Premises.
Lessee shall not change Lessor's lock system or in any other manner prohibit
Lessor from entering the Leased Premises. Lessor shall have the right at all
times to enter the Leased Premises by any means in the event of an emergency
without liability therefor.
3.8 Security.
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Lessor may, at its option, provide a security service or electronic
security devices to supervise access to the Building during the weekends and
after normal working hours during the week; provided, however, Lessor shall have
no responsibility to prevent, and shall be indemnified by Lessee against
liability to Lessee, its agents, employees, licensees and invitees for losses
due to theft or burglary, or damages done by persons gaining access to the
Leased Premises or the Building and the parking areas.
3.9 Personal Property Taxes.
-----------------------
Lessee shall be liable for all taxes levied against leasehold improvements,
merchandise, personal property, trade fixtures and all other taxable personal
property belonging to Lessee and located in the Leased Premises. If any such
taxes for which Lessee is liable are levied against Lessor or Lessor's property
and if Lessor elects to pay the same or if the assessed value of Lessor's
property is increased by inclusion of personal property and trade fixtures
placed by Lessee in the Leased Premises and Lessor elects to pay the taxes based
on such increase, Lessee shall pay to Lessor, upon demand, that part of such
taxes for which the Lessee is primarily liable pursuant to the terms of this
Section. Lessee shall pay when due any and all taxes related to Lessee's use
and operation of its business in the Leased Premises.
ARTICLE 4. - UTILITIES AND SERVICE
4.1 Building Services.
-----------------
Lessor shall provide water and electricity for Lessee during the term of
this Lease. Lessee shall pay all telephone charges. Lessor shall furnish
Lessee water at those points of supply provided for general use by other tenants
in the Building, and central heating and air conditioning in season on business
days during regular hours as are considered normal in Midland, Texas (7:00 a.m.
to 6:00 p.m., Monday through Friday, 8:00 a.m. to 2:00 p.m. Saturday except for
legal holidays) and at temperatures and in amounts as are considered by Lessor
to be standard or in compliance with any governmental regulations, such service
at times other than regular hours to be furnished upon request with not less
than twenty-four (24) hours advance notice from Lessee, who shall bear the
entire cost thereof (which cost shall include but not be limited to an amount
that will fairly compensate Lessor for additional services, depreciation and
replacement of capital items and any other costs attributable thereto) at the
rate not to exceed $25.00 per hour. Lessor shall also provide routine
maintenance, painting and electric lighting service for all public areas and
special service areas of the Property in the manner and to the extent deemed by
Lessor to be standard. Lessor may, in its sole discretion, provide additional
services not enumerated herein. Failure by Lessor to any extent to provide
these defined services or any other services not enumerated, or any cessation
thereof, shall not render Lessor liable in any respect for damages to either
person or property, be construed as an eviction of Lessee, work an abatement of
rent or relieve Lessee from fulfillment of any covenant in this Lease. If any
of the equipment or machinery useful or necessary for provision of utility
services, and for which Lessor is responsible, breaks down, or for any cause
ceases to function properly, Lessor shall use reasonable diligence to repair
9
the same promptly, but Lessee shall have no claim for rebate of rent or damages
on account of any interruption in service occasioned from the repairs. Lessor
reserves the right from time to time to make changes in the utilities and
services provided by Lessor to the Property.
4.2 Deleted.
-------
4.3 Janitorial Service.
------------------
Lessor shall furnish janitorial services to the Leased Premises and public
areas of the Building five (5) times per week during the term of this Lease,
excluding holidays. Lessor shall not provide janitorial service to storage
areas included in the Leased Premises.
4.4 Excessive Utility Consumption.
-----------------------------
Lessee shall pay all utility costs occasioned by electronic data processing
equipment telephone equipment, special lighting and other equipment of high
electrical consumption as determined by Lessor, whose electrical consumption
exceeds normal office usage including (without limitation) the cost of
installing, servicing and maintaining any special or additional inside or
outside wiring or lines, meters or submeters, transformers, poles, air
conditioning costs, or the cost of any other equipment necessary to increase the
amount or type of electricity or power available to the Leased Premises.
4.5 Window Coverings.
----------------
Lessor may (but shall not be obligated to) furnish and install window
coverings on all exterior windows to maintain a uniform exterior appearance.
Lessee shall not remove or replace these window coverings or install any other
window covering which would affect the exterior appearance of the Building.
Lessee may install lined or unlined draperies on the interior sides of the
Lessor furnished window coverings for interior appearance or to reduce light
transmission, provided such over draperies do not (in Lessor's determination)
affect the exterior appearance of the Building or affect the operation of the
Building's heating, ventilating and air conditioning systems.
4.6 Restoration of Services; Abatement.
----------------------------------
Lessor shall use reasonable efforts to restore any service that becomes
unavailable; however, such unavailability shall not render Lessor liable for any
damages caused thereby, be a constructive eviction of Lessee, constitute a
breach of any implied warranty, or, except as provided in the next sentence,
entitle Lessee to any abatement of Lessee's obligations hereunder. However, if
Lessee is prevented from making reasonable use of the Leased Premises for more
than thirty (30) consecutive days because of the unavailability of any such
service, Lessee shall, as its exclusive remedy therefor, be entitled to a
reasonable abatement of rent for each consecutive day (after such thirty (30)
day period) that Lessee is so prevented from making reasonable use of the Leased
Premises.
4.7 Deleted.
-------
ARTICLE 5. - REPAIRS AND MAINTENANCE
5.1 Lessor Repairs.
--------------
Unless otherwise expressly stipulated herein, Lessor shall not be required
to make any improvements to or repairs of any kind or character on the Leased
Premises during the term of this Lease, except such repairs as may be for normal
maintenance of the Common Areas which shall include the painting of and repairs
to walls, floors, corridors, windows, and other structures and equipment within
the Common Areas only, and such additional maintenance of the Common Areas as
may be necessary because of damages by persons other than Lessee, its agents,
employees, invitees, licensees or visitors. Lessor shall have no obligation to
maintain or repair the Leased Premises except as set forth herein. Lessee will
promptly give Lessor notice of any damage in the Leased Premises requiring
repairs by Lessor. If the Building or the equipment used to provide the
services referred to in Section 4.1 are damaged by acts or omissions of Lessee,
its agents, customers, employees, licensees or invitees, then Lessee will bear
the cost of such repairs. Lessor shall not be liable to Lessee, except as
expressly provided in this Lease, for any damage or inconvenience, and Lessee
shall not be entitled to any damages nor to any abatement or reduction of rent
by reason of any repairs, alterations or additions made by Lessor under this
Lease. Lessor's cost of maintaining and repairing the items set forth in this
section are subject to the operating expense provisions in Section 2.3. All
requests for repairs or maintenance that are the responsibility of Lessor
pursuant to any provision of this Lease must be made in writing to Lessor and
Manager at the addresses in Section 1.1 and Section 1.3.
5.2 Lessee Repairs and Damages.
--------------------------
Lessee, at its own cost and expense, shall maintain the Leased Premises in
a first-class condition (except for those items that are the responsibility of
Lessor under Section 5.1) and shall repair or replace any damage or injury to
all or any part of the Leased Premises and/or the Property, caused by any act or
omission of Lessee or Lessee's agents, employees, invitees, licensees or
visitors. Lessee shall not allow any damage to be committed on any portion of
the Leased Premises or Property, and at the termination of this Lease, by lapse
of time or otherwise, Lessee shall deliver the Leased Premises to Lessor in as
good a condition
10
as existed at the Commencement Date of this Lease, ordinary wear and tear
excepted. The cost and expense of any repairs necessary to restore the condition
of the Leased Premises shall be borne by Lessee.
ARTICLE 6. - ALTERATIONS AND IMPROVEMENTS
6.1 Construction.
------------
If any construction of tenant improvements is necessary for the initial
occupancy of the Leased Premises, such construction shall be accomplished and
the cost of such construction shall be borne by Lessor and/or Lessee in
accordance with a separate "Leasehold Improvements Agreement" (herein so called
--------------------------------
and made a part hereof as Exhibit "D") between Lessor and Lessee. Except as
----------
expressly provided in this Lease or in the Leasehold Improvements Agreement (if
any), Lessee acknowledges and agrees that Lessor has not undertaken to perform
any modification, alteration or improvements to the Leased Premises, and Lessee
further waives any defects in the Leased Premises (except in accordance with
Section 6.2 below) and acknowledges and accepts (1) the Leased Premises as
suitable for the purpose for which they are leased and (2) the Property and
every part and appurtenance thereof as being in good and satisfactory condition.
Upon the request of Lessor, Lessee shall deliver to Lessor a completed
acceptance of premises memorandum in Lessor's standard form.
6.2 Lessee Improvements.
-------------------
Lessee shall not make or allow to be made any alterations, physical
additions or improvements in or to the Leased Premises without first obtaining
the written consent of Lessor, which consent may be denied in the sole and
absolute discretion of Lessor. Any alterations, physical additions or
improvements to the Leased Premises made by or installed by either party hereto
shall remain upon and be surrendered with the Leased Premises and become the
property of Lessor upon the expiration or earlier termination of this Lease
without credit to Lessee; provided, however, Lessor, at its option, may require
Lessee to remove any physical improvements or additions and/or repair any
alterations in order to restore the Leased Premises to the condition existing at
the time Lessee took possession, all costs of removal and/or alterations to be
borne by Lessee. This clause shall not apply to moveable equipment, furniture
or moveable trade fixtures owned by Lessee, which may be removed by Lessee at
the end of the term of this Lease if Lessee is not then in default and if such
equipment and furniture are not then subject to any other rights, liens and
interests of Lessor. Lessee shall have no authority or power, express or
implied, to create or cause any mechanic's or materialmen's lien, charge or
encumbrance of any kind against the Leased Premises, the Property or any portion
thereof. Lessee shall promptly cause any such liens that have arisen by reason
of any work claimed to have been undertaken by or through Lessee to be released
by payment, bonding or otherwise within thirty (30) days after request by
Lessor, and shall indemnify Lessor against losses arising out of any such claim
(including, without limitation, legal fees and court costs). If Lessee fails to
timely take either such action, then Lessor may pay the lien claim without
inquiry as to the validity thereof, and any amounts so paid, including expenses
and interest, shall be paid by Lessee to Lessor within ten (10) days after
Lessor has delivered to Lessee an invoice therefor.
6.3 Common and Service Area Alterations.
-----------------------------------
Lessor shall have the right to decorate and to make repairs, alterations,
additions, changes or improvements, whether structural or otherwise, in, about
or on the Property or any part thereof, and to change, alter, relocate, remove
or replace service areas and/or Common Areas, to place, inspect, repair and
replace in the Leased Premises (below floors, above ceilings or next to columns)
utility lines, pipes and the like to serve other areas of the Property outside
the Leased Premises and to otherwise alter or modify the Property, and for such
purposes to enter upon the Leased Premises and, during the continuance of any
such work, to take such measures for safety or for the expediting of such work
as may be required, in Lessor's judgment, all without affecting any of Lessee's
obligations hereunder.
ARTICLE 7. - CASUALTY; WAIVERS; SUBROGATION AND INDEMNITY
7.1 Repair Estimate.
---------------
If the Leased Premises or the Building are damaged by fire or other
casualty (a "Casualty"), Lessor shall, within sixty (60) days after such
--------
Casualty, deliver to Lessee a good faith estimate (the "Damage Notice") of the
-------------
time needed to repair the damage caused by such Casualty.
7.2 Lessor's and Lessee's Rights.
----------------------------
If a material portion of the Leased Premises or the Building is damaged by
Casualty such that Lessee is prevented from conducting its business in the
Leased Premises in a manner reasonably comparable to that conducted immediately
before such Casualty and Lessor estimates that the damage caused thereby cannot
be repaired within 180 days after the commencement of repair, then Lessor may,
at its expense, relocate Lessee to office space reasonably comparable to the
Leased Premises, provided that Lessor notifies Lessee of its intention to do so
in the Damage Notice. Such relocation may be for a portion of the remaining
term or the entire term. Lessor shall complete any such relocation within
ninety (90) days after Lessor has delivered the Damage Notice to Lessee. If
such relocation is not for the remaining term, Lessor agrees to pay for Lessee's
relocation back to the Leased Premises. If Lessor does not elect to relocate
Lessee following such Casualty, then Lessee may terminate this Lease by
delivering written notice to Lessor of its election to terminate within thirty
(30) days after the Damage Notice has been delivered to Lessee. If Lessor does
not relocate Lessee and Lessee does not terminate this Lease, then (subject to
Lessor's rights under Section 7.3) Lessor shall repair the Building or the
Leased Premises, as the case may be, as provided below, and Basic Rental for the
portion of the Leased Premises rendered untenantable by the damage shall be
abated on a reasonable basis from the date of damage until
11
the completion of the repair, unless Lessee caused such damage, in which case,
Lessee shall continue to pay rent without abatement.
7.3 Lessor's Rights.
---------------
If a Casualty damages a material portion of the Building, and Lessor makes
a good faith determination that restoring the Leased Premises would be
uneconomical, or if Lessor is required to pay any insurance proceeds arising out
of the Casualty to Lessor's Mortgagee, then Lessor may terminate this Lease by
giving written notice of its election to terminate within thirty (30) days after
the Damage Notice has been delivered to Lessee, and Basic Rental hereunder shall
be abated as of the date of the Casualty.
7.4 Repair Obligation.
-----------------
If neither party elects to terminate this Lease following a Casualty, then
Lessor shall, within a reasonable time after such Casualty, commence to repair
the Building and the Leased Premises and shall proceed with reasonable diligence
to restore the Building and Leased Premises to substantially the same condition
as they existed immediately before such Casualty; however, Lessor shall not be
required to repair or replace any part of the furniture, equipment, fixtures,
and other improvements which may have been placed by, or at the request of,
Lessee or other occupants in the Building or the Leased Premises, and the
Lessor's obligation to repair or restore the Building or Leased Premises shall
be limited to the extent of the insurance proceeds actually received by Lessor
for the Casualty in question. However, in the event the Building or Leased
Premises is not repaired to substantially the same condition as existing prior
to the Casualty, then Lessee shall have the right to terminate this Lease.
7.5 Property Insurance.
------------------
Lessor shall at all times during the term of this Lease insure the Property
against all risk of direct physical loss in an amount and with such deductibles
as Lessor considers appropriate; provided, Lessor shall not be obligated in any
way or manner to insure any personal property (including, but not limited to,
any furniture, machinery, goods or supplies) of Lessee upon or within the Leased
Premises, any fixtures installed or paid for by Lessee upon or within the Leased
Premises, or any improvements which Lessee may construct on the Leased Premises.
Lessee shall have no right in or claim to the proceeds of any policy of
insurance maintained by Lessor even if the cost of such insurance is borne by
Lessee as set forth in Article 2. Lessee at all times during the term of the
Lease shall, at its own expense, keep in full force and effect insurance
including self insurance against fire and such other risks as are from time to
time included in standard all-risk insurance (including coverage against
vandalism and malicious mischief) for the full insurable value of Lessee's trade
fixtures, furniture, supplies and all items of personal property of Lessee
located on or within the Leased Premises.
7.6 Waiver; No Subrogation.
----------------------
Lessor shall not be liable to Lessee or those claiming by, through, or
under Lessee or to Lessee's agents, employees, invitees or licensees for any
injury to or death of any person or persons or the damage to or theft,
destruction, loss, or loss of use of any property (a "Loss") caused by casualty,
----
theft, fire, third parties, or any other matter beyond the control of Lessor, or
for any injury or damage or inconvenience which may arise through repair or
alteration of any part of the Building, or failure to make repairs, or from any
other cause, except if such Loss is caused by Lessor's gross negligence or
willful misconduct. Lessor and Lessee each waives any claim it might have
against the other for any damage to or theft, destruction, loss, or loss of use
of any property, to the extent the same is insured against under any insurance
policy that covers the Building, the Leased Premises, Lessor's or Lessee's
fixtures, personal property, leasehold improvements, or business, or is required
to be insured against under the terms hereof, regardless of whether the
negligence or fault of the other party caused such loss. Each party shall cause
its insurance carrier to endorse all applicable policies waiving the carrier's
rights of recovery under subrogation or otherwise against the other party.
7.7 Deleted.
-------
7.8 Insurance.
---------
Lessee shall at its expense procure and maintain throughout the term
comprehensive general liability insurance in amounts of not less than $ 500,000,
insuring Lessee and Lessor and Lessor's agents against all liability for injury
to or death of a person or persons or damage to property arising from the use
and occupancy of the Leased Premises. Lessee's insurance shall provide primary
coverage to Lessor when any policy issued to Lessor provides duplicate or
similar coverage, and in such circumstance Lessor's policy will be excess over
Lessee's policy. Lessee shall furnish certificates of such insurance and such
other evidence satisfactory to Lessor of the maintenance of all insurance
coverage required hereunder, and Lessee shall obtain a written obligation on the
part of each insurance company to notify Lessor at least fifteen (15) days
before cancellation or a material change of any such insurance.
7.9 Ad Valorem Taxes.
----------------
Lessee hereby waives any right it may have to contest the appraised value
of the Property or Building as the appraised value may be determined by any
taxing authority.
ARTICLE 8. - CONDEMNATION
12
8.1 Taking - Lessor's and Lessee's Rights.
---------------------------------------
If any part of the Building is taken by right of eminent domain or conveyed
in lieu thereof (a "Taking"), and such Taking prevents Lessee from conducting
------
its business in the Leased Premises in a manner reasonably comparable to that
conducted immediately before such Taking, then Lessor may, at its expense,
relocate Lessee to office space reasonably comparable to the Leased Premises,
provided that Lessor notifies Lessee of its intention to do so within thirty
(30) days after the Taking. Such relocation may be for a portion of the
remaining term or the entire term. Lessor shall complete any such relocation
within ninety (90) days after Lessor has notified Lessee of its intention to
relocate Lessee. If Lessor does not elect to relocate Lessee following such
Taking, then Lessee may terminate this Lease as of the date of such Taking by
giving written notice to Lessor within sixty (60) days after the Taking, and
rent shall be apportioned as of the date of such Taking. If Lessor does not
relocate Lessee and Lessee does not terminate this Lease, then Base Rental shall
be abated on a reasonable basis as to that portion of the Leased Premises
rendered untenantable by the Taking.
8.2 Taking - Lessor's Rights.
------------------------
If any material portion, but less than all, of the Building becomes subject
to a Taking, or if Lessor is required to pay any of the proceeds received for a
Taking to Lessor's Mortgagee, then this Lease, at the option of Lessor,
exercised by written notice to Lessee within thirty (30) days after such Taking,
shall terminate and rent shall be apportioned as of the date of such Taking. If
Lessor does not so terminate this Lease and does not elect to relocate Lessee,
then this Lease will continue, but if any portion of the Leased Premises has
been taken, Base Rental shall xxxxx as provided in the last sentence of Section
8.1.
8.3 Award.
-----
If any Taking occurs, then Lessor shall receive the entire award or other
compensation for the Land, the Building, and other improvements taken, and
Lessee may separately pursue a claim against the condemnor for the value of
Lessee's personal property which Lessee is entitled to remove under this Lease,
moving costs, loss of business, and other claims it may have.
ARTICLE 9. - ASSIGNMENT OR SUBLEASE; SUBORDINATION AND NOTICE
9.1 Sublease; Consent.
-----------------
Lessee shall not, without the prior written consent of Lessor (which shall
not be unreasonably withheld), (i) advertise that any portion of the Leased
Premises is available for lease, (ii) assign, sublease, or encumber this Lease
or any estate or interest herein, whether directly or by operation of law,
(iii) permit any other entity to become Lessee hereunder by merger,
consolidation, or other reorganization, (iv) sublet any portion of the Leased
Premises, (v) grant any license, concession, or other right of occupancy of any
portion of the Leased Premises, or (vi) permit the use of the Leased Premises by
any parties other than Lessee (any of the events listed in clauses (ii) through
(vi) being a "Sublease"). If Lessee requests Lessor's consent to a Sublease,
--------
then Lessee shall provide Lessor with a written description of all terms and
conditions of the proposed Sublease, copies of the proposed documentation, and
the following information about the proposed sublease: name and address;
reasonably satisfactory information about its business and business history; its
proposed use of the Leased Premises; banking, financial, and other credit
information; and general references sufficient to enable Lessor to determine the
proposed sublessee's credit worthiness and character. Lessee shall reimburse
Lessor for its attorneys' fees and other expenses incurred in connection with
considering any request for its consent to a Sublease. If Lessor consents to a
proposed Sublease, then the proposed sublessee shall deliver to Lessor a written
agreement whereby it expressly assumes the Lessee's obligations hereunder;
however, any sublessee of less than all of the space in the Leased Premises
shall be liable only for obligations under this Lease that are properly
allocable to the space subject to the Sublease, and only to the extent of the
rent it has agreed to pay Lessee therefor. Lessor's consent to a Sublease shall
not release Lessee from performing its obligations under this Lease, but rather
Lessee and its sublessee shall be jointly and severally liable therefor.
Lessor's consent to any Sublease shall not waive Lessor's rights as to any
subsequent Subleases. If an Event of Default occurs while the Leased Premises
or any part thereof are subject to a Sublease, then Lessor, in addition to its
other remedies, may collect directly from such sublessee all rents becoming due
to Lessee and apply such rents against rent. Lessee authorizes its sublessees
to make payments of rent directly to Lessor upon receipt of notice from Lessor
to do so.
9.2 Deleted.
-------
9.3 Additional Compensation.
-----------------------
Lessee shall pay to Lessor, immediately upon receipt thereof, seventy-five
per cent (75%) of all compensation received by Lessee for a Sublease that
exceeds the rent allocable to the portion of the Leased Premises covered
thereby.
9.4 Lessor Assignment.
-----------------
Lessor shall have the right to sell, transfer or assign, in whole or in
part, its rights and obligations under this Lease and in the Property. Any such
sale, sublease or assignment shall operate to release Lessor from any and all
liabilities under this Lease arising after the date of such sale, assignment or
transfer.
9.5 Rights of Mortgagee.
-------------------
Lessee accepts this Lease subject and subordinate to any recorded lease,
mortgage or deed of trust lien presently existing,
13
if any, or hereafter encumbering the Property and to all existing ordinances and
recorded restrictions, covenants, easements, and agreements with respect to the
Property, Lessor hereby is irrevocably vested with full power and authority to
subordinate Lessee's interest under this Lease to any mortgage or deed of trust
lien hereafter placed on the Property. Upon any foreclosure, judicially or non-
judicially, of any such mortgage, or the sale of the Property in lieu of
foreclosure, or any other transfer of Lessor's interest in the Property, whether
or not in connection with a mortgage, Lessee hereby does, and hereafter agrees
to attorn to the purchaser at such foreclosure sale or to the grantee under any
deed in lieu of foreclosure or to any other transferee of Lessor's interest, and
shall recognize such purchaser, grantee, or other transferee as Lessor under
this Lease, and no further attornment or other agreement shall be required to
effect or evidence Lessee's attornment to and recognition of such purchaser or
grantee as Lessor hereunder. Such agreement of Lessee to attorn shall survive
any such foreclosure sale, trustee's sale, conveyance in lieu thereof, or any
other transfer of Lessor's interest in the Property. Lessee, upon demand, at any
time, before or after any such foreclosure sale, trustee's sale, conveyance in
lieu thereof, or other transfer shall execute, acknowledge, and deliver to the
prospective transferee and/or mortgagee the Lease Subordination, Non-disturbance
and Attornment Agreement and any additional written instruments and certificates
evidencing such attornment all on substantially the same terms as those herein
as the mortgagee or other prospective transferee may reasonably require.
Notwithstanding anything to the contrary implied in this Section, any mortgagee
under any mortgage shall have the right at any time to subordinate any such
mortgage to this Lease on such terms and subject to such conditions as the
mortgagee in its discretion may consider appropriate.
9.6 Mortgagee's Right to Cure.
-------------------------
No act or omission by Lessor which would entitle Lessee under the terms of
this Lease or any Laws to be relieved of Lessee's obligations hereunder, or to
terminate this Lease, shall result in a release or termination of such
obligations or this Lease unless: (a) Lessee first shall have given written
notice of Lessor's act or omission to Lessor and all Lessor's Mortgagees whose
names and addresses shall have been or will be furnished by Certified mail to
Lessee; and (b) Lessor's Mortgagees, after receipt of such notice, fail to
correct or cure the act or omission within a reasonable time thereafter (but in
no event less than sixty (60) days). However, nothing contained in this Section
shall impose any obligation on Lessor's Mortgagees to correct or cure any act or
omission.
9.7 Estoppel Certificates.
---------------------
Lessee agrees to furnish, from time to time (but no more frequently than
two (2) times annually), within ten (10) days after receipt of a request from
Lessor's or Lessor's Mortgagee, a statement certifying, if applicable, all of
the following: Lessee is in possession of the Leased Premises; the Lease is in
full force and effect; the Lease is unmodified (except as disclosed in such
statement); Lessee claims no present charge, lien, or claim of offset against
rent; the rent is paid for the current month, but is not prepaid for more than
one (1) month and will not be prepaid for more than one (1) month in advance;
there is no existing default by reason of some act or omission by Lessor; that
Lessor has performed all inducements required of Lessor, in connection with this
Lease, including construction obligations, and Lessee accepts the Leased
Premises as constructed; an acknowledgment of the assignment of rentals and
other sums due hereunder to the mortgage and agreement to be bound thereby; an
agreement requiring Lessee to advise the mortgagee of damage to or destruction
of the Leased Premises by fire or other casualty requiring reconstruction; an
agreement by Lessee to give the mortgagee written notice of Lessor's default
hereunder and to permit mortgagee to cure such default within no less than sixty
(60) days after such notice before exercising any remedy Lessee might possess as
a result of such default. Lessee's failure to deliver such statement, in
addition to being a default under this Lease, shall be deemed to establish
conclusively that this Lease is in full force and effect except as declared by
Lessor, that Lessor is not in default of any of its obligations under this
Lease, and that Lessor has not received more than one (1) month's rent in
advance.
ARTICLE 10. - LIENS
10.1 Deleted.
-------
ARTICLE 11. - DEFAULT AND REMEDIES
11.1 Events of Default.
-----------------
Each of the following occurrences shall constitute an "Event of Default" :
a. Lessee's failure to pay rent, or any other sums due from Lessee to
Lessor under the Lease (or any other lease executed by Lessee for space in the
Building), when due;
b. Lessee's failure to perform, comply with, or observe any other
agreement or obligation of Lessee under this Lease (or any other Lease executed
by Lessee for space in the Building};
c. Deleted.
d. Deleted.
e. Deleted.
a. Lessee's dissolution or termination of existence.
b. Lessee's failure to deliver such statement described in Section 9.6
Estoppel Certificates after thirty (30) days written notice.
14
11.2 Remedies.
--------
Upon any Event of Default, Lessor may, in addition to all other rights and
remedies afforded Lessor hereunder or by law or equity, take any of the
following actions:
a. Terminate this Lease by giving Lessee written notice thereof, in which
event, Lessee shall pay to Lessor the sum of (i) all rent accrued hereunder
through the date of termination, (ii) all amounts due under Section 11.3., and
(iii) an amount equal to (A) the total rent that Lessee would have been required
to pay for the remainder of the term discounted to present value at a per annum
rate equal to ten per cent (10%), minus (B) the then present fair rental value
of the Leased Premises for such period, similarly discounted; or
b. Terminate Lessee's right to possession of the Leased Premises without
terminating this Lease by giving written notice thereof to Lessee, in which
event Lessee shall pay to Lessor (i) all rent and other amounts accrued
hereunder to the date of termination of possession, (ii) all amounts due from
time to time under Section 11.3., and (iii) all rent and other sums required
hereunder to be paid by Lessee during the remainder of the term, reduced by any
net sums thereafter received by Lessor through reletting the Leased Premises
during such period. Lessor shall use reasonable efforts to relet the Leased
Premises on such terms and conditions as Lessor in its sole discretion may
determine (including a term different from the term, rental concessions, and
alterations to, and improvement of, the Leased Premises); however, Lessor shall
not be obligated to relet the Leased Premises before leasing other portions of
the Building. Lessor shall not be liable for, nor shall Lessee's obligations
hereunder be diminished because of, Lessor's failure to relet the Leased
Premises or to collect rent due for such reletting. Lessee shall not be
entitled to the excess of any consideration obtained by reletting over the rent
due hereunder. Re-entry by Lessor in the Leased Premises shall not affect
Lessee's obligations hereunder for the unexpired term; rather, Lessor may, from
time to time, bring action against Lessee to collect amounts due by Lessee,
without the necessity of Lessor's waiting until the expiration of the term.
Unless Lessor delivers written notice to Lessee expressly stating that it has
elected to terminate this Lease, all actions taken by Lessor to exclude or
dispossess Lessee of the Leased Premises shall be deemed to be taken under this
Section 11.2b. If Lessor elects to proceed under this Section 11.2b., it may at
any time elect to terminate this Lease under Section 11.2a.
c. In addition to its rights under 11.2(a) and (b) above, Lessor may,
without notice, alter locks or other security devices at the Leased Premises to
deprive Lessee of access thereto, and Lessor shall not be required to provide a
new key or right of access to Lessee so long as any Event of Default exists.
11.3 Payment by Lessee.
-----------------
Upon any Event of Default, Lessee shall pay to Lessor all costs incurred by
Lessor (including court costs and reasonable attorneys' fees and expenses) in
(i) obtaining possession of the Leased Premises, (ii) removing and storing
Lessee's or any other occupant's property, (including the cost of altering any
locks or security devices), (iii) the reasonable cost of repairing, restoring,
altering, remodeling, or otherwise putting the Leased Premises into rentable
condition, (iv) if Lessee is dispossessed of the Leased Premises and this Lease
is not terminated, reletting all or any part of the Leased Premises (including
brokerage commissions, cost of tenant finish work to Building Standards, and
other costs incidental to such reletting), (v) performing Lessee's obligations
which Lessee failed to perform, and (vi) enforcing, or advising Lessor of, its
rights, remedies, and recourse arising out of the Event of Default.
11.4 Performance by Lessor.
---------------------
If Lessee defaults under this Lease, Lessor, without waiving or curing the
default, may, but shall not be obligated to, perform Lessee's obligations for
the account and at the expense of Lessee. Notwithstanding Section 11.1b, in the
case of an emergency, Lessor need not give any notice prior to performing
Lessee's obligations. Lessee irrevocably appoints Lessor and Lessor's successor
and assigns, with full power of substitution, as Lessee's attorney-in-fact,
coupled with an interest, to execute, acknowledge and deliver any instruments in
connection with Lessor's performance of Lessee's obligations if Lessee is in
default, and to take all other acts in connection therewith.
11.5 Post-Judgment Interest.
----------------------
The amount of any judgment obtained by Lessor against Lessee in any legal
proceeding arising out of Lessee's default under this Lease shall bear interest
until paid at the maximum rate allowed by law, or, if no maximum rate prevails,
at the rate of eighteen percent (18%) per annum. Notwithstanding anything to the
contrary contained in any laws, with respect to any damages that are certain or
ascertainable by calculation, interest shall accrue from the day that the right
to the damages vests in Lessor, and in the case of any unliquidated claim,
interest shall accrue from the day the claim arose.
ARTICLE 12. - RELOCATION
12.1 Deleted.
-------
12.2 Deleted.
-------
ARTICLE 13. - DEFINITIONS
15
13.1 Deleted.
-------
13.2 Act of God or Force Majeure.
---------------------------
An "act of God" or "force majeure" is defined for purposes of this Lease as
---------- -------------
including, by way of example, but not limited to strikes, lockouts, sitdowns,
material or labor restrictions by any governmental authority, unusual
transportation delays, riots, floods, washouts, explosions, earthquakes, fire
storms, weather (including wet grounds or inclement weather which prevents
construction), acts of the public enemy, wars, insurrections, and/or any other
cause not reasonably within the control of Lessor or which by the exercise of
due diligence Lessor is unable wholly or in part, to prevent or overcome.
13.3 Deleted.
-------
ARTICLE 14. - MISCELLANEOUS
14.1 Waiver.
------
Failure of Lessor to declare an event of default immediately upon its
occurrence, or delay in taking any action in connection with an event of
default, shall not constitute a waiver of the default, but Lessor shall have the
right to declare the default at any time and take such action as is lawful or
authorized under this Lease. Pursuit of any one or more of the remedies set
forth in Article 11 above shall not preclude pursuit of any one or more of the
other remedies provided elsewhere in this Lease or provided by law, nor shall
pursuit of any remedy hereunder or at law constitute forfeiture or waiver of any
rent or damages accruing to Lessor by reason of the violation of any of the
terms, provisions or covenants of this Lease. Failure by Lessor to enforce one
or more of the remedies provided hereunder or at law upon any event of default
shall not be deemed or construed to constitute a waiver of the default or of any
other violation or breach of any of the terms provisions and covenants contained
in this Lease. Lessor may collect and receive rent due from Lessee without
waiving or affecting any rights or remedies that Lessor may have at law or in
equity or by virtue of this Lease at the time of such payment. Institution of a
forcible detainer action to re-enter the Leased Premises shall not be construed
to be an election by Lessor to terminate this Lease.
14.2 Act of God.
----------
Lessor shall not be required to perform any covenant or obligation in this
Lease, or be liable in damages to Lessee, so long as the performance or non-
performance of the covenant or obligation is delayed, caused or prevented by an
act of God, force majeure or by Lessee.
14.3 Attorney's Fees.
---------------
If either Lessor or Lessee defaults in the performance of any of the terms,
covenants, agreements or conditions contained in this Lease and either party
places in the hands of any attorney the enforcement of all or any part of this
Lease, the collection of any rent or other sums due or to become due or recovery
of the possession of the Leased Premises, the defaulting party agrees to pay
Lessor's costs of collection, including reasonable attorney's fees.
14.4 Successors.
----------
This Lease shall be binding upon and inure to the benefit of Lessor and
Lessee and their respective heirs, personal representatives, successors and
assigns.
14.5 Rent Tax.
--------
If applicable in the jurisdiction where the Leased Premises are situated,
Lessee shall pay and be liable for all rental, sales and use taxes or other
similar taxes, if any, levied or imposed by any city, state, county or other
governmental body having authority, such payments to be in addition to all other
payments required to be paid to Lessor by Lessee under the terms of this Lease.
Any such payment shall be paid concurrently with the payment of the rent,
additional rent, operating expenses or other charge upon which the tax is based
as set forth above.
14.6 Interpretation.
--------------
The captions appearing in this Lease are for convenience only and in no way
define, limit, construe or describe the scope or intent of any Section.
Grammatical changes required to make the provisions of this Lease apply (1) in
the plural sense where there is more than one tenant and (2) to limited
liability companies, corporations, associations, partnerships or individuals,
males or females, shall in all instances be assumed as though in each case fully
expressed. The laws of the State of Texas shall govern the validity,
performance and enforcement of this Lease. This Lease shall not be construed
more or less favorably with respect to either party as a consequence of the
Lease or various provisions hereof having been drafted by one of the parties
hereto.
14.7 Notices.
-------
All rent and other payments required to be made by Lessee shall be payable
to Lessor, in care of Manager, at Manager's
16
address set forth on page 1. All payments required to be made by Lessor to
Lessee shall be payable to Lessee at Lessee's address set forth on page 1. Any
notice or document (other than rent) required or permitted to be delivered by
the terms of this Lease shall be deemed to be delivered (whether or not actually
received) when deposited in the United States Mail, postage prepaid, certified
mail, return receipt requested, addressed to the parties at the respective
addresses set forth on page 1 (or, in the case of Lessee, at the Leased
Premises), or to such other addresses as the parties may have designated by
written notice to each other, with copies of notices to Lessor being sent to
Lessor's address as shown on page 1. Manager shall be a co-addressee with Lessor
on all notices sent to Lessor by Lessee hereunder, and any notice sent to Lessor
and not to Manager, also, in accordance with this section shall be deemed
ineffective.
14.8 Submission of Lease.
-------------------
Submission of this Lease to Lessee for signature does not constitute a
reservation of space or an option to Lease. This Lease is not effective until
execution by and delivery to both Lessor and Lessee.
14.9 Authority.
---------
If Lessee executes this Lease as a limited liability company, corporation
or a partnership (general or limited), each person executing this Lease on
behalf of Lessee hereby personally represents and warrants that: Lessee is a
duly authorized and existing limited liability company, corporation or
partnership (general or limited), Lessee is qualified to do business in the
state in which the Leased Premises are located, the limited liability company,
corporation or partnership (general or limited) has full right and authority to
enter into this Lease, each person signing on behalf of the limited liability
company, corporation or partnership (general or limited) is authorized to do so,
and the execution and delivery of the Lease by Lessee will not result in any
breach of, or constitute a default under any mortgage, deed of trust, lease,
loan, credit agreement, partnership agreement, or other contract or instrument
to which Lessee is a party or by which Lessee may be bound. If any
representation or warranty contained in this Section is false, each person who
executes this Lease shall be liable, individually, as Lessee hereunder.
14.10 Deleted.
-------
14.11 Deleted.
-------
14.12 Severability.
------------
If any provision of this Lease or the application thereof to any person or
circumstances shall be invalid or unenforceable to any extent, the remainder of
this Lease and the application of such provisions to other persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law. Each covenant and agreement contained in this
Lease shall be construed to be a separate and independent covenant and
agreement, and the breach of any such covenant or agreement by Lessor shall not
discharge or relieve Lessee from Lessee's obligation to perform each and every
covenant and agreement of this Lease to be performed by Lessee.
14.13 Lessor's Liability.
------------------
If Lessor shall be in default under this Lease and, if as a consequence of
such default, Lessee shall recover a money judgment against Lessor, such
judgment shall be satisfied only out of the right, title, and interest of Lessor
in the Property as the same may then be encumbered and neither Lessor nor any
person or entity comprising Lessor shall be liable for any deficiency. In no
event shall Lessee have the right to levy execution against any property of
Lessor nor any person or entity comprising Lessor other than its interest in the
Property as herein expressly provided.
14.14 Sale of Property.
----------------
Upon any conveyance, sale or exchange of the Leased Premises or assignment
of this Lease, Lessor shall be and is hereby entirely free and relieved of all
liability under any and all of its covenants and obligations contained in or
derived from this Lease arising out of any act, occurrence, or omission relating
to the Leased Premises or this Lease occurring after the consummation of such
sale or exchange and assignment.
14.15 Time is of the Essence.
----------------------
The time of the performance of all of the covenants, conditions and
agreements of this Lease is of the essence of this Lease.
14.16 Subtenancies.
------------
At Lessor's option, the voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work a merger of estates and
shall operate as an assignment of any or all permitted subleases or
subtenancies.
14.17 Name.
----
17
Lessee shall not use the name of the Building or of the development in
which the Building is situated, if any, for any purpose other than as an address
of the business to be conducted by Lessee in the Premises.
14.18 Choice of Law.
-------------
This Lease shall be governed by the laws of the State of Texas applicable
to transactions to be performed wholly therein.
14.19 Presumptions.
------------
This Lease shall be construed without regard to any presumption or other
rule requiring construction against the party drafting the document. It shall be
construed neither for nor against Lessor or Lessee, but shall be given
reasonable interpretation in accordance with the plain meaning of its terms and
the intent of the parties.
14.20 Exhibits.
--------
All exhibits and any riders annexed to this Lease are incorporated herein
by this reference.
14.21 Brokers.
-------
Lessee represents and warrants to Lessor that Lessee has had no dealings
with any broker, finder, or similar person who is or might be entitled to a
commission or other fee in connection with introducing Lessee to the Building or
in connection with this Lease. Lessor shall pay the commission due Lessor's
Broker pursuant to a separate agreement between Lessor and Lessor's Broker.
Lessee shall indemnify Lessor for, and hold Lessor harmless from and against,
any and all claims of any person other than Lessor's Broker who claims to have
introduced Lessee to the Building or dealt with Lessee in connection with this
Lease and all liabilities arising out of or in connection with such claims.
ARTICLE 15. - SPECIAL PROVISIONS
11 Prior Lease Agreement.
---------------------
Upon execution, this Lease Agreement shall supersede and replace that
certain prior lease agreement by and between the parties dated the 8 /th/ day of
January, 1996 and such prior lease shall be considered canceled and of no
further effect.
11 "Add-On Space".
--------------
Notwithstanding anything contained herein to the contrary, the
approximately 44,270 square feet of Net Rentable Area referred to in Section 1.5
"Leased Premises" shall consist of approximately 14, 750 square feet located on
Floor Five and approximately 7,872 square feet located on Floor Two known as
the "Original Space" as well as all or a portion of approximately 6,888 square
feet located on Floor Two and approximately 14,760 square feet located on Floor
Four collectively known as the "Add-On Space".
(a) The "Add-On Space" or any portion thereof shall be added to the Leased
Premises within sixty (60) days of its release by the present tenant.
It is hereby recognized by the parties hereto that such Add-On Space
shall be released in increments and Lessee shall only be allowed to
increase the Leased Premises square footage as the Add-On Space
becomes available.
(a) From the Commencement Date of this Lease until such time as Lessee
increases their square footage by virtue of the Add-On Space
provisions herein, Lessee shall only pay rent and its pro-rata share
of the Operating Expenses on the Original Space and such amount of the
Add-On Space as Lessee has assumed hereunder.
(a) Lessee shall assume the Add-On Space at the same rental rate and under
the same terms and conditions as set forth herein for the "Original
Space".
11 Renewal Option.
--------------
Provided no Event of Default exists and Lessee is occupying the entire
Premises at the time of such election, Lessee may renew this Lease for One (1)
additional period of Five (5) years on the same terms provided in this Lease
(except as set forth below), by delivering written notice of the exercise
thereof to Lessor not later than 180 days before the expiration of the Term. On
or before the commencement date of the extended term, Lessor and Lessee shall
execute an amendment to this Lease extending the Term on the same terms provided
in this Lease, except as follows:
(a) The Basic Rental Rate payable for each month during the extended Term
shall be at ninety-three and one/half per cent (93 1/2 %) of the then
prevailing market rate.
(a) Lessee shall have no further renewal options unless expressly granted
by Lessor in writing; and
(a) Lessor shall lease to Lessee the Leased Premises in their then current
condition, and Lessor shall not provide to Lessee any allowances
(e.g., moving allowance, construction allowance and the like) or other
tenant inducements.
18
Lessee's rights under this clause shall terminate if (I) this Lease or
Lessee's right to possession of the Premises is terminated, (ii) Lessee assigns
any of its interest in this Lease or sublets any material portion of the
Premises, or (iii) Lessee fails to timely exercise its option under this
Exhibit, time being of the essence with respect to Lessee's exercise thereof.
11 First Right of Refusal.
----------------------
Lessee shall have First Right of Refusal on all space adjacent or
contiguous to the Leased Premises as that space shall become available at a
Basic Rental Rate equal to ninety-three and one/half per cent (93 1/2 %) of the
then prevailing market rate.
ARTICLE 16. - AMENDMENT AND LIMITATION OF WARRANTIES
16.1 Entire Agreement.
----------------
IT IS EXPRESSLY AGREED BY LESSEE, AS A MATERIAL CONSIDERATION FOR THE
EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE SPECIFIC REFERENCES TO
EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF THE PARTIES: THAT THERE ARE, AND
WERE, NO VERBAL REPRESENTATIONS, WARRANTIES, UNDERSTANDINGS, STIPULATIONS,
AGREEMENT OR PROMISES PERTAINING TO THE SUBJECT MATTER OF THIS LEASE OR OF ANY
EXPRESSLY MENTIONED EXTRINSIC DOCUMENTS THAT ARE NOT INCORPORATED IN WRITING IN
THIS LEASE.
16.2 Amendment.
---------
THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED EXCEPT BY AN
INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
16.3 Limitation of Warranties.
------------------------
LESSOR AND LESSEE EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED
WARRANTIES OF MERCHANTABILITY, HABITABILITY, FITNESS OF A PARTICULAR PURPOSE OR
OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND THERE ARE NO WARRANTIES WHICH
EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, LESSEE EXPRESSLY ACKNOWLEDGES THAT LESSOR HAS MADE
NO WARRANTIES OR REPRESENTATIONS CONCERNING ANY HAZARDOUS SUBSTANCES OR OTHER
ENVIRONMENTAL MATTERS AFFECTING ANY PART OF THE PROPERTY, AND LESSOR HEREBY
EXPRESSLY DISCLAIMS AND LESSOR WAIVES ANY EXPRESS OR IMPLIED WARRANTIES WITH
RESPECT TO ANY SUCH MATTER.
16.4 Waiver and Releases.
-------------------
LESSEE SHALL NOT HAVE THE RIGHT TO WITHHOLD OR TO OFFSET RENT OR TO
TERMINATE THIS LEASE EXCEPT AS EXPRESSLY PROVIDED HEREIN. LESSEE WAIVES AND
RELEASES ANY AND ALL STATUTORY LIENS AND OFFSET RIGHTS.
EXECUTED to be effective the date first above written.
LESSOR
FASKEN CENTER, LTD.
By: 550 Texas, Inc., General Partner
By:/s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Title: Vice President
--------------------------------
LESSEE
TITAN EXPLORATION, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------
Title: Vice President
--------------------------------
19
EXHIBIT "A"
LEGAL DESCRIPTION
PHASE I:
Field Note description of the survey of the Midland National Bank Tower tract,
consisting of Xxxxx 00 & 00, Xxxxxxxx Xxxx of Midland, Midland County, Texas,
and being described more fully by metes and bounds as follows:
BEGINNING as a 1/2" reinf. bar at the SW corner of Block 32 for the SW corner of
this tract, the same being the intersection of the North right-of-way line of W.
Texas Ave. with the East right-of-way line of N. Carrizo Street;
THENCE North 300 feet along the West line of Block 32 and the East ROW line of
N. Carrizo Street to a 1/2" reinf. bar set at the NW corner of Block 32 for the
NW corner of this tract in the south right-of-way line of W. Illinois Ave;
THENCE East 680 feet along the South ROW line of W. Illinois Ave. and along the
North line of Blocks 32 and 33 to a 1/2" reinf. bar in the West ROW line of X.
Xxxxxxxxxx Street for the NE corner of Block 33 and the NE corner of this tract;
THENCE South 300 feet along the East line of Block 33 and the Xxxx XXX xxxx xx
X. Xxxxxxxxxx Xxxxxx to a 1/2" reinf. bar set at the SE corner of Block 33 for
the SE corner of this tract in the North ROW line of W. Texas Ave.
THENCE West 680 feet along the North ROW line of W. Texas Ave. and along the
South line of Block 32 and 33 to the PLACE OF BEGINNING.
LESS AND EXCEPT, HOWEVER, the following described property:
A tract of land out of Blocks 32 and 33, Original Town of Midland, as per plat
recorded in Volume 2, Page 232, Deed Records of Midland County, Texas, also that
portion of Pecos Street between said blocks and the 20-foot alleys in said
blocks as abandoned by City Ordinance and recorded in Volume 294, Page 454, Deed
Records of Midland County, Texas, as follows:
BEGINNING at a "X" marked in concrete for the NE corner of this Tract, same
being the NE corner of the above said Block 33, at the intersection of the South
right-of-way line of West Illinois Avenue and the West right-of-way line xx
Xxxxx Xxxxxxxxxx Xxxxxx;
THENCE South 126.79 feet along said West right-of-way line xx Xxxxx Xxxxxxxxxx
Xxxxxx to an "X" marked in concrete for the most xxxxxxxx XX corner of this
Tract;
THENCE West 155.92 feet to a "PK" nail set for an interior corner of this
Tract;
THENCE South 45 degrees 00' W. 136.0 feet to a 1/2" reinf. bar set for another
interior corner of this Tract;
THENCE South 77.05 feet to an "X" marked in concrete for the most southerly SE
corner of this Tract in the North right-of-way line of West Texas Avenue;
THENCE West 277.92 feet along said North right-of-way line of West Texas Avenue
to an "X" market in concrete for the SW corner of this Tract;
THENCE North 300.00 feet to an "X" marked in concrete for the NW corner of this
Tract in the above said South right-of-way line of West Illinois Avenue:
THENCE East 530.0 feet along said South right-of-way line of West Illinois
Avenue to the PLACE OF BEGINNING.
PHASE II:
A tract of land out of Blocks 32 and 33, Original Town of Midland, as per Plat
recorded in Volume 2, Page 232, Deed Records of Midland County, Texas, also that
portion of Pecos Street between said blocks and the 20-foot alleys in said block
as abandoned by City Ordinance and recorded in Volume 294, Page 454, Deed
Records of Midland County, Texas as follows:
BEGINNING at an "X" marked in concrete for the NE corner of this Tract, same
being the NE corner of the above said Block 33, at the intersection of the South
right-of-way line of West Illinois Avenue and the West right-of-way line xx
Xxxxx Xxxxxxxxxx Xxxxxx;
THENCE South 126.79 feet along said West right-of-way line xx Xxxxx Xxxxxxxxxx
Xxxxxx to an "X" marked in concrete for the most xxxxxxxx XX corner of this
Tract;
THENCE West 155.92 feet to a "PK" nail set for an interior corner of this
Tract;
THENCE South 45 degrees 00' W. 136.0 feet to a 1/2" reinf. bar set for another
interior corner of this Tract;
THENCE South 77.05 feet to an "X" marked in concrete for the most southerly SE
corner of this Tract in the North right-of-way line of West Texas Avenue;
THENCE West 277.92 feet along said North right-of-way line of West Texas Avenue
to an "X" marked in concrete for the SW corner of this Tract;
THENCE North 300.0 feet to an "X" marked in concrete for the NW corner of this
Tract in the above said South right-of-way line of West Illinois Avenue;
20
THENCE East 530.0 feet along said South right-of-way line of West Illinois
Avenue to the PLACE OF BEGINNING.
21
EXHIBIT "B"
FLOOR PLANS
22
EXHIBIT "C"
BASE RENTAL
The following Base Rental Provision are hereby incorporated in and made a part
of the Lease Agreement by and between:
Lessor: Fasken Center, Ltd.
-------------------------------------
P. O. Box 11227
-------------------------------------
Xxxxxxx, Xxxxx 00000
-------------------------------------
and Lessee: Titan Exploration, Inc.
-------------------------------------
000 Xxxx Xxxxx Xxxxxx
-------------------------------------
Suite 500
-------------------------------------
Xxxxxxx, Xxxxx 00000
-------------------------------------
Base Rent for "Original Space": $ 16,023.92/Month $ 192,287.00/Year
Base Rent with "Add-On Space": $ 31,357.92/Month $ 376,295.00/Year
*Notwithstanding anything contained herein to the contrary, subject to Section
15.2, such Base Rental together with any escalation of rent provided for in the
Lease Agreement, then in effect, shall be due and payable in Sixty (60)
---------------
monthly installments and such Base Rent for the Add-On Space may be
proportionately paid based upon actual square footage leased under the terms of
this Lease.
LESSOR
FASKEN CENTER, LTD.
----------------------------------------
a Texas Limited Partnership
----------------------------------------
By: 550 TEXAS, INC., General Partner,
a Texas Corporation
By: Xxxxxxx X. Xxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
------------------------------
Title: Vice President
-----------------------------
LESSEE
TITAN EXPLORATION, INC.
----------------------------------------
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Title: Vice President
-------------------------------
23
EXHIBIT "D"
WORK LETTER
Lessee accepts the Leased Premises in "as is" condition. All finish out
costs shall be at Lessee's sole expense.
Agreed to and accepted this 10th ,day of April ,
------------------ -----------
1997 .
----
LESSOR
FASKEN CENTER, LTD.
----------------------------------------
a Texas Limited Partnership
----------------------------------------
By: 550 TEXAS, INC., General Partner,
a Texas Corporation
By: Xxxxxxx X. Xxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
------------------------------
Title: Vice President
-----------------------------
LESSEE
TITAN EXPLORATION, INC.
----------------------------------------
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Title: Vice President
-------------------------------
24
BUILDING RULES AND AGREED REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by any Lessee or used by any Lessee for any purpose
other than access to and from such Lessee's Leased Premises and other portions
of the building.
2. Plumbing, fixtures and appliances within the building 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 Lessee or such Lessee's agents,
employees or invitees, shall be paid by such Lessee and Lessor shall not in any
case be responsible therefore.
3. No signs, advertisements, or notices shall be painted or affixed on or to
any windows or doors or other part of the building except of such color, size
and style in such places as shall be first approved in writing by Lessor. No
part of the building shall be defaced by any Lessee. No curtains or other
window treatments shall be placed between the glass and the building standard
window treatments.
4. Lessor shall provide and maintain an alphabetical directory board for all
Lessees in the first floor (main lobby) of the building and no other directory
shall be permitted without Lessor's prior written consent prorated for the use
of all occupants.
5. Lessor shall provide all locks for doors in each Lessee's leased area, and
no Lessee shall place any additional lock or locks on any door in such Lessee's
Leased Premises, without Lessor's prior written consent. A reasonable number of
keys to the locks on the doors in each Lessee's leased area shall be furnished
by Lessor to each Lessee.
6. Construction or building repair work shall be performed by any Lessee only
within any such Lessee's Leased Premise and only with the prior written consent
of Lessors, and all Lessees will refer all contractors, subcontractors, and
suppliers, and their agents, representatives, and technicians, to Lessor for
Lessor's supervision, approval and control prior to the performance of any
contractual service. This provision shall apply to all construction or building
repair work performed in the building including, but not limited to,
installations of telephones, telegraph equipment, electrical devices, and
attachments, and any and all installations of every nature affecting doors,
walls, woodwork, trim, windows, ceilings, equipment and any other physical
portion of the building.
7. Movement in or out of the building of furniture or office equipment, or
dispatch or receipt by any Lessee of any bulky material, merchandise or
materials which require use of elevators or stairways, or movement through the
building entrances or lobby shall be restricted to such hours as Lessor shall
designate. All such movement shall be by persons acceptable to Lessor, and
shall be performed under the supervision of Lessor and in the manner agreed
between such Lessee and Lessor by prearrangement before initiated by each
requesting Lessee with reasonable advance notice and Lessor shall determine and
control the time, method, and routing of any permitted movement and any
limitations for safety or other concerns which may prohibit any article,
equipment or any other item from being brought into the building. Each Lessee
assumes all risks of, and agrees to pay and hold Lessor harmless from any loss,
cost or expense associated with damage to any articles moved and injury to
property and persons engaged or not engaged in such movement, including property
and personnel of Lessor if damaged or injured as a result of acts or omissions
in connection with carrying out this service for a Lessee, but Lessor shall not
be liable for the acts of omission of any person engaged in, or any damage or
loss to any of said property or persons resulting from any act or omission in
connection with, such service performed for a Lessee.
8. Lessor shall have the power to prohibit, or prescribe the weight and
---------------------------------------
position of safes and other heavy equipment which shall in all cases where
permitted, in order to distribute weight, stand on supporting devices approved
by Lessor. Each Lessee shall notify Lessor 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 Lessor, all as is more particularly required by Paragraph 7,
above.
9. Lessor shall provide janitorial cleaning services. Janitorial service to
be made available by Lessor to the Leased Premises shall, to the extent
available in the market place, be performed by bonded cleaning and maintenance
personnel as is reasonably customary and usual for buildings similar to the
building in which the Leased Premises are located, which janitorial services
will include: nightly vacuuming, waste removal, dusting of the Leased Premises
and general cleaning of public areas. Building porters, employed by the Lessor
for miscellaneous daytime cleaning services and other needs of the Lessor may
not be called upon by Lessee for services, except when approved by telephone
request to Lessor's management office. Approvals by Lessor will be only for
short time assistance and solely at the discretion of the Lessor. Lessee shall
in no way be responsible to any Lessee or third party for any negligent or
willful act of omission of any person or persons performing any cleaning service
in the building or any portion thereof, or on the land adjacent thereto.
10. Each Lessee shall cooperate in keeping its Leased Premises neat and clean,
and except as expressly authorized in writing by Lessor, Lessees shall not
employ any person for the purpose of the building's cleaning and maintenance.
11. No telegraphic, enunciator, or other communication service shall be placed
in any Leased Premises except as
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Lessor shall permit, and as to any such service so permitted by Lessor, Lessor
will direct the electrician where and how wires are to be introduced and placed.
Additionally, no electric current shall be used for heating without Lessor's
prior written consent.
12. Lessees shall not make or permit any improper noises in the building or
otherwise interfere in any way with other Lessees or persons visiting or doing
business with such other Lessees.
13. Nothing shall be swept or thrown into, or placed, discarded or abandoned
in, the corridors, halls, elevator shafts or stairways. No animals shall be
brought in or kept in, on or about any Lessee's Leased Premises.
14. No machinery excluding machines required for normal business activities of
any kind shall be operated by any Lessee in its Leased Premises without the
prior written consent of Lessor, nor shall any Lessee use or keep in the
building any inflammable or explosive fluid or substance.
15. No portion of any Lessee's Leased Premises shall at any time be used or
occupied as sleeping or lodging quarters.
16. Lessor reserves the right to rescind any of these rules and regulations and
to make such other and further rules and regulations as in its judgment 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 Lessees and their agents, employees and
invitees, provided such changes shall be consistently applied to all Lessees of
the Building, which rules and regulations, when made and written notice thereof
is given to a Lessee, shall be binding upon such Lessee in like manner as if
originally herein prescribed.
17. Lessor shall in no event be responsible to any Lessee or other third party
for lost or stolen personal property including but not limited to money or
jewelry from any of Lessee's Leased Premises (regardless of whether such loss or
theft occurs when such area is locked against entry or not) or from any other
parts of the building or the land.
18. Lessor shall have the right to delegate all or portions of Lessor's rights
and obligations pursuant to these rules and regulations to one or more building
managers, and each Lessee shall thereupon recognize and deal with such building
manager with respect to these rules and regulations.
19. Building standard hours will be from 7:00 a.m. to 6:00 p.m. Monday through
Friday, and from 8:00 a.m. to 2:00 p.m. on Saturday, exclusive of the following
holidays: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day.
20. Each Lessee will comply and will be responsible for causing its agents,
employees and invitees to comply with all signs and notices which Lessor may
have caused to be posted in the parking garage, including but not limited to
signs pertaining to any reserved or assigned parking spaces. Each Lessee will
further be responsible for causing all driving and parking operations conducted
by it or its agents, employees, and invitees to be conducted in a reasonable,
prudent and safe manner. Lessor shall have the right to designate parking for
visitors and Lessee, its agents, and employees shall not park cars, trucks, or
any other motor vehicles in parking spaces which are designated visitors
parking, Lessee agrees that upon written notice from Lessor it will furnish to
Lessor within five (5) days from receipt to such notice the state automobile
license numbers assigned to the automobiles of the Lessee and its employees.
21. Corridor doors, when not in use, shall be kept closed.
22. All changes and amendments to these Rules and Regulations of the Property
shall be forwarded by Lessor to Lessee in writing and shall thereafter be
carried out and observed by Lessee.
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