Exhibit 10.76
NATIONSBANK BUILDING
OFFICE LEASE AGREEMENT
This is a lease (the "Lease") entered as of the date immediately preceding the
signatures below by and between:
LESSOR
------
TCTB Partners, Ltd. and Xxxx X. Xxxxxxxxx (successors in interest to Packard
Energy Group, Inc.) 000 X. Xxxxxxxxx, Xxxxx 000 Xxxxxxx, Xxxxx 00000
and
LESSEE
Pioneer Natural Resources USA, Inc.
0000 Xxxxxxxx Xxxxxx Xxxx
0000 X. X'Xxxxxx Xxxx.
Xxxxxx, Xxxxx
00000-0000
1. Leased Premises: For the consideration and subject to the terms, provisions,
and conditions set out below, Lessor lets and leases to Lessee and Lessee leases
from Lessor approximately 64,019 square feet of rentable area(s) (hereinafter
referred to as the "Leased Premises") on the following floor(s) of the
NationsBank Building (hereinafter referred to as the "Building"), located at 000
X. Xxxx Xxxxxx in the city of Midland, Midland County, Texas, said rentable
area(s) being more particularly shown on the floor plans attached hereto as
Exhibit "A", as a portion of the 1st and 2nd floor(s). The Leased Premises shall
be used and occupied by Lessee solely as office space and for no other purpose.
2. Term: This Lease shall be for a term of 72 months beginning on the 1st day of
April, 2000, (hereinafter referred to as the "Commencement Date"), and shall
expire on the 31st day of March, 2006.
3. Rent:
a. Annual Period: Lessee covenants and agrees to pay Lessor, at its
office in Midland, Texas, as rent (sometimes referred to as "Base
Rent"), the following:
Annual: $320,095 payable at the monthly rate of $26,674.58.
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Such Base Rent shall be paid to Lessor in advance and without demand,
counterclaim or offset, on or before the first day of each calendar month.
b. Second and Succeeding Annual Periods: To provide an equitable
adjustment of rental to allow for increases and decreases in operating
expenses incurred through the operation of the Building, on and after
the second year after the Commencement Date the rental shall be
adjusted, up or down, in accordance with the following procedures:
The Lessor shall prepare annually prior to the end of each calendar
year an estimate of total operating expenses for the upcoming calendar
year.
Commencing April 1, 2001 Lessee shall pay monthly adjusted rental
consisting of one twelfth (1/12) of the difference between the "Base
Year" actual operating expense costs and the upcoming year's estimated
operating expense costs allocated to the Leased Premises. For purposes
of this Lease Agreement the "Base Year" shall be the calendar year
2000. This adjusted rent allocation shall be based on the proportion
of the Leased Premises' net rentable area to the Building's total net
rentable area. Lessee's proportionate share for purposes defined
herein shall be 19.45% of the total estimated operating expense
increase.
After the first annual period after the Base Year, Lessor may from
time to time throughout the calendar year adjust the amount Lessee
pays to Lessor monthly for increases or decreases in operating
expenses, should Lessor reasonably determine that the actual costs for
operating expenses are significantly above or below the estimated
costs for operating expenses.
In no event shall Lessor include costs for capital replacement items,
capital expenditures, leasing commissions, or any expenditure that
would be capitalized in accordance with generally accepted accounting
principles in the actual or estimated operating expense calculations.
Within ninety (90) days after the conclusion of each calendar year of
the Lease Term, or as soon thereafter as possible, Lessor shall
provide Lessee a detailed statement of actual operating expenses for
the previous calendar year. The actual operating expenses shall be
compared to the estimated operating expenses, and Lessee's account
shall be adjusted annually by increase or decrease based on Lessee's
proportionate share, to reflect actual cost incurred. The Lessee shall
then be credited or billed accordingly to reflect this adjustment. The
operating expense adjustment shall in no event cause the initial base
rent to decrease.
For purposes of calculating Lessee's initial adjustment amount, Lessor
shall estimate the year 2001 calendar year's operating expenses prior
to March 31, 2001 and compare the estimated amount to the actual
operating expenses incurred in calendar year 2000. Lessee shall
commence paying the prorated calendar year difference between the
amounts in monthly increments beginning as of the first day of the
first month after the first anniversary of the Commencement Date.
During the last year of the term of this Lease Agreement, Lessee's
share of increases in operating expenses shall be calculated on a
proportionate basis so Lessee is charged only for increases in
operating expenses applicable to those months which this Lease
Agreement is in effect.
All sums or amounts which Lessee shall be or become obligated to pay
under this Lease shall be deemed Rent, but not Base Rent, whether
referred to as "Rental or Rent or Additional Rent" or otherwise, and,
subject to this Lease, Lessor shall have all of the remedies provided
by Law for the collection thereof. Additionally, Lessee's obligation
to pay its share of actual costs found to be excess of estimated costs
shall survive any termination of this Lease, whether by lapse of time
or otherwise.
c. Past Due Rent: Any installments of rent not received by Lessor by
the fifth day of each month, shall be assessed a late charge
equal to 10% of the total rental amount due. Rental payments not
received by the last day of any given month shall be assessed an
additional 10% late charge on the total delinquent balance. It is
agreed that the late payment charge shall constitute liquidated
damages to reimburse Lessor for the damages to Lessor in
connection with the handling and processing of late rent
installments.
d. Holding Over: Should Lessee hold the Leased Premises after
termination of this Lease by lapse of time or otherwise, such
holding over shall be construed as a tenancy from month to month
only and Lessee shall pay in advance as liquidated damages for
each month of such holding, one hundred twenty-five percent
(125%) of the amount stipulated herein as monthly rent
installment for the last month of the Lease term. No receipt of
money by Lessor from Lessee after termination of this Lease,
shall affect any prior notice given by Lessor to Lessee and no
extension shall be valid unless in writing, signed by Lessor and
Lessee. The foregoing shall not be construed as Lessor's consent
for any such holding over and Lessor reserves the right to
proceed against Lessee for any damages caused thereby.
4. Parking: Lessor agrees to provide 130 covered reserved spaces in the East
Garage and 3 covered reserved spaces in the West Garage. Such reserved parking
spaces shall be as noted on Exhibit "C". Lessor shall be able to relocate
parking spaces from time to time in accordance with the parameters set forth on
Exhibit "C".
5. Possession: If Lessor is unable to give possession of the Leased Premises on
the Commencement Date by reason of the holding over of any tenant or occupant of
the Leased Premises or the Building of which the Leased Premises are a part, the
Commencement Date of this Lease shall be adjusted to the date when the Leased
Premises are ready for possession by Lessee regardless of whether Lessee
actually takes possession of the Leased Premises on such date. Provided that any
other provision hereof to the contrary notwithstanding, if Lessee is unable to
take possession due to delays in completing work or remodeling required by
Lessee, the rent and Commencement Date specified in this Lease shall be
effective as herein specified.
6. Repair and Maintenance: Lessee shall take good care of the Leased Premises
and Lessor shall have repaired, at Lessee's expense, any damage done to the
Leased Premises or Building by Lessee, its agents or employees. Lessor shall, at
its expense, maintain only the roof, foundation, the structural soundness of the
exterior walls, heating and air conditioning systems, common areas, plumbing,
elevators, electrical system including the changing of building interior and
exterior light bulbs, and shall keep the paving and landscaping outside the
Building in good repair and condition. Lessee shall make all repairs to the
Leased Premises except as otherwise specified herein. Lessee shall at
termination of this Lease, by lapse of time or otherwise, deliver the Leased
Premises to Lessor in as good a condition as at commencement of Lessee's
occupancy, ordinary wear and tear excepted.
7. Assignment and Subletting: Lessee shall have the right to assign its rights
under this Lease or sublet the Leased Premises or any part thereof, with the
prior written approval of Lessor, which consent shall not be unreasonably
withheld or delayed. No assignment or subletting by Lessee shall relieve Lessee
or any guarantor of any obligation under this Lease. Any attempted assignment or
sublease by Lessee in violation of the terms and covenants of this paragraph
shall be void. Not withstanding the foregoing, Lessee agrees not to sublease,
assign, or attempt to sublease or assign any of the Leased Premises to any
person, entity, or any affiliate of any person or entity which is, as of the
Commencement Date, a tenant of the NationsBank Building" by whatever name it is
then called.
8. Entry: Lessor shall have the right to enter the Leased Premises at all
reasonable times for the purpose of examining and caring for the same or making
repairs or additions. Lessor shall attempt to limit entries to make necessary
repairs or additions. Lessor shall attempt to limit entries to make necessary
repairs and alterations to such times so as not to interrupt Lessee's normal
business routine, whenever practicable. During the last sixty (60) days of the
term, Lessor may exhibit the premises to prospective new tenants.
9. Alterations and Improvements: Lessee will make no alteration in or additions
to the Leased Premises without Lessor's prior written consent which shall not be
unreasonably withheld or delayed. All erections, additions, fixtures and
improvements, whether temporary or permanent in character (except only the
computers and movable office furniture and equipment of Lessee or any of its
affiliates) made in or upon the Leased Premises, either by Lessee or Lessor,
shall be Lessor's property, and shall remain upon the Leased Premises at the
termination of this agreement without compensation to Lessee. All of Lessee's
personal property not promptly removed from the Leased Premises at the
termination of this Lease shall be conclusively presumed to have been abandoned
by Lessee and forthwith become Lessor's property.
10. Compliance with Laws: Lessor shall comply with all laws, ordinances, rules
and regulations of all governmental authorities pertaining to the ownership and
operation of the Building. Lessee agrees to comply in all respects with the
Americans Disabilities Act of 1990 ("ADA") and all other laws applicable to its
occupation of the Leased Premises. Lessee shall indemnify and defend Lessor and
shall hold Lessor harmless from any damages, loss or liability, resulting from
the failure of Lessee after the Commencement Date to comply with the
requirements of the ADA for the Leased Premises during the term of this Lease.
11. Default by Lessee:
a. Each of the following shall constitute an "event of default" by
Lessee:
1. The failure of Lessee to pay when due the rent or any other money
payments due hereunder, or any part thereof, and such failure
shall continue for a period of ten (10) days following the
receipt by Lessee from Lessor of notice of default specifying
that the rent was not paid when due; or
2. The failure of Lessee to fulfill or perform in whole or in part,
any material agreement or provision of this Lease, other than the
payment of rent or any other money amounts due hereunder, and
such failure or nonperformance shall continue for a period of ten
(10) days after written notice thereof has been given by Lessor
to Lessee.
b. Upon the occurrence of any event of default, Lessor shall have the
option to do any one or more of the following alternatives upon notice
to Lessee:
1. Terminate this Lease. If Lessee shall fail to immediately
surrender the Leased Premises after termination, Lessor may enter
upon and take possession of the Leased Premises and expel Lessee
and its effects without being liable to prosecution or any claim
for damages to Lessee arising therefrom.
2. Declare the Cancellation Amount (as defined below) payable
immediately, as if Lessee had terminated the Lease effective on
the date of the declaration by Landlord hereunder. Lessee agrees
to pay the same to Lessor at once. The acceptance by Lessor of
such Cancellation Amount shall constitute a full waiver of any
further damages for such default and shall eliminate alternatives
b.3 and b.4 below.
3. Enter upon and take possession of the Leased Premises as the
agent of Lessee without terminating this Lease and without being
liable to Lessee for prosecution or any claim for damages to
Lessee arising therefrom. Lessor may relet the Leased Premises as
the agent of the Lessee for a term or terms which may be less
than the term hereof and may grant rent concessions and receive
the rent. Lessee shall pay to Lessor on demand any deficiency
that may arise by reason of such reletting (but such amount shall
not exceed in the aggregate the applicable Cancellation Amount as
if Lessee had terminated this Lease on the tenth day after
Lessor's uncured notice of default.) Lessor shall have no duty to
relet the Leased Premises and the failure of Lessor to relet the
Leased Premises shall not affect Lessee's liability for rent or
for damages.
4. Lessor may do whatever Lessee is obligated to do by the
provisions of this Lease and may enter the Leased Premises, by
force if necessary, in order to accomplish this purpose, without
being liable to prosecution or any claim for damages to Lessee
arising therefrom. Lessee agrees to reimburse Lessor immediately
upon demand for any reasonable, actual out-of-pocket expenses
which Lessor may incur in thus effecting compliance with this
lease on behalf of Lessee.
12. Lien: Lessor shall have a landlord's statutory lien.
13. Fire and Casualty:
a. Should the Leased Premises be damaged by fire or other casualty
resulting from the fault or negligence of Lessee, Lessee's agents,
employees, or invitees, such damage shall be repaired with reasonable
and all due diligence, under the direction and supervision of Lessor
and rent shall continue without abatement. The cost of such repairs,
to the extent covered by Lessor's casualty insurance, shall be borne
by Lessor and the excess, if any, by Lessee. In no event, however,
shall Lessor be required to repair any improvements, alterations, or
fixtures placed on the Leased Premises by Lessee or any items
installed at the beginning of the term hereof by or at the request of
Lessee other than building standard items.
b. Should the Leased Premises be damaged by fire or other casualty not
caused by negligence or fault of Lessee, its agents, employees,
licensees, or invitees, the following shall result:
1. Should the Leased Premises be rendered wholly unfit for
occupancy and not be susceptible of repair within ninety (90)
days after such damage, Lessee shall have the option to terminate
this Lease as of the date of such damage and Lessee shall pay
rent apportioned to the time of such damage and Immediately
surrender the Leased Premises to Lessor.
2. Should such damage, however, be susceptible of repair within a
ninety (90) day period after occurrence, Lessor shall enter and
make repairs without affecting this Lease, but the rent hereunder
shall be reduced or abated as shall be equitable while such
repairs are being made, unless such damage has been so slight as
not to render a substantial part of the Leased Premises unfit for
occupancy, in which case rent shall not be reduced. In no event,
however, shall Lessor be required to repair any improvements,
alterations, or fixtures placed on the Leased Premises by Lessee
or any items installed at the beginning of the term hereof by or
at the request of Lessee other than building standard items.
3. In all cases due allowance shall be made for reasonable delay in
effecting repairs where caused by delay, in adjustment of
insurance loss, strikes, labor difficulties, or any cause beyond
Lessor's control.
14. Casualty Insurance: Lessor shall, at all times during the term of this
Lease, at its expense, maintain a policy or policies of insurance, insuring the
Building against loss or damage by fire, explosion or other hazards and
contingencies in an amount not less than Two Million Dollars $2,000,000.00 and
provide a Certificate of Insurance of same upon request of Lessee. Lessor shall
promptly advise Lessee in writing of any cancellation or decrease in said
insurance. Lessor shall not be obligated to insure any furniture, equipment,
machinery, goods or supplies not covered by this Lease which Lessee may bring or
obtain upon the Leased Premises, or any other or additional improvement which
Lessee may construct thereon or which may be constructed thereon by Lessor at
Lessee's expense. Lessee agrees that all personal property upon the Leased
Premises shall be at the risk of Lessee only and the Lessor shall not be liable
for any damage thereto or theft thereof.
15. Liability Insurance: Lessee shall likewise, at its expense, maintain a
policy or policies of comprehensive general liability insurance, issued by an
insurance company or companies reasonably satisfactory to Lessor, such insurance
to afford minimum protection of not less than One Million Dollars
($1,000,000.00) in respect to any one occurrence, combined single limits. Lessee
agrees upon the commencement date of this Lease, to supply Lessor with a
Certificate of Insurance evidencing such insurance coverage.
16. Mechanic's and Materialmen's Liens: Lessee will not permit any mechanic's or
materialmen's lien or liens to be placed upon the Leased Premises or the
Building or improvements thereon during the Lease term caused by or resulting
from any work performed, materials furnished or obligation incurred by or at the
request of Lessee pertaining to the Leased Premises. In the case of the filing
of any such lien, Lessee will pay and discharge the same within ten (10) days
after the filing thereof. If Lessee shall fail to pay and discharge such
mechanic's or materialmen's lien within such period, then, in addition to any
other right or remedy of Lessor, Lessor shall have the right and privilege at
Lessor's option of paying the same or any portion thereof (without inquiry as to
the validity thereof), and any amounts so paid or incurred by Lessor, including
expenses, interest and attorney's fees, shall be paid by Lessee to Lessor on
demand.
17. Condemnation of Premises: Should the Leased Premises or the Building be
taken or condemned in whole or in part for public purposes, then the term of
this Lease, if the Leased Premises are directly affected by such taking, shall,
forthwith terminate and Lessor shall receive the entire award from such taking.
Lessee hereby waives any right to any portion of such award. The foregoing shall
not prohibit Lessee from making any separate claim against the condemning
authority for the loss of the fixtures of Lessee or the moving expense or other
losses or damages of Lessee.
18. Rules and Regulations: Lessee shall comply with the rules and regulations
attached to this Lease and any Exhibit made a part hereof, as well as all
reasonable changes therein and additions thereto that may from time to time be
made by Lessor for the operation and protection of the Building and the
protection and welfare of its tenants and invitee. Such reasonable changes and
additions shall become effective and a part of this Lease upon delivery of a
copy thereof to Lessee.
19. Lessor's Right to Assignment: Lessor shall have the right to transfer,
assign, mortgage and convey, in whole or in part, the Building and any and all
if its rights under this Lease, and nothing herein shall be construed as a
restriction upon Lessor's so doing.
20. Subordination to Liens: Lessee hereby subordinates this Lease to any
mortgage, mortgages or other liens which do not or may hereafter from time to
time cover the Building or the land upon which the Building and its
appurtenances are situated. Any such mortgage or mortgages or similar
instruments, whenever recorded, shall be superior and prior to this Lease, and
Lessee agrees to execute any further instruments consistent with this Lease
evidencing such subordination of the Lease; provided however that any such
mortgagee shall agree not to disturb the possession of Lessee and shall
recognize Lessee's rights for so long as the Lease is in effect.
21. Indemnity: With regard to the Leased Premises, Lessor shall not be liable to
Lessee or Lessee's agents, employees, customers or invitees for any injury to
person or damage to property caused by any act, omission or neglect during the
term of this Lease of Lessee, and Lessee agrees to hold Lessor harmless from all
claims for any such injury or damage, including without limitation, reasonable
legal fees and court costs. With regard to the Leased Premises, Lessee shall not
be liable to Lessor, or to Lessor's agents, servants, employees, customers or
invitees for any injury to person or damage to property caused by any act,
omission or neglect during the term of this Lease of Lessor, and Lessor agrees
to hold Lessee harmless from all claims for such damage, including without
limitation reasonable attorney's fees and court costs.
22. Notices: All notices and communications between the parties hereto shall be
in writing and may be directed and personally delivered to or mailed by
certified mail with return receipt requested to the respective parties hereto at
the addresses shown herein. Either party may change such address upon giving the
other party written notice of such change.
23. Services by Lessor: Lessor shall furnish or make available to Lessee, while
Lessee is actually occupying the Leased Premises and so long as Lessee is not in
default under this Lease, the following:
a. Janitorial and cleaning service for the Leased Premises on a five (5)
day week basis, including such exterior window washing and wall
cleaning as may in the judgment of Lessor be reasonably required, but
not less than two times per year.
b. Elevator service and maintenance and electricity for lighting,
electric typewriters, adding machines, standard office reproduction
machines, personal computers and similar light office equipment. Any
unusual need of electricity, including air conditioning costs
therefor, such as for data processing equipment or blueprint equipment
will be supplied by Lessor and paid for by Lessee as metered by
Lessor, the cost of such metering to be at the expense of Lessee.
c. Cold water for drinking, lavatory and toilet purposes, drawn through
fixtures installed by Lessor with Lessor's consent, and hot water for
lavatory purposes from regular building supply.
d. Lamp and ballast replacement for light fixtures included in building
standard improvements interior and exterior.
e. Heating, ventilating and air conditioning service between 8:00 a.m.
and 6:00 p.m., Monday through Friday at such temperatures and in such
amounts as are considered to be reasonably required for comfortable
use and occupancy under normal business conditions. Lessor shall
furnish, at an additional charge to Lessee, heating, ventilating and
air conditioning on Saturdays, Sundays and holidays only upon request
of Lessee, who shall notify Lessor at least twenty-four hours prior to
requiring such service.
Lessor does not warrant that any service will be free from interruption caused
by repairs, renewals, improvements, change of service, alterations, strikes,
lockouts, labor controversies, accidents or other causes beyond Lessor's
reasonable control, and Lessor shall not be liable for any stoppage of service
provided Lessor uses reasonable diligence to resume the service.
24. Quiet Enjoyment: Lessee, subject to the terms and provisions of this Lease,
on payment of the rent and observing, keeping and performing all of the terms
and provisions of this Lease on its part to be observed, kept and performed,
shall lawfully, peaceably and quietly have, hold, occupy and enjoy the Leased
Premises during the term hereof without hindrance or ejection by any persons
lawfully claiming under Lessor.
25. Waiver of Subrogation: Lessor and Lessee each hereby waive any and all
rights of recovery, claim, action or cause of action against each other, their
agents, officers, and employees, for any loss or damage that may occur to the
Leased Premises, or any improvements thereto, or any personal property (whether
that of Lessor or Lessee) in or on the Leased Premises or Building, by reason of
fire, the elements, or any other cause, under the terms of fire and extended
coverage insurance policies of either party hereto, regardless of cause or
origin, including negligence of the parties hereto, their agents, officers, and
employees. Lessor and Lessee hereby agree immediately to give to each insurance
company which has issued to them the aforesaid policies written notice of the
terms of this waiver, and to have the insurance policies properly endorsed and
furnish Lessor and Lessee, respectively, with insurance certificates evidencing
such endorsements.
26. Force Majeure: Whenever a period of time is herein prescribed for action to
be taken by Lessor, Lessor shall not be liable or responsible for, and there
shall be excluded from the computation for any such period of time, any delays
due to strikes, riots, acts of God, war, and changes in governmental laws,
regulation or restrictions.
27. Name of Building: Lessor reserves the right to change the name of the
Building at any time and from time to time.
28. Signs: No signs, advertisements or notices shall be painted or affixed on or
to any window or doors or other parts of the Building except of such color, size
and style and in such places as shall be first approved in writing by Lessor
which approval shall not be unreasonably withheld or delayed. The current
signage, exterior and interior, of Lessee is acceptable and approved, and Lessee
may repair, replace or alter such signage from time to time at its sole
discretion. No nails, hooks or screws shall be driven or inserted in any part of
the Building other than the Leased Premises except by the building maintenance
personnel, nor shall any part be defaced by tenants.
29. Common Areas: The use and occupation by Lessee of the Leased Premises shall
include the use in common with others entitled thereto of the common areas,
parking areas, service roads, loading facilities, sidewalks, and other
facilities as may be designated from time to time by Lessor, subject, however,
to the terms and conditions of this Lease and to reasonable rules and
regulations for the use thereof as prescribed from time to time by Lessor. All
common areas and facilities described above shall at all times be subject to the
exclusive control and management of Lessor, and Lessor shall have the right from
time to time to establish, modify and enforce reasonable rules and regulations
with respect to all facilities and areas mentioned in this paragraph. Lessor
shall have the right to construct, maintain, and operate lighting facilities on
all said areas and improvements; to police same, from time to time to change the
area, level, location and arrangement of parking areas and other facilities
hereinabove referred to; and to restrict parking by Lessee, its officers, agents
and employees to parking areas designated by Lessor.
30. Estoppel Certificates: Lessee agrees that it will from time to time upon
request by Lessor execute and deliver to Lessor a statement in recordable form
certifying (i) that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same are in full force and effect as so
modified), (ii) the dates to which rent and other charges payable under this
Lease have been paid, (iii) the rentable area of the Leased Premises, (iv) the
status of any work or improvements on the Leased Premises, (v) the circumstances
of any security deposits hereunder, (vi) to the absence of any claim, lien,
charge, cause of action or right of offset under this Lease or otherwise, (vii)
to any known assignment, pledge or other transfer of this lease, (viii) to
Tenant's compliance with paragraph 31 below, and (ix) that Lessor is in
compliance and not in default hereunder (or if Lessor is in noncompliance or
default, specifying the nature of such noncompliance or default). Lessee further
agrees that it will from time to time upon request by Lessor execute and deliver
to Lessor an instrument in recordable form acknowledging its receipt of any
notice of assignment of this Lease by Lessor.
31. Hazardous Materials: Lessee shall not, after the Commencement Date, without
Lessor's prior written consent, use, generate, release, spill, store, deposit,
transport or dispose of (collectively "Release") any hazardous substances,
sewage, petroleum products, hazardous materials, toxic substances or any
pollutants, contaminants or substances, defined as hazardous or toxic under any
applicable federal, state, and local laws and regulations ("Hazardous
Substances") in or on the Leased Premises. In the event, and only in the event,
Lessor approves such Release of Hazardous Substances on the Leased Premises,
Lessee agrees that such Release shall occur safely and in compliance with all
applicable federal, state, and local laws and regulations. The provisions of
this Section shall survive the expiration or termination of this Lease for any
reason.
32. Lessee's Option to Cancel: In further consideration of this Lease, Lessee
shall have the unilateral and unrestricted right and option to cancel and
terminate this Lease, subject to the following terms, provisions and conditions,
to wit:
On and after October 1, 2000, Lessee shall have the right to cancel and
terminate this Lease provided that Lessee satisfies all of the following
conditions:
(i) Lessee must not be in default of payment of rent under this Lease;
(ii) Lessee must give Lessor written notice of Lessee's intent to cancel
(the "Cancellation Notice") by certified mail, return receipt
requested, not less than six months notice before the effective date of
cancellation (the "Cancellation Date") stated in the Cancellation
Notice; and
(iii) Lessee shall tender payment in the form of a check representing
immediately available funds to Lessor, on or before the Cancellation
Date, in the amount calculated ("Cancellation Amount") as the present
value of the Base Rent yet to be paid by Lessee for the Leased Premises
based on the period of time between the Cancellation Date and the date
of the expiration of the Lease term discounted at 12% in accordance
with the amortization schedule attached hereto as Exhibit "D".
In the event Lessee satisfies all of the foregoing conditions and so elects to
cancel and terminate this Lease, this Lease shall be canceled effective the
Cancellation Date and Lessee shall have no further liability or obligation under
the Lease, except for the responsibility of Lessee under the last sentence of
Section 6 hereunder, provided, however, any such cancellation shall in no way
whatsoever release or relieve Lessee from any obligations of Lessee to Lessor
under this Lease prior to the Cancellation Date to pay Base Rent for the period
up to the Cancellation Date. If Lessee fails to make timely payment of the
amounts required in (iii) above, Lessee shall be deemed not to have elected to
cancel this Lease, and this Lease shall continue and Lessee shall remain fully
liable for payment of all Base Rental and other sums hereunder and performance
of all obligations of Lessee otherwise provided for herein.
33. Miscellaneous:
a. Lessee and Lessor agree that, unless and except as hereinafter
specified, there are no verbal representations, understandings,
stipulations, agreement or promises pertaining hereto not incorporated
herein. In addition, no provision of this Lease shall be altered,
waived, amended or extended, except in writing signed by the proper
authorities of both Lessee and Lessor.
b. Lessee's taking possession of the Premises shall constitute its
acknowledgment that it has inspected the Premises, is satisfied
therewith and that the Premises are in good condition and acceptable
to Lessee.
c. The provision of this Lease shall be binding upon and inure to the
benefit of Lessor and Lessee, respectively, and to their respective
successors, assigns, heirs, and personal representatives.
d. This Lease shall be construed under and in accordance with the laws of
the State of Texas and all obligations of the parties created
hereunder are performed in Midland County, Texas.
e. All exhibits attached hereto are incorporated herein and made a part
hereof.
f. In construing the terms of this Lease, the pronouns of any gender
shall include the other genders, and either the singular or the plural
shall include the other.
g. The headings of the paragraphs and subparagraphs of this Lease are
inserted solely for convenience of reference and shall not constitute
a part of this Lease, nor limit, define or describe the scope or
intent of this Lease.
h. This Lease shall be executed in multiple counterparts, each of which
shall be deemed originals, but all of which, taken together, shall
constitute but one and the same lease.
34. Irrevocable License to Use of Rooftop for Antennas/Microwave and
Communication Towers, Dishes and Systems: Notwithstanding any other provision or
term of this Lease, and for further consideration for the execution of this
Lease, Lessor hereby grants at no cost to Lessee and Lessee hereby retains at
all times during the term of this Lease and for a period of five years beyond
the termination, cancellation or expiration of the Lease the right to use,
maintain, replace, alter, access, and repair the existing antennas, dishes,
towers, and satellite systems owned by Lessee on the rooftop of the Building or
associated garages, including free use of the power from the Building. Lessor's
grant under this Section 34 is an irrevocable license or easement for the
benefit of Lessee and shall survive for a period of five years beyond the
termination, cancellation or expiration of this Lease but shall expire earlier
upon (1) the permanent abandonment or destruction of the Building or (2) upon
notice by Lessee specifically terminating its rights under this Section 34 at
which time or upon the expiration of the aforementioned five year term, at
Lessor's request, Lessor may reasonably require the removal by Lessee of the
said antennas, dishes, towers, and satellite systems of Lessee. This Section 34
'is binding on Lessor's and Lessee's successors and assigns. For such license,
Lessee shall pay to Lessor the sum of $5,000.00 per year, without proration for
each year or portion of a year in which Lessee exercises such license following
any termination, cancellation or expression of the Lease. All of such use by
Lessee shall be in cooperation with and in competition with other use of the
rooftop of the building by other tenants of Lessor and by Lessor. All such use
of the license shall be at the sole risk, cost and expense of Lessee, and Lessee
shall indemnify, defend and hold Lessor harmless on account of all claims
arising from, directly or indirectly, any exercise of such license, Lessee's
contractors, servants, or employees.
35. Purchase and Sale Agreement and Joint Escrow Instructions: The execution
and/or delivery of this Lease is done pursuant to the Purchase and Sale
Agreement and Joint Escrow Instructions dated January 31, 2000 but signed
February 4, 2000 (the "Agreement") by and between PNRC Properties, L.P. (as
Seller) and Packard Energy Group, Inc. (as Buyer, predecessor in interest to
Lessor) and the Lease will be effective only upon the recording of the Special
Warranty Deed. The execution and/or delivery of this Lease shall not cause,
under the doctrine of merger, confusion or otherwise the extinguishment of any
surviving terms, representations, warranties, disclaimers and/or indemnities
contained in the Agreement, which Agreement remains in full force in effect in
accordance and subject to its terms, This Lease is subject to the Agreement.
EXECUTED this 4th day of April, 2000.
LESSEE: Pioneer Natural Resources USA, Inc.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Manager, Facilities and Administrative Services
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LESSOR: TCTB Partners, Ltd.
By: TCTB Company, General Partner
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
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Title: President
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/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Exhibit "A" - Site Plan
Exhibit "B" - Building Rules and Regulations
Exhibit "C" - Parking Spaces
Exhibit "D" - Cancellation Amortization Schedule
