Exhibit 10.75
OFFICE LEASE
NationsBank ▇▇ ▇▇▇▇▇, ▇▇▇▇▇
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This Lease, made as of the 30th day of September by 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. MWSI, Ltd., a Texas Limited Partnership
1.2 Lessee. NationsBank of Texas, N.A., a national banking association
1.3 Building. The Building (including the Leased Premises) known as
NationsBank Tower, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, located on the tract of land
(the "Land") described on Exhibit "A" hereto, together with all other buildings,
structures, fixtures and other improvements located thereon from time to time.
The Building and the Land are collectively referred to herein as the "Property".
1.4 Leased Premises. Approximately 53,232 square feet of Net Rentable Area
in the Building 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 percentage factor determined by Lessor.
Said demised space represents approximately 16.17% of the Total Net Rentable
Area, such Total Net Rentable Area of the Building being approximately 329,178
square feet. Lessor and Lessee agree that, upon completion of construction of
the tenant improvements which are necessary for Lessee's occupancy of the Leased
Premises as provided in Exhibit "D", if necessary, an adjustment shall be made
to reflect the true and exact Net Rentable Area of the Leased Premises; an
amendment setting forth such adjustment shall be executed within thirty (30)
days after the Commencement Date and, once such amendment is executed, there
shall be no further adjustment in the Net Rentable Area.
1.5 Lease Term. Ten (10) years and 0 months, beginning on the Commencement
Date.
1.6 Commencement Date. Lessee is presently occupying the Leased Premises
and additional space in the Building pursuant to the leases more particularly
described in Article 14.2 hereinbelow (collectively the "Old Lease"). Lessor has
agreed to permit Lessee to vacate that portion of the space in the Building that
Lessee is presently occupying and that is not included within the Leased
Premises and to consolidate Lessee's operations into the Leased Premises.
Accordingly, the Commencement Date of this Lease shall be the earlier of (i) the
date on which Lessee has vacated that portion of the space in the Building which
Lessee will no longer be occupying and which is not included within the Leased
Premises (the "Unoccupied Space") and has completed the consolidation of
Lessee's operations into the Leased Premises or (ii) January 15, 1993 (the
amount set out in Exhibit "C", which Exhibit is executed by Lessor and Lessee
contemporaneously herewith and incorporated herein by reference for all
purposes.
1.8 Security Deposit. Security deposit is $ N/A .
1.9 Addresses.
Lessor's Address: MWSI, Ltd.
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Lessee's Addresses: NationsBank of Texas, N.A.
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Attn: Vice President of Acquisitions,
Dispositions, Leasing, Corporate
Real Estate Services
NationsBank of Texas, N.A.
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Manager's Address: ▇▇▇▇▇ Properties, Inc.
P. O. ▇▇▇ ▇▇▇▇▇
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Lessor, Lessee and Manager, by written notice to the others, may change from
time to time the foregoing addresses, and Lessor, by written notice to Lessee,
may notify Lessee from time to time of the appointment of a new Manager and such
new Manager's address.
1.10 Permitted Use. The Leased Premises are to be used and occupied by
Lessee solely for the purposes of banking, related banking functions, and
general office space and for no other purpose without Lessor's express 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
1.13 Operating Expense Base. Throughout the term of this Lease, the
operating Expense Base shall be Lessor's Operating Expenses (as defined in
Article 2.4 hereinbelow) for the Building during calendar year 1993; provided,
however, that if, during calendar year 1993 or any portion thereof, the Building
is not occupied to the extent of ninety-five percent (95%) of the rentable area
thereof, then the Operating Expenses for calendar year 1993 shall be determined
as if the Building had been occupied to the extent of ninety-five percent (95%)
of the rentable area thereof throughout such calendar year.
1.14 Parking. Throughout the term of this Lease, Lessor agrees to provide
Lessee with not less than twenty-five (25) covered spaces in the Basement Garage
at no additional cost. These spaces shall be substantially the same spaces that
are presently being made available to Lessee under the terms and conditions of
the Old Lease and shall be designated "Bank Customer Parking."
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 1.7 of this Lease, which amount
shall be payable to Lessor at the address shown in Section 1.9 above or at such
address that Lessor in writing shall notify Lessee. The first (1st) installment
of rent shall be due and payable on the Commencement Date 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; 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 for the Building
divided by the net rentable area in the Building, which is hereby stipulated to
be 329,178 square feet ("Lessor's Operating Expenses per square foot"), in any
calendar year during the term of this Lease exceed the operating Expense Base,
Lessee agrees to pay as additional monthly rent Lessee's share of such excess
Operating Expenses. The term "Lessee's share of such excess Operating Expenses"
means (a) the amount by which Lessor's Operating Expenses per square foot exceed
the Operating Expense Base, multiplied by (b) the number of net rentable square
feet in the building comprising the Leased Premises, which is hereby stipulated
to be 53,232 square feet. Lessor may invoice Lessee monthly for Lessee's share
of the estimated excess operating expenses for each calendar year, which amount
shall be adjusted each year based upon anticipated excess operating expenses.
Within one-hundred twenty (120) days following the close of each calendar year,
Lessor shall provide Lessee an accounting showing in reasonable 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 one (1) year following the
termination date, shall have the option to invoice Lessee for Lessee's share of
the excess operating expenses for the year of termination. If this Lease shall
commence or 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 commencement or termination shall occur shall be prorated on the ratio that
the number of days from the commencement date to the end of the calendar year or
from the commencement of the calendar year to and including the termination
date, as applicable, 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.
In addition, if Lessee's audit reveals an overcharge of more than five percent
(5%) of Lessee's share of the excess Operating Expenses, then Lessor shall on
demand pay the reasonable costs of the audit. 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 percent (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 respect to the ownership,
maintenance, servicing, repairing and operation of the Building, as reasonably
determined by Lessor including, without limitation, the following:
(i) Wages, salaries, fees, and all related expenses and
benefits, of all employees, including a manager, engaged in the
operation, maintenance and security of the Building. All taxes,
insurance, and benefits for such employees are also included. In the
event that any employees engaged in the operation, maintenance and
security of the Building are also engaged in the operation, maintenance
or security of other buildings owned or operated by Lessor, then the
wages, salaries, fees, and related expenses and benefits of such
employees shall be prorated on a reasonable basis.
(ii) Cost of all supplies and materials and equipment rented
or used in the operation, maintenance and security of the Building.
(iii) Cost of all utilities for the Building, including, but
not limited to, the cost of water, power, heating, lighting, air
conditioning, and ventilating.
(iv) Management fees and costs, not to exceed in any calendar
year three percent (3%) of the rental income generated by the Building
in such calendar year, and the cost of all maintenance, janitorial, and
service agreements for the Building and the equipment therein,
including, but not limited to, alarm service, parking facilities,
window cleaning, elevator maintenance, security service, landscaping,
fire protection, and janitorial service.
(v) Cost of all insurance relating to the Building, including,
but not limited to, the cost of fire and extended coverage insurance,
rental loss or abatement insurance, casualty and liability insurance
applicable to the Building and Lessor's personal property used in
connection therewith.
(vi) All taxes, assessments, and other governmental charges,
whether federal, state, county, or municipal (other than taxes on
Lessor's net income and Lessor's franchise taxes), and whether they be
by taxing districts or authorities presently taxing the Building or by
others, subsequently created or otherwise, and any other taxes and
assessments attributable to the Building or its operation.
(vii) Cost of repairs and general maintenance of the Building
(excluding repairs and general maintenance paid by proceeds of
insurance or by Lessee or other third parties, and alterations
attributable solely to tenants of the Building other than Lessee).
(viii) Costs, 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 but
only to the extent in any year of the savings actually being realized
in such year as a result of such installation.
The term "Operating Expenses" shall exclude the following items:
(a) repairs or other work occasioned by fire, windstorm or other
casualty, the costs of which are reimbursed to Lessor by insurers or by
governmental authorities in eminent domain or by others;
(b) leasing commissions, broker fees, legal fees, costs and
disbursements and other expenses incurred in connection with negotiations or
disputes with tenants, other occupants, or prospective tenants or other
occupants of the Building and all other legal fees, whether or not in connection
with the foregoing;
(c) costs incurred in renovating or otherwise improving or decorating
or redecorating space for tenants or other inducements;
(d) costs of correcting defects in the construction of the Building
(including latent defects in the Building) or in the equipment, except that for
the purposes of this subparagraph conditions (not occasioned by construction
defects) resulting from general maintenance and repair (including painting of
common or in the Building common areas, replacement of carpet in elevator
lobbies and the like, even though capital for accounting purposes) and ordinary
wear and tear shall not be deemed defects;
(e) Lessor's costs of electricity and other utilities and services
furnished to tenants for which Lessor is entitled to be reimbursed by tenants
(whether or not actually collected by Lessor) as a separate additional charge or
rental;
(f) costs incurred by Lessor for alterations and replacements which are
considered capital expenditures under generally accepted accounting principles,
consistently applied, except as otherwise expressly provided herein;
(g) amortization and depreciation;
(h) costs of a capital nature, including, but not limited to, capital
improvements, capital repairs, capital equipment and capital tools all in
accordance with generally accepted accounting principles, consistently applied;
(i) expenses in connection with services or other benefits of a type
which are not Building standard but which are provided to another tenant or
occupant;
(j) costs incurred due to the violation by Lessor or any tenant (other
than Lessee) of the terms and conditions of any lease pertaining to the Building
or of any valid, applicable legal requirement, building code, regulation or law
or incurred due to the Building being in violation of any such legal
requirement, building code, regulation or law which exists as of the
Commencement Date or costs incurred due to acts of any tenant causing an
increase in the rate of insurance on the Building or its contents.
(k) overhead and profit increment paid to subsidiaries or affiliates of
Lessor or its partners for services on or to the Building, to the extent that
the costs of such services exceed competitive costs for such services rendered
by persons or entities of similar skill, competence and experience, other than a
subsidiary, or affiliate of Lessor or its partners;
(l) interest on debt or amortization payments on any mortgage or
mortgages, and rental under any ground or underlying leases or lease;
(m) costs of Lessor's general overhead and general administrative
expenses, which would not be chargeable to operating expenses of the Building in
accordance with generally accepted accounting principles, consistently applied;
(n) any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Lessor for profit;
(o) any cost or expense to the extent Lessor is entitled to payment or
reimbursement from any tenant (including Lessee), insurer or other person (other
than through payment of its proportionate share of Operating Expenses);
(p) costs incurred in installing, operating and maintaining any
specialty such as an observatory, broadcasting facilities (other than the
Building's music system and life support and security system), luncheon club,
athletic or recreational club;
(q) any other expenses which, under generally accepted accounting
principles consistently applied, would not be classified as a normal maintenance
or operating expense of the Building;
(r) any expenses relating to replacements of the foundation, exterior
or interior structural walls, or roof of the Building or of latent defects which
under generally accepted accounting principles consistently applied would be
classified as capital expenditures; and
(s) any fines, penalties, legal judgments or settlements of causes of
action by or against Lessor.
2.5 Late Payment Charge. Other remedies for nonpayment of rent
notwithstanding, if any rental payment or other payment to be made by Lessee
hereunder remains unpaid ten (10) days after Lessor has notified Lessee in
writing that such payment is overdue, then, at Lessor's option, Lessee shall be
required to pay Lessor a late payment charge in the amount of five percent (5%)
of the total amount which is overdue, and, in addition, any such overdue amount
shall bear interest from and after the tenth (10th) day after Lessor has
notified Lessee in writing that any such payment is overdue 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. Lessee agrees to pay any amount due under this Section within ten
(10) days following receipt of an invoice showing the additional rent due.
2.7 Security Deposit. The security deposit set forth in Section 1.8 (if
any) shall be held by Lessor for the performance of Lessee's covenants and
obligations under this Lease. It being expressly understood that the security
deposit shall not be considered an advance payment of rental or a measure of
Lessor's damage in case of default hereunder by Lessee, and shall be held by
Lessor without payment of any interest thereon. Upon the occurrence of any event
of default by Lessee under this Lease, Lessor may, from time to time, without
prejudice to any other remedy use the security deposit to the extent necessary
to make good any arrears of rent, or to repair any damage or injury, or pay any
expense or liability incurred by Lessor as a result of the event of default or
breach of covenant, and any remaining balance of the security deposit shall be
returned by Lessor to Lessee upon the termination of this Lease. If any portion
of the security deposit is so used or applied, Lessee shall upon ten (10) days
written notice from Lessor, deposit with Lessor by cash or cashier's check an
amount sufficient to restore the security deposit to its original amount. The
security deposit may be assigned and transferred by Lessor to the successor in
interest of Lessor and, upon acknowledgement by such successor of receipt of
such security and its assumption of the obligation to account to Lessee for such
security in accordance with the terms of this Lease, Lessor shall thereby be
discharged of any further obligation relating thereto.
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 one hundred fifty percent (150%) of 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 caused by a hold over on the part of Lessee.
2.9 Parking. The parking spaces set forth in Section 1.14 shall be for
Lessee and/or Lessee's employees and customers. However, Lessor shall not be
required to police the use of these spaces. Lessor may make, modify and enforce
reasonable 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. If
for any reason Lessee, upon commencement of or at any time during the lease
term, fails to utilize all or any of said parking spaces, Lessor shall have no
obligation to make available to Lessee the spaces not utilized until such time
as Lessee requests use of any or all of such spaces.
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 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 f ire 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. If, because of Lessee's acts,
the rate of insurance on the Building or its contents increases, then Lessee
shall pay Lessor the amount of such increase on demand, and acceptance of such
payment shall not constitute waiver of any of Lessor's other rights.
3.2 Signs. Lessee shall, at Lessee's sole cost and expense, have the right
to keep in place, repair, maintain or replace all signs of Lessee currently in
place in and on the Property. No other signs of any type or description shall be
erected, placed or painted in or about the Leased Premises except signs the
plans for which are 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 existing signs and 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. If Lessee
changes its name at any time, Lessee shall have the right to make such changes
to its signage as are necessary to reflect the changed name, and may modify or
change the existing signs to do so.
3.3 Compliance with Laws, Rules and Regulations. 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 reasonable
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 unless such damages are caused by Lessor's gross
negligence or willful misconduct. 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 Quiet Enjoyment. Lessee warrants that it has the right and authority to
execute this Lease, and 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.
3.5 Inspection. Lessor or Lessor's authorized agent shall upon at least
twenty-four (24) hours prior written notice to Lessee (except in an emergency in
which case no prior notice is required), have the right to enter the Leased
Premises (except for vaults and other secured areas) to perform repairs, to show
the Leased Premises to potential purchasers or lenders and, during the last
twelve (12) months of the term of this Lease, to potential tenants, but in
exercising such rights, Lessor shall not unreasonably interfere with or impair
Lessee's use and enjoyment of the Leased Premises. Notwithstanding any of the
foregoing, Lessor or Lessor's authorized agent shall at any and all reasonable
times have the right to enter the Leased Premises to supply janitorial services
or any other services to be provided by Lessor pursuant to the terms and
conditions of this Lease.
3.6 Security. 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 losses due to theft or burglary,
or damages done by persons gaining access to the Leased Premises or the Building
and the parking areas unless such losses or damages are caused by Lessor's gross
negligence or willful misconduct.
3.7 Personal Property Taxes. Lessee shall be liable for all taxes levied
against leasehold improvements, merchandise, personal property, trade fixtures
and all other taxable property 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 (7:30 a.m. to 7:00 p.m., Monday through Friday, 9:00 a.m. to 3:00
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 established by Lessor. Lessor shall credit the base
operating expense account for that portion of after hours charges specifically
attributable to increased utility costs as calculated by Lessor. 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. 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 the same promptly.
Lessor reserves the right from time to time to make changes in the utilities and
services provided by Lessor to the Property.
4.2 Theft or Burglary. Lessor shall not be liable to Lessee for losses to
Lessee's property or personal injury caused by criminal acts or entry by
unauthorized persons into the Leased Premises or the Property, except to the
extent of Lessor's gross negligence, willful misconduct or breach of this Lease.
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 kitchens or 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,
computers, special lighting and other equipment of high electrical consumption
if and to the extent such electrical consumption exceeds normal office usage as
determined by an independent, third-party consultant mutually selected and
approved by Lessor and Lessee.
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 over 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, unless such
unavailability is caused by Lessor's gross negligence or willful misconduct,
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 seven (7)
consecutive days because of the unavailability of any such service, Lessee shall
be entitled to a reasonable abatement of rent for each consecutive day (after
such seven (7) day period) that Lessee is so prevented from making reasonable
use of the Leased Premises.
4.7 Charge for Service. All costs of Lessor for providing the services set
forth in Article 4 (except those additional charges paid directly by Lessee
pursuant to Article 4) shall be subject to the additional rent provisions in
Section 2.3 and shall be payable as therein provided.
ARTICLE 5 - REPAIRS AND MAINTENANCE
5.1 Lessor Repairs. Lessor shall maintain the Building and the Property in
good order and condition and perform all necessary repairs and replacements in
and to the Property, interior and exterior, structural and non-structural,
ordinary and extraordinary and unforeseen and foreseen (except for (i)
non-structural repairs in or to the Leased Premises that are expressly not
Lessor's responsibility under this Section 5.1, and (ii) repairs necessitated by
Lessee or Lessee's agents, employees or visitors) and will accomplish such
repairs promptly with first-class materials, in a good and workmanlike manner,
in compliance with all applicable laws and in a style, character and quality
conforming to existing construction. Such repairs and replacements include, but
are not limited to, all necessary repairs and replacement of the Common Areas,
sidewalks, driveways, service areas, curbs, and parking areas in and around the
Building, the roof, foundation, load bearing or structural elements, the plate
glass forming a part of the outer shell of the Building, the water, sewage, gas
and electrical lines and installations servicing the Building and the Leased
Premises, the heating and air-conditioning system in the Building insofar as it
affects the Leased Premises or the Common Areas, and all repairs and
restorations made necessary by fire or other casualty. 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.
5.2 Lessee Repairs. 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.
5.3 Request for Repairs. 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 1.9.
5.4 Lessee Damages. 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 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 (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, except that Lessee may,
without first obtaining Lessor's consent, make alterations or improvements after
furnishing Lessor with the plans and specifications for such alterations or
improvements at least thirty (30)days prior to commencement of such construction
(a)if the alterations or improvements do not adversely affect the structural
elements or mechanical, electrical, heating, air conditioning, ventilation or
plumbing systems of the Building, do not exceed $30,000.00 in cost (excluding
the cost of equipment, machinery or other items installed by Lessee) for any
calendar year and do not violate applicable laws or legal requirements or (b) if
the alterations or improvements are required by law (including any law or legal
requirement relating to persons with disabilities). Any and all such
alterations, physical additions or improvements, when made to the Leased
Premises by Lessee, shall at once become the property of Lessor and shall be
surrendered to Lessor upon termination of this Lease by lapse of time or
otherwise. Notwithstanding any of the foregoing, at the end of this Lease,
Lessee shall have the right (and obligation if requested by Lessor), to remove
any of its trade fixtures and personal property (and the following shall be
deemed to be included as part of Lessee's trade fixtures and personal property,
regardless of the manner in which they are installed: under counter steel,
furniture, movable teller lines, safe deposit boxes, safes, automatic teller
machines, night depository, portable vaults and doors, teller sound systems,
telephone and data systems, computers, computer related equipment or property,
liebert units, cabling, tubing, halon systems, security systems and equipment,
communications equipment referred to above and other unattached and easily
removable equipment or property useful to Lessee in its operations), but Lessee
shall repair any damage caused by the removal. 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 at reasonable times and, during the continuance of any such work
as may be required, in Lessor's judgment, all without affecting any of Lessee's
obligations hereunder.
ARTICLE 7 - CASUALTY; WAIVERS; SUBROGATION
7.1 Substantial Destruction. If (i) the Leased Premises or the Building
should be totally destroyed by fire or other casualty, or (ii) the Leased
Premises or the Building should be damaged so that rebuilding cannot reasonably
be completed substantially within one hundred eighty (180) days after Lessor's
receipt of written notification by Lessee of the destruction, or (iii) the
Building shall be so damaged as to tender it unsuitable for use as an office
building comparable to the use to which the Building was being put prior to the
damage, and such damage cannot be repaired and the Building restored to such use
within one hundred eighty (180) days from the date of the damage or (iv) any
mortgagee under a mortgage or deed of trust covering the Building should require
that the insurance proceeds payable as a result of said fire or other casualty
be used to retire the mortgage debt, then, at either Lessee's or Lessor's
option, this Lease may be terminated and, in such event, the rent shall be
abated for the unexpired portion of the Lease, effective as of the date of the
damage.
7.2 Partial Destruction. If, following damage or destruction to the Leased
Premises or Building by fire or other casualty, this Lease is not terminated
pursuant to Section 7.1 hereof, Lessor shall proceed with reasonable diligence
to rebuild or repair the Building, Leased Premises and other improvements to
substantially the same condition in which they existed prior to the damage. if
Lessee's use of the Leased Premises or the conduct of its business is impaired
due to the damage, whether or not the Leased Premises are themselves damaged,
the rent payable under this Lease during the period of impairment shall be
equitably reduced based on the degree to which Lessee's use and enjoyment of the
Leased Premises are impaired. Lessor's obligation to rebuild or restore under
this Section 7.2 shall be limited to restoring the Leased Premises and Building
to substantially the condition in which the same existed prior to the damage,
exclusive of improvements which are not Building standard or for which Lessee is
responsible under the terms of this Lease; in no event shall Lessor 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 Lessor shall not in
any event be required to spend f or such work an amount in excess of the
insurance proceeds actually received by Lessor as a result of the fire or other
casualty. Lessee shall, promptly after the completion of such work by Lessor,
proceed with reasonable diligence and at Lessee's sole cost and expense to
restore those improvements for which Lessee is responsible under the Lease to
substantially the condition in which the same existed prior to the damage and to
otherwise make the Leased Premises suitable for Lessee's use. If this Lease is
not terminated pursuant to Section 7.1 above, and if Lessor fails to
substantially complete the necessary repairs or rebuilding within one hundred
eighty (180) days from the date of Lessor's receipt of written notification by
Lessee of the damage (except that Lessor shall not be responsible for delays
outside its control), Lessee may at its option terminate this Lease by
delivering written notice of termination to Lessor, whereupon all rights and
obligations of Lessee under this Lease shall cease. If the damage to the Leased
Premises or the Building occurs during the last 12 months of the term of this
Lease or any extension thereof, and such damage cannot be fully repaired within
30 days, then Lessee may terminate this Lease, effective as of the date of the
damage, by giving Lessor written notice thereof within 30 days of the occurrence
of the damage.
7.3 Property Insurance. Lessor shall at all times during the term of this
Lease insure the Property against all risk of physical loss under standard fire
and extended coverage policies of insurance in an amount at least equal to the
replacement cost of the Building with deductibles of not more than $25,000.00;
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. Neither Lessor
nor Lessee shall have any right in or claim to the proceeds of any policy of
insurance maintained by the other even if the cost of such insurance is borne by
Lessee as set forth in Article 2.3 hereinabove. Lessee at all times during the
term of the Lease shall, at its own expense, keep in full force and effect
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.
7.4 Waiver; No Subrogation. Lessor shall not be liable to Lessee or those
claiming by, through, or under Lessee 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.
7.5 Liability Insurance. Lessor and Lessee at all times during the Lease
term shall each, at its own expense, keep in full force and effect a commercial
general liability insurance with "personal injury" coverage, with minimum limits
of $1,000,000.00 on account of bodily injuries to, or death of, one or more than
one person as the result of any one accident or occurrence and $500,000.00 on
account of damage to property.
7.6 Requirements for Insurance. On or before the Commencement Date, Lessor
and Lessee shall deliver to each other a certificate of insurance reflecting
that the insurance each is required to carry under this Lease is in effect.
Lessor and Lessee shall also provide evidence of renewed insurance coverage
prior to the expiration of any such policies. Any insurance that Lessor and
Lessee are required to carry under this Lease shall contain a provision which
requires the insurance carrier to give the other party not less than 30 days
written notice prior to any cancellation or modification of such coverage. All
insurance required to be carried by either party under this Lease shall be in
form and content, and written by insurers acceptable to the other party, in its
reasonable discretion.
ARTICLE 8 - CONDEMNATION
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 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 Lessee does not
terminate this Lease, then Base Rent 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; then this Lease
will continue, but if any portion of the Leased Premises has been taken, Base
Rental shall ▇▇▇▇▇ 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 Assignment and Sublease; Consent. Except with respect to that portion
of the Leased Premises on which Lessee's retail banking lobby is located, Lessee
shall have the right to (a) sell, assign or transfer all or a portion of its
leasehold estate, or (b) sublet all or any portion of the Leased Premises,
without first obtaining the prior written consent of Lessor; provided, however,
that (i) no such assignment or sublease shall be permitted or be effective until
or unless Lessee has provided Lessor with written notice thereof, and (ii)
notwithstanding any such assignment or sublease, Lessee shall remain liable and
be obligated for the performance of all terms and conditions of this Lease. No
such assignment or sublease shall be effective until it has been delivered to
Lessor in an instrument in recordable form, executed by the proposed assignee or
subleasee, wherein such assignee or sublessee assumes the due performance of all
obligations on Lessee's part to be performed under this Lease with respect to
that portion of the Leased Premises which is being assigned or subleased. Lessee
shall not be entitled to assign or sublease that portion of the Leased Premises
on which Lessee's retail banking lobby is located without first obtaining the
prior written consent of Lessor, which consent shall not be unreasonably
withheld or delayed. If Lessee requests Lessor's consent to the assignment or
sublease of that portion of the Leased Premises on which Lessee's retail banking
lobby is located, then Lessee shall provide Lessor with a written description of
all terms and conditions of the proposed assignment or sublease, copies of the
proposed documentation, and the following information about the proposed
assignee or sublessee: 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 assignee's or
sublessee's creditworthiness and character. Lessee shall reimburse Lessor for
its attorneys' fees and other expenses incurred in connection with considering
any request for its consent to an assignment or sublease. If Lessor consents to
a proposed assignment or sublease, then the proposed assignee or subleasee shall
deliver to Lessor a written agreement whereby it expressly assumes the Lessee's
obligations hereunder; however, any assignee or subleasee 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 assignment or
sublease, and only to the extent of the rent it has agreed to pay Lessee
therefor. Lessor's consent to an assignment or sublease shall not release Lessee
from performing its obligations under this Lease, but rather Lessee and its
assignee or subleasee shall be jointly and severally liable therefor. Lessor's
consent to any assignment or sublease shall not waive Lessor's rights as to any
subsequent assignments or subleases. Notwithstanding anything to the contrary
contained herein, Lessee may, without first obtaining Lessor's consent, assign
this lease or sublease all or any portion of the Leased Premises to any parent,
subsidiary, or affiliate of Lessee provided that any such parent, subsidiary or
affiliate agrees to assume and comply with all terms, conditions and provisions
of this Lease, including specifically, without limitation, the use and occupancy
provisions hereof, which shall include without limitation assignment of Lessee's
interest under this Lease by opinion of law or as the consequence of a merger of
Lessee into or with another entity, or a dissolution or change of control of or
change of ownership of Lessee.
9.2 Additional Compensation. In the event of a sublease by Lessee, then
Lessee shall pay to Lessor, immediately upon receipt thereof, one-half (1/2) of
all compensation received by Lessee in connection with such sublease to the
extent that such compensation exceeds the rent allocable to the portion of the
Leased Premises covered by such sublease.
9.3 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.
9.4 Subordination and Nondisturbance. This Lease shall be subject and
subordinate to the lien of any mortgage and/or deed of trust which Lessor, its
successors or assigns may now have or hereafter place upon the Leased Premises,
provided that (1) if there are no events of default under this Lease on the part
of Lessee, the rights of possession of Lessee to the Leased Premises and
Lessee's rights arising out of this Lease shall not be affected or disturbed by
the mortgagee, trustee, or beneficiary under the mortgage and/or deed of trust
in the exercise of any of the mortgagee's, trustee's or beneficiary's rights
under such mortgage, deed of trust or notes secured thereby; (2) Lessee shall
not be joined in any foreclosure or other proceeding under the mortgage or deed
of trust, nor in any other way be deprived of Lessee's rights under this Lease,
nor shall this Lease be terminated or affected by any foreclosure or sale or any
proceeding under any mortgage or deed of trust; and (3) Lessor shall secure the
approval and execution of a subordination, non-disturbance and attornment
agreement (the "Agreement") in form and substance reasonably satisfactory to
Lessee and consistent with the foregoing provisions by each and every lender who
provides financing for the Leased Premises and who has or will be granted a lien
on the Leased Premises in order to secure payment of any funds such lender has
advanced, the Agreement to be executed by each such lender at the time the lien
is granted to such lender or, if the lien is presently in existence, within
sixty (60) days from the date hereof. In the event Lessor is unable to secure
such Agreement or, in the alternative, if Lessor is unable to secure the release
of any liens existing on the Leased Premises within the time period provided in
this Section, then Lessee may, at its option, terminate this Lease by providing
written notice of termination to Lessor, whereupon this Lease shall become null
and void and the parties shall have no further liabilities or obligations one
unto the other.
9.5 Estoppel Certificates. Lessee agrees to furnish, from time to time,
within ten (10) days after receipt of a request from Lessor or Lessor's
Mortgagee, a statement certifying, if applicable, all or some 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 a reasonable time after such notice before
exercising any remedy Lessee night possess as a result of such default; and such
other matters as may be reasonably required by Lessor or Lessor's Mortgagee.
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.
9.6 Notice to Lessor's Mortgagee. Lessee shall not seek to enforce any
remedy it may have for any default on the part of the Lessor without first
giving written notice by certified mail, return receipt requested, specifying
the default in reasonable detail, to any Lessor's Mortgagee whose address has
been given to Lessee and affording such Lessor's Mortgagee a reasonable
opportunity to perform Lessor's obligations hereunder.
ARTICLE 10 - DEFAULT AND REMEDIES
10.1 Events of Default. Each of the following occurrences shall constitute an
"Event of Default":
a. Lessee shall fail to pay any installment of rent, or any
other payment required pursuant to this Lease, and such failure shall not be
cured by Lessee within ten (10) days after receipt by Lessee of a written notice
of such failure from Lessor;
b. Lessee shall fail to perform, comply with, or observe any
other agreement or obligation of the Lessee under this Lease ' and such failure
shall not be cured within thirty (30) days after receipt by Lessee of written
notice of such failure from Lessor;
c. The filing of a petition by or against Lessee (i) in any
bankruptcy or other insolvency proceedings; (ii) seeking any relief under any
state or federal debtor relief law; (iii) for the appointment of a liquidator or
receiver for all or substantially all Lessee's property or for Lessee's interest
in this Lease; or (iv) for the reorganization or modification of Lessee's
capital structure, and the same shall not be dismissed, stayed, or lifted within
sixty (60) days thereafter;
d. The admission by Lessee that it cannot meet its obligations
as they become due or the making by Lessee of an assignment for the benefit of
its creditors; and
e. Lessee's failure to deliver an estoppel certificate as set
forth in Article 9.4 hereinabove and the continuation of such failure for a
period of ten (10) days after receipt by Lessee of written notice of such
failure from Lessor.
10.2 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 10.3, 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 the "Prime Rate" as published (on the date
this Lease is terminated) by The Wall Street Journal, Southwest Edition, in its
listing of "Money Rates", 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 10.3, and (iii) all rent and other sums required
hereunder to be paid by Lessee during the remainder of the term, diminished 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 off 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
10.2b. If Lessor elects to proceed under this Section 10.2b, it may at any time
elect to terminate this Lease under Section 10.2a.
10.3 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,
(iii) the reasonable cost of repairing, restoring, altering, remodeling, or
otherwise putting the Leased Premises into condition acceptable to a new tenant,
(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, 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
recourses arising out of the Event of Default.
ARTICLE 11 - DEFINITIONS
11.1 Act of God or Force Majeure. An "act of God" or "force majeure" is
defined for purposes of this Lease as 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.
ARTICLE 12 - MISCELLANEOUS
12.1 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 10 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 tine 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.
12.2 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.
12.3 Attorney's Fees. If any action is brought by either Lessor or Lessee
against the other relative to the enforcement of the terms, provisions,
covenants and conditions of this Lease or in regard to any other matter relating
to this Lease, the party in whose favor final judgment shall be entered shall be
entitled to recover court costs incurred and reasonable attorneys' fees.
12.4 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.
12.5 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 either 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.
12.6 Notices. All rent and other payments required to be made by Lessee
shall be payable to Lessor, in care of Manager, at Manager's address set forth
on page 2 (or if no address be set forth for Manager to Lessor at Lessor's
address set forth on page 2). All payments required to be made by Lessor to
Lessee shall be payable to Lessee at Lessee's address set forth on page 2. 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 2, 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 2. 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.
12.7 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.
12.8 Corporate Authority. If Lessee executes this Lease as a 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 corporation or partnership (general or limited), Lessee
is qualified to do business in the state in which the Leased Premises are
located, the corporation or partnership (general or limited) has full right and
authority to enter into this Lease, each person signing on behalf of the
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.
12.9 Multiple Lessees. If this Lease is executed by more than one person or
entity as "Lessee," each such person or entity shall be jointly and severally
liable hereunder. It is expressly understood that any one of the named Lessees
shall be empowered to execute any modification, amendment, exhibit, floor plan,
or other document herein referred to and bind all of the named Lessees thereto;
and Lessor shall be entitled to rely on same to the extent as if all of the
named Lessees had executed same.
12.10 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.
12.11 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.
12.12 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.
12.13 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.
12.14 Brokerage. In accordance with the terms and conditions of a separate
commission agreement that has been executed by and between Lessor and The
Staubach Company ("Broker"), Lessor has agreed to pay Broker a real estate
commission in an amount equal to four and one-half percent (4.5%) of the rentals
to be received by Lessor during the term of this Lease. In addition, pursuant to
another commission agreement, Lessor has agreed to pay ▇▇▇▇▇ Properties, Inc., a
commission in connection with the negotiation of this Lease, the amount of such
commission being set forth in such agreement. Except for the foregoing
commissions, Lessor and Lessee respectfully represent and warrant one unto the
other that no brokers were retained, used or referred to with respect to this
Lease and that no claims for brokerage commissions or finders' fees are valid or
warranted with respect to or in connection with this Lease, and that each shall
defend, indemnify and hold the other harmless from any and all costs, claims or
causes of action for such commissions or fees resulting from its own acts.
12.15 Safes, Vaults and Vending Machines. Notwithstanding anything to the
contrary contained in the rules and regulations for the Building, Lessor hereby
grants Lessee permission to maintain and operate on the Leased Premises all
safes, vaults and vending machines that Lessee is presently maintaining and
operating on the Leased Premises. Upon expiration or earlier termination of this
Lease, Lessee shall provide Lessor with the combination to any safes or vaults
that Lessee leaves behind on the Leased Premises.
12.16 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.
12.17 Abandonment. Abandonment by Lessee of all or a substantial portion of
the Leased Premises shall not be an event of default hereunder provided that (i)
Lessee continues to make all rental and other payments due under this Lease, and
(ii) Lessee provides Lessor with ninety (90) days advance written notice of such
abandonment. Once Lessee has abandoned all or any substantial portion of the
Leased Premises, Lessor shall have the right at any time thereafter to terminate
this Lease by providing Lessee with written notice of such termination, and
thereafter, Lessee shall have no further rights or obligations hereunder. In the
event that Lessee abandons all or a substantial portion of the Leased Premises
and Lessor does not terminate this Lease, then Lessor shall have the right to
turn on the lights in the bank lobby area and to allow building traffic to go
through the bank lobby area.
ARTICLE 13 - SPECIAL PROVISIONS
13.1 Motor Bank Facility. This Lease shall cover, in addition to the Leased
Premises described in Article 1.3 and 1.4 hereof, and for the term herein
stated, the tract of land known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the
"Land") described on Exhibit "E" attached hereto, together with all other
buildings, structures, fixtures and other improvements located thereon,
hereinafter called the "Motor Bank Leased Premises", subject to the following:
(a) Motor Bank Base Rent. As additional rent for said Motor Bank Leased
Premises, Lessee agrees to pay Lessor, the sum of $60,000 per year,
during each year of the lease term, payable in equal monthly
installments of $5,000 each, payable with and in addition to the rental
payments required under Article 2.2 hereof.
(b) Permitted Uses. Drive-through motor banking facility with uses
incidental to, or customarily associated with such facility, as well as
any other lawful use.
(c) Operating Expenses. During the term of this Lease, Lessee agrees to
pay one hundred percent (100%) of the cost of those items which under
generally accepted accounting principals, consistently applied, would
normally be classified as operations and/or maintenance expenses of the
Motor Bank Leased Premises, as such operations and/or maintenance
expenses are further herein defined in Article 2.4, Definition of
operating Expenses, and Lessee agrees during the term of this Lease to
maintain the Motor Bank Leased Premises in good condition, reasonable
wear and tear excepted. Upon request by Lessee, the bills for all costs
and expenses incurred by either Lessor or Lessee in connection with the
operation and maintenance of the Motor Bank Leased Premises shall be
submitted to Lessee for direct payment by Lessee.
(d) All other terms and conditions of this Lease shall apply to the
Motor Bank Leased Premises.
13.2 New Lease. This Lease is in lieu of and a replacement of those certain
leases made as of the 31st day of December, 1989, by and between NCNB Texas
National Bank ("Landlord") and NCNB Texas National Bank ("Tenant") covering the
Leased Premises and the Motor Bank Leased Premises as further described herein
and such leases shall be of no further force or effect as of the Commencement
Date set forth herein.
ARTICLE 14 - AMENDMENT AND LIMITATION OF WARRANTIES
14.1 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 IF 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.
14.2 Amendment. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
14.3 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.
ARTICLE 15 - RENEWAL OPTIONS
15.1 Provided no Event of Default exists, and Lessee is occupying the
entire Leased Premises at the time of such election, and shall continue
occupying the entire Leased Premises, then Lessee may renew this Lease for two
(2) additional periods of five (5) years each 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 one hundred twenty (120) days before the
expiration of the Term. On or before the commencement date of the extended Term
in question, 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 base rental (excluding Lessee's pro rata share of
operating expenses) (hereinafter called the "Renewal Rate") during each Renewal
Term shall be at the then current market rental rate for comparable space and a
comparable term in buildings similar to the Building in the same rental market,
as determined in accordance with the following provisions. The Renewal Rate
shall be adjusted in accordance with this Agreement with respect to each Renewal
Term for which Lessee exercises the option granted hereby.
(b) Lessor shall also provide Lessee with any allowances
(i.e., moving allowance, construction allowance and the like) and/or other
tenant inducements ("Allowances") then prevailing in the market with respect to
each Renewal Term for which Lessee exercises the option granted hereby.
(c) Lessee shall notify Lessor that Lessee is interested in
exercising each renewal option not less than one hundred twenty (120) days
before the expiration of the then current Lease Term (as same may have been
extended).
(d) Within fifteen (15) days after such notice, Lessor shall
advise Lessee of the Renewal Rate and Allowances that Lessor proposes for the
Renewal Term immediately following the expiration of the then current Lease
Term.
(e) Within fifteen (15) days after Lessor notifies Lessee of
Lessor's proposed Renewal Rate and Allowances for the next Renewal Term, Lessee
shall notify Lessor that (i) Lessee desires to exercise the renewal option at
the Renewal Rate and with the Allowances proposed by Lessor, or (ii) that Lessee
does not desire to exercise the renewal option at such proposed Renewal Rate and
with the Allowances, and Lessee shall propose its own Renewal Rate and
Allowances to Lessor. If Lessee fails to respond to Lessor within such fifteen
(15) day period, Lessee shall be deemed to have elected not to exercise the
renewal option at the Renewal Rate and with the Allowances specified in Lessor's
notice to Lessee. If Lessor and Lessee cannot agree on the Renewal Rate and
Allowances for the Renewal Term in question within fifteen (15) days following
Lessee's giving of the notice described in (e)(ii) above, each party shall
within seven (7) days appoint its own qualified disinterested MAI appraiser
doing business in or having expertise with regard to the locality in which the
Property is located, and in turn, those two appraisers shall within seven (7)
days appoint a third qualified disinterested MAI appraiser doing business in or
having expertise with regard to the locality in which the Property is located,
and the majority of the three appraisers shall determine the then current market
rental rate and allowances for comparable space and a comparable term in
buildings similar to the Building in the same rental market, such determination
to be accomplished within thirty (30) days after the appointment of the third
appraiser. The determination of the majority of the appraisers shall be the
Renewal Rate and Allowances for the following Renewal Term. If either party
fails to appoint its appraiser within the time period provided, the
determination of the Renewal Rate and Allowances shall be made by the other
appraiser alone, and if the two appraisers are unable to agree on a third
appraiser within the time provided, either party may request the President or an
equivalent officer of the local chapter of the American Institute of Real Estate
Appraisers (or if no such local chapter exists, the chapter of an equivalent
body in or nearest to the locality in which the Property is located) to appoint
the third appraiser. Lessor and Lessee shall share equally in the cost of such
appraisal, except that if the Renewal Rate and Allowances determined by the
appraisers is within five percent (5%) of the Renewal Rate and Allowances
proposed by either of the parties, the other party shall bear the full cost of
the appraisal. The decision of the majority of the appraisers shall be final and
binding.
(f) Lessee shall have no further renewal options unless
expressly granted by Lessor in writing.
(g) However, if at the expiration of the primary term of this
Lease, the continued operation of the Building as determined in Lessor's sole
discretion is deemed to be uneconomical, then Lessor may close the Building and
this renewal provision shall be void and of no further effect.
Lessee's rights under this Article shall terminate if (i) this Lease or Lessee's
right to possession of the Premises is terminated, or (ii) Lessee fails to
timely exercise its option under this Article, time being of the essence with
respect to Lessee's exercise thereof.
ARTICLE 16 - RIGHT OF FIRST REFUSAL
16.1 Subject to and upon the following terms, conditions and provisions,
and subject to any existing right of first refusal which is superior to the
right of first refusal granted herein, Lessor hereby grants, sells, conveys,
assigns and delivers unto Lessee the right of first refusal (the "Right of First
Refusal") to lease any space in the Building which consists of 5,000 square feet
or more and which becomes vacant during the term of this Lease. The terms,
conditions and provisions to which the Right of First Refusal is subject and
upon which the Right of First Refusal is granted are as follows:
(a) In the event any space in the Building which consists of
5,000 square feet or more becomes vacant and Lessor desires to lease the space
to any person or entity (the "Prospective Tenant"), Lessee shall have the prior
and preferential right and option to lease such space upon the same terms and
conditions as Lessor is willing to accept from the Prospective Tenant. The terms
and conditions upon which Lessor is willing to lease the vacant space to the
Prospective Tenant must be set out in a written offer signed by the Prospective
Tenant. Lessor shall deliver to Lessee a counterpart of the offer, and Lessee
shall then have five (5) days from the date of receipt of such offer within
which to advise Lessor in writing of the desire of Lessee to lease the vacant
space on the same terms and conditions as are contained in such offer. Failure
of the Lessee to advise Lessor in writing of Lessee's desire to lease the vacant
space within such five (5) day period shall be deemed conclusive a rejection of
the Right of First Refusal as to such offer.
(b) In the event that Lessee exercises the Right of First
Refusal, the lease by Lessor to Lessee of the vacant space shall be consummated
on or before the date which is thirty (30) days after the expiration of the
above-mentioned five (5) day period.
(c) In the event Lessee does not exercise the Right of First
Refusal as provided above, Lessor may consummate the lease of the vacant space
to the Prospective Tenant in accordance with the offer that has been made by the
Prospective Tenant free of the Right of First Refusal within thirty (30) days
after the expiration of the five (5) day period contemplated hereinabove. If
such lease is not consummated within such thirty (30) day period, the right of
Lessor to lease the vacant space pursuant to such offer free from the provisions
of this Right of First Refusal shall expire and a new offer in the form
contemplated herein must thereafter be submitted to Lessee in the event Lessor
desires to thereafter lease the vacant space free of this Right of First
Refusal. The Right of First Refusal granted herein shall bind and inure to the
benefit of Lessee and its successors and assigns. The Right of First Refusal may
be enforced against Lessor by specific performance. The Right of First Refusal
granted herein shall terminate and expire on the date of expiration or
termination of this Lease and shall thereafter be of no further force and
effect.
EXECUTED by Lessee on the _____2nd__________ day of ___October_____, 1992
and by Lessor on the _30th___ day of _September_____, 1992 to be effective as of
the first day written herein.
LESSOR
MWSI, LTD.,
a Texas limited partnership
BY: JDHD, INC.,
a Texas corporation,
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
LESSEE
NATIONSBANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ADDENDUM TO LEASE AGREEMENT
THIS ADDENDUM ("Addendum") TO LEASE AGREEMENT dated September 30, 1992 ("Lease")
is made and entered into this 28th day of November, 1994, by and between
NationsBank of Texas, N.A. ("Lessee") and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Properties, L.P.
("Lessor"). Lessor and Lessee hereby agree, effective December 1, 1994, as
follows:
1. The capitalized terms used in this Addendum shall have the same meaning as
the defined terms set forth in the Lease.
2. Article 1.4. The Premises (as defined in Article 1.4) shall decrease from
53.232 rentable square feet to 52,680 rentable square feet as shown on
Exhibit B attached hereto and made a part hereof. Lessee's building expense
percentage shall decrease from approximately 16.17% to approximately
16,00%.
3. Article 1.14. Parking. In addition twenty-five (25) covered spaces on the
second (2nd) floor of the building garage shall be provided at no
additional cost. These spaces shall be designated as "NationsBank Reserved"
spaces. Resulting in a total of Fifty (50) spaces.
4. Exhibit C. Base Monthly Rentals (as defined in Exhibit C) shall be amended
to read as follows:
Base Rent: Years 1-5 $46,578 per Month
(approximately $10.61 per sq. ft. of NRA)
$558,936 per year*
Years 6-10 $57,668 per Month
(approximately $13.14 per sq. ft. of NRA)
$692,016 per year*
*Such Base rental together with any escalation of rent provided for in the
Lease Agreement, then in effect, shall be due and payable in 120 monthly
installments.
This Lease, as expressly herein amended, is hereby ratified and confirmed and
shall remain in full force and effect.
IN WITNESS HEREOF, this Addendum has been executed in multiple counterparts,
each of which shall have the force and effect of an original, on the date and
year first set forth above.
Executed this 17 day of February, 1995.
LESSOR:
▇▇▇▇▇▇ & Parsley Properties, L.P.
By: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Petroleum USA, Inc.
General Partner
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Date: 2/17/95
-----------------------------------
AND
LESSEE:
NationsBank of Texas, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Date: 2/13/1995
------------------------------------
SECOND ADDENDUM TO LEASE AGREEMENT
STATE OF TEXAS X
KNOW ALL MEN BY THESE PRESENTS
COUNTY OF MIDLAND X
REFERENCE is hereby made to that certain Office Lease Agreement dated the 30th
day of September, 1992 and that certain Addendum to Lease Agreement dated the 28
th day of November, 1994 by and between PNRC Properties L.P. (Successor in
interest to ▇▇▇▇▇▇ & Parsley Properties L.P., hereinafter referred to as
"Lessor"), and Bank of America, N.A. (Successor in interest to NationsBank,
N.A., hereinafter referred to as "Lessee"), for approximately 52,680 net
rentable square feet of office space commonly referred to as Suite 100 of the
NationsBank Building, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred
to as the "Leased Premises"), and
WHEREAS, it is the mutual desire of Lessor and Lessee to amend the above
referenced Office Lease Agreement to delete in its entirety Article 16 titled
"Right o First Refusal", and
NOW, THEREFORE, for the mutual benefit of Lessor and Lessee and for other
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, Lessor and Lessee hereby agree:
The Office Lease Agreement is hereby amended such that the entire contents and
terms of Article 16 - Right of First Refusal of the Office Lease Agreement is
deleted therefrom and of no further force and effect.
FURTHERMORE, it is agreed that this Second Addendum to Office Lease Agreement
shall be effective on the 1st day of January, 2000, and
EXCEPT as stated above, all other covenants, terms and conditions of the
original Lease Agreement and the Addendum to Lease Agreement shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, said parties have hereunto set their hands this 31st day of
December, 1999.
LESSOR:
PNRC Properties L.P.
By: Pioneer Natural Resources USA, Inc.
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Date: 12/31/1999
-----------------------------------
LESSEE:
Bank of America, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Date: 12/22/1999
-----------------------------------
THIRD ADDENDUM TO LEASE AGREEMENT
STATE OF TEXAS X
KNOW ALL MEN BY THESE PRESENTS
COUNTY OF MIDLAND X
REFERENCE is hereby made to that certain Office Lease Agreement dated the 30th
day of September, 1992, Addendum to Lease Agreement dated the 28th day of
November, 1994 and Second Addendum to Lease Agreement dated the 31st day of
December, 1999 by and between PNRC Properties L.P. now known to all as TCTB
Partners, Ltd, (hereinafter referred to as "Landlord"), and Bank of America,
N.A. successor in interest to NationsBank, N.A., (hereinafter referred to as
"Tenant"), whose address for purposes hereof ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, (hereinafter referred to as the "Leased Premises"), and
NOW THEREFORE, it is the mutual desire of Landlord and Tenant to amend the above
referenced Lease Agreement and addendums to extend the term of the lease for 5
years beginning January 15th, 2003 and ending January 14, 2008, and
FURTHERMORE, it is agreed that the original monthly rental shall be amended as
follows:
Base Rent: Annual $590,651.00
Monthly $ 49,220.92
Base Rent Motor Bank: Annual $ 91,200.00
Monthly $ 7,600.00
Monthly Exp. Escalation $ 4,166.78
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Total Monthly Rent $ 60,987.70
EXCEPT as stated above, all other covenants, terms and conditions of the
original Lease Agreement and the Addendum to Lease Agreement shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, said parties have hereunto set their hands this ____ day
of ____6th____, 2003.
LANDLORD:
TCTB Partners, Ltd.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇, President of TCTB Co., Inc., G.P.
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Date: 3/6/03
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TENANT:
Bank of America, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Date: 3/3/03
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