Exhibit 10.25
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FIRST INTERSTATE BANK PLAZA
OFFICE LEASE AGREEMENT
BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND
METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD,
AND
CALIBRE ENERGY, L.P.,
AS TENANT
DATED DECEMBER 28, 1995
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TABLE OF CONTENTS
OFFICE LEASE AGREEMENT
BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD
AND
CALIBRE ENERGY, L.P.,
AS TENANT
SECTION PAGE
------- ----
1. Definitions........................................................... 1
(a) "Building"....................................................... 1
(b) "Premises"....................................................... 1
(c) "Base Rental".................................................... 1
(d) "Commencement Date".............................................. 1
(e) "Lease Term"..................................................... 1
(f) "Security Deposit"............................................... 1
(g) "Expense Stop"................................................... 1
(h) "Allowance"...................................................... 1
(i) "Shell Improvements"............................................. 1
(j) "Common Areas"................................................... 1
(k) "Service Areas".................................................. 1
(l) "Rentable Area".................................................. 1
(m) "Normal Business Hours".......................................... 1
(n) "Initial Improvements"........................................... 1
(o) "Building Grade"................................................. 1
(p) "Basic Costs".................................................... 1
(q) "Ready for Occupancy"............................................ 2
2. Lease Grant........................................................... 2
3. Lease Term............................................................ 2
4. Use................................................................... 2
5. Base Rental........................................................... 2
6. Services to be Furnished by Landlord.................................. 2
7. Improvements to be Made by Landlord................................... 3
8. Maintenance and Repair of Premises by Landlord........................ 3
9. Graphics.............................................................. 3
10. Care of the Premises by Tenant........................................ 3
11. Repairs and Alterations by Tenant..................................... 3
12. Use of Electrical Services by Tenant.................................. 3
13. Laws and Regulations.................................................. 4
14. Building Rules........................................................ 4
15. Entry by Landlord..................................................... 4
16. Assignment and Subletting............................................. 4
17. Mechanic's Liens...................................................... 5
18. Property Insurance.................................................... 5
19. Liability Insurance................................................... 5
20. Indemnity............................................................. 5
21. Waiver of Subrogation Rights.......................................... 5
22. Casualty Damage....................................................... 5
23. Condemnation.......................................................... 6
24. Damages from Certain Causes........................................... 6
25. Events of Default/Remedies............................................ 6
26. Peaceful Enjoyment.................................................... 8
27. Holding Over.......................................................... 8
28. Subordination to Mortgage............................................. 8
29. Estoppel Certificates................................................. 8
i
30. Landlord's Lien....................................................... 8
31. Attorney's Fees....................................................... 8
32. No Implied Waiver..................................................... 8
33. Personal Liability.................................................... 8
34. Security Deposit...................................................... 9
35. Notice................................................................ 9
36. Severability.......................................................... 9
37. Recordation........................................................... 9
38. Governing Law......................................................... 9
39. Force Majeure......................................................... 9
40. Time of Performance................................................... 9
41. Transfers by Landlord................................................. 9
42. Transfers by Tenant................................................... 9
43. Commissions........................................................... 9
44. Effect of Delivery of This Lease...................................... 9
45. Entire Agreement...................................................... 9
46. Receipt of Premises................................................... 9
47. Merger of Estates..................................................... 10
48. Waste Management...................................................... 10
49. Americans with Disabilities Act and Texas Architectural Barriers Act.. 10
50. Temporary Space....................................................... 10
51. Exhibits.............................................................. 10
ii
FIRST INTERSTATE BANK PLAZA
OFFICE LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), made and entered into on this the 20th
day of December, 1995, between METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation and METROPOLITAN TOWER REALTY COMPANY, INC., a Delaware
corporation (collectively, "Landlord"), and CALIBRE ENERGY, L.P., a Texas
limited partnership ("Tenant").
W I T N E S S E T H :
1. Definitions:
(a) The "Building" shall mean the office building located upon
the real property ("Property") described in EXHIBIT "A" attached hereto and
incorporated herein. The address of the "Building" is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
(b) "Premises" shall mean the suite of offices, known as Suite
5500, located within the Building and outlined on the floor plans attached to
this Lease as EXHIBIT "B", and incorporated herein. The Premises are
stipulated for all purposes to contain approximately 5,164 square feet of
"Rentable Area" (as defined below), being approximately 4,167 square feet of
"Usable Area" (as defined below).
(c) "Base Rental" shall mean the sum of $14.00 per square foot of
Rentable Area within the Premises per annum as adjusted pursuant to EXHIBIT "C",
attached hereto and incorporated herein. The Base Rental due for the first
three (3) months during the "Lease Term" (hereinafter defined) has been
deposited with Landlord by Tenant contemporaneously with the execution
hereof. "Rent" shall mean, collectively, the Base Rental and other sums of
money becoming due and payable to Landlord hereunder.
(d) "Commencement Date" shall mean the earlier of the date that
tenant actually occupies the Premises or February 1, 1996 (except as the same
may be delayed pursuant to Paragraph 3(c) hereof).
(e) "Lease Term" shall mean a term commencing on the Commencement
Date and continuing for sixty (60) full calendar months (plus any partial
calendar month in which the Commencement Date falls).
(f) "Security Deposit" shall mean the sum of $6,024.67.
(g) "Expense Stop" shall mean the sum of Basic Costs (as defined
in Paragraph 1(b) of EXHIBIT "C" attached hereto) per square foot of Rentable
Area in the Building for the calendar year 1996.
(h) "Allowance" shall mean an amount equal to the product of
$1.00 times the number of square feet of Rentable Area included in the
Premises, unless (i) a Turn Key Work Letter is attached hereto as EXHIBIT
"E", in which event the Allowance exists and Tenant is taking the Premises
"as is" in its current condition and without benefit of further improvements.
(i) "Shell Improvements" shall mean (i) lay-in acoustical ceiling
grid with acoustical ceiling tile inventory stored on the floor on which the
Premises are located; (ii) central air conditioning and heating ducts and
diffusers in a placement deemed typical by Landlord; (iii) lay-in fluorescent
light fixtures in a placement deemed typical by Landlord; and (iv) sprinkler
heads in a placement deemed typical by Landlord.
(j) "Common Areas" shall mean those areas devoted to corridors,
elevator foyers, restrooms, mechanical rooms, elevator mechanical rooms,
janitorial closets, electrical and telephone closets, vending areas, and
lobby areas (whether at ground level or otherwise), and other similar
facilities provided for the common use or benefit of tenants generally and/or
the public.
(k) "Service Areas" shall mean those areas within the outside
walls used for building stairs, elevator shafts, flues, vents, stacks, pipe
shafts and other vertical penetrations (but shall not include any such areas
for the exclusive use of a particular tenant).
(l) "Rentable Area" of the Premises shall mean (1) the "Usable
Area" within the Premises (i.e., the gross area enclosed by the surface of
the exterior glass walls, the mid-point of any walls separating portions of
the Premises from those of adjacent tenants, the slab penetration line of all
walls separating the Premises from Service Areas and the corridor side of
walls separating the Premises from Common Areas) plus (2) a pro rata part of
the Common Areas within the Building, such proration based upon the ratio of
the Usable Area within the Premises to the total Usable Area within the
Building existing as of the date of this Lease, and/or the Building. Rentable
Area shall not include any Service Areas. The Rentable Area in the Building
existing as of the date of this Lease is 1,721,242 square feet. The
stipulated number of square feet of Rentable Area of the Premises, as set
forth in Paragraph 1(b), and of the Building, as set forth above, are
Landlord's current estimates of such Rentable Areas and such figures may be
revised, at Landlord's election, if Landlord's architect determines either or
both of such estimates to be inaccurate in any material degree, and the Base
Rental shall be adjusted accordingly, based upon the rate per square foot of
Rentable Area specified in Paragraph 1(c) hereof.
(m) "Normal Business Hours" for the Building shall mean 7 a.m. to
7 p.m. Mondays through Fridays, and 8 a.m. to 1 p.m. on Saturdays, exclusive of
normal business holidays.
(n) "Initial improvements", when used herein, shall mean those
improvements or remodeling to the Premises, if any, which Landlord shall
agree to provide according to the Work Letter attached hereto as EXHIBIT "E"
and incorporated herein for all purposes. If no Work Letter is attached
hereto, no initial improvements are being provided; and Tenant is taking the
Premises "as is".
(o) "Building Grade" shall mean the type, brand and/or quantity
of materials Landlord designates from time to time the minimum quality to be
used in the Building or the exclusive type, grade or quality of material to
be used in the Building.
(p) "Basic Costs" shall mean all direct and indirect costs and
expenses of operating, maintaining, repairing, managing, and owning the
Building and the Property, as well as the "Exterior Common Area" (as defined
in EXHIBIT "C" hereto), which are incurred by Landlord in each calendar year.
Basic Costs
OFFICE LEASE AGREEMENT - Page 1
are more fully described in EXHIBIT "C" hereto.
(q) "Ready for Occupancy" shall mean that either (i) a
Certificate of Occupancy (or its equivalent has been issued for the Premises
if initial improvements are to be provided, or (ii) if no initial
improvements are to be provided the Premises are unoccupied.
2. LEASE GRANT. Subject to and upon the terms herein set forth,
Landlord leases to Tenant and Tenant leases from Landlord the Premises.
3. LEASE TERM.
(a) This Lease shall continue in force during a period beginning
on the Commencement Date and continuing until the expiration of the Lease
Term, unless this Lease is sooner terminated or extended to a later date
under any other term or provision hereof.
(b) If the Premises are not available and Ready for Occupancy by
the date specified in Paragraph 1(d) hereof due to omission, delay or
default by Tenant or anyone acting under or for Tenant, Landlord shall have
no liability; and the obligations of Tenant under this Lease (including,
without limitation, the obligation to pay Rent) shall nonetheless commence as
of the Commencement Date.
(c) If, however, this Lease is executed before the Premises
become vacant or otherwise available and Ready for Occupancy and/or any
present tenant or occupant of the Premises holds over and/or Landlord cannot
deliver possession of the Premises prior to the date specified in Paragraph
1(d) hereof due to default on the part of Landlord, then, as Tenant's sole
remedy for the delay in Tenant's occupancy of the Premises, the Commencement
Date shall be delayed and the Rent herein provided shall not commence until
the earlier to occur of the date of actual occupancy by Tenant or the date on
which the Premises are available and Ready for Occupancy.
4. USE. The Premises shall be used for office purposes and for no
other purpose. Tenant agrees not to use or permit the use of the Premises for
any purpose which is illegal, dangerous to life, limb or property or which,
in Landlord's opinion, creates a nuisance or which would increase the cost
of insurance coverage with respect to the Building.
5. BASE RENTAL.
(a) Tenant agrees to pay the Rent to Landlord during the Lease
Term, without any setoff or deduction whatsoever, for the nonpayment of which
Landlord shall be entitled to exercise all such rights and remedies as are
herein provided in the case of the non-payment of Base Rental. Except as
otherwise provided herein, the annual Base Rental for each calendar year or
portion thereof during the Lease Term, together with any estimated adjustment
thereto pursuant to EXHIBIT "C" hereof then in effect, shall be due and
payable in advance in twelve (12) equal installments on the first day of each
calendar month during the Lease Term; and Tenant hereby agrees to pay such
Base Rental and any adjustments thereto to Landlord at Landlord's address
provided herein (or such other address as may be designated by Landlord in
writing from time to time) monthly, in advance, and without demand. If the
Lease Term commences on a day other than the first day of a month or
terminates on a day other than the last day of a month, then (i) the
installments of Base Rental for such month or months shall be prorated, based
on the number of days in such month, and (ii) Tenant's share of Basic Costs
shall be prorated as specified in EXHIBIT "C" hereto.
(b) All installments of Rent not paid when due and payable shall
bear interest at the maximum lawful rate until paid.
(c) The Base Rental payable hereunder shall be adjusted from time
to time in accordance with the provisions of EXHIBIT "C" attached hereto and
incorporated herein for all purposes.
6. SERVICES TO BE FURNISHED BY LANDLORD. Landlord agrees to furnish
Tenant the following:
(a) Facilities for hot and cold water at those points of supply
provided for general use of other tenants in the Building, central heat and
air conditioning in season, at such temperatures and in such amounts as are
reasonably considered by Landlord to be standard or as required by
governmental authority; provided, however, heating and air conditioning
service at times other than for Normal Business Hours for the Building shall
be furnished only upon the request of Tenant delivered to Landlord at any
time pursuant to the Building's computerized system for such purposes. Tenant
shall bear the entire cost of additional service, as such costs are
determined by Landlord from time to time, and shall pay the same as
additional Rent upon presentation of a statement therefor by Landlord. The
additional air conditioning or chilled water consumption shall be determined
as measured by BTU meters and submeters installed and maintained in good
order and repair at Tenant's expense.
(b) Routine maintenance and electric lighting service for all
Common Areas and Service Areas of the Building in the manner and to the
extent deemed by Landlord to be standard.
(c) Janitor service, five (5) days per week, exclusive of normal
business holidays; provided, however, if Tenant's floor covering or other
improvements require special treatment, Tenant shall pay the additional
cleaning cost attributable thereto as additional Rent upon presentation of a
statement therefor by Landlord.
(d) Subject to the provisions of Paragraph 12, facilities to
provide all electrical current required by Tenant in its use and occupancy of
the Premises.
(e) All Building Grade fluorescent bulb replacements in the
Premises necessary to maintain the lighting provided as a part of the Shell
Improvements and fluorescent and incandescent bulb replacement in the Common
Areas and Service Areas.
(f) Landlord shall provide limited access to the Building before
and after Normal Business Hours in the form of special limited access entry
cards ("Entry Cards") for Tenant and its employees. An Entry Card shall not
automatically qualify Tenant or any of its employees for an access card to
the "Parking Garage" as defined in and pursuant to the terms of EXHIBIT "F".
Landlord agrees to provide Tenant with up to, but not in excess of, six (6)
Entry Cards. However, Tenant shall pay Landlord for any additional or
replacement cards, in such amount as Landlord shall, from time to time,
determine. The current cost required for a replacement card is $10.00 per
card. Landlord shall be entitled to cancel (by computer entry) any lost or
stolen cards of which it becomes aware. Tenant shall promptly notify Landlord
of any lost or stolen cards. Landlord shall have no liability to Tenant, its
employees, agents, invitees, or licensees for losses due to theft or
burglary, or for damages committed by unauthorized persons on the Premises;
and neither shall Landlord be required to insure
OFFICE LEASE AGREEMENT - Page 2
against any such losses. Tenant shall cooperate fully in Landlord's efforts to
maintain security in the Building and shall follow all regulations
promulgated by Landlord with respect thereto. Tenant further agrees to
surrender all Entry Cards in its possession upon the expiration or earlier
termination of this Lease.
No interruption or malfunction of any utility service shall
constitute an eviction or disturbance of Tenant's use or possession of the
Premises or a breach by Landlord of any of Landlord's obligations hereunder
or render Landlord liable or responsible to Tenant for any loss or damage
which Tenant may sustain or incur if either the quantity or character of any
utility service is changed or is no longer available to or is no longer
suitable for Tenant's requirements or entitle Tenant to be relieved from any
of Tenant's obligations hereunder, including, without limitation, the
obligation to pay Rent, or grant Tenant any right to set-off, abatement or
recoupment. At any time when Landlord is making such facilities for such
utility services available to the Premises, Landlord may, at Landlord's
option, upon not less than thirty (30) days prior written notice to Tenant,
discontinue the availability of any such utility service. If Landlord gives
any such notice of discontinuance, Landlord shall make all the necessary
arrangements with the public utility service supplying the utility to the
area in which the Building is located with respect to obtaining such utility
service to the Premises; but Tenant will contract directly with such public
utility service for the supplying of such utility services to the Premises.
Failure to any extent to make available, or any slowdown, stoppage, or
interruption of, the specified utility services resulting from any cause,
including, without limitation, Landlord's compliance with any voluntary or
similar governmental or business guidelines now or hereafter published or any
requirements now or hereafter established by any governmental agency, board,
or bureau having jurisdiction over the operation of the Building shall not
render Landlord liable in any respect for damages to either persons,
property, or business, nor be construed as an eviction of Tenant or work an
abatement of Rent, nor relieve Tenant of Tenant's obligations for fulfillment
of any covenant or agreement hereof. Should any equipment or machinery
furnished by Landlord breakdown or for any cause cease to function properly,
Landlord shall use reasonable diligence to repair same promptly, but Tenant
shall have no claim for abatement of Rent or damages on account of any
interruption of service occasioned thereby or resulting therefrom.
7. IMPROVEMENTS TO BE MADE BY LANDLORD. Except as otherwise provided
in the Work Letter attached hereto as EXHIBIT "E", all installations and
improvements now or hereafter placed on the Premises, other than shell
improvements, shall be for Tenant's account and at Tenant's cost (and
Tenant shall pay ad valorem taxes and increased insurance thereon or
attributable thereto), which cost shall be payable by Tenant to Landlord upon
demand as additional Rent.
8. MAINTENANCE AND REPAIR OF PREMISES BY LANDLORD. Except as
otherwise expressly provided herein, Landlord shall not be required to make
any repairs to the Premises other than repairs to exterior and load-bearing
walls, floors (but not floor coverings) and the roof of the Building, which
may be required from time to time but only after such required repairs have
been requested by Tenant in writing. In no event shall Landlord be
responsible for the maintenance or repair of Improvements which are not
composed of Building Grade materials.
9. GRAPHICS. Landlord shall provide and install, at Tenant's cost,
all letters or numerals on doors in the Premises, identification graphics on
the exterior of the Premises, and all signage related to Tenant's occupancy
in the Building. All such letters and numerals shall be in the standard
graphics for the Building and no others shall be used or permitted on the
Premises without Landlord's prior written consent.
10. CARE OF THE PREMISES BY TENANT. Tenant shall, at its own cost and
expense, reasonably maintain and repair the Premises, and shall not commit or
allow any waste to be committed on any portion of the Premises, and at the
termination of this Lease to deliver up the Premises to Landlord in as good
condition as at the date of the commencement of the term of this Lease,
ordinary wear and tear excepted.
11. REPAIRS AND ALTERATIONS BY TENANT. Landlord shall have the right,
at its option, at Tenant's own cost and expense, to repair or replace any
damage done to the Building, or any part thereof, caused by tenant or
Tenant's agents, employees, invitees, or visitors, and Tenant shall pay the
cost thereof to the Landlord on demand as additional Rent. Tenant agrees with
Landlord not to make or allow to be made any alterations to the Premises,
install any vending machines on the Premises, or place signs on the Premises
which are visible from outside the Premises, without first obtaining the
prior written consent of Landlord in each such instance, which consent may be
given or withheld on such conditions as Landlord may elect. Any and all
alterations to the Premises shall become the property of Landlord upon
termination of this Lease (except for movable equipment or furniture owned by
Tenant). Landlord may, nonetheless, require Tenant to remove any and all
fixtures, equipment and other improvements installed on the Premises or the
Building ("Additional Improvements") beyond the shell improvements. Tenant
shall be responsible for repairing any damage to the Premises or the Building
resulting from the removal of any Additional Improvements or Tenant's personal
property and for restoring the Premises or the Building, as applicable, to
Building Grade condition. In the event that Landlord so elects, and Tenant
fails to remove the Additional Improvements, Landlord may remove the
Additional Improvements at Tenant's cost, and Tenant shall pay Landlord on
demand all costs incurred in removing the Additional Improvements.
12. USE OF ELECTRICAL SERVICES BY TENANT. Proper facilities so as to
enable appropriate utility company to furnish electrical facilities for a
total connected load of 2.0 ▇▇▇▇▇ per square foot of Rentable Area of power
for high voltage (277/480v) electrical requirements ("Tenant's High Voltage
Power Load") and 3.0 ▇▇▇▇▇ per square foot of Rentable Area for low voltage
(120/208v single phase) electrical requirements ("Tenant's Low Voltage Power
Load") (Tenant's Low Voltage Power Load and Tenant's High Voltage Power Load
collectively shall mean "Tenant Standard Electrical Power"). All Tenant
Standard Electrical Power shall be supplied by Landlord and paid for by
Tenant as a part of its proportionate share of Building Operating Costs (as
hereinafter defined in Paragraph 13, of this Lease); provided, however, any
Low Voltage Power consumed in the Premises in excess of .34 kilowatt hours
per square foot of Rentable Area within the Premises per month and any
electricity for any item that requires a voltage other than 120/208v single
phase will be considered to be in excess of Tenant's Low Voltage Power Load
and will be separately metered and billed to Tenant on a monthly basis.
Notwithstanding the above, high voltage power used for Building standard
lighting will not be metered unless the Building standard allowance for
lighting (defined as one (1) 2x2 parabolic lighting fixture for each eighty
(80) square feet of Rentable Area within the Premises) is exceeded.
In the event Tenant's requirements for a connected load exceed those set
forth in the preceding paragraph, Landlord, at Tenant's sole expense, will
make reasonable efforts to supply such additional service through the existing
electrical system serving the Building. Any additional electrical equipment
required to meet Tenant's excess electrical requirements will be installed by
Landlord at the sole cost and expense of Tenant (if, in Landlord's sole
judgment, the same are necessary and will not cause damage or injury to the
Building or the Premises or cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations, repairs or expense
or unreasonably interfere with or disturb other tenants or occupants).
OFFICE LEASE AGREEMENT - Page 3
In the event Tenant's Premises is not initially metered as set forth
above, any 277/480v or 120/208v lighting or equipment requirements installed
at a later date or any other special situations that create a demand for
additional electrical usage exceeding the Tenant Standard Electrical Power
will be metered and/or measured by Landlord's engineers and billed to Tenant
on a monthly basis. All installations of non-standard electrical fixtures
such as appliances and equipment (other than ordinary office appliances and
equipment such as typewriters, personal computers, word processors,
voicewriters, calculators, lamps, clocks and other similar type low
electrical consumption appliances and equipment) within the Premises will be
subject to prior notice to Landlord, and, in the event any such installation
will, either directly or indirectly, adversely affect the base electrical or
mechanical systems, Landlord's prior approval will be required. Tenant
covenants and agrees that at all times its use of electrical current will
never intentionally exceed the capacity of existing feeders to the Building
or the risers or wiring installations.
Landlord will not be liable in any way to Tenant for any failure or
defect in the supply or character of electrical energy furnished to the
Premises by reason of any requirement, act or omission of the public utility
serving the Building with electricity. The obligations of Landlord to furnish
electrical service will be subject to the rules and regulations of the
supplier of such electricity and of any municipal or other governmental
authority regulating the business of providing electrical utility service.
13. LAWS AND REGULATIONS. Tenant agrees to comply with all applicable
laws, ordinances, rules, and regulations of any government entity or agency
having jurisdiction with respect to the Premises.
14. BUILDING RULES. Tenant will comply with the rules and regulations of
the Building as adopted and altered by Landlord from time to time and will
cause all of its agents, employees, invitees and visitors to do so. All
changes to such rules will be sent by Landlord to Tenant in writing. The
current rules and regulations for the Building are attached hereto as EXHIBIT
"D".
15. ENTRY BY LANDLORD. Tenant agrees to permit Landlord or its
employees, agents or representatives to enter into and upon any part of the
Premises at all reasonable hours (and in emergencies at all times) to inspect
the same, or to show the Premises to prospective purchasers, mortgagees,
tenants or insurers, to clean or make repairs, alterations or additions
thereto, and Tenant shall not be entitled to any abatement or reduction of
Rent by reason thereof.
16. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not (i) assign this Lease or any interest
therein, or (ii) sublease the Premises or any portion thereof without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld. Any attempted assignment or sublease by Tenant in violation of the
terms and covenants of this paragraph shall be void. If Tenant is not a
natural person, the acquisition of a controlling interest in Tenant shall be
deemed to be an assignment for purposes hereof. As used herein, the phrase
"controlling interest" shall mean ownership of in excess of forty-nine
percent (49%) of the voting interest in Tenant. Notwithstanding the
foregoing, Tenant may, upon notice to Landlord but without the necessity of
obtaining Landlord's prior consent thereto, assign this Lease or sublet the
Premises to an "Affiliate." As used herein, the term "Affiliate" shall mean
any entity under the common control of a person or entity which controls
Tenant or which is controlled by Tenant. With respect to a request for
Landlord's consent to any assignment or sublease the following reasons for
denial shall, without limitation, be deemed to be reasonable:
i) the proposed assignee or subtenant does not have adequate
financial ability to fulfill the monetary obligations related to such
space; or
ii) the proposed assignee or subtenant is a tenant in the
Building or a prospective tenant in the Building (a prospective tenant
shall be any entity which has directly or indirectly contacted Landlord
about space in the Building; or
iii) the space to be sublet is less than 2,000 square feet
of Rentable Area; or
iv) if prior subleases have been consented to by Landlord,
such proposed sublease space is not contiguous to all space on a single
floor under such prior subleases; or
v) any proposed assignment appears to be an assignment of
less than the entire Lease or less than Tenant's entire interest herein;
or
vi) any proposed assignee or subtenant whose use of the
Premises in Landlord's opinion might violate the Use clause of the
Lease; or
vii) the proposed assignee or subtenant is either a
governmental agency, a school or similar operation or a medical-related
practice; or
viii) in Landlord's judgment, the proposed assignee or
subtenant would diminish the value or reputation of the Building; or
ix) the occupancy of the Premises by the proposed subtenant
or assignee would require substantial alterations to the Premises or the
applicable portion thereof; or
x) the proposed subtenant's or assignee's use of the
Premises would conflict with any other Building tenants' exclusive
rights; or
xi) the occupancy of the Premises by the proposed subtenant
or assignee would cause Landlord's fire and extended coverage insurance
to be canceled or the rate therefor to be increased; or
xii) an event of default at such time exists; or
xiii) the proposed assignment or sublease is for any period
other than any period during the Initial Term hereof.
(b) If Tenant requests Landlord's consent to an assignment of
the Lease or subletting of all or part of the Premises, Landlord shall either
(i) approve such sublease or assignment (but no approval of an assignment or
sublease shall relieve Tenant of any liability hereunder), or (ii) negotiate
directly with the proposed subtenant or assignee and (in the event Landlord is
able to reach agreement with such proposed subtenant or assignee) upon
execution of a lease with such proposed subtenant or assignee, terminate this
Lease (in part or in whole, as appropriate) upon thirty (30) days' notice, or
(iii) if Landlord shall fail to notify Tenant in writing of its decision
within a thirty (30) day period after Landlord is notified in writing of the
OFFICE LEASE AGREEMENT - Page 4
proposed assignment or sublease, Landlord shall be deemed to have refused to
consent to such assignment or subleasing, and to have elected to keep this
Lease in full force and effect.
(c) All cash or other proceeds of any assignment, sale or sublease
of Tenant's interest in the Lease and/or the Premises, whether consented to
by Landlord or not, shall be paid to Landlord notwithstanding the fact that
such proceeds exceed the Base Rental called for hereunder, unless Landlord
agrees to the contrary in writing, and Tenant hereby assigns all rights it
might have or ever acquire in any such proceeds to Landlord. This covenant
and assignment shall benefit Landlord and its successors in ownership of the
Building and shall bind Tenant and Tenant's heirs, executors, administrators,
personal representatives, successors and assigns. Any assignee, sublessee or
purchaser of Tenant's interest in this Lease (all such assignees, sublessees
or purchasers being hereinafter referred to as "Successors"), by occupying
the Premises and/or assuming Tenant's obligations hereunder, shall be deemed
to have assumed liability to Landlord for all amounts paid to persons other
than Landlord by such Successor in consideration of any such sale, assignment
or subletting, in violation of the provision hereof. No assignment or
subletting, whether or not with Landlord's consent, shall ever relieve Tenant
of any liability hereunder.
17. MECHANIC'S LIENS. Tenant will not permit any mechanic's liens or
other liens to be placed upon the Premises or the Building and nothing in
this Lease shall be deemed or construed in any way as constituting the
consent or request of Landlord, express or implied, by inference or
otherwise, to any person for the performance of any labor or the furnishing
of any materials to the Premises, or any part thereof, nor as giving Tenant
any right, power, or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to any
mechanic's or other liens against the Premises. In the event any such lien is
attached to the Premises, then, in addition to any other right or remedy of
Landlord, Landlord may, but shall not be obligated to, discharge the same.
Any amount paid by Landlord for any of the aforesaid purposes shall be paid
by Tenant to Landlord on demand as additional Rent.
18. PROPERTY INSURANCE. In the event that Landlord has placed or
hereafter places a mortgage, deed of trust or other lien on the Building,
then during the existence thereof, Landlord shall maintain such fire and
extended coverage insurance on the Building and the Premises as Landlord's
mortgagees shall require thereunder, and in all other instances Landlord
shall maintain such fire and extended coverage insurance on the Building and
the Premises as Landlord desires in its sole discretion. Such insurance shall
be maintained at the expense of Landlord (as a part of the Basic Costs), and
payments for losses thereunder shall be made solely to Landlord or the
mortgagees of Landlord as their interests shall appear. Tenant shall maintain
at its expense, in an amount equal to full replacement cost, fire and
extended coverage insurance on all of its personal property, including
removable trade fixtures, located on the Premises and in such additional
amounts as are required to meet Tenant's obligations pursuant to Paragraph 22
hereof. Tenant shall, at Landlord's request from time to time, provide
Landlord with a current certificate of insurance evidencing Tenant's
compliance with this Paragraph 18 and Paragraphs 19 and 21 hereof. Tenant
shall obtain the agreement of Tenant's insurers to notify Landlord that a
policy is due to expire at least thirty (30) days prior to such expiration.
19. LIABILITY INSURANCE. Tenant and Landlord shall (Landlord as a part
of Basic Costs and Tenant at its own expense) maintain a policy or policies
of comprehensive general liability insurance with respect to the respective
activities of each in the Building and on the Property, with the premiums
thereon fully paid on or before the due date, issued by and binding upon an
insurance company approved by Landlord, such insurance to afford minimum
protection of not less than $1,000,000 combined single limit coverage of
bodily injury, property damage or combination thereof. In addition, Tenant
agrees to obtain a fire legal liability endorsement, or other coverage
satisfactory to Landlord which removes the "leased or occupied" property
exclusion from Tenant's liability policy. Landlord shall not be required to
maintain insurance against thefts within the Premises or the Building or the
Property. Tenant's insurance shall contain a provision naming Landlord as an
additional insured and include coverage for the contractual liability of
Tenant to indemnify Landlord pursuant to Paragraph 20 below. Tenant shall
obtain the agreement of Tenant's insurers to notify Landlord that a policy is
due to expire at least thirty (30) days prior to such expiration.
20. INDEMNITY. Landlord shall not be liable to Tenant, or to Tenant's
agents, servants, employees, customers, or invitees for any injury to person
or damage to property caused by any act, omission, or neglect of Tenant, its
agents, servants, employees, invitees, licensees or any other person entering
the Building under the invitation of Tenant or arising out of the use of the
Premises by Tenant and the conduct of its business or out of a default by
Tenant in the performance of its obligations hereunder. Tenant hereby
indemnifies and holds Landlord harmless from all liability and claims for any
such damage or injury.
21. WAIVER OF SUBROGATION RIGHTS. Subject to the conditions hereinafter
specified in this Paragraph 21 and only to the extent that and so long as the
same is permitted under the laws and regulations governing the writing of
insurance within the State of Texas with respect to the respective insurance
that is to be carried by either Landlord or Tenant covering losses arising
out of the destruction or damage to the Premises or its contents or to other
portions of the Building or to Tenant's occupancy and operation of the
Premises without invalidating or nullifying any such policy, or providing a
defense to the applicable insurance carrier with respect to the coverage of
any such policy, all such insurance carried by either Landlord or Tenant
shall provide for a waiver of rights of subrogation against Landlord and
Tenant on the part of the insurance carrier. Notwithstanding the foregoing,
nothing contained herein shall require either party to obtain the inclusion
of such a waiver of rights of subrogation in the event that, because of the
cost or premium attributable to such waiver, the obtaining of such waiver is
not feasible and reasonable. Unless such waivers contemplated by this
sentence will invalidate, nullify, or provide a defense to coverage under any
such insurance policy or are not obtainable for the reasons described in this
paragraph 21, Landlord and Tenant each hereby waive any and all rights of
recovery, claims, actions or causes of action against the other, its agents,
officers, or employees, for any loss or damage that may occur to the Premises
or the Building, or any improvements thereto, which loss or damage is covered
by valid and collectible insurance policies, to the extent that such loss and
damage is actually recovered under such insurance policy. The waivers set
forth in the immediately preceding sentence shall be in addition to, and not
substitution for, any other waivers, indemnities, or exclusions of
liabilities as set forth in this Lease. Notwithstanding the foregoing, the
failure of Tenant to take out or maintain any insurance policy required under
paragraph 18 hereof shall be a defense to any claim asserted by Tenant
against Landlord by reason of any loss sustained by Tenant that would have
been covered by any such required policy.
22. CASUALTY DAMAGE. If the Premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case the Building shall be damaged such that
substantial alteration or reconstruction of the Building shell, in Landlord's
sole opinion, is required (whether or not the Premises shall have been
damaged by such casualty) or in the event any mortgagee of Landlord's should
require that the insurance proceeds payable as a result of a casualty be
applied to the payment of the mortgage debt or in the event of any material
uninsured loss to the Building, Landlord may, at its option, terminate this
Lease by notifying Tenant in writing of such termination within ninety (90)
days after the date of such casualty. If Landlord does not thus elect to
terminate this Lease, Landlord shall
OFFICE LEASE AGREEMENT - Page 5
commence and proceed with reasonable diligence to restore the Building shell
and Shell Improvements located on the Premises; except that Landlord's
obligation to restore shall not require Landlord to spend for such work an
amount in excess of the insurance proceeds actually received by Landlord as a
result of the casualty. When the repairs described in the preceding sentence
have been completed by Landlord, Landlord shall then complete the restoration
of all improvements in excess of the Shell Improvements which are necessary
to permit Tenant's reoccupancy of the Premises (including the installation of
acoustical ceiling tile) pursuant to the final working drawings and
specifications approved by Landlord pursuant to the Work Letter ("Improvements
Restoration"). Landlord shall not be obligated to expend for the completion
of the Improvements Restoration a sum in excess of a dollar amount equal to
the dollar amount, if any, of the "Allowance" ("Reconstruction Allowance").
Except for the Reconstruction Allowance, all cost and expense of completing
the Improvements Restoration shall be borne by Tenant and the amount of such
excess, as determined by Landlord, is herein referred to as the
"Reconstruction Excess". Fifty percent (50%) of the Reconstruction Excess (as
then estimated by Landlord) shall be paid by Tenant to Landlord, in cash,
prior to commencement of the Improvements Restoration. After substantial
completion of the Improvements Restoration, but prior to reoccupancy of the
Premises by Tenant, Tenant shall pay Landlord, in cash, an amount equal to
ninety percent (90%) of the then unpaid balance of the Reconstruction Excess
(as then estimated by Landlord). As soon as a final accounting can be
prepared and submitted to Tenant, Tenant shall pay Landlord, in cash, the
entire unpaid balance of the Reconstruction Excess, based on Landlord's final
cost. Each increment of the Reconstruction Excess payable by Tenant to
Landlord shall be paid by Tenant within ten (10) days after a written request
therefore by Landlord to Tenant. Tenant shall not be entitled to receive any
credit or payment with respect to any portion of the Reconstruction Allowance
not actually spent upon restoration of the Premises. Landlord shall not be
liable for any inconvenience or annoyance to Tenant or injury to the business
of Tenant resulting in any way from such damage or the repair thereof, except
that, subject to the provisions of the next sentence, and provided that cash
in the amount of each increment of the Reconstruction Excess shall have been
paid to Landlord by Tenant within ten (10) days after a written request
therefor by Landlord to Tenant, Landlord shall allow Tenant a fair diminution
of Rent during the time and to the extent the Premises are unfit for
occupancy (based upon that portion of Base Rental applicable to the portion
of the Premises subject to such casualty); provided, however, the Premises
shall not be considered unfit for occupancy at any time that (i) such of the
Improvements Restoration has been completed so as to permit occupancy as
evidenced by the issuance of a Certificate of Occupancy or its equivalent for
the Premises by the appropriate governmental entity having jurisdiction over
the Premises for the purpose of issuing such certificate, or (ii) if no such
certificate can be issued by any appropriate governmental entity under
applicable laws, ordinances, or regulations, at such time as the Improvements
Restoration have been substantially completed and tendered to Tenant.
23. CONDEMNATION. If the whole or substantially the whole of the
Building or the Premises should be taken for any public or quasi-public use,
by right of eminent domain or otherwise or should be sold in lieu of
condemnation, then this Lease shall terminate as of the date when physical
possession of the Building or the Premises are taken by the condemning
authority. If less than the whole or substantially the whole of the Building
or the Premises are thus taken or sold, Landlord (whether or not the Premises
are affected thereby) may terminate this Lease by giving written notice
thereof to Tenant; in which event this Lease shall terminate as of the date
when physical possession of such portion of the Building or Premises are
taken by the condemning authority. If this Lease is not so terminated upon
any such taking or sale, the Base Rental payable hereunder shall be
diminished by an amount representing that portion of Base Rental applicable
to the portion of the Premises subject to such taking or sale, and Landlord
shall, to the extent Landlord deems feasible, restore the Building and the
Premises to substantially their former condition, but such work shall not
exceed the scope of the work done by Landlord in originally constructing the
Building and installing Shell Improvements and Initial Improvements in the
Premises, nor shall Landlord in any event be required to spend for such work
an amount in excess of the amount received by Landlord as compensation for
such taking. All amounts awarded upon a taking of any part or all of the
Property, Building or the Premises shall belong to Landlord, and Tenant shall
not be entitled to and expressly waives all claims to any such compensation.
24. DAMAGES FROM CERTAIN CAUSES. Landlord shall not be liable to Tenant
for any loss or damage to any property or person occasioned by theft, fire,
act of God, public enemy, injunction, riot, strike, insurrection, war, court
order, requisition, or order of governmental body or authority or by any other
cause, except as specifically provided in Paragraph 33 hereof. Nor shall
Landlord be liable for any damage or inconvenience which may arise through
(a) the leasing of other space within the Building to whomsoever Landlord
chooses for whatever use is allowed by Landlord or (b) repair or alteration
of any part of the Building or Premises or to the construction of Leasehold
Improvements for other tenants in the Building, it being specifically
acknowledged and agreed by Tenant that Tenant is leasing space in a Building
which is not fully occupied and that Landlord will, as a part of Landlord's
leasing of other space within the Building, be conducting construction work
in order to prepare other space in the Building, from time to time, for other
tenants.
25. EVENTS OF DEFAULT/REMEDIES.
(a) The following events shall be deemed to be events of default
by Tenant under this Lease: (i) Tenant shall fail to pay any Rent or other
sum of money due hereunder and such failure shall continue for a period of
five (5) days after the date such sum is due; (ii) Tenant shall fail to
comply with any provision of this Lease or any other agreement between
Landlord and Tenant (including the Work Letter) not requiring the payment of
money, all of which terms, provisions and covenants shall be deemed material
and such failure shall continue for a period of ten (10) days after written
notice of such default is delivered to Tenant; (iii) the Leasehold hereunder
demised shall be taken on execution or other process of law in any action
against Tenant; (iv) Tenant notifies Landlord, at any time prior to the
Commencement Date, that Tenant does not intend to take occupancy of the
Premises upon the commencement of the Lease Term; or Tenant shall fail to
promptly move into and take possession of the Premises when the Premises are
Ready for Occupancy or shall cease to do business in or abandon any portion
of the Premises; (v) Tenant shall become insolvent or unable to pay its debts
as they become due, or Tenant notifies Landlord that it anticipates either
condition; (vi) Tenant takes any action to, or notifies Landlord that Tenant
intends to file a petition under any section or chapter of the Bankruptcy
Code, as amended from time to time, or under any similar law or statute of
the United States or any State thereof; or a petition shall be filed against
Tenant under any such statute; or Tenant or any creditor of Tenant notifies
Landlord that it knows such a petition will be filed; or Tenant notifies
Landlord that it expects such a petition to be filed; or (vii) a receiver or
trustee shall be appointed for Tenant's Leasehold Interest in the Premises or
for all or a substantial part of the assets of Tenant.
(b) Upon the occurrence of any event or events of default by
Tenant, whether enumerated in this Paragraph or not, Landlord shall have the
option to pursue any one or more of the following remedies without any notice
[except for such notice expressly required by Subparagraph 25(a)(ii)] or
demand for possession whatsoever (and without limiting the generality of the
foregoing, Tenant hereby specifically waives notice and demand for payment of
Rent or other obligations due and waives any and all other notices or demand
requirements imposed by applicable law): (i) terminate this Lease in which
event Tenant shall immediately surrender the Premises to Landlord; (ii)
terminate Tenant's right to occupy the Premises and re-enter and take
possession of the Premises (without terminating this Lease); (iii) enter upon
the Premises and do whatever
OFFICE LEASE AGREEMENT - Page 6
Tenant is obligated to do under the terms of this Lease; and Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in
effecting compliance with Tenant's obligations under this Lease, and Tenant
further agrees that Landlord shall not be liable for any damages resulting to
the Tenant from such action; and (iv) exercise all other remedies available
to Landlord at law or in equity, including, without limitation, injunctive
relief of all varieties.
(c) In the event Landlord elects to re-enter or take possession
of the Premises after Tenant's default, Tenant hereby waives notice of such
re-entry or repossession and of Landlord's intent to re-enter or retake
possession. Landlord may, without prejudice to any other remedy which it may
have for possession or arrearages in or future Rent, expel or remove Tenant
and any other person who may be occupying said Premises or any part thereof.
In addition, the provisions of Paragraph 27 hereof shall apply with respect
to the period from and after the giving of notice of such repossession by
Landlord. In addition, Landlord may change or alter the locks and other
security devices on the doors to the Premises and/or remove Tenant's; master
entry cards from the security and master entry card system; and Tenant hereby
waives, to the fullest extent allowed by law, any requirement that notice be
posted on the Premises as to the location of a key to such new locks and any
right to obtain such a key. All Landlord's remedies shall be cumulative and
not exclusive. Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default. Tenant hereby expressly waives all
rights under Section 93.002 of the Taxes Property Code (Commercial Lockout
Statute).
(d) In the event that Landlord elects to terminate this Lease,
then, notwithstanding such termination, Tenant shall be liable for and shall
pay to Landlord the sum of all Rents and other indebtedness accrued to the
date of such termination, plus, as damages, an amount equal to the total of
(i) the cost of recovering the Premises, (ii) the cost of removing and
storing Tenant's and other occupant's property located therein, (iii) the
costs of reletting the Premises, or portion thereof (including, without
limitation, brokerage commissions), (iv) the cost of decorations, repairs,
changes, alterations, and additions to the Premises whether accomplished in
one or more steps or phases, (v) the cost of collecting such amounts from
Tenant hereunder, and (vi) any other sums of money or damages that may be
owed to Landlord as the result of default by Tenant or the exercise of
Landlord's rights at law or in equity.
(e) In the event that Landlord elects to take possession of the
Premises and terminate Tenant's right to occupy the Premises without
terminating this Lease, Tenant shall remain liable, and shall pay to
Landlord, from time to time, on demand, any deficiency between the total Base
Rental due under this Lease for the remainder of the Lease Term and rents, if
any, which Landlord is able to collect from another tenant(s) for the
Premises, or portion thereof, during the remainder of the Lease Term ("Rental
Deficiency"). In addition, Tenant shall be liable for and shall pay to
Landlord, on demand, an amount equal to (i) the cost of recovering possession
of the Premises, (ii) the cost of removing and storing Tenant's or any other
occupant's property located therein, (iii) the costs of relating the
Premises, or applicable portion thereof, and whether accomplished in one or
more phases (including, without limitation, brokerage commissions), (iv) the
cost of decorations, changes, alterations, and additions to the Premises, or
applicable portion thereof, and whether accomplished in one or more phases,
(v) the cost of collection of the rent accruing from any such reletting, (vi)
the cost of collecting any sums billable to Tenant by Landlord hereunder, and
(vii) any other sum of money or damages that may owed to Landlord as a result
of Tenant's default or the exercise of Landlord's rights at law or in equity.
Landlord may file suit to recover any sums falling due under the terms hereof
from time to time, and no delivery to or recovery by Landlord of any portion
of the sums due Landlord hereunder shall be any defense in any action to
recover any amount not heretofore reduced to judgment in favor of Landlord.
Nothing contained herein shall be deemed to require Landlord to relet the
Premises. Any sums received by Landlord through reletting shall reduce the
sums owing by Tenant to Landlord hereunder, but in an event shall Tenant be
entitled to any excess of any sums obtained by reletting over and above the
Base Rental provided in this Lease to be paid by Tenant to Landlord. For the
purpose of such reletting, Landlord is authorized to decorate or to make any
repairs, changes, alterations, or additions in and to the Premises or
applicable portion thereof, that Landlord may deem necessary or advisable. No
reletting shall be construed as an election on the part of Landlord to
terminate this Lease unless a written notice of such intention is given to
Tenant by Landlord. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease for such
previous default. In the alternative (but only in the event that Tenant's
default constitutes a material breach), Landlord may elect to terminate
Tenant's right to occupy the Premises and to immediately recover as damages,
in lieu of the Rental Deficiency, a sum equal to the difference between (i)
the total Base Rental due under this Lease for the remainder of the Lease
Term and (ii) the then fair market rental value of the Premises during such
period, discounted to present value at a rate determined by Landlord, in its
sole discretion ("Discounted Future Rent"). In such event, Landlord shall
have no responsibility to attempt to relet the Premises or to apply any
rentals received by Landlord as a result of any such reletting to Tenant's
obligations hereunder; and the aggregate amount of all damages due to
Landlord, including the Discounted Future Rent hereunder, shall be
immediately due and payable to Landlord upon demand. To the extent Landlord
is obligated by law to mitigate its damages, mitigation for these purposes
shall only mean that Landlord agrees to list or advertise the Premises for
rent in accordance with Landlord's standard advertising and rental policies,
and to rent the Premises to prospective tenants only if there are no other
comparable available leasehold premises in the Building or in other projects
of Landlord or its affiliates in the vicinity of the Building.
(f) In addition to the remedies set forth in Paragraph 25(b) of
the Lease, upon the occurrence of any event or events of default by Tenant
under the Lease with respect to which Landlord elects to either terminate the
Lease, or without terminating the Lease, to terminate Tenant's possession of
the Premises, Landlord shall be entitled to (i) receive a cash payment from
Tenant on demand in an amount equal to all "Reimbursable Costs" (as defined
below) which have not yet vested in Tenant, (ii) terminate any remaining
lease concessions which have not yet accrued under the Lease, and (iii)
terminate all of Tenant's parking and signage rights under the Lease. As used
herein, the term "Reimbursable Costs" shall mean the total of (i) the
difference between the average monthly Base Rental payable by Tenant over the
entire Lease Term and the average monthly Base Rental payable by Tenant from
the Commencement Date to the date of default MULTIPLIED BY the number of
months from the Commencement Date through the date of default; and (ii) the
aggregate dollar amount which has been paid and/or is payable by Landlord to
or on behalf of Tenant under the Lease, including, without limitation, (a)
any brokerage commissions in connection with the execution of the Lease, and
(y) any allowances (for leasehold improvements or otherwise). Since the
Reimbursable Costs were incurred by Landlord in reliance upon Tenant fully
performing Tenant's obligations under the Lease. Tenant hereby acknowledges
that Landlord will be damaged, upon a default by Tenant, in an amount equal
to the aggregate dollar value of the Reimbursable Costs which have not yet
vested in Tenant. Reimbursable Costs shall be deemed to be vested in Tenant
on a pro rata bases for each calendar month during the Lease Term for which
Tenant has paid rent and is not otherwise in default hereunder. No vesting
shall occur with respect to any month for which Tenant has not paid rent or
in which Tenant is otherwise in default hereunder.
(g) This Paragraph 25 shall be enforceable to the maximum extent
not prohibited by applicable law, and the unenforceability of any portion
thereof shall not thereby render unenforceable any other portion. No act or
thing done by Landlord or its agents during the Lease Term shall be deemed an
acceptance
OFFICE LEASE AGREEMENT - Page 7
of an attempted surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless made in writing and signed
by Landlord. No re-entry or taking of possession of the Premises by Landlord
shall be construed as an election on Landlord's part to terminate this Lease
unless a written notice of such termination is given to Tenant.
(h) Landlord shall be in default hereunder in the event Landlord
has not begun and pursued with reasonable diligence the cure of any failure
of Landlord to meet its obligations hereunder within thirty (30) days of the
receipt by Landlord of written notice from Tenant of the alleged failure to
perform. In no event shall Tenant have the right to terminate or rescind this
Lease as a result of Landlord's default as to any covenant or agreement
contained in this Lease. Tenant hereby waives such remedies of termination
and rescission and hereby agrees that Tenant's remedies for default hereunder
any for breach of any promise or inducement shall be limited to a suit for
damages and/or injunction. In addition, Tenant hereby covenants that, prior
to the exercise of any such remedies, it will give the mortgagees holding
mortgages on the Building notice and a reasonable time to cure any default
by Landlord.
26. PEACEFUL ENJOYMENT. Tenant shall, and may peacefully have, hold, and
enjoy the Premises, subject to the other terms hereof, provided that Tenant
pays the Rent and other sums herein recited to be paid by Tenant and
performs all of Tenant's covenants and agreements herein contained. This
covenant and any and all other covenants of Landlord shall be binding upon
Landlord and its successors only with respect to breaches occurring during its
or their respective periods of ownership of the Landlord's interest
hereunder. Landlord shall be entitled to cause Tenant to relocate from the
Premises to a comparable space (a "Relocation Space") within the Building at
any time upon reasonable written notice to Tenant (which notice shall not be
given in excess of one hundred twenty (120) days prior to such relocation).
Landlord or the third party tenant replacing Tenant in the Premises shall
pay all reasonable costs of accomplishing such relocation. Such a relocation
shall not terminate or otherwise effect or modify this Lease except that from
and after the date of such relocation, "Premises" shall refer to the
Relocation Space into which Tenant has been moved, rather than the original
Premises as herein defined.
27. HOLDING OVER. In the event of holding over by Tenant after
expiration or other termination of this Lease or in the event Tenant
continues to occupy the Premises after the termination of Tenant's right of
possession pursuant to Paragraph 25(b) hereof, Tenant shall, throughout the
entire holdover period, pay Rent equal to one hundred fifty percent (150%) of
the Base Rental and additional Base Rental which would have been applicable
had the term of this Lease continued through the period of such holding over
by Tenant. No holding over by Tenant after the expiration of the term of
this Lease shall be construed to extend the term of this Lease.
28. SUBORDINATION TO MORTGAGE. Tenant accepts this Lease subject and
subordinate to any mortgage, deed of trust or other lien presently existing
or hereafter arising upon the Premises, or upon the Building and/or the
Property and to any renewals, modifications, consolidations, refinancing, and
extensions thereof, but Tenant agrees that any such mortgagee shall have the
right at any time to subordinate such mortgage, deed of trust or other lien
to this Lease on such terms and subject to such conditions as such mortgagee
may deem appropriate in its discretion. Landlord is hereby irrevocably vested
with full power and authority to subordinate this Lease to any mortgage, deed
of trust or other lien now existing or hereafter placed upon the Premises, or
the Building and/or the Property and Tenant agrees upon demand to execute
such further instruments subordinating this Lease or attorning to the holder
of any such liens as Landlord may request. The terms of this Lease are
subject to approval by the Landlord's permanent lender(s), and such approval
is a condition precedent to Landlord's obligations hereunder. In the event
that Tenant should fail to execute any subordination or other agreement
required by this Paragraph promptly as requested, Tenant hereby irrevocably
constitutes Landlord as its attorney-in-fact to execute such instrument in
Tenant's name, place and stead, it being agreed that such power is one
coupled with an interest. Tenant agrees that it will from time to time upon
request by Landlord execute and deliver to such persons as Landlord shall
request a statement in recordable form certifying that this Lease is
unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as so modified),
stating the dates to which Rent and other charges payable under this Lease
have been paid, stating the Landlord is not in default hereunder (or if
Tenant alleges a default stating the nature of such alleged default) and
further stating such other matters as Landlord shall reasonably require.
29. ESTOPPEL CERTIFICATES. Tenant agrees that it will from time to time
upon request by Landlord execute and deliver to such persons as Landlord
shall request a statement in recordable form certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as so modified), stating the date
to which rental and other charges payable under this Lease have been paid,
stating that the Landlord is not in default hereunder (or, if Tenant alleges
a default stating the nature of such alleged default in particularity) and
further stating such other matters as Landlord shall reasonably require.
Tenant agrees to deliver such statement within ten (10) days after written
request from Landlord. Failure to timely deliver such estoppel certificate
shall be a default under this Lease and shall entitle Landlord to pursue any
and all remedies it deems appropriate.
30. LANDLORD'S LIEN. Tenant hereby grants to Landlord a lien and
security interest on all property of Tenant now or hereafter placed in or
upon the Premises and such property shall be and remain subject to such lien
and security interest of Landlord for payment of all Rent and other sums
agreed to be paid by Tenant herein. The provisions of this Paragraph relating
to such lien and security interest shall constitute a security agreement
under and subject to the Texas Business and Commerce Code so that Landlord
shall have and may enforce a security interest on all property of Tenant now
or hereafter placed in or on the Premises, in addition to and cumulative of
the Landlord's liens and rights provided by law or by other terms and
provisions of this Lease. Tenant agrees to execute as debtor such financing
statement or statements as Landlord may now or hereafter request. Landlord
may at its election at any time file a copy of this Lease as a financing
statement. Notwithstanding the above, Landlord shall neither sell nor
withhold from Tenant, Tenant's business records. Tenant hereby waives its
lien rights under Section 91.004 of the Texas Property Code.
31. ATTORNEY'S FEES. In the event either party files suit to enforce the
performance of or obtain damages caused by a default under any of the terms
of this Lease, the party against whom a judgment is rendered shall pay the
prevailing party's reasonable costs and attorneys' fees. The reasonableness
of such costs and attorneys' fees shall be determined by the court and not
the jury, with respect to any monetary claim, in order for a party to
prevail, such party must be award at least fifty percent (50%) of the highest
amount which such party claimed at any time in such suit.
32. NO IMPLIED WAIVER. The failure of Landlord to insist at any time upon
the strict performance of any covenant or agreement herein or to exercise any
option, right, power or remedy contained in this Lease shall not be construed
as a waiver or a relinquishment thereof for the future. No payment by Tenant
or receipt by Landlord of a lesser amount than the monthly installment of Rent
due under this Lease shall be deemed to be other than on account of the
earliest Rent due hereunder, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord may
OFFICE LEASE AGREEMENT - Page 8
accept such check or payment without prejudice to Landlord's right to recover
the balance of such Rent or pursue any other remedy in this Lease provided.
33. PERSONAL LIABILITY. In no event shall Landlord be liable to Tenant
either for (a) any loss or damage that may be occasioned by or through the
acts or omissions of other tenants of the Building or of any other persons
whomever or (b) any consequential damages regardless of causation. With
respect to tort claims against Landlord, Landlord shall not be liable to
Tenant or to any other person for any act or omission of Landlord or of its
agents or employees, negligent or otherwise, except for actual damages or
costs incurred as a direct result of and caused directly by the willful
misconduct or gross negligence of Landlord (or of Landlord's agents or
employees) in circumstances in which Landlord is deemed to be liable at law
for such acts or omissions and such liability cannot be waived by Tenant.
Nothing contained in the immediately preceding sentence shall ever be
construed as creating liability in excess of that existing at law or, in any
event, increasing the liability of Landlord, under any theory or cause of
action, however denominated, from that existing at law, further, the
liability of Landlord to Tenant for (a) any default by Landlord under the
terms of this Lease, (b) for any tort liability of Landlord to Tenant, or (c)
in any other circumstance in which Landlord is judicially determined to have
some liability to Tenant, for whatever reason, shall, in each such instance,
be limited to the interest of Landlord in the Building and Property and
Tenant agrees to look solely to Landlord's interest in the Building and the
Property for the recovery of any judgment from the Landlord, if being
intended that Landlord shall never be personally liable for any judgment or
deficiency.
34. SECURITY DEPOSIT. The Security Deposit shall be held by Landlord
without liability for interest and as security for the performance by Tenant
of Tenant's covenants and obligations under this Lease, it being expressly
understood that the Security Deposit shall not be considered an advance
payment of Rental or a measure of Tenant's liability for damages in case of
default by Tenant. Landlord may commingle the Security Deposit with
Landlord's other funds. Landlord may, from time to time, without prejudice to
any other remedy, use the Security Deposit to the extent necessary to make
good any arrearages of Rent or to satisfy any other covenant or obligation of
Tenant hereunder. Following any such application of the Security Deposit,
Tenant shall pay to Landlord on demand the amount so applied in order to
restore the Security Deposit to its original amount. If Tenant is not in
default at the termination of this Lease, the balance of the Security Deposit
remaining after any such application shall be returned by Landlord to Tenant.
If Landlord transfers its interest in the Premises during the term of this
Lease, Landlord may assign the Security Deposit to the transferee and
thereafter shall have no further liability for the return of such Security
Deposit.
35. NOTICE. Any notice in the Lease provided for must, unless otherwise
expressly provided herein, be in writing, and may, unless otherwise in this
Lease expressly provided, be given or be served by depositing the same in the
United States mail, postage prepaid and certified and addressed to the party
to be notified, with return receipt requested, or by prepaid telegram, or by
overnight courier (such as Federal Express or similar company) or by hand
delivery, with evidence in either event of delivery to addressee, when
appropriate, addressed to the party to be notified at the address stated in
this Lease or such other address notice of which has been given to the other
party. Notice deposited in the mail in the manner hereinabove described shall
be effective from and after the expiration of three (3) calendar days after
it is so deposited. Notice by overnight courier shall be effective on the
next business day after being sent. Notice by personal delivery shall be
effective on the day of receipt.
36. SEVERABILITY. If any term or provision of this Lease, or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Lease shall be valid and enforced to the
fullest extent permitted by law.
37. RECORDATION. Tenant agrees not to record this Lease or any
memorandum hereof.
38. GOVERNING LAW. This Lease and the rights and obligations of the
parties hereto shall be interpreted, construed, and enforced in accordance
with the laws of the State of Texas.
39. FORCE MAJEURE. Whenever a period of time is herein prescribed for
the taking of any action by Landlord, Landlord shall not be liable or
responsible for, and there shall be excluded from the computation of such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations or restrictions,
litigation brought by third parties to enjoin Landlord's activities at the
Building, or any other cause whatsoever beyond the control of Landlord.
40. TIME OF PERFORMANCE. Except as expressly otherwise herein provided,
with respect to all required acts of Tenant, time is of the essence of this
Lease.
41. TRANSFERS BY LANDLORD. Landlord shall have the right to transfer
and assign, in whole or in part, all its rights and obligations hereunder and
in the Building and Property referred to herein, and in such events and upon
such transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to such successor in interest of
Landlord for the performance of such obligations.
42. TRANSFERS BY TENANT. Tenant shall not transfer, convey, mortgage,
pledge, hypothecate, or encumber Tenant's leasehold interest hereunder or
grant any license, concession, or other right to occupancy of any portion of
the Premises without the prior written consent of Landlord, which may be
granted or withheld in Landlord's sole discretion. The prohibitions specified
in this Paragraph 42 shall be in addition to, and independent of, the
provisions of Paragraph 13 hereof and shall be construed to include, without
limitation, any such prohibited transfers occurring by operation of law. Any
attempt by Tenant to accomplish a transfer prohibited by the provisions of
this Lease, without having obtained the prior written consent of Landlord
thereto shall be void and of no force or effect any may, at the option of
Landlord, constitute a material default hereunder.
43. COMMISSIONS. Tenant represents and warrants that no broker has
represented it in this lease transaction and that no broker is owed a
commission or fee in connection with the consummation of this lease
transaction. Tenant hereby indemnifies and holds Landlord harmless against
any loss, claim, expense or liability with respect to any commissions or
brokerage fees claimed on account of the execution and/or renewal of this
Lease or the expansion of the Premises hereunder, if applicable, due to any
action by Tenant. The provisions of this paragraph shall survive the
termination of this Lease.
44. EFFECT OF DELIVERY OF THIS LEASE. Landlord has delivered a copy of
this Lease to Tenant for Tenant's review only, and the delivery hereof does
not constitute an offer to Tenant or option. This Lease shall not be effective
until a copy executed by both Landlord and Tenant is delivered to and
accepted by Landlord, and this Lease has been approved by Landlord's
mortgagee.
45. ENTIRE AGREEMENT. This Lease embodies the entire agreement between
the parties hereto with
OFFICE LEASE AGREEMENT - Page 9
relation to the transaction contemplated hereby, and there have been and are
no covenants, agreements, representations, warranties or restrictions between
the parties hereto with regard thereto other than those specifically set forth
herein.
46. RECEIPT OF PREMISES. The occupancy of the Premises by Tenant shall
constitute the acknowledgment and agreement of Tenant that Tenant is fully
familiar with the physical condition of the Premises, that Tenant has received
the same in good order and condition, and that the Premises comply in all
respects with the requirements of this Lease and are suitable for the purposes
for which the Premises are hereby leased. In that regard, Landlord hereby
disclaims, and Tenant hereby waives, any warranty of suitability with respect
to the Premises.
47. MERGER OF ESTATES. The voluntary or other surrender of this Lease by
Tenant or a mutual cancellation thereof, shall not constitute a merger; and
upon such surrender or cancellation of this Lease, Landlord shall have the
option, in Landlord's sole discretion, to (i) either terminate all or any
existing subleases or subtenancies, or (ii) assume Tenant's interest in any
or all subleases or subtenancies.
48. WASTE MANAGEMENT. Without limiting its obligations under Paragraph
14 (and the rules and regulations attached to this Lease as EXHIBIT "D"),
Tenant covenants and agrees to comply with all laws, rules, regulations and
guidelines now or hereafter made applicable to the Premises respecting the
disposal of waste, trash, garbage and other matter (liquid or solid),
generated by Tenant, the disposal of which is not otherwise the express
obligation of Landlord under this Lease (it is expressly understood that the
provision of janitorial services by Landlord is not an express obligation of
Landlord under this Lease for the purpose of this Paragraph 48), including,
but not limited to, laws, rules, regulations and guidelines respecting
recycling and other forms of reclamation (all of which are herein
collectively referred to as "Waste Management Requirements"). Tenant
covenants and agrees to comply with Waste Management Requirements applicable
to Landlord (i) as owner of the Premises and (ii) in performing Landlord's
obligations under this Lease, if any. Tenant further covenants and agrees to
comply with all rules and regulations established by Landlord to enable
Landlord from time to time to avail itself of the lowest rate available for
the disposal of waste, trash, garbage and other matter (liquid or solid),
generated by Tenant. Tenant covenants and agrees to indemnify, defend,
protect and hold Landlord harmless (in accordance with Paragraph 20) from and
against all liability (including costs, expenses and attorney fees) that
Landlord may sustain by reason of Tenant's breach of its obligations under
this paragraph 48. Tenant's obligations under this paragraph 48 shall survive
the termination of this Lease.
49. AMERICANS WITH DISABILITIES ACT AND TEXAS ARCHITECTURAL BARRIERS
ACT. Tenant agrees to comply with all requirements of the Americans with
Disabilities Act (Public Law 101-336 (July 26, 1990)) and the Texas
Architectural Barriers Act (Article 9102, Tex. Rev. Civ. St. (1991))
applicable to the Premises and applicable to the Building and Property to
accommodate its employees, invitees and customers. Tenant acknowledges that
it shall be wholly responsible for any accommodations or alterations which
need to be made to the Premises to accommodate Tenant's employees, customers
and invitees and for making any additional accommodations or alterations
which need to be made to the Building or the Property to accommodate Tenant's
employees, invitees and customers. Tenant agrees to indemnify and hold
Landlord harmless from any and all expenses, liabilities, costs or damages
suffered by Landlord as a result of Tenant's failure to fulfill its aforesaid
responsibilities regarding making such accommodations and alterations
referenced in the preceding sentence. No provision in this Lease should be
construed in any manner as permitting, consenting to or authorizing Tenant to
violate requirements under either such Act and any provision of the Lease
which could arguably be construed as authorizing a violation of either Act
shall be interpreted in a manner which permits compliance with such Act and
is hereby amended to permit such compliance.
50. TEMPORARY SPACE. The parties acknowledge that from the date of
execution of this Lease through the Commencement Date (the "Temporary Space
Term"), Tenant shall have the right to occupy that certain space as shown on
EXHIBIT "H" attached hereto ("Temporary Space") of the Building at no charge.
During the Temporary Space Term, all terms and provisions of this Lease other
than those with respect to Rent, the Allowance and the Lease Term shall apply
with respect to the Temporary Space. Further, nothing contained herein shall
be construed as releasing Tenant from any obligations of Tenant arising under
Paragraph 20, Indemnity, of this Lease or with respect to any physical damage
to the Temporary Space, which shall survive the Temporary Space Term.
51. EXHIBITS. The following numbered exhibits are attached hereto and
incorporated herein and made a part of this Lease for all purposes:
Exhibit "A" - Legal Description
Exhibit "B" - Floor Plan
Exhibit "C" - Payment of Excess Basic Costs
Exhibit "D" - Rules and Regulations
Exhibit "E" - Work Letter
Exhibit "F" - Parking
Exhibit "G" - Right of First Refusal
Exhibit "H" - Temporary Space Floor Plan
NOTICE OF INDEMNIFICATION: THE PARTIES TO THIS LEASE HEREBY ACKNOWLEDGE AND
AGREE THAT THIS LEASE (AND ATTACHED EXHIBITS) CONTAINS CERTAIN
INDEMNIFICATION PROVISIONS.
OFFICE LEASE AGREEMENT - Page 10
LANDLORD:
Address: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Property Manager By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Assistant Vice-President
With a copies to:
METROPOLITAN TOWER REALTY COMPANY, INC.
Metropolitan Life Insurance Company a Delaware corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Assistant Vice-President
Real Estate Investments By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
----------------------------------
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice-President
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Territorial Vice-President
Real Estate Investments
TENANT:
Address Prior to CALIBRE ENERGY, L.P.,
Commencement Date: a Texas limited partnership
1201 Louisiana By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Suite 3350 ----------------------------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ ---------------------------------
Title: General Partner - Treasurer
--------------------------------
Calibre Oil & Gas Corp.
Address Subsequent to
Commencement Date:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
OFFICE LEASE AGREEMENT - Page 11
EXHIBIT "A"
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
CALIBRE ENERGY, L.P.,
AS TENANT
LEGAL DESCRIPTION
Being a tract or parcel containing 62,472 square feet of land situated in
▇▇▇▇▇▇ County, Texas, being all of Block 144, City of Houston, South Side
Buffalo Bayou (S.S.B.B.), being more particularly described as follows:
COMMENCING at City of Houston Monument 5457,0109-B same being City Rod 27,
located at the intersection of the centerlines of ▇▇▇▇▇▇▇▇ Avenue (80 feet
wide) and Louisiana Street (80 feet wide);
THENCE, North 55"00'00" West, 40.00 feet along the centerline of said
▇▇▇▇▇▇▇▇ Avenue;
THENCE, departing said centerline at a right angle, South 35"00'00" West
along a line that is parallel with and 40.00 feet west of the centerline of
Said Louisiana Street, 40.00 feet to the northeast corner of said Block 144
and the POINT OF BEGINNING;
THENCE, continuing along the westerly right-of-way line of said ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇"▇▇'▇▇" ▇▇▇▇, 249.89 feet to the southeast corner of said
Block 144;
THENCE, North 55"00'00" West, 250.00 feet along the northerly right-of-way
line of ▇▇▇▇▇ Avenue (80 feet wide) to the southwest corner of said Block 144;
THENCE, North 35"00'00" East, 249.89 feet along the easterly right-of-way
line of ▇▇▇▇▇ Street (80 feet wide) to the northwest corner of said Block 144;
THENCE, South 55"00'00" East, 250.00 feet along the southerly right-of-way
line of said ▇▇▇▇▇▇▇▇ Avenue to the POINT OF BEGINNING, containing a computed
area of 62,472 square feet of land.
EXHIBIT "A" TO OFFICE LEASE AGREEMENT - Page Solo
EXHIBIT "B"
-----------
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
CALIBRE ENERGY, L.P.,
AS TENANT
FLOOR PLAN
----------
(FLOORPLAN)
EXHIBIT "B" TO OFFICE LEASE AGREEMENT - Page Solo
EXHIBIT "C"
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY,
AND METROPOLITAN TOWER REALTY COMPANY, INC.
AS LANDLORD, AND
CALIBRE ENERGY, L.P.,
AS TENANT
PAYMENT OF EXCESS BASIC COSTS
1. BASIC COSTS. The Base Rental payable hereunder shall be adjusted
from time to time in accordance with the following provisions:
(a) Tenant's Base Rental is based, in part, upon the estimate
that annual "Basic Costs" (as hereinafter defined) will be equal to the
"Expense Stop". During the Lease Term, Tenant shall pay as an adjustment
to Base Rental hereunder an amount (per each square foot of Rentable
Area within the Premises) equal to the excess ("Excess") from time to
time of Basic Costs per square foot of Rentable Area in the Building
over the Expense Stop. Landlord may collect such additional Base Rental
in arrears on a yearly basis. Landlord shall also have the option to
make a good faith estimate of the Excess from time to time for each
upcoming calendar year (or remainder thereof, if applicable) and, upon
thirty (30) days' written notice to Tenant, may require the monthly
payment of Base Rental to be adjusted in accordance with such estimate.
Any amounts paid based on such an estimate shall be subject to
adjustment pursuant to Paragraph 2 below when Basic Costs are available
for such calendar year.
(b) "Basic Costs" shall mean all direct and indirect costs and
expenses in each calendar year of operating, maintaining, repairing,
managing and owning the Building and the Property plus all operating
costs of the Exterior Common Area (below defined). Basic Costs shall not
include the cost of capital improvements, depreciation, interest, lease
commissions, and principal payments on mortgage and other non-operating
debts of Landlord. Basic Costs shall, however, include the amortization
of capital improvements which are primarily for the purpose of reducing
Basic Costs, or which are required by governmental authorities.
"Exterior Common Areas" shall mean that portion of the Property (and
other tracts of real property comprising the multi-building project in
the event the Building is located in such a project) which are not
located within the Building (or other building in a multi-building
project) and which are provided and maintained for the common use and
benefit of Landlord and tenants of the Building (or multi-building
project) generally and the employees, invitees and licensees of Landlord
and such tenants; including without limitation, all parking areas
(enclosed or otherwise, including, without limitation, the parking areas
beneath the Building and those in the 1400 Louisiana Garage) and all
streets, sidewalks, walkways, pedestrian tunnels and landscaped areas.
2. PROCEDURE. The following additional provisions shall apply to
Paragraph 1 of this EXHIBIT "C":
(a) By April 1 of each calendar year during Tenant's occupancy, or
as soon thereafter as practical, Landlord shall furnish to Tenant a
statement of Landlord's Basic Costs for the previous calendar year. If
for any calendar year additional Base Rental was collected for the prior
year, as a result of Landlord's estimate of Basic Costs, in excess of
the additional Base Rental due during such prior year, then Landlord
shall refund to Tenant any over payment (or at Landlord's option, apply
such amount against rentals due or to become due hereunder). Likewise,
Tenant shall pay to Landlord, on demand, any underpayment with respect
to the prior year. In no event shall Basic Costs per square foot of
Rentable Area within the Building be deemed to be less than the Expense
Stop, it being the intent of Landlord and Tenant that Tenant shall at
all times be responsible for the payment of, and shall pay, not less
than the amount of Base Rental for the applicable period (before
adjustment) specified in this Lease.
(b) Notwithstanding any language in the Lease or in this EXHIBIT
"C" seemingly to the contrary, Landlord shall determine and estimate
Basic Costs for any calendar year within the Lease Term by increasing
the variable components of Basic Costs to the amount which Landlord
projects would have been incurred had the Building been occupied to the
extent of ninety-five percent (95%) of the Rentable Area therein during
all of the applicable calendar year. In such event, the term "Basic
Costs", as used in this EXHIBIT "C" and in the Lease, shall include
(i) the actual Basic Cost incurred during any portion of such calendar
year in which the Building is occupied to the extent of ninety-five percent
(95%) or more of the Rentable Area therein plus (ii) the Basic Costs
which would have been incurred had the Building been occupied to the
extent of ninety-five percent (95%) of the Rentable Area thereof during
the portion of that calendar year in which the actual occupancy of the
Building is less than ninety-five percent (95%) of the Rentable Area
therein; and Landlord shall have the option of making such estimate in
advance for any upcoming calendar year.
(c) In the event that the Lease Term commences on a day other
than January 1 or terminates on a day other than December 31, the Excess
for that part of the first (1st) calendar year or last calendar year
during the Lease Term shall be determined as follows:
(i) The Expense Stop shall be prorated based upon the
number of months in such partial calendar year. With respect to any
partial calendar month occurring during such partial calendar year, the
Expense Stop shall also be prorated based upon the number of days in
that partial calendar month.
(ii) The Excess, if any, for the applicable partial
calendar year shall then be the amount by which (A) actual Basic Costs
per square foot of Rentable Area in the Building for such calendar year,
prorated based upon the number of months and days in the applicable
partial calendar year, exceed (B) the Expense Stop, as prorated pursuant
to the provisions of this Subparagraph 2(c).
(iii) With respect to a proration for the first (1st)
calendar year and in the event that Landlord's estimate of the Basic
Costs to be incurred during such partial calendar year exceeds the
Expense Stop, as prorated pursuant to the provisions of this
Subparagraph 2(c), Landlord may, upon thirty (30) days prior written
notice to Tenant, require the monthly payments of Base Rental occurring
during such partial calendar year to be adjusted in accordance with such
estimate.
(iv) The provisions of this EXHIBIT "C" shall survive the
termination of the Lease Term.
EXHIBIT "C" TO OFFICE LEASE AGREEMENT - Page Solo
EXHIBIT "D"
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY,
AND METROPOLITAN TOWER REALTY COMPANY, INC.
AS LANDLORD, AND
CALIBRE ENERGY, L.P.,
AS TENANT
RULES AND REGULATIONS
1. The sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways of the Building shall not be obstructed by any of
the tenants or used by them for any purpose other than for ingress to and
egress from their respective premises. The halls, passages, exits, entrances,
elevators, escalators and stairways are not for the use of the general
public, and Landlord shall in all cases retain the right to control and
prevent access thereto of all persons whose presence in the judgment of
Landlord shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with whom any
tenant normally deals in the ordinary course of its business, unless such
persons are engaged in illegal activities. No tenants and no employee, agent
or invitee of any tenant shall go upon the roof of the Building. The two (2)
emergency stairwells located on each floor of the Building shall not be
obstructed by tenants or used by tenants or tenant's agents, servants,
employees, invitees or contractors or the public in general for any reason or
purpose except as an escape route in the event of an emergency.
2. No sign, placard, picture, name, advertisement or notice, visible
from the exterior of any tenant's premises shall be inscribed, painted,
affixed or otherwise displayed by any tenant on any part of the Building
without the prior written consent of Landlord, and Landlord shall have the
right to remove any such sign, placard, picture, name, advertisement or
notice at the expense of the tenant responsible for same and without notice
to such tenant. If Landlord shall have given such consent at anytime, such
consent shall be deemed to relate only to the particular sign, placard,
picture, name, advertisement or notice so consented to by Landlord and shall
not be construed as dispensing with the necessity of obtaining the specific
written consent of Landlord with respect to each and every other sign,
placard, picture, name, advertisement or notice. Landlord will adopt and
furnish to Tenant uniform rules and regulations relating to signs on the
office floors which shall be applicable to all tenants occupying space on the
office floors of the Building and tenant agrees to conform to such rules and
regulations. All approved signs or lettering on doors of Tenant's Premises
shall be printed, painted, affixed or inscribed at the expense of Tenant by a
person approved by Landlord.
3. The premises shall not be used for the storage of merchandise or for
lodging. No cooking, other than for warming purposes, shall be done or
permitted by any tenant in the Building, except that the preparation of
coffee, tea, hot chocolate and similar items for tenants and their employees
shall be permitted.
4. No tenant shall employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the premises, unless otherwise agreed
to by Landlord in writing. Except with the written consent of Landlord, no
person or persons other than those approved by Landlord shall be permitted to
enter the Building for the purpose of cleaning the same. No tenant shall
cause any unnecessary labor by reason of such tenant's carelessness or
indifference in the preservation of good order and cleanliness. Landlord
shall in no way be responsible to any tenant for any loss of property on the
premises, however occurring, or for any damage done to the furniture or other
effects of any tenant by the janitor or any other employee or any other
person. Janitor service shall include ordinary dusting and cleaning by the
janitor assigned to such work and shall not include shampooing of carpets or
rugs or moving of furniture or other special services. Janitor services will
not be furnished on nights when rooms are occupied after 9:30 p.m.
5. No animals, or birds, or bicycles shall be allowed in the offices,
halls, corridors, elevators or elsewhere in the Building, except for seeing
eye dogs or other service animals for disabled persons.
6. Landlord will furnish each tenant with two (2) keys free of charge.
Landlord may make a reasonable charge for any additional keys. No tenant
shall have any keys made except by Landlord. No tenant shall alter any lock
or install any lock or install a new or additional lock or any bolt on any
door of its premises without prior written consent of Landlord. If Landlord
shall give its consent, the tenant shall in each case furnish Landlord with a
key for any such lock. Each tenant upon the termination of its tenancy, shall
deliver to Landlord all keys to doors in the Building which shall have been
furnished to tenant.
7. No safes, electronic equipment or other objects larger or heavier
than that which the freight elevators of the Building are limited to carry
shall be brought into or installed on any premises without Landlord's prior
written approval, it being agreed that Landlord shall approve the moving in
and installation of tenant's vault. The moving of such equipment shall occur
only between such hours as may be designated by, and only upon previous
notice to, the manager of the Building. No freight, furniture or bulky matter
of any description shall be received into the Building or carried into the
elevators, except during hours and in a manner approved by Landlord. Landlord
shall have the right to prescribe the weight, size and position of all safes
and other heavy equipment brought into the Building. Safes or other heavy
objects shall, if considered necessary by Landlord, stand on wood strips of
such thickness as is necessary to properly distribute the weight. Landlord
will not be responsible for loss of or damage to any such safe or property
from any cause, and all damage done to the Building by moving or maintaining
such safe or other property shall be repaired at the expense of tenant.
8. No tenant shall use or keep in, on or about the premises of the
Building any kerosene, gasoline or inflammable or combustible fluid or
material, or use any method of heating or air conditioning other than that
supplied by Landlord. No tenant shall use, keep or permit to be used or kept
any foul or noxious gas or substance in, on or about the premises, or permit
or suffer the premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of
noise, odors and/or vibrations, or interfere in any way with other tenants or
those having business therein.
9. Landlord shall have the right, exercisable without notice and
without liability to any tenant, to change the name and street address of the
Building.
10. Landlord reserves the right to exclude from the Building between the
hours of 7:00 p.m. and 7:00 a.m. and at all hours on Sundays, legal holidays
and after 1:00 p.m. on Saturdays all persons who do not present a pass to the
Building signed by Landlord. Landlord will furnish passes to persons for whom
any tenant requests the same in writing. Each tenant shall be responsible for
all persons for whom it requests passes and
EXHIBIT "D" OFFICE LEASE AGREEMENT - Page 1
shall be liable to Landlord for all acts to such person. Landlord shall in no
case be liable for damages for any error with regard to the admission to or
exclusion from the Building of any person. In the case of invasion, mob,
riot, public excitement, or other circumstances rendering such action
advisable in Landlord's opinion, Landlord reserves the right to prevent
access to the Building during the continuance of the same by such actions as
Landlord may deem appropriate, including closing and locking doors.
11. The directory board of the Building will be provided for the
display of the name and location of tenants only, and Landlord reserves the
right to exclude any other names therefrom. Any additional name which tenant
shall desire to place upon said directory board over and above the allowance
set forth in the Lease must first be approved by Landlord, and if so
approved, a charge will be made therefor.
12. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, hanging or decorations shall be attached to, hung or placed in, or
used in connection with any window of the Building without the prior written
consent of Landlord. In any event, with the prior written consent of
Landlord, said above items shall be installed inboard of Landlord's standard
window covering and shall in no way be visible from the exterior of the
Building.
13. No tenant shall obtain for use in the premises, ice, drinking
water, food, beverage, towel or other similar services, or accept barbering
or bootblacking services in the premises, except from persons authorized by
Landlord, and at hours and under regulations fixed by Landlord, except as
otherwise set forth in the Lease.
14. At any party where alcoholic beverages are to be consumed on the
First Interstate Bank Plaza premises, tenant is required to have two (2)
off-duty policemen attend the party. One (1) policeman should remain in the
suite during the party, and one (1) should position himself near the proper
elevator bank.
15. Tenant shall see that the doors of its premises are closed and
securely locked and must observe strict care and caution that all water
faucets, water apparatus and utilities are shut off before tenant or tenant's
employees leave the premises, do as to prevent waste or damage. On
multiple-tenancy floors, all tenants shall keep the door or doors to the
Building corridors closed at all times except for ingress and egress.
16. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed. No foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees,
agents or invitees, shall have caused it.
17. Except with the prior written consent of Landlord, no tenant shall
sell, or permit the sale of newspapers, magazines, periodicals, theatre
tickets or any other goods of merchandise in or on the premises, nor shall
any tenant carry on, or permit or allow any employee or other person to carry
on, the business of stenography, typewriting or any similar business in or
from the premises for the services or accommodation of occupants of any other
portion of the Building.
18. No tenant shall install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of the Building.
19. No hand trucks or dollies, except those equipped with rubber tires
and side guards, shall be used in any space or in public halls of the
Building by any tenant. No other vehicles of any kind shall be brought into
the Building or kept in or about any premises by any tenant, their employees,
agents or invitees.
20. Each tenant shall store all its trash and garbage within its
premises. No material shall be placed in the trash boxes or receptacles if
such material is of such nature that it may not be disposed of in the
ordinary and customary manner of removing and disposing of trash and garbage
in the City of Houston, without being in violation of any law or ordinance
governing such disposal. All garbage and refuse disposal shall be made only
through entryways and elevators provided for such purposes and at such times
as Landlord shall designate.
21. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant shall cooperate to prevent the same.
22. The requirements of the tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties unless under
special instructions from Landlord.
23. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in
favor of any other tenant or tenants, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against any or all of the tenants of
the Building.
24. These Rules and Regulations are in addition to and shall not be
construed to in any way modify, alter or amend, in whole or in part, the
terms, covenants, agreements and conditions of any lease of premises in the
Building.
25. Landlord reserves the right to make such other and reasonable rules
and regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building, and for the preservation of
good order therein.
EXHIBIT "D" TO OFFICE LEASE AGREEMENT - Page 2
SCHEDULE 1
TO
EXHIBIT "D"
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY INC.,
AS LANDLORD, AND
CALIBRE ENERGY, L.P.,
AS TENANT
INTERPRETATION OF RULES AND REGULATIONS
1. With respect to Rule No. 6 of EXHIBIT "D", Tenant shall initially be
given eight (8) keys to the premises by Landlord.
2. With respect to Rule No. 11 of EXHIBIT "D", Tenant shall be provided two
(2) names on the Building directory at no charge.
SCHEDULE 1 TO EXHIBIT "D" TO OFFICE LEASE AGREEMENT - Page Solo
EXHIBIT "E"
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
CALIBRE ENERGY, L.P.,
AS TENANT
WORK LETTER
(Minor Refurnishment)
This Work Letter ("Work Letter") describes and specifies the rights and
obligations of Landlord and Tenant with respect to certain remodeling and
refurbishment items to be completed in the Premises.
1. DEFINITIONS. Terms which are defined in the Lease shall have the
same meaning in this Work Letter. Additionally, as used in this Work Letter,
the following terms shall have the following meanings:
(a) ALLOWANCE: An amount equal to but not in excess of $5,164.00
to be used to complete the Refurbishment Items.
(b) COST OF THE WORK: The cost of all materials and labor needed to
complete the installation of the Refurbishment Items.
(c) REFURBISHMENT ITEMS: The items of work to be completed in the
Premises are itemized on Schedule "E-1" attached hereto.
2. COLOR, FINISHES AND MATERIALS. Each of the Refurbishment Items shall
be completed using building standard materials and workmanship. As
applicable, Tenant agrees to select all colors, finishes and building
material types within five (5) days of the execution of this Lease, and if
such selections are not made within such date, Landlord may in its sole
discretion select any building standard materials, colors and finishes
available for such Refurbishment Items. Tenant shall furnish a space plan or
diagram depicting the desired location for the Refurbishment Items within
five (5) days after the execution of this Lease, and if not furnished within
such date, or if the locations so designated are not acceptable to Landlord
for any reason, then Landlord may instead install such items in locations
acceptable to Landlord.
3. PERFORMANCE OF THE WORK AND COSTS. Landlord shall perform as
construction manager to cause the Refurbishment Items to be completed, and
the Cost of the Work shall include a management fee payable to Landlord in
the amount of five percent (5%) of the cost of the materials and labor needed
to complete the installation of the Refurbishment Items. Tenant shall be
obligated to pay the Cost of the Work in excess of the Allowance. Provided,
however, nothing in this Work Letter should be construed as imposing an
obligation on Landlord to complete the Refurbishment Items if the Cost of the
Work is reasonably estimated by Landlord to exceed the Allowance. If the Cost
of the Work is likely to exceed the Allowance, Landlord may, in its
discretion, either complete those items which, in the aggregate, Landlord
determines will not exceed the Allowance, or Landlord may make demand upon
tenant to deposit an amount equal to the estimated excess necessary to
complete the Refurbishment Items, and Tenant's failure to deposit such amount
shall relieve Landlord from any further obligation to complete any of the
Refurbishment Items. Any cost savings achieved after completion of all
Refurbishment Items shall be the property of Landlord, not Tenant, unless the
final Cost of the Work exceeds the Allowance amount and sums are deposited by
Tenant as aforesaid, in which case any surplus monies remaining after
completion of construction shall be the property of Tenant.
4. OTHER. Except for the Refurbishment Items, Tenant is taking the
Premises "As-Is" in its current condition and without benefit of further
improvements. The agreement of Landlord to perform the Refurbishment Items
should not be construed as representing or warranting that such work will
render the Premises in compliance with any applicable laws, including the
Americans with Disabilities Act and the Texas Architectural Barriers Act, and
it shall remain the sole responsibility of Tenant to determine whether the
Premises, with or without completion of the Refurbishment Items, comply with
all applicable laws. Within fifteen (15) days after Landlord advises Tenant
that the Refurbishment Items are completed, Tenant shall give Landlord a
written punchlist specifying any details which remain to be performed by
Landlord with respect to any work described in this Work Letter; and except
for the details contained in such written punchlist from Tenant, all
obligations of Landlord in regard to such work shall be deemed to have been
satisfied. Landlord shall have the right to enter the Premises to complete
any such unfinished details, and entry by Landlord, its agents, servants,
employees or contractors for such purpose shall not relieve Tenant of any of
its obligations under the Lease or impose any liability on Landlord or its
agents, servants, employees or contractors. This Work Letter embodies all
representations, warranties and agreements of Landlord and Tenant with respect
to the matters described herein, and this Work Letter may not be altered or
modified except by an agreement in writing signed by both parties. In the
event of conflict between the terms of this Work Letter and any other
exhibits or addenda to this Lease, this Work Letter shall prevail.
EXHIBIT "E" TO OFFICE LEASE AGREEMENT - Page Solo
SCHEDULE "E-1"
TO
EXHIBIT "E"
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.
AS LANDLORD, AND
CALIBRE ENERGY, L.P.,
AS TENANT
REFURBISHMENT ITEMS
1. Paint all painted walls utilizing building standard materials.
SCHEDULE 1 TO EXHIBIT "E" TO OFFICE LEASE AGREEMENT - Page Solo
EXHIBIT "F"
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
CALIBRE ENERGY, L.P.,
AS TENANT
PARKING
This EXHIBIT "F" ("Parking Exhibit") describes and specifies Tenant's
non-exclusive right to use zero (O) reserved parking spaces and six (6)
unreserved parking spaces (collectively, "Spaces") located on such levels
inside one or more of the Building's parking garages as set forth on SCHEDULE
1 attached to this Parking Exhibit and incorporated herein by reference, all
upon the terms and conditions set forth below. The parking garage beneath the
Building shall be referred to as the "Building Garage." The parking garage
located at 1400 Louisiana shall be referred to as the "1400 Louisiana
Garage." The parking garage located at 777 Clay shall be referred to as the
"777 Clay Garage." The Building Garage, 1400 Louisiana Garage and 777 Clay
Garage may be hereinafter referred to individually and collectively as the
"Parking Garage."
1. DEFINITIONS. The terms which are defined in the Lease shall have
the same meaning in this Parking Exhibit.
2. GRANT AND RENTAL FEE. Provided no event of default has occurred and
is continuing under the Lease, Tenant shall be permitted the non-exclusive use
of the Spaces during the Lease Term at such monthly rates (together with any
applicable tax thereon) and subject to such terms, conditions, and
regulations as are, from time to time, promulgated by Landlord or the manager
of the Parking Garage, as applicable, and charged or applicable to patrons of
the Parking Garage for spaces similarly situated therein. In the event the
Premises are increased or decreased during the Lease Term, the number of
Spaces available to Tenant shall likewise be increased or decreased so that
the aggregate number of spaces to which Tenant is entitled shall equal one
(1) Space for each 2,700 square feet of Rentable Area within the Premises.
Notwithstanding the foregoing, Landlord reserves the right, in its sole
discretion, to terminate Tenant's use of any or all of the Spaces located in
the 777 Clay Garage on thirty (30) days notice to Tenant.
3. TENANT'S FAILURE TO USE SPACES. In the event that Tenant (after the
Commencement Date and at any time during the Lease Term) fails to utilize all
or any of the Spaces, Landlord shall have no further obligation to make
available to Tenant the Spaces not utilized. The failure, for any reason, of
Landlord to provide or make available such Spaces to Tenant or the inability
of Tenant to utilize all or any portion of the Spaces shall under no
circumstances be deemed a default by Landlord under the Lease so as to permit
Tenant to terminate the Lease, in whole or in part.
4. RISK. All motor vehicles (including all contents thereof) shall be
parked in the Spaces at the sole risk of Tenant, its employees, agents,
invitees and licensees, it being expressly agreed and understood that
Landlord has no duty to insure any of said motor vehicles (including the
contents thereof), and that Landlord is not responsible for the protection
and security of such vehicles. Landlord shall have no liability whatsoever
for any property damage and/or personal injury which might occur as a result
of or in connection with the parking of said motor vehicles in any of the
Spaces, and Tenant hereby agrees to indemnify and hold Landlord harmless from
and against any and all costs, claims, expenses, and/or causes of action
which Landlord may incur in connection with or arising out of Tenant's use of
the Spaces pursuant to this Agreement.
5. NO BAILMENT. It is further agreed that this Parking Exhibit shall
not be deemed to create a bailment between the parties hereto, it being
expressly agreed and understood that the only relationship created between
Landlord and Tenant hereby is that of licensor and licensee, respectively.
6. RULES AND REGULATIONS. In its use of the Spaces, Tenant shall
follow all of the Rules and Regulations of the Building (attached to the
Lease as Exhibit "D") applicable thereto, any rules and regulations
promulgated by Landlord or the manager of the Parking Garage, as applicable,
as the same may be amended from time to time. Upon the occurrence of any
breach of such rules, failure to make parking rental payments due hereunder
or default by Tenant under the Lease, Landlord shall be entitled to terminate
this Parking Exhibit, in which event Tenant's right to utilize the Spaces
shall thereupon automatically cease.
7. ACCESS. Landlord shall be entitled to utilize whatever access
device Landlord deems necessary (including but not limited to the issuance of
parking stickers or access cards), to assure that only those persons who have
contracted to use spaces in the Parking Garage are using the parking spaces
therein. Landlord currently limits access to the Parking Garage through the
use of a parking entry card system, the cards for which shall be provided by
Landlord. These cards are different from and do not, without a specific
request from Tenant, entitle the holder thereof to an after-hours entry card
to the Building (pursuant to the terms of Paragraph 6(f). Landlord agrees to
provide to Tenant five (5) parking entry cards. Tenant further agrees to
surrender all parking entry cards in its possession upon the expiration or
earlier termination of this Lease. Landlord shall be entitled to cancel any
lost or stolen cards of which it becomes aware. Tenant shall promptly notify
Landlord of any lost or stolen cards. Tenant shall pay Landlord for each
additional card(s) or for each replacement card(s) for any card(s) lost by or
stolen from Tenant, in such amount as Landlord shall, from time to time
determine, the present charge for such lost or stolen cards being $10.00 per
card. Tenant acknowledges that the parking entry card may also be the same as
the master entry card used for access to the Building during other than
normal business hours, and to the extent the cards are the same, agrees that
the provisions of Paragraph 6(f) of the Lease shall also be applicable and in
the event of a conflict with the provisions of this Parking Exhibit, the
provisions of Paragraph 6(f) shall control. In the event Tenant, its agents
or employees wrongfully park in any of the Parking Garage's spaces, Landlord
shall be entitled and is hereby authorized to have any such vehicle towed
away, at Tenant's sole risk and expense, and Landlord is further authorized
to impose upon Tenant a penalty of $25.00 for each such occurrence. Tenant
hereby agrees to pay all amounts falling due hereunder upon demand therefor,
and the failure to pay any such amount shall additionally be deemed an event
of default hereunder and under the Lease, entitling Landlord to all of its
rights and remedies hereunder and thereunder.
EXHIBIT "F" TO OFFICE LEASE AGREEMENT - Page Solo
SCHEDULE 1
TO
EXHIBIT "F"
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
CALIBRE ENERGY, L.P.,
AS TENANT
BUILDING GARAGE
---------------
RESERVED SPACES
CURRENT MONTHLY
LEVEL NO. OF SPACES PRICE PER SPACE
----- ------------- ---------------
-- * $_____
-- * $_____
-- * $_____
-- * $_____
TOTAL RESERVED SPACES 0
---------
---------
UNRESERVED SPACES
TOTAL NO. CURRENT MONTHLY
OF SPACES PRICE PER SPACE
--------- ---------------
0 $______
1400 LOUISIANA GARAGE
---------------------
RESERVED SPACES
CURRENT MONTHLY
LEVEL NO. OF SPACES PRICE PER SPACE
----- ------------- ---------------
-- * $_____
-- * $_____
-- * $_____
-- * $_____
TOTAL RESERVED SPACES 0
---------
---------
UNRESERVED SPACES
TOTAL NO. CURRENT MONTHLY
OF SPACES PRICE PER SPACE
--------- ---------------
6 $50.00 (plus taxes)
777 CLAY GARAGE
---------------
RESERVED SPACES
CURRENT MONTHLY
LEVEL NO. OF SPACES PRICE PER SPACE
----- ------------- ---------------
-- * $_____
-- * $_____
-- * $_____
-- * $_____
TOTAL RESERVED SPACES 0
---------
---------
UNRESERVED SPACES
TOTAL NO. CURRENT MONTHLY
OF SPACES PRICE PER SPACE
--------- ---------------
0 $______
SCHEDULE 1 TO EXHIBIT "F" TO OFFICE LEASE AGREEMENT - Page Solo
EXHIBIT "G"
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD AND
CALIBRE ENEROY, L.P.,
AS TENANT
RIGHT OF FIRST REFUSAL
This EXHIBIT "G" ("Refusal Exhibit") describes and specifies the right of
first refusal hereby granted by Landlord to Tenant with respect to the space
within the Building described below, which right of first refusal is being
granted upon the following terms and conditions:
1. DEFINED TERM. For purposes of this Refusal Exhibit, all terms
defined in the Lease will be utilized herein without further definition.
Terms specifically applicable to this Refusal Exhibit shall have the meanings
specified in this Refusal Exhibit and shall be delineated by initial capital
letters.
2. GRANT OF RIGHT OF FIRST REFUSAL. Landlord hereby grants to Tenant a
one time right of first refusal ("Refusal Right") with respect to
approximately 2,000 square feet of Rentable Area located contiguous to the
Premises which is described on SCHEDULE 1 attached hereto and incorporated
herein by reference for all purposes ("Refusal Space") during the period
commencing on the Commencement Date and ending as of the expiration or
termination date of this Lease. Notwithstanding the foregoing, the Refusal
Right shall not be applicable during any time when there is an uncured event
of default under the Lease. Notwithstanding anything to the contrary in the
foregoing, the Refusal Right shall be subject to the rights of any tenants
presently occupying space in the Building.
3. EXERCISE OF REFUSAL RIGHT. In the event that Refusal Space in the
Building becomes available, availability, for purposes hereof, to be at the
sole determination of Landlord, and Landlord receives a bona fide offer from
a third party to lease all or a part of the Refusal Space which Landlord
desires to accept, Landlord shall so notify Tenant and shall include in such
notice the rental rate for the subject Refusal Space, expense stop, term of
the proposed Lease (together with any renewal rights being granted), and any
lease concessions to be granted. Tenant shall have five (5) days from the
receipt of such notice to notify Landlord in writing of the exercise by
Tenant of Tenant's Refusal Right with respect to the subject Refusal Space,
which shall be on the same terms and with respect to the entire space
specified in Landlord's notice. In the event that Tenant fails to so notify
Landlord within such five (5) day period, Tenant shall be deemed to have
irrevocably waived its Refusal Right with respect to the subject Refusal
Space; and Landlord shall have the right to enter into a lease with any party
with respect to that Refusal Space. In the event that Tenant elects to
exercise its Refusal Right with respect to the subject Refusal Space and does
in fact exercise such Refusal Right in the manner and within the time period
specified herein, Landlord and Tenant shall, within thirty (30) days after
Tenant delivers to Landlord notice of its election, enter into a written
amendment modifying and supplementing the Lease and containing such other
terms and provisions as Landlord may deem appropriate. In the event that
Tenant fails to enter into said amendment within such thirty (30) day period,
Tenant shall be deemed to have irrevocably waived its Refusal Right with
respect to the subject Refusal Space; and Landlord shall have the right to
enter into a lease with any party with respect to that Refusal Space. Except
as may be specifically modified in such amendment and except with respect to
the rental, expense stop, lease term, and lease concessions applicable to the
subject Refusal Space, as herein specified, the terms and provisions of the
Lease shall, on the day of delivery of the subject Refusal Space to Tenant,
automatically apply and become applicable to the subject Refusal Space; and
the subject Refusal Space, as of the date of such delivery, shall
automatically and without the necessity of further documentation, become and
be deemed to be a part of the Premises. Effective as of the date of delivery
of the subject Refusal Space to Tenant, the Rentable Area within the subject
Refusal Space shall be included within the determination of Tenant's prorate
of Basic Costs, as provided in EXHIBIT "C" to this Lease.
4. DELIVERY OF REFUSAL SPACE. Any Refusal Space shall be delivered to
Tenant vacant and unoccupied and "as is" without benefit of improvements
(except Shell Improvements, if any) unless the refusal notice specifies that
an allowance is to be granted for the improvement or refurbishment of the
subject Refusal Space, in which event Tenant will receive the allowance
specified in Landlord's notice. In the event that any improvements or
restoration work is to be incorporated into the Premises, the amendment shall
contain provisions reflecting the agreement of Landlord and Tenant with
respect thereto. Landlord shall use reasonable diligence to deliver the
subject Refusal Space on the date specified in Landlord's notice of its
availability, but in no event shall Landlord have any liability for the
failure to deliver the subject Refusal Space to Tenant on such date, nor
shall any such failure impair the validity of the Lease, extend the Lease
Term (except with respect to the subject Refusal Space, which shall be the
term specified in Landlord's notice irrespective of the Lease Term specified
in Paragraph 1 of the Lease), or impair any obligations of Tenant under the
Lease, it being understood that the Rent applicable to the subject Refusal
Space shall be abated until possession is delivered to Tenant in full
settlement of all claims that Tenant might otherwise have against Landlord by
reason of the failure to deliver possession of the subject Refusal Space to
Tenant.
5. TERMINATION OF REFUSAL RIGHT. The Refusal Right shall
automatically terminate upon (a) the termination of the Lease Term, whether by
Landlord upon the occurrence of an Event of Default or otherwise, (b) the
expiration of the time period specified in Paragraph 2 above, (c) the failure
of Tenant to exercise the Refusal Right with respect to any Refusal Space as
and within the time period specified in Paragraph 3 above, but only
with respect to the subject Refusal Space, and (d) upon the assignment,
subletting, or other transfer by Tenant, whether or not with the approval of
Landlord.
EXHIBIT "G" TO OFFICE LEASE AGREEMENT - Page Solo
SCHEDULE 1
TO
EXHIBIT "C"
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD,
AND
CALIBRE ENERGY, L.P.,
AS TENANT
REFUSAL SPACE
(FLOORPLAN)
SCHEDULE 1 TO EXHIBIT "G" TO OFFICE LEASE AGREEMENT - Page Solo
EXHIBIT "H"
-----------
TO
OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
CALIBRE ENERGY, L.P.,
AS TENANT
TEMPORARY SPACE FLOOR PLAN
--------------------------
(FLOORPLAN)
EXHIBIT "H" TO OFFICE LEASE AGREEMENT - Page Solo
FIRST AMENDMENT TO OFFICE LEASE AGREEMENT
This first Amendment to Office Lease Agreement ("Amendment"), by and
between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation and
METROPOLITAN TOWER REALTY COMPANY, a Delaware corporation (collectively,
"Landlord", and TEXSTAR PETROLEUM, L.L.C., a Texas limited liability
corporation ("Tenant"), is dated the 29th day of May, 1996.
W I T N E S S E T H :
WHEREAS, Landlord and Tenant heretofore entered into that certain office
Lease Agreement dated December 28, 1995 ("Lease"), under and pursuant to the
terms of which Tenant has leased from Landlord certain office space known as
Suite 5500 and containing approximately 5,164 square feet of Rentable Area
("Premises") in that certain office building commonly known as "FIRST
INTERSTATE BANK PLAZA" ("Building"), which is located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇, as more particularly described in the Leases; and
WHEREAS, the Tenant in the Lease was mistakenly named "Calibre Energy,
L.P.", although should have been named "TEXSTAR Petroleum, L.L.C.", and the
parties desire to correct such mistake;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein and in the Lease, the parties hereto do hereby
covenant and agree as follows:
1. DEFINED TERMS. Terms defined in the Lease and delineated herein by
initial capital letters shall have the same meaning ascribed thereto in the
Lease, except to the extent that the meaning of such term is specifically
modified by the provisions hereof. In addition, other terms not defined in
the Lease but defined herein will, when delineated with initial capital
letters, have the meanings ascribed thereto in this Amendment. Terms and
phrases which are not delineated by initial capital letters shall have the
meanings commonly ascribed thereto.
2. TENANT. The Tenant under the Lease is hereby deemed to be "TEXSTAR
Petroleum, L.L.C.", a Texas corporation, instead of "Calibre Energy, L.P.".
3. TENENT ESTOPPEL. Tenant hereby confirms and ratifies the Lease, as
amended hereby, acknowledges that Landlord is not in default under said Lease
as of the date this Amendment is executed by Tenant and accepts the Premises
"AS IS", without benefit of further improvements, and without warranty of
suitability or fitness for a particular purpose.
4. COMMISSIONS. Tenant represents and warrants that no broker has
represented it in this Amendment transaction and that no broker is owed a
commission or fee in connection with the consummation of this Amendment
transaction. Tenant hereby indemnifies and holds Landlord harmless against
any loss, claim, expense or liability with respect to any commissions or
brokerage fees claimed on account of the amendment of this Lease or expansion
of the Premises hereunder, if applicable, due to any action of Tenant. The
provisions of this Paragraph 4 shall survive the expiration of the Lease Term
or any renewal or extension thereof.
5. EFFECT OF AMENDMENT. Except as expressly amended by the provisions
hereof, the terms and provisions contained in the Lease shall continue to
govern the rights and obligations of the parties; and all provisions and
covenants in the Lease shall reamin in full force and effect as stated
therein, except to the extent specifically modified by the provisions of this
Amendment. This Amendment and the Lease shall be construed as one instrument.
NOTICE OF INDEMNIFICATION: THE PARTIES TO THIS AMENDMENT HEREBY ACKNOWLEDGE
AND AGREE THAT THIS AMENDMENT CONTAINS CERTAIN INDEMNIFICATION PROVISIONS.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment in
multiple counterparts as of the last day and year written below, but this
Amendment is intended to be effective retroactively as of December 28, 1995.
LANDLORD:
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Assistant Vice-President
Date: 5/29/96
---------------------------------------
METROPOLITAN TOWER REALTY COMPANY, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice-President
Date: 5-29-96
----------------------------------------
FIRST AMENDMENT TO OFFICE LEASE AGREEMENT - Page 1
TENANT:
TEXSTAR PETROLEUM, L.L.C.,
a Texas limited liability corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Title: Treasurer
------------------------------
Date: 5-21-96
-------------------------------
FIRST AMENDMENT TO OFFICE LEASE AGREEMENT - Page 2
SECOND AMENDMENT TO OFFICE LEASE AGREEMENT
------------------------------------------
This Second Amendment to Office Lease Agreement ("Second Amendment"), by
and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, and
METROPOLITAN TOWER REALTY COMPANY, INC., a Delaware corporation (collectively
"Landlord"), and TEXSTAR PETROLEUM, L.L.C., a Delaware corporation
("Tenant"), is dated the 25th day of October, 1996.
W I T N E S S E T H :
WHEREAS, Landlord and Tenant's predecessor in interest heretofore entered
into that certain Office Lease Agreement dated December 28, 1995 ("Original
Lease"), as amended by that certain Fist Amendment to Office Lease Agreement
dated May 29, 1996 ("First Amendment"), the Original Lease and the First
Amendment being hereinafter collectively referred to as the "Lease"; and
WHEREAS, under and pursuant to the terms of the Lease, Tenant has leased
from Landlord certain office space known as Suite 5500 and containing
approximately 5,164 square feet of Rentable Area ("Existing Premises") in
that certain office building commonly known as "FIRST INTERSTATE BANK PLAZA"
("Building"), which is located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, as more
particularly described in the Lease; and
WHEREAS, Paragraph 26 of the Lease permits Landlord upon notice to
relocate Tenant to comparable space within the Building, and having
heretofore sent prior notice to Tenant, Landlord desires to relocate Tenant
to new premises within the Building containing approximately 5,164 square
feet of Rentable Area, commonly known as Suite 3950, located on the
thirty-ninth (39th) floor of the Building ("Relocation Space"), the
approximate configuration of such Relocation Space being depicted on EXHIBIT
"A" attached hereto; and
WHEREAS, Tenant desires to add to the Relocation Premises approximately
4,958 square feet of Rentable Area on the 39th floor ("Expansion Space")
(being approximately 4,003 square feet of Usable Area, which Expansion Space
is outlined on EXHIBIT "B" attached hereto; and
WHEREAS, Landlord and Tenant desire to amend the Lease in order to
evidence their agreements with respect to the relocation of Tenant from the
Existing Space to the Relocation Space and upon the terms and conditions
hereinafter specified; and
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein and in the Lease, the parties hereto do hereby
covenant and agree as follows:
1. DEFINED TERMS. Terms defined in the Lease and delineated herein by
initial capital letters shall have the same meaning ascribed thereto in the
Lease, except to the extent that the meaning of such term is specifically
modified by the provisions hereof. In addition, other terms not defined in
the Lease but defined herein will, when delineated with initial capital
letters, have the meanings ascribed thereto in this Second Amendment. Terms
and phrases which are not delineated by initial capital letters shall have
the meanings commonly ascribed thereto.
2. RELOCATION COMMENCEMENT DATE. As used herein, the term "Relocation
Commencement Date" shall mean the earlier of the date Tenant occupies the
Relocation Space and the Expansion Space or November 23, 1996.
3. PREMISES. From and after the Relocation Commencement Date, the term
"Premises" (as defined in Paragraph 1(b) of the Lease) shall mean the
Relocation Space and the Expansion Space for all purposes including the
determination of Tenant's share of Basic Costs, and the Premises shall be
deemed to contain 10,122 square feet of Rentable Area.
4. BASE RENTAL. From and after the Relocation Commencement Date,
Paragraph 1(c) of the Lease shall be amended to provide that the Base Rental
payable by Tenant shall accrue and be payable at the rate of $14.53 per
square foot of Rentable Area in the Premises per annum being $12,256.06 per
month, as adjusted pursuant to Exhibit "C" attached to the Lease.
5. LEASE TERM. Landlord and Tenant confirm that the Lease Term is not
changing and that the Lease Term will terminate on January 31, 2001.
6. EXPENSE STOP. Landlord and Tenant confirm that the "Expense Stop"
shall continue to mean the Basic Costs (as defined in the Lease) per square
foot of Rentable Area in the Building for the calendar year 1996.
7. ALLOWANCE. "Allowance" shall mean an amount equal to the product of
$15.00 times the number of square feet of Rentable Area included in the
Premises.
8. PARKING. From and after the Relocation Commencement Date, the
parking agreement attached as Exhibit "F" to the Lease shall be amended by
changing the number of Spaces to "six (6)". Further, Schedule 1 to
Exhibit "F" shall be amended by changing the "No. of Spaces" to "6" in the
1400 Louisiana Garage.
9. COMMISSIONS. Tenant represents and warrants that no broker has
represented it in this Amendment transaction and that no broker is owed a
commission or fee in connection with the consummation of this Amendment
transaction. Tenant hereby indemnifies and holds Landlord harmless against any
loss, claim, expense or liability with respect to any commissions or
brokerage fees claimed on account of the amendment of this Lease or expansion
of the Premises hereunder, if applicable, due to any action of Tenant. The
provisions of this Paragraph 9 shall survive the expiration of the Lease Term
or any renewal or extension thereof.
10. DELETIONS. As of the date hereof, Paragraph 50 and Exhibit "M" of
the Lease, Exhibit "E" of the Lease and Exhibit "G" of the Lease shall be
deleted in their entirety and of no further force and effect.
11. TENANT ESTOPPEL. Tenant hereby confirms and ratifies the Lease, as
amended hereby, acknowledges that Landlord is not in default under said Lease
as of the date this Second Amendment is executed by Tenant and, subject to
the Workletter attached hereto as EXHIBIT "C", accepts the Premises
(including the Expansion Space) "AS IS" and without benefit of further
improvements, and without warranty of suitability or fitness for a particular
purpose.
SECOND AMENDMENT TO OFFICE LEASE AGREEMENT - Page 1
12. EFFECT OF SECOND AMENDMENT. Except as expressly amended by the
provisions hereof, the terms and provisions contained in the Lease shall
continue to govern the rights and obligations of the parties; and all
provisions and covenants in the Lease shall remain in full force and effect
as stated therein, except to the extent specifically modified by the
provisions of this Second Amendment. This Second Amendment and the Lease
shall be construed as one Instrument.
13. EXHIBITS. The following exhibits are attached hereto and
incorporated herein and made a part of this Lease for all purposes:
Exhibit "A" - Floor Plan for Relocation Space
Exhibit "B" - Floor Plan for Expansion Space
Exhibit "C" - Workletter
NOTICE OF INDEMNIFICATION: THE PARTIES TO THIS SECOND AMENDMENT HEREBY
ACKNOWLEDGE AND AGREE THAT THIS SECOND AMENDMENT (AND ATTACHED EXHIBITS)
CONTAINS CERTAIN INDEMNIFICATION PROVISIONS.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Second
Amendment in multiple counterparts as of the last day and year written below.
LANDLORD:
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Vice-President
Date: 10-25-96
----------------------------------
METROPOLITAN TOWER REALTY COMPANY, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice-President
Date: 10-25-96
----------------------------------
TENANT:
TEXSTAR PETROLEUM, L.L.C.,
a Texas limited liability corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Treasurer
---------------------------------
Date: 10-24-96
----------------------------------
SECOND AMENDMENT TO OFFICE LEASE AGREEMENT - Page 2
EXHIBIT "A"
-----------
TO
THIRD AMENDMENT TO OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
TEXSTAR PETROLEUM, L.L.C.,
AS TENANT
FLOOR PLAN OF RELOCATION SPACE
------------------------------
(FLOORPLAN)
EXHIBIT "A" TO SECOND AMENDMENT TO OFFICE LEASE AGREEMENT - Page Solo
EXHIBIT "B"
-----------
TO
THIRD AMENDMENT TO OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
TEXSTAR PETROLEUM, L.L.C.,
AS TENANT
FLOOR PLAN OF RELOCATION SPACE
------------------------------
(FLOORPLAN)
EXHIBIT "B" TO SECOND AMENDMENT TO OFFICE LEASE AGREEMENT - Page Solo
EXHIBIT "C"
TO
SECOND AMENDMENT TO OFFICE LEASE AGREEMENT BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
TEXSTAR PETROLEUM, INC.,
AS TENANT
WORKLETTER
(Allowance)
This Workletter ("Workletter") describes and specifies the rights and
obligations of Landlord and Tenant with respect to certain allowances granted
to Tenant hereunder and rights and responsibilities of Landlord and Tenant
with respect to the design, construction and payment for the completion of
the Initial Improvements within the Premises. "Premises" as used herein shall
include the Expansion Space.
1. DEFINITIONS. Terms which are defined in the Lease shall have the
same meaning in this Workletter. Additionally, as used in this Workletter,
the following terms (when delineated with initial capital letters) shall have
the respective meaning indicated for each as follows:
(a) BASIC CONSTRUCTION OF THE BUILDING shall mean the structure
of the Building as built on the date of this Workletter, the Shell
Improvements, and all other improvements, fixtures and facilities
constituting a part of the Building and/or Property, as these exist on
the date of this Workletter if the Building is complete, or as provided
for in Landlord's plans and specifications for the Building if prior to
completion.
(b) LANDLORD'S ARCHITECT shall mean the architect designated by
Landlord as its architect, from time to time, to perform the functions
of Landlord's Architect hereunder.
(c) PLANS AND SPECIFICATIONS shall mean collectively, the plans,
specifications and other information prepared or to be prepared by
Tenant's Architect and, where necessary, by Landlord's electrical,
mechanical and structural engineers, all at Tenant's expense, which
shall detail the Work required by Tenant in the Premises and which
shall be approved in writing by both Tenant and Landlord prior to the
commencement of such Work.
(d) TENANT'S ARCHITECT shall mean Architectural and Engineering
Associates, who is an architect licensed to practice in the State of
Texas.
(e) WORK shall mean all materials and labor to be added to the
Basic Construction of the Building and the Shell Improvements in order
to complete the installation of the Initial Improvements within the
Premises for Tenant in accordance with the Plans and Specifications,
including, without limitation any modification to Basic Construction of
the Building or to the Shell Improvements, any structural modifications
to the Building, any electrical or plumbing work required to meet Tenant's
electrical and plumbing requirements, and any special air conditioning
work required to be performed in the Premises. In addition, "Work" shall
include all reasonable costs associated with relocating Tenant from the
55th floor to the 39th floor.
(f) COST OF THE WORK shall mean the cost of all materials and
labor to be added to the Basic Construction of the Building and the Shell
Improvements in order to complete the installation of the Initial
Improvements within the Premises in accordance with the Plans and
Specifications.
(g) LANDLORD'S COSTS shall mean the sum of (i) the cost of the
Shell Improvements and (ii) that portion of the Cost of the Work up
to, but not in excess of, the aggregate amount of the Allowance.
(h) TENANT'S COSTS shall mean that portion of the Cost of the
Work in excess of Landlord's Costs.
(i) CHANGE COSTS shall mean all costs or expenses attributable to
any change in the Plans and Specifications which, when added to other
costs and expenses incurred in completing the Work, exceed Landlord's
Costs, including, without limitation, (i) any cost caused by direction
of Tenant to omit any item of Work contained in the Plans and
Specifications, (ii) any additional architectural or engineering services,
(iii) any changes to materials in the process of fabrication, (iv) the
cancellation or modification of supply or fabricating contracts, (v) the
removal or alteration of any Work or any plans completed or in process, or
(vi) delays affecting the schedule of the Work.
(j) WORKING DAYS shall mean all days of the week other than
Saturday, Sunday, and legal holidays.
2. PROCEDURE AND SCHEDULES FOR THE COMPLETION OF PLANS AND
SPECIFICATIONS. The Plans and Specifications shall be completed in accordance
with the following procedure and time schedules:
(a) DESIGN DRAWINGS. Within ten (10) Working Days from execution
of the Lease, Tenant shall submit to Landlord four (4) sets of prints of
design drawings, specifying the intended design, character and finishing of
the Initial Improvements within the Premises. Such package shall include
separate drawings for signs in accordance with Landlord's sign criteria. The
design drawings shall set forth the requirements of Tenant with respect to
the installation of the Initial Improvements within the Premises, and such
drawings shall include, without limiting their scope, a Tenant approved space
plan, architectural design of the space, including office front, plans,
elevations, sections, and renderings indicating materials, color selections
and finishes.
(i) After receipt of design drawings, Landlord shall
return to Tenant one set of prints of design drawings with Landlord's
suggested modifications and/or approval.
(ii) If design drawings are returned to Tenant with comments,
but not bearing approval of Landlord, the design drawings shall be
immediately revised by Tenant and resubmitted to Landlord for
approval within ten (10) Working Days of their receipt by Tenant.
Unless such action is taken, Tenant will be deemed to have
accepted and approved all of Landlord's comments on the design
drawings.
EXHIBIT "C" TO SECOND AMENDMENT TO OFFICE LEASE AGREEMENT - Page 1
(b) COMPLETION OF PLANS AND SPECIFICATIONS. All Plans and
Specifications shall be prepared in strict compliance with applicable
Building standards and requirements as set forth in the Lease, this
Workletter and otherwise, and shall also adhere to the design drawings
approved by Landlord. In order to assure the compatibility of Tenant's
electrical and mechanical systems and the compatibility of Tenant's
structural requirements with the existing Building and in order to
expedite the preparation of Tenant's electrical, mechanical and
structural drawings, Tenant or Tenant's Architect shall deliver to
Landlord's Architect, not later than ten (10) Working Days from the date
of Landlord's approval of design drawings, a detailed plan setting forth
any and all electrical, mechanical and structural requirements, and
Landlord's Architect shall retain, at Tenant's expense, Landlord's
electrical, mechanical and structural engineers to prepare all necessary
electrical, mechanical and structural construction drawings which shall
be included as a part of the Plans and Specifications. All construction
documents and calculations prepared by Tenant's Architect shall be
submitted by Tenant, in the form of four (4) sets of blueline prints, to
Landlord for approval within ten (10) Working Days after the date of
receipt by Tenant of Landlord's approval of design drawings. If the
Plans and Specifications are returned to Tenant with comments, but not
bearing approval of Landlord, the Plans and Specifications shall be
immediately revised by Tenant and resubmitted to Landlord for approval
within ten (10) Working Days of their receipt by Tenant.
(i) The fees for Tenant's Architect and any consultants or
engineers retained by or on behalf of Tenant or Tenant's Architect
(including, but not limited to, the electrical, mechanical and
structural engineers required to be retained under this paragraph)
shall be paid by Tenant. Tenant shall also pay for any preliminary
drawings by Landlord's Architect for review of the design drawings,
the Plans and Specifications, and any revisions to such documents,
and the fees and expenses of Landlord's Architect for inspection of
the Work, as required by Landlord.
(ii) Tenant shall have the sole responsibility for
compliance of the Plans and Specifications with all applicable
statutes, codes, ordinances and other regulations, and the approval
of the Plans and Specifications or calculations included therein by
Landlord shall not constitute an indication, representation or
certification by Landlord that such Plans and Specifications or
calculations are in compliance with said statutes, codes,
ordinances and other regulations. In instances where several sets
of requirements must be met, the requirements of Landlord's
insurance underwriter or the strictest applicable requirements
shall apply where not prohibited by applicable codes.
(iii) Upon completion of the Initial Improvements, if so
required by Landlord, Tenant shall deliver to Landlord an
"as-built" set of Plans and Specifications for the Premises,
together with such other information required by Landlord to place
the information from the "as-built" Plans and Specifications on to
Landlord's data base; the cost of providing the "as-built" Plans
and Specifications and other information, together with Landlord's
cost to place the information on to Landlord's date base, shall be
born solely by Tenant.
3. PRICING. On or before the date which is ten (10) Working Days after
finalization of the Plans and Specifications, as evidenced by Landlord's
written approval thereof, Landlord shall notify Tenant in writing of the Cost
of the Work. The contract for the Work shall obligate the contractor to
purchase from Landlord all materials and supplies which are held in "stock"
by Landlord and which are required for the Work by the Plans and
Specifications. Within ten (10) Working Days after its receipt of Landlord's
written notice identifying the Cost of the Work, Tenant shall either approve
such Cost of the Work in writing or cause the Plans and Specifications to be
revised and resubmitted to Landlord for Approval. On or before the date which
is ten (10) Working Days from Landlord's receipt of such revised Plans and
Specifications, Landlord shall either approve the revised Plans and
Specifications and give to Tenant a revised Cost of the Work or give to
Tenant Landlord's comments on such revised Plans and Specifications. If for
any reason Landlord and Tenant have not agreed in writing upon final Plans
and Specifications and/or the Tenant has not approved in writing the Cost of
the Work on or before the date which is ten (10) Working Days from the date
hereof, then Landlord shall have the right to terminate the Lease and this
Workletter, without further obligation.
4. PAYMENTS. Tenant may use up to that part of the Allowance up to an
amount equal to one dollar ($1.00) per square foot of Rentable Area of the
Premises for the payment of fees and expenses payable by Tenant under the
terms of Paragraph 2(b)(1) of this Workletter. Tenant shall pay the aggregate
amount of Tenant's Costs to Landlord upon demand. Landlord shall determine
the percentage of the Cost of the Work which is allocable to Landlord and the
percentage of the Cost of the Work which is allocable to Tenant. Landlord
shall also revise its determination of such percentages based on any changes
in the Cost of the Work due to change orders affecting the Plans and
Specifications. Within ten (10) days after Tenant's receipt of an invoice
from Landlord which identifies that portion of the Cost of the Work to be
incurred, respectively, by Landlord and Tenant, Tenant shall pay to Landlord
the percentage of the Cost of the Work allocable to Tenant, as Tenant's
Costs, as determined by Landlord from time to time. Landlord's obligation for
payment with respect to the Work shall not exceed the aggregate amount of
Landlord's Costs; and after Landlord has paid Landlord's Costs, Tenant shall
thereafter pay all Cost of the Work as and when invoiced to Tenant by
Landlord, including, without limitation, any Change Costs. The amounts
payable to Landlord hereunder shall constitute Rent due pursuant to the Lease,
and failure to make any such payment when due shall constitute a default
under the Lease, entitling Landlord to exercise any or all of its remedies
hereunder, as well as all remedies otherwise available to Landlord. Any cost
savings achieved after completion of the Work shall be solely the property of
Landlord, not Tenant.
5. PERFORMANCE OF WORK AND DELAYS. Landlord shall cause the Contractor
to perform the Work in substantial accordance with the Plans and
Specifications. In that regard, Landlord shall perform as construction
manager for the construction of the Initial Improvements in accordance with
the Plans and Specifications. If a delay shall occur in the completion of the
Work by Landlord as the probable result of (i) any failure to furnish when
due Tenant's design drawings, Tenant's electrical, mechanical and/or
structural requirements, Tenant's Plans and Specifications or any revision to
any such documents, (ii) any change by Tenant in any of the Plans and
Specifications, (iii) any state of facts which gives rise to a change
referred to in the definition of Change Costs or any changes resulting in a
Change Cost, (iv) the fact that materials to be incorporated into the Work
which are non-Building Grade require a lead time (not due to Landlord default
or error) to obtain or construction time to perform, in excess of that
required for work which is Building Grade, as determined by Landlord, or (v)
any other act or omission of Tenant, its agents or employees, including any
violation of the provisions of the Lease or any delay in giving
authorizations or approvals pursuant to this Workletter, then any such delay
shall not justify any extension of the Commencement Date of the Lease.
6. CHANGE ORDERS. All changes and modifications in the Work from that
contemplated in the Plans and Specifications, whether or not such change or
modification gives rise to a Change Cost, must be evidenced by a written
Change Order executed by both Landlord and Tenant. In that regard, Tenant
shall submit to Landlord such information as Landlord shall require with
respect to any Change Order requested by Tenant. After receipt
EXHIBIT "C" TO SECOND AMENDMENT TO OFFICE LEASE AGREEMENT - Page 2
of requested Change Order, together with such information as Landlord shall
require with respect thereto, Landlord shall return to Tenant either the
executed Change Order, which will evidence Landlord's approval thereof, or
the Plans and Specifications with respect thereto with Landlord's suggested
modification.
7. PUNCHLIST. Within thirty (30) days after the Commencement Date,
Tenant shall give Landlord written notice specifying any details of
construction, decoration or mechanical adjustment which remain to be
performed by Landlord with respect to any Work; and except for the details
contained in such written notice from Tenant, all obligations of Landlord in
regard to the Work shall be deemed to have been satisfied. Landlord shall
have the right to enter the Premises to complete any such unfinished details,
and entry by Landlord, its agents, servants, employees or contractors for
such purpose shall not relieve Tenant of any of its obligations under the
Lease or impose any liability on Landlord or its agents, servants, employees
or contractors.
8. WHOLE AGREEMENT; NO ORAL MODIFICATION. This Workletter embodies all
representations, warranties and agreements of Landlord and Tenant with
respect to the matter described herein, and this Workletter may not be
altered or modified except by an agreement in writing signed by the parties.
9. PARAGRAPH HEADINGS. The paragraph headings contained in this
Workletter are for convenient reference only and shall not in any way affect
the meaning or interpretation of such paragraphs.
10. NOTICES. All notices required or contemplated hereunder shall be
given to the parties in the manner specified for giving notices under the
Lease.
11. BINDING EFFECT. This Workletter shall be construed under the laws of
the State of Texas and shall be binding upon and shall inure to the benefit
of the parties hereto and their respective permitted successors and assigns.
12. CONFLICT. In the event of conflict between this Workletter and any
other exhibits or addenda to this Lease, this Workletter shall prevail.
EXHIBIT "C" TO SECOND AMENDMENT TO OFFICE LEASE AGREEMENT - Page 3
THIRD AMENDMENT TO OFFICE LEASE
This Third Amendment to Office Lease ("Amendment"), by and between
METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, METROPOLITAN
TOWER REALTY COMPANY, INC., a Delaware corporation (collectively,
"Landlord"), and TEXSTAR PETROLEUM, L.L.C., a Texas limited liability
corporation ("Tenant"), is dated the 27th day of October, 1997 ("Effective
Date").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant's predecessor in interest heretofore entered
into that certain Office Lease Agreement dated December 28, 1995 ("Original
Lease"), as amended by that certain First Amendment to Office Lease Agreement
dated May 29, 1996 ("First Amendment") and as further amended by that certain
Second Amendment to Office Lease Agreement dated October 25, 1996 ("Second
Amendment"), the Original Lease, the First Amendment and the Second Amendment
being hereinafter collectively referred to as the "Lease"; and
WHEREAS, under and pursuant to the terms of the Lease, Tenant has leased
from Landlord certain office space known as Suite 3950 containing
approximately 10,122 square feet of Rentable Area ("Existing Premises") in
that certain office building commonly known as "▇▇▇▇▇ Fargo Plaza" (formerly
known as "First Interstate Bank Plaza") ("Building"), which is located at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, as more particularly described in the Lease;
and
WHEREAS, Paragraph 26 of the Lease permits Landlord, upon notice, to
relocate Tenant to comparable space within the Building, Landlord desires to
relocate Tenant to new premises within the Building containing approximately
10,122 square feet of Rentable Area, commonly known as Suite 1500, located on
the fifteenth (15th) floor of the Building ("Relocation Space"), which
Relocation Space is outlined on EXHIBIT "A" attached hereto; and
WHEREAS, Tenant desires to add to the Relocation Space approximately
14,969 square feet of Rentable Area on the fifteenth (15th) floor ("Expansion
Space"), which Expansion Space is outlined on EXHIBIT "B" attached hereto; and
WHEREAS, the Lease Term is scheduled to expire on January 31, 2001, and
Landlord and Tenant desire that the Lease Term be extended as and upon the
terms and conditions hereinafter specified; and
WHEREAS, Landlord and Tenant desire to amend the Lease in order to
evidence their agreements with respect to the relocation of Tenant from the
Existing Premises to the Relocation Space and upon the terms and conditions
hereinafter specified;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein and in the Lease, the parties hereto do hereby
covenant and agree as follows:
1. DEFINED TERMS. Terms defined in the Lease and delineated herein by
initial capital letters shall have the same meaning ascribed thereto in the
Lease, except to the extent that the meaning of such term is specifically
modified by the provisions hereof. In addition, other terms not defined in
the Lease but defined herein will, when delineated with initial capital
letters, have the meanings ascribed thereto in this Amendment. Terms and
phrases which are not delineated by initial capital letters shall have the
meanings commonly ascribed thereto.
2. CONDITION PRECEDENT. Tenant understands that Landlord is currently
negotiating another lease with a third party for space on the thirty-ninth
(39) floor of the Building (the "New Lease"). Landlord and Tenant agree that
this Termination Agreement is subject to the condition precedent of Landlord
entering into a valid and effective New Lease with a third party, failing
which this Termination Agreement shall not become effective.
3. RELOCATION AND EXPANSION COMMENCEMENT DATE. As used herein, the term
"Relocation and Expansion Commencement Date" shall mean the earlier of the
date Tenant occupies the Relocation Space and the Expansion Space or
February 1, 1998.
4. PREMISES. From and after the Relocation and Expansion Commencement
Date, the term "Premises" (as defined in Paragraph 1(b) of the Lease, as
amended) shall mean the Relocation Space and the Expansion Space for all
purposes including the determination of Tenant's share of Basic Costs, and
the Premises shall be deemed to contain 25,091 square feet of Rentable Area.
3. EXPANSION SPACE TERM. The term for the Expansion Space shall mean a
term commencing on the Relocation and Expansion Commencement Date and
continuing for approximately sixty (60) full calendar months ("Expansion
Space Term"), but in any event expiring on the same date as the Second Lease
Term (as defined below), which is January 31, 2003.
4. LEASE TERM. The Lease Term is hereby extended by a period beginning
on February 1, 2001 and continuing for approximately twenty-four (24) full
calendar months ("Second Lease Term"), and shall terminate at midnight on
January 31, 2003. The term Lease Term shall be deemed to include the Second
Lease Term.
5. BASE RENTAL. From and after the Relocation and Expansion
Commencement Date, Paragraph 1(c) of the Lease shall be amended to provide
that the Base Rental payable by Tenant shall accrue and be payable at the
rate of $15.79 per square foot of Rentable Area in the Premises per
annum being $33,015.57 per month, as adjusted pursuant to Exhibit "C" attached
to the Lease.
THIRD AMENDMENT TO OFFICE LEASE - Page 1
6. ALLOWANCE. "Allowance" as more particularly described in the
Workletter attached hereto as EXHIBIT "C", shall mean an amount equal to the
product of $18.00 times the number of square feet of Rentable Area included
in the Premises.
7. PARKING. From and after the Relocation and Expansion Commencement
Date, the parking agreement attached to the Lease as EXHIBIT "F" shall be
deleted in its entirety and replaced with EXHIBIT "D" attached hereto.
8. TELEPHONE SERVICES. All telegraph, telephone, and electric
connections which Tenant may desire shall be first approved by Landlord in
writing, before the same are installed, and the location of all wires and the
work in connection therewith shall be performed by contractors approved by
Landlord and shall be subject to the direction of Landlord. Landlord reserves
the right to designate and control the entity or entities providing telephone
or other communication cable installation, repair and maintenance in the
Building and to restrict and control access to telephone cabinets. In the
event Landlord designates a particular vendor or vendors to provide such
cable installation, repair and maintenance for the Building. Tenant agrees to
abide by and participate in such program. Except for the costs associated
with the relocation of Tenant's phone system from the 39th floor to the 15th
floor which Landlord shall pay. Tenant shall be responsible for and shall pay
all costs incurred in connection with the installation of telephone cables
and related wiring in the Premises, including, without limitation, any
hook-up, access and maintenance fees related to the installation of such
wires and cables in the Premises and the commencement of service therein, and
the maintenance thereafter of such wire and cables; and there shall be
included in Operating Expenses for the Building all installation, hook-up or
maintenance costs incurred by Landlord in connection with telephone cables
and related wiring in the Building which are not allocable to any individual
users of such service but are allocable to the Building generally. If Tenant
fails to maintain all telephone cables and related wiring in the Premises and
such failure affects or interferes with the operation or maintenance of any
other telephone cables or related wiring in the Building, Landlord or any
vendor hired by Landlord may enter into and upon the Premises forthwith and
perform such repairs, restorations or alterations as Landlord deems necessary
in order to eliminate any such interference (and Landlord may recover from
Tenant all of Landlord's costs in connection therewith). Upon the Termination
Date, Tenant agrees to remove all telephone cables and related wiring
installed by Tenant for and during Tenant's occupancy, which Landlord shall
request Tenant to remove. Tenant agrees that neither Landlord nor any of its
agents or employees shall be liable to Tenant, or any of Tenant's employees,
agents, customers or invitees or anyone claiming through, by or under Tenant,
for any damages, injuries, losses, expenses, claims or causes of action
because of any interruption, diminution, delay or discontinuance at any time
for any reason in the furnishing of any telephone service to the Premises and
the Building.
9. COMMISSIONS. Tenant represents and warrants that no broker has
represented it in this Third Amendment transaction and that no broker is owed
a commission or fee in connection with the consummation of this Third
Amendment transaction. Tenant hereby indemnifies and holds Landlord harmless
against any loss, claim, expense or liability with respect to any commissions
or brokerage fees claimed on account of the amendment of this Lease due to
any action of Tenant. The provisions of this Paragraph 8 shall survive the
expiration of the Lease Term or any renewal or extension thereof.
10. EFFECT OF AMENDMENT. Except as expressly amended by the provisions
hereof, the terms and provisions contained in the Lease shall continue to
govern the rights and obligations of the parties; and all provisions and
covenants in the Lease shall remain in full force and effect as stated
therein, except to the extent specifically modified by the provisions of this
Third Amendment. This Third Amendment and the Lease shall be construed as one
instrument.
NOTICE OF INDEMNIFICATION. THE PARTIES TO THIS AMENDMENT HEREBY ACKNOWLEDGE
AND AGREE THAT THIS AMENDMENT AND ATTACHED EXHIBITS CONTAINS CERTAIN
INDEMNIFICATION PROVISIONS.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Third
Amendment in multiple counterparts as of the last day and year written below.
LANDLORD:
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Assistant Vice-President
Date : 10-27-97
-----------------------------
METROPOLITAN TOWER REALTY COMPANY, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice-President
Date : 10-27-97
--------------------------------
THIRD AMENDMENT TO OFFICE LEASE - Page 2
TENANT:
TEXSTAR PETROLEUM, L.L.C.,
a Texas corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: Treasurer
----------------------------
Date: 10-14-97
-----------------------------
THIRD AMENDMENT TO OFFICE LEASE - Page 3
EXHIBIT "A"
-----------
TO
THIRD AMENDMENT TO OFFICE LEASE BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
TEXSTAR PETROLEUM, L.L.C.,
AS TENANT
PLAN OF RELOCATION SPACE
------------------------
(FLOORPLAN)
EXHIBIT "A" TO THIRD AMENDMENT TO OFFICE LEASE - Page Solo
EXHIBIT "B"
-----------
TO
THIRD AMENDMENT TO OFFICE LEASE BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
TEXSTAR PETROLEUM, L.L.C.,
AS TENANT
PLAN OF EXPANSION SPACE
-----------------------
(FLOORPLAN)
EXHIBIT "B" TO THIRD AMENDMENT TO OFFICE LEASE - Page Solo
EXHIBIT "C"
TO
THIRD AMENDMENT TO OFFICE LEASE BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
TEXSTAR PETROLEUM, L.L.C.,
AS TENANT
WORKLETTER
(Allowance)
This Workletter ("Workletter") describes and specifies the rights and
obligations of Landlord and Tenant with respect to certain allowances granted
to Tenant hereunder and rights and responsibilities of Landlord and Tenant
with respect to the design, construction and payment for the completion of
the Initial Improvements within the Premises.
1. DEFINITIONS. Terms which are defined in the Lease shall have the
same meaning in this Workletter. Additionally, as used in this Workletter,
the following terms (when delineated with initial capital letters) shall have
the respective meaning indicated for each as follows:
(a) BASIC CONSTRUCTION OF THE BUILDING shall mean the structure of
the Building as built on the date of this Workletter, the Shell
Improvements, and all other improvements, fixtures and facilities
constituting a part of the Building and/or Property, as these exist on the
date of this Workletter if the Building is complete, or as provided for
in Landlord's plans and specifications for the Building if prior to
completion.
(b) LANDLORD'S ARCHITECT shall mean the architect designated by
Landlord as its architect, from time to time, to perform the functions
of Landlord's Architect hereunder.
(c) PLANS AND SPECIFICATIONS shall mean collectively, the plans,
specifications and other information prepared or to be prepared by
Tenant's Architect and, where necessary, by Landlord's electrical,
mechanical and structural engineers, all at Tenant's expense, which shall
detail the Work required by Tenant in the Premises and which shall be
approved in writing by both Tenant and Landlord prior to the commencement
of such Work. The Plans and Specifications shall comply with the minimum
requirements established by Landlord.
(d) TENANT'S ARCHITECT shall mean ______________________________,
who is an architect licensed to practice in the state of Texas.
(e) WORK shall mean all materials and labor to be added to the
Basic Construction of the Building and the Shell Improvements in order
to complete the installation of the Initial Improvements within the
Premises for Tenant in accordance with the Plans and Specifications,
including, without limitation any modification to Basic Construction of
the Building or to the Shell Improvements, any structural modifications
to the Building, any electrical or plumbing work required to meet Tenant's
electrical and plumbing requirements, and any special air conditioning
work required to be performed in the Premises.
(f) COST OF THE WORK shall mean the cost of all materials and
labor to be added to the Basic Construction of the Building and the Shell
Improvements in order to complete the installation of the Initial
Improvements within the Premises in accordance with the Plans and
Specifications.
(g) LANDLORD'S COSTS shall mean the sum of that portion of the
Cost of the Work up to, but not in excess of, the aggregate amount of
the Allowance.
(h) TENANT'S COSTS shall mean that portion of the Cost of the Work
in excess of Landlord's Costs.
(i) CHANGE COSTS shall mean all costs or expenses attributable to
any change in the Plans and Specifications which, when added to other
costs and expenses incurred in completing the Work, exceed Landlord's
Costs, including, without limitation, (i) any cost caused by direction of
Tenant to omit any item of Work contained in the Plans and Specifications,
(ii) any additional architectural or engineering services, (iii) any
changes to materials in the process of fabrication, (iv) the cancellation
or modification of supply or fabricating contracts, (v) the removal or
alteration of any Work or any plans completed or in process, or (vi)
delays affecting the schedule of the Work.
(j) WORKING DAYS shall mean all days of the week other than
Saturday, Sunday, and legal holidays.
(k) CONTRACTOR shall mean the general contractor selected by
Landlord to perform the Work. Landlord reserves the right to replace
the initial Contractor and/or to engage other contractors.
EXHIBIT "C" TO THIRD AMENDMENT TO OFFICE LEASE - Page 1
2. PROCEDURE AND SCHEDULES FOR THE COMPLETION OF PLANS AND
SPECIFICATIONS. The Plans and Specifications shall be completed in accordance
with the following procedure and time schedules:
(a) DESIGN DRAWINGS. Within ten (10) Working Days from execution
of the Lease, Tenant shall submit to Landlord four (4) sets of prints of
design drawings, specifying the intended design, character and finishing
of the Initial Improvements within the Premises. Such package shall
include separate drawings for signs in accordance with Landlord's sign
criteria. The design drawings shall set forth the requirements of Tenant
with respect to the installation of the Initial Improvements within the
Premises, and such drawings shall include, without limiting their scope,
a Tenant approved space plan, architectural design of the space,
including office front, plans, elevations, sections, and renderings
indicating materials, color selections and finishes.
(i) After receipt of design drawings, Landlord shall return
to Tenant one set of prints of design drawings with Landlord's
suggested modifications and/or approval.
(ii) If design drawings are returned to Tenant with comments,
but not bearing approval of Landlord, the design drawings shall be
immediately revised by Tenant and resubmitted to Landlord for approval
within ten (10) Working Days of their receipt by Tenant. Unless such
action is taken, Tenant will be deemed to have accepted and approved
all of Landlord's comments on the design drawings.
(b) COMPLETION OF PLANS AND SPECIFICATIONS. All Plans and
Specifications shall be prepared in strict compliance with applicable
Building standards and requirements as set forth in the Lease, this
Workletter and otherwise, and shall also adhere to the design drawings
approved by Landlord. In order to assure the compatibility of Tenant's
electrical and mechanical systems and the compatibility of Tenant's
structural requirements with the existing Building and in order to
expedite the preparation of Tenant's electrical, mechanical and
structural drawings, Tenant or Tenant's Architect shall deliver to
Landlord's approval of design drawings, a detailed plan setting forth
any and all electrical, mechanical and structural requirements, and
Landlord's Architect shall retain, at Tenant's expense. Landlord's
electrical, mechanical and structural engineers to prepare all necessary
electrical, mechanical and structural construction drawings which shall
be included as a part of the Plans and Specifications. All construction
documents and calculations prepared by Tenant's Architect shall be
submitted by Tenant, in the form of four (4) sets of blueline prints, to
Landlord for approval within ten (10) Working Days after the date of
receipt by Tenant of Landlord's approval of design drawings. If the
Plans and Specifications are returned to Tenant with comments, but not
bearing approval of Landlord, the Plans and Specifications shall be
immediately revised by Tenant and resubmitted to Landlord for approval
within ten (10) Working Days of their receipt by Tenant.
(i) The fees for Tenant's Architect and any consultants
or engineers retained by or on behalf of Tenant or Tenant's
Architect (including, but not limited to, the electrical,
mechanical and structural engineers required to be retained under
this paragraph) shall be paid by Tenant. Tenant shall also pay for
any preliminary drawings by Landlord's Architect for review of the
design drawings, the Plans and Specifications, and any revisions to
such documents, and the fees and expenses of Landlord's Architect
for inspection of the Work, as required by Landlord.
(ii) Tenant shall have the sole responsibility for
compliance of the Plans and Specifications with all applicable
statutes, codes, ordinances and other regulations, and the approval
of the Plans and Specifications or calculations included therein by
Landlord shall not constitute an indication, representation or
certification by Landlord that such Plans and Specifications or
calculations are in compliance with said statutes, codes, ordinances
and other regulations. In instances where several sets of
requirements must be met, the requirements of Landlord's insurance
underwriter or the strictest applicable requirements shall apply
where not prohibited by applicable codes.
(iii) Upon completion of the Initial Improvements, if so
required by Landlord, Tenant shall deliver to Landlord an
"as-built" set of Plans and Specifications for the Premises,
together with such other information required by Landlord to place
the information from the "as-built" Plans and Specifications on to
Landlord's data base; the cost of providing the "as-built" Plans
and Specifications and other information, together with Landlord's
cost to place the information on to Landlord's data base, shall be
borne solely by Tenant.
3. PRICING. On or before the date which is ten (10) Working Days after
finalization of the Plans and Specifications, as evidenced by Landlord's
written approval thereof, Landlord shall notify Tenant in writing of the Cost
of the Work. The contract for the Work shall obligate the Contractor to
purchase from Landlord all materials and supplies which are held in "stock"
by Landlord and which are required for the Work by the Plans and
Specifications. Within ten (10) Working Days after its receipt of Landlord's
written notice identifying the Cost of the Work, Tenant shall either approve
such Cost of the Work in writing or cause the Plans and Specifications to be
revised and resubmitted to Landlord for Approval. On or before the date which
is ten (10) Working Days from Landlord's receipt of such revised Plans and
Specifications, Landlord shall either (i) notify Tenant that Landlord
approves the revised Plans and
EXHIBIT "C" TO THIRD AMENDMENT TO OFFICE LEASE - Page 2
Specifications and give to Tenant a revised Cost of the Work or (ii) notify
Tenant of Landlord's comments on such revised Plans and Specifications. If
for any reason Landlord and Tenant have not agreed in writing upon final
Plans and Specifications and/or the Tenant has not approved in writing the
Cost of the Work on or before the date which is ten (10) Working Days from
the date of Landlord's notice referenced in the prior sentence, then Landlord
shall have the right to terminate the Lease and this Workletter, without
further obligation.
4. PAYMENTS. Tenant may use that part of the Allowance up to an amount
equal to One Dollar ($1.00) per square foot of Rentable Area of the Premises
for the payment of fees and expenses payable by Tenant under the terms of
Paragraph 2(b)(i) of this Workletter. Tenant shall pay the aggregate amount
of Tenant's Costs to Landlord upon demand. Landlord shall determine the
percentage of the Cost of the Work which is allocable to Landlord and the
percentage of the Cost of the Work which is allocable to Tenant. Landlord
shall also revise its determination of such percentages based on any changes
in the Cost of the Work due to change orders affecting the Plans and
Specifications. With ten (10) days after Tenant's receipt of an invoice from
Landlord which identifies that portion of the Cost of the Work to be
incurred, respectively, by Landlord and Tenant, Tenant shall pay to Landlord
the percentage of the Cost of the Work allocable to Tenant, as Tenant's
Costs, as determined by Landlord from time to time. Landlord's obligation for
payment with respect to the Work shall not exceed the aggregate amount of
Landlord's Costs; and after Landlord has paid Landlord's Costs. Tenant shall
thereafter pay all Cost of the Work as and when invoiced to Tenant by
Landlord, including, without limitation, any Change Costs. The amounts
payable to Landlord hereunder shall constitute Rent due pursuant to the
Lease, and failure to make any such payment when due shall constitute a
default under the Lease, entitling Landlord to exercise any or all of its
remedies hereunder, as well as all remedies otherwise available to Landlord.
Any cost savings achieved after completion of the Work shall be solely the
property of Landlord, not Tenant.
5. PERFORMANCE OF WORK AND DELAYS. Landlord shall cause the Contractor
to perform the Work in substantial accordance with the Plans and
Specifications. In that regard, Landlord shall perform as construction
manager for the construction of the Initial Improvements in accordance with
the Plans and Specifications. If a delay shall occur in the completion of the
Work by Landlord as the probable result of (i) any failure to furnish when
due Tenant's design drawings, Tenant's electrical, mechanical and/or
structural requirements, Tenant's Plans and Specifications or any revision to
any such documents, (ii) any change by Tenant in any of the Plans and
Specifications, (iii) any state of facts which gives rise to a change
referred to in the definition of Change Costs or any changes resulting in a
Change Cost, (iv) the fact that materials to be incorporated into the Work
which are non-Building Grade require a lead time (not due to Landlord default
or error) to obtain or construction time to perform, in excess of that
required for Work which is Building Grade, as determined by Landlord, or (v)
any other act or omission of Tenant, its agents or employees, including any
violation of the provisions of the Lease or any delay in giving
authorizations or approvals pursuant to this Workletter, then any such delay
shall not justify any extension of the Commencement Date of the Lease.
6. CHANGE ORDERS. All changes and modifications in the Work from that
contemplated in the Plans and Specifications, whether or not such change or
modification gives rise to a Change Cost, must be evidenced by a written
Change Order executed by both Landlord and Tenant. In that regard, Tenant
shall submit to Landlord such information as Landlord shall require with
respect to any Change Order requested by Tenant. After receipt of requested
Change Order, together with such information as Landlord shall require with
respect thereto, Landlord shall return to Tenant either the executed Change
Order, which will evidence Landlord's approval thereof, or the Plans and
Specifications with respect thereto with Landlord's suggested modification.
7. PUNCHLIST. Within thirty (30) days after the Commencement Date,
Tenant shall give Landlord written notice specifying any details of
construction, decoration or mechanical adjustment which remain to be
performed by Landlord with respect to any Work; and except for the details
contained in such written notice from Tenant, all obligations of Landlord in
regard to the Work shall be deemed to have been satisfied. Landlord shall
have the right to enter the Premises to complete any such unfinished details,
and entry by Landlord, its agents, servants, employees or contractors for
such purpose shall not relieve Tenant of any of its obligations under the
Lease or impose any liability on Landlord or its agents, servants, employees
or contractors.
8. WHOLE AGREEMENT; NO ORAL MODIFICATION. This Workletter embodies all
representations, warranties and agreements of Landlord and Tenant with
respect to the matter described herein, and this Workletter may not be
altered or modified except by an agreement in writing signed by the parties.
9. PARAGRAPH HEADINGS. The paragraph headings contained in this
Workletter are for convenient reference only and shall not in any way affect
the meaning or interpretation of such paragraphs.
10. NOTICES. All notices required or contemplated hereunder shall be
given to the parties in the manner specified for giving notices under the
Lease.
11. BINDING EFFECT. This Workletter shall be construed under the laws
of the State of Texas and shall be binding upon and shall inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
12. CONFLICT. In the event of conflict between this Workletter and any
other exhibits or addenda to this Lease, this Workletter shall prevail.
EXHIBIT "C" TO THIRD AMENDMENT TO OFFICE LEASE - Page 3
EXHIBIT "C" TO THIRD AMENDMENT TO OFFICE LEASE - Page 4
EXHIBIT "D"
TO
THIRD AMENDMENT TO OFFICE LEASE BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
TEXSTAR PETROLEUM, L.L.C.,
AS TENANT
PARKING
This EXHIBIT "D" ("Parking Exhibit") describes and specifies Tenant's
non-exclusive right to use seventeen (17) unreserved parking spaces and the
exclusive right to use zero (0) reserved parking space ("Space") located on
such levels inside one or more of the Building's parking garages as set forth
on SCHEDULE 1 attached to this Parking Exhibit and incorporated herein by
reference, all upon the terms and conditions set forth below. The parking
garage beneath the Building shall be referred to as the "Building Garage."
The parking garage located at 1400 Louisiana shall be referred to as the
"1400 Louisiana Garage." The Building Garage and 1400 Louisiana Garage may be
hereinafter referred to individually and collectively as the "Parking Garage."
1. DEFINITIONS. The terms which are defined in the Lease shall have
the same meaning in this Parking Exhibit.
2. GRANT AND RENTAL FEE. Provided no event of default has occurred and
is continuing under the Lease, effective on the Second Expansion Space
Commencement Date. Landlord shall provide and Tenant shall be obligated to
contract and pay for the spaces during the Term at such monthly rates
(together with any applicable tax thereon) and subject to such terms,
conditions, and regulations as are, from time to time, promulgated by
Landlord or the manager of the Parking Garage, as applicable, and charged or
applicable to patrons of the Parking Garage for spaces similarly situated
therein. In the event the Leased Premises are decreased during the Term, the
number of Spaces available to Tenant shall likewise be decreased so that the
aggregate number of Spaces to which Tenant is entitled shall equal one (1)
Space in the Building Garage for each 11,000 square feet of Rentable Area
within the Leased Premises and one (1) Space in the 1400 Louisiana Garage for
each 1,650 square feet of Rentable Area within the Leased Premises.
3. RISK. All motor vehicles (including all contents thereof) shall be
parked in the Spaces at the sole risk of Tenant, its employees, agents,
invitees and licensees, it being expressly agreed and understood that
Landlord has no duty to insure any of said motor vehicles (including the
contents thereof), and that Landlord is not responsible for the protection
and security of such vehicles. Landlord shall have no liability whatsoever
for any property damage and/or personal injury which might occur as a result
of or in connection with the parking of said motor vehicles in any of the
Spaces, and Tenant hereby agrees to indemnify and hold Landlord harmless from
and against any and all costs, claims, expenses, and/or causes of action
which Landlord may incur in connection with or arising out of Tenant's use of
the Spaces pursuant to this Agreement.
4. NO BAILMENT. It is further agreed that this Parking Exhibit shall
not be deemed to create a bailment between the parties hereto, it being
expressly agreed and understood that the only relationship created between
Landlord and Tenant hereby is that of licensor and licensee, respectively.
5. RULES AND REGULATIONS. In its use of the Spaces, Tenant shall
follow all of the Rules and Regulations of the Building (attached to the
Lease as EXHIBIT "D") applicable thereto, any rules and regulations
promulgated by Landlord or the manager of the Parking Garage, as applicable,
as the same may be amended from time to time. Upon the occurrence of any
breach of such rules, failure to make parking rental payments due hereunder
or default by Tenant under the Lease, Landlord shall be entitled to terminate
this Parking Exhibit, in which event Tenant's right to utilize the Space
shall thereupon automatically cease.
6. ACCESS. Landlord shall be entitled to utilize whatever access
device Landlord deems necessary (including but not limited to the issuance of
parking stickers or access cards), to assure that only these persons who have
contracted to use spaces in the Parking Garage are using the parking space
therein. Landlord currently limits access to the Parking Garage through the
use of a parking entry card system, the cards for which shall be provided by
Landlord. These cards are different from and do not, without a specific
request from Tenant, entitle the holder thereof to an after-hours entry card
to the Building. Landlord agrees to provide to Tenant seventeen (17) parking
entry cards. Tenant further agrees to surrender all parking entry cards in
its possession upon the expiration or earlier termination of this Lease.
Landlord shall be entitled to cancel any lost or stolen cards of which it
becomes aware. Tenant shall promptly notify Landlord of any lost or stolen
cards. Tenant shall pay Landlord for each additional card(s) or for each
replacement card(s) for any card(s) lost by or stolen from Tenant, in such
amount as Landlord shall, from time to time determine, the present charge for
such lost or stolen cards being $10.00 per card. In the event Tenant, its
agents or employees wrongfully park in any of the Parking Garage's spaces,
Landlord shall be entitled and is hereby authorized to have any such vehicle
towed away, at Tenant's sole risk and expense, and Landlord is further
authorized to impose upon Tenant a penalty of $25.00 for each such
occurrence. Tenant hereby agrees to pay all amounts falling due hereunder
upon demand therefor, and the failure to pay any such amount shall
additionally be deemed an event of default hereunder and under the Lease,
entitling Landlord to all of its rights and remedies hereunder and thereunder.
EXHIBIT "D" TO THIRD AMENDMENT TO OFFICE LEASE - Page Solo
SCHEDULE 1
TO
EXHIBIT "D"
TO
THIRD AMENDMENT TO OFFICE LEASE AGREEMENT
BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND METROPOLITAN TOWER REALTY COMPANY, INC.,
AS LANDLORD, AND
TEXSTAR PETROLEUM, L.L.C.,
AS TENANT
BUILDING GARAGE
---------------
RESERVED SPACES
CURRENT MONTHLY
LEVEL NO. OF SPACES PRICE PER SPACE
----- ------------- ---------------
0
TOTAL RESERVED SPACES 0
---------
---------
UNRESERVED SPACES
TOTAL NO. CURRENT MONTHLY
OF SPACES PRICE PER SPACE
--------- ---------------
2 $175.00 plus tax
1400 LOUISIANA GARAGE
---------------------
RESERVED SPACES
CURRENT MONTHLY
LEVEL NO. OF SPACES PRICE PER SPACE
----- ------------- ---------------
-- 0 $_________
TOTAL RESERVED SPACES 0
---------
---------
UNRESERVED SPACES
TOTAL NO. CURRENT MONTHLY
OF SPACES PRICE PER SPACE
--------- ---------------
15 $50.00 plus tax
SCHEDULE 1 TO EXHIBIT "D" TO THIRD AMENDMENT TO OFFICE LEASE - Page Solo