1
EXHIBIT 10.13.1
FIRST AMENDMENT
This First Amendment (the "Amendment") is made and entered into as of
the 8th day of April, 1994, by and between ZML-Sterling Plaza Limited
Partnership ("Landlord") by its agent, Equity Office Properties, Inc., and
Xxxxxxx Oil & Gas. L.P., a Delaware Limited Partnership ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (as successor in interest to Sterling Plaza, Ltd.)
and Tenant are parties to that certain lease dated the 21st day of May, 1992
currently containing approximately 11.537 rentable square feet of space
described as Suite No. 1616 on the 16th floor ("Original Premises") of the
building commonly known as Sterling Plaza and the address of which is 0000
Xxxxxx Xxxx, Xxxxxx, Xxxxx (the "Building"), which lease has been previously
amended or assigned by instrument(s) dated April 1, 1993 and May 12, 1993
(collectively, the "Lease"); and
B. WHEREAS, Tenant has requested that additional space consisting of
approximately 3,660 rentable square feet on the 16th floor of the Building
shown on Exhibit A hereto (the "Expansion Space") be added to the Premises and
that the Lease be appropriately amended (the Original Premises and Expansion
Space are sometimes collectively referred to as the "Premises"), and Landlord
is willing to do the same on the terms and conditions set forth below;
C. WHEREAS, the Lease, and this First Amendment by its terms shall expire
on May 31, 1997 ("Termination Date");
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree as follows:
I. Expansion. Effective as of the Expansion Effective Date (as
hereinafter defined), the Premises is increased from 11,357 rentable square
feet on the 16th floor to 15,017 rentable square feet described as Suite No(s).
1616 and 1625 on the 16th floor by the addition of the Expansion Space. The
lease term for the Expansion Space shall commence on the Expansion Effective
Date and end on the Termination Date (as hereinafter defined). The Expansion
Space is subject to all the terms and conditions of the Lease except as
expressly modified herein and except that Tenant shall not be entitled to
receive any allowances, abatements or other financial concessions granted with
respect to the Premises unless such concessions are expressly provided for
herein with respect to the Expansion Space.
A. The Expansion Effective Date shall be the later to occur of
(i) April 15, 1994 ("Target Expansion Effective Date"), or (ii) the
date upon which Landlord's improvement work in the Expansion Space has
been substantially completed; provided, however, that if Landlord
shall be delayed in substantially completing the Landlord's work in
the Expansion Space as a result of the occurrence of any of the
following (a "Delay"):
1. Tenant's failure to furnish information or to respond
to any request by Landlord for any approval or
information within any time period prescribed or, if
no time period is prescribed, then within two (2)
Business Days of such request: or
2. Tenant's insistence on materials, finishes or
installations that have long lead times after having
first been informed by Landlord that such materials,
finishes or installations will cause a Delay
provided, however. Landlord agrees that the
materials. finishes and installations set forth in
the plans shall not cause a Delay: or
3. Changes in any plans and specifications; or
2
4. The performance or nonperformance by a person or
entity employed by Tenant in the completion of any
work (all such work and such persons or entities
being subject to the prior approval of Landlord); or
5. Any request by Tenant that Landlord delay the
completion of any of the Landlord's work; or
6. Any breach or default by Tenant in the performance
of Tenant's obligations under this Amendment or the
Lease; or
7. Any delay resulting from Tenant's having taken
possession of the Expansion Space for any reason
prior to substantial completion of the Landlord's
work; or, except as required during construction; or
8. Any other delay, except as approved by Landlord,
chargeable to Tenant, its agents, employees or
independent contractors; or
then, for purposes of determining the Expansion Effective Date, the date of
substantial completion shall be deemed to be the day that said Landlord's work
would have been substantially completed absent any such Delay(s) and Force
Majeure. The Expansion Space shall be deemed to be substantially completed on
the date that Landlord reasonably determines that all Landlord's work has been
performed (or would have been performed absent any Delays), other than any
details of construction, mechanical adjustment or any other matter, the
noncompletion of which does not materially interfere with Tenant's use of the
Expansion Space. The adjustment of the Expansion Effective Date and,
accordingly, the postponement of Tenant's obligation to pay Rent on the
Expansion Space shall be Tenant's sole remedy and shall constitute full
settlement of ail claims that Tenant might otherwise have against Landlord by
reason of the Expansion Space not being ready for occupancy by Tenant on the
Target Expansion Effective Date. Notwithstanding the foregoing, if Landlord has
not substantially completed the improvement work by June 30, 1994, as such date
shall be extended due to Delays or Force Majeure, this First Amendment shall be
deemed null and void.
B. In addition to the postponement, if any, of the Expansion Effective
Date as a result of the applicability of Paragraph I.A. of this Amendment, the
Expansion Effective Date shall be delayed to the extent that Landlord fails to
deliver possession of the Expansion Space for any other reason, including but
not limited to, holding over by prior occupants. Any such delay in the
Expansion Effective Date shall not subject Landlord to any liability for any
loss or damage resulting therefrom. If the Expansion Effective Date is delayed,
the Termination Date (as hereinafter defined) under the Lease shall not be
similarly extended.
II. MONTHLY RENTAL INSTALLMENTS.
A. ORIGINAL PREMISES THROUGH TERMINATION DATE. The Monthly Rental
Installments and all other charges under the Lease shall be payable as provided
therein with respect to the Original Premises through the Termination Date. Ali
such Basic Rental shall be payable by Tenant in accordance with the terms of
Article 3. of the Lease.
B. EXPANSION SPACE FROM EXPANSION EFFECTIVE DATE THROUGH TERMINATION DATE.
As of the Expansion Effective Date, the schedule of Monthly Rental Installments
of Basic Rental payable with respect to the Expansion Space for the balance of
the Lease Term and through the Termination Date is the following:
Tenant shall pay Landlord the sum of one hundred seventy-one thousand nine
hundred five and 63/100 Dollars ($171,905.63) as Basic Rental in thirty-eight
(38) monthly installments as follows:
A. One (1) installment of $2,292.08 payable on the execution of this First
Amendment for the period beginning on April 15,1994 and ending on April 30,
1994.
B. Thirty-seven (37) equal installments of $4,584.15 each payable on or
before the first day of each month during the period beginning May 1, 1994 and
ending May 31, 1997.
2
3
Landlord and Tenant acknowledge that the foregoing schedule is based on the
assumption that the Expansion Effective Date is the Target Expansion Effective
Date. If the Expansion Effective Date is postponed, the beginning date set
forth above with respect to the payment of any installment(s) of Base Rental
shall be appropriately adjusted on a per diem basis and set forth in a
commencement agreement to be prepared by Landlord. All such Basic Rental shall
be payable by Tenant in accordance with the terms of Article 3. of the Lease.
III. TENANT'S PRO RATA SHARE. For the period commencing with the Expansion
Effective Date and ending on the Termination Date, Tenant's Pro Rata Share for
the Premises is five and two hundredths percent (5.02%).
IV. EXPENSE ESCALATION
A. EXPANSION SPACE FROM EXPANSION EFFECTIVE DATE THROUGH TERMINATION DATE.
For the period commencing with the Expansion Effective Date and ending on the
Termination Date, the Expansion Space Base Year herein defined for the
computation of Tenant's Pro Rata Share of Operating Expenses applicable to the
Expansion Space is 1994 (the "Expansion Space Base Year"). For the purposes of
calculating the Expansion Space Base Year and Tenant's Pro Rata Share of
Operating Expenses during the period commencing on the Expansion Effective Date
and ending on the Termination Date, the Operating Expenses shall be calculated
in accordance with Article 4 of the Lease.
V. IMPROVEMENTS TO EXPANSION SPACE.
A. Tenant has inspected the Expansion Space and agrees to accept the same
"as is" without any agreements, representations, understandings or obligations
on the part of Landlord to perform any alterations, repairs or improvements,
except as may be expressly provided otherwise in this Amendment.
B. COST OF IMPROVEMENTS TO EXPANSION SPACE. Provided Tenant is not in
default, any initial construction, alteration or improvement to the Expansion
Space shall be done at Landlord's sole cost and expense.
C. RESPONSIBILITY FOR IMPROVEMENTS TO EXPANSION SPACE. Landlord shall
enter into a direct contract with a general contractor selected by Landlord for
the initial improvements to the Expansion Space which are to be performed in
accordance with the plans dated the 3rd day of Feb., 1994 as revised the 15th
day of February, 1994 prepared by Xxxxx Xxxxxxx & Company (the "Plans").
VI. RIGHT OF FIRST OFFER
A. Subject to the rights of Xxxxxxx Printing Corporation, Davrus of Texas,
Co. and X. Xxxxx, Inc. during the period commencing April 15, 1994 and ending
May 31, 1997 (the "ROFO Period") Tenant shall have the right to first offer
(the "ROFO") with respect to approximately 4,773 rentable square feet located
on the sixteenth (16th) floor of the Building shown cross-hatched on the
demising plan attached hereto as Attachment #1 (the "Offering Space"). If at
any time during the ROFO Period, Landlord has a prospective tenant (the
"Prospect") interested in leasing the Offering Space (or applicable portion
thereof) Landlord shall advise Tenant in substantially the same form set forth
as Attachment #2 attached hereto (the "Landlord Notice") of the terms of which
Landlord is prepared to lease the Offering Space to Tenant for the remainder of
the Lease Term, which terms shall reflect the prevailing market rate for the
Offering Space, as reasonably determined by Landlord, and a tenant finish
allowance then being quoted by Landlord for comparable space and lease term in
the Building. In the event that Tenant desires to lease the Offering Space upon
the terms set forth in Landlord's Notice, Tenant shall notify Landlord (the
"Tenant Notice") within five (5) days after the date of such Notice, except
that Tenant shall have no such ROFO, and Landlord need not give the Landlord
Notice, if:
1. Tenant is in default under the Lease at the time Landlord would
otherwise deliver the Landlord Notice; or
3
4
2. the Premises is sublet, unless to an affiliate company or if
otherwise agreed in writing, at the time Landlord would otherwise
deliver the Landlord Notice; or
3. the Lease has been assigned, unless to an affiliate company of if
otherwise agreed in writing, at the time Landlord would otherwise
deliver the Landlord Notice; or
4. Tenant is not an occupant of the Building under this Lease at the
time landlord would otherwise deliver the Landlord Notice; or
5. the Prospect is a tenant in the applicable Offering Space at the
time Lessor would otherwise deliver the Lessor Notice.
B. The ROFO shall be deemed exercised upon Landlord's receipt of the
Tenant Notice within the time period stated in subsection VI. A. hereof. If
Tenant exercises the ROFO, Tenant shall execute and deliver the Offering
Amendment (hereinafter defined) to Landlord within fifteen (15) days of the
submission of such Offering Amendment by Landlord to Tenant.
C. The Offering Space (including improvements and personally, if any)
shall be acceptable by Tenant in broom clean condition and its as-built
configuration existing, subject to the tenant finish allowance pursuant to
Landlord Notice. On the earlier of the date tenant takes possession of the
Offering Space or as of the date the term for such Offering Space commences.
D. 1. If Tenant is able to and properly exercises its ROFO, Landlord
shall prepare an amendment (the "Offering Amendment") adding the
Offering Space to the Premises on the terms set forth in the Landlord
Notice and reflecting the changes in the Basic Rental, Installments of
Basic Rental, Rental Area of the Premises, Tenant's proportionate
share of the operating expenses and other appropriate terms.
2. A copy of the Offering Amendment shall be (i) sent to Tenant within
a reasonable time after receipt of the Tenant Notice, and (ii)
executed by tenant and returned to Landlord in accordance with
subsection VI B. hereof.
E. If Landlord is not required to give Tenant a Landlord Notice due to a
violation by Tenant of one or more of the conditions set forth in subsection VI
A.1. through VI A.5. above, Landlord may lease the Offering Space for which
Landlord has Prospect to the Prospect or any other prospective tenant on
whatever terms Landlord elects.
VII. PARKING
Effective as of the Expansion Effective Date, Landlord shall make
available eight (8) additional parking spaces. Of said eight (8) spaces, one (1
) shall be reserved and seven (7) shall be on a first come first serve basis.
During the period commencing on the Expansion Effective Date and ending on the
Termination Date, said eight (8) additional spaces shall be at no charge during
the balance of the Lease Term.
VIII. ACCELERATION OPTION
Landlord and Tenant agree that the cancellation option pursuant to
Section 41.5 of the Lease shall not apply to the Expansion Space. Landlord
hereby grants Tenant the right to terminate the Lease with respect to the
Expansion Space as follows:
A. Tenant shall have the right to accelerate the Termination Date (the
"First Expansion Space Acceleration Option") of the Expansion Space from May
31, 1997 to May 31, 1995 (the "First Expansion Space Accelerated Termination
Date"), if:
1. Landlord receives written notice of acceleration (the "First
Expansion Space Acceleration Notice") on or before January 31, 1995;
2. Tenant is not in default under the Lease or if Tenant is in
default, such default has been cured within the applicable cure
periods in the Lease as of the date Tenant provides Landlord with the
First Expansion Space Acceleration Notice;
4
5
3. All subleases of the Premises terminate on or before the First
Expansion Space Accelerated Termination Date;
4. this Lease has not been assigned to a non-affiliated company
as of the date Landlord receives the Acceleration Notice;
5. Tenant surrenders possession of the Premises on or prior to
the First Expansion Space Accelerated Termination Date; and
6. Tenant, on or before the First Expansion Space Accelerated
Termination Date, pays Landlord a termination fee equal to $28,589.39
(the "First Expansion Space Termination Fee"), provided that the
Termination Fee shall be increased by an amount equal to the
unamortized portion (based on an interest rate of thirteen percent
(13%) per annum) of any concessions, commissions, allowances or other
expenses incurred by Landlord for any Offering Space leased by Tenant
that is subject to the Acceleration Option hereunder.
B. Tenant shall have the right to accelerate the Termination Date (the
"Second Expansion Space Acceleration Option") of the Expansion Space from May
31, 1997 to May 31, 1996 (the "Second Expansion Space Accelerated Termination
Date"), if:
1. Landlord receives written notice of acceleration (the "Second
Expansion Space Acceleration Notice") on or before January 31,1996;
2. Tenant is not in default under the Lease or if Tenant is in
default such default has been cured within the applicable cure periods
as of the date Tenant provides Landlord with the Second Expansion
Space Acceleration Notice;
3. All subleases of the Premises terminate on or before the
Second Expansion Space Accelerated Termination Date;
4. this Lease has not been assigned to a non-affiliated company
or unless otherwise approved in writing as of the date Landlord
receives the Acceleration Notice;
5. Tenant surrenders possession of the Premises on or prior to
the Second Expansion Space Accelerated Termination Date; and
6. Tenant, on or before the Second Expansion Space Accelerated
Termination Date, pays Landlord a termination fee equal to $15,526.43
(the "Second Expansion Space Termination Fee"), provided that the
Second Expansion Space Termination Fee shall be increased by an amount
equal to the unamortized portion (based on an interest rate of
thirteen percent (13%) per annum) of any concessions, commissions,
allowances or other expenses incurred by Landlord for any Offering
Space leased by Tenant that is subject to the Second Expansion Space
Acceleration Option hereunder.
C. If Tenant exercises its First or Second Expansion Space Acceleration
Option, subject to satisfaction of the conditions set forth in subsection A and
B above, the Term, Termination Date, total Base Rental and other appropriate
terms of this Amendment shall be deemed amended to the extent necessary to
account for such exercise by Tenant.
D. If Tenant exercises its First or Second Expansion Space Acceleration
Option, Tenant shall remain liable for all Base Rental and other sums due under
the Lease up to and including the First or Second Expansion Space Accelerated
Termination Date even though xxxxxxxx for such may occur subsequent to the
First or Second Expansion Space Accelerated Termination Date.
E. If Tenant, subsequent to providing Landlord with the First or Second
Expansion Space Acceleration Notice, defaults in any of the provisions of this
Lease, and fails to cure within the applicable cure periods, Landlord at its
option, may declare Tenant's exercise of the Acceleration Option to be null and
void.
5
6
IX. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There have been
no additional oral or written representations or agreements. Under no
circumstances shall Tenant be entitled to any Rent abatement, on
improvement allowance, leasehold improvements, or other work to the
Expansion Space, or any similar economic incentives that may have been
provided Tenant in connection with entering into the Lease, unless
specifically set forth in this Amendment.
B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and in full
force and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment shall
govern and control. Under no circumstances shall this Amendment be
deemed to grant Tenant any further right to expand the Premises or
extend the Lease, provided, however, any such additional rights
specifically provided Tenant in the Lease are not hereby relinquished
or waived.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for such an
offer by Tenant. Landlord shall not be bound by this Amendment until
Landlord has executed and delivered the same to Tenant.
E. The capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Deleted.
G. Tenant hereby represents to Landlord that Tenant has dealt
with no broker other than Xxxx & Xxxxxx in connection with this
Amendment. Tenant agrees to indemnify and hold Landlord and the
Landlord Related Parties harmless from all claims of any brokers
claiming to have represented Tenant in connection with this Amendment.
X. LIMITATION OF LIABILITY.
Notwithstanding anything to the contrary contained in this lease, the
Liability of Landlord (and of any successor Landlord hereunder) to Tenant shall
be limited to the interest of Landlord in the building, and Tenant agrees to
look solely to Landlord's interest in the building for the recovery of any
judgement or award against the Landlord, it being intended that Landlord shall
not be personally liable for any judgement or deficiency. Tenant hereby
covenants that, prior to the filing of any suit for an alleged default by
Landlord hereunder, it shall give Landlord and all mortgagees whom Tenant has
been notified hold mortgages or deed of trust liens on the property, building
or premises notice and the same amount of time as Landlord has under the Lease
to cure such alleged default by Landlord. In addition, Tenant acknowledges that
Equity Office Properties, Inc. is acting solely in its capacity as agent for
Landlord and shall not be liable for any obligations, liabilities, losses or
damages arising out of or in connection with this lease, all of which are
expressly waived by Tenant.
6
7
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
ATTEST: LANDLORD: ZML-Sterling Plaza Limited
Partnership
BY: EQUITY OFFICE PROPERTIES, INC.,
as Agent
/s/ X. Xxx By: /s/
------------------ --------------------------------------------
X. Xxx Name:
------------------ ------------------------------------------
Title: Vice Chairman
-----------------------------------------
TENANT: Xxxxxxx Oil & Gas. L.P.,
a Delaware Limited Partnership
By: Xxxxxxx Exploration Company
------------------ --------------------------------------------
Its: Managing General Partner
------------------ -------------------------------------------
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxx, Vice President
7
