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EXHIBIT 10.13.3
THIRD AMENDMENT
This Third Amendment (the "Third Amendment") is made and entered into as of the
30th day of December, 1996, by and between ZML - Sterling Plaza Limited
Partnership ("Landlord") by its agent, Equity Office Holdings, L.L.C., a
Delaware limited liability company, and Xxxxxxx Oil & Gas, L.P. a Delaware
Limited Partnership ("Tenant").
WITNESSETH
A. WHEREAS, Landlord and Tenant are parties to that certain lease dated
the 21st day of May 1992 currently containing approximately 15,017 rentable
square feet of space described as Suite No(s). 1616 and 1625 on the 16th
floor(s) ("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, May 12, 1993, April 8, 1994 and June 29, 1994 (collectively, the
"Lease"); and
B. WHEREAS, Tenant has requested that additional space consisting of
approximately 907 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 by its terms shall expire on May 31, 1997, ("Prior
Termination Date"), and the parties desire to extend the Lease, all on the
terms and conditions set forth below;
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 15,017 rentable square
feet on the 16th floor(s) to 15,924 rentable square feet on the 16th floor(s)
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 Extended
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.
A. The Expansion Effective Date shall be November 15, 1996.
B. The Expansion Effective Date shall be delayed to the extent
that Landlord fails to deliver possession of the Expansion Space for
any reason (other than delays by Tenant), 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 Extended Termination Date (as hereinafter defined) under
the Lease shall not be similarly extended.
II. EXTENSION. The Lease Term is hereby modified from five (5)
years, zero (0) months, and zero (0) days expiring on May 31, 1997 ("Prior
Termination Date") to five (5) years, three (3) months, and zero (0) days
("Extended Lease Term") expiring on August 31, 1997 ("Extended Termination
Date"), unless sooner terminated in accordance with the terms of the Lease.
That portion of the Lease Term commencing the day immediately following the
Prior Termination Date ("Extension Date") and ending on the Extended
Termination Date shall be referred to herein as the "Extended Term."
III. MONTHLY RENTAL INSTALLMENTS.
A. ORIGINAL PREMISES THROUGH PRIOR 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 and including the Prior Termination Date.
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B. ORIGINAL PREMISES FROM AND AFTER EXTENSION DATE. As of the
Extension Date, the schedule of Monthly Rental Installments of Basic
Rental payable with respect to the Original Premises for the Extended
Lease Term is the following:
Tenant shall pay Landlord the sum of Sixty-Nine Thousand Four Hundred
Fifty-Three and 63/100 Dollars ($69,453.63) as Basic Rental for the
Original Premises for the Extended Term in three (3) monthly
installments as follows:
(i). Three (3) equal installments of $23,151.21 each payable on or
before the first day of each month during the period beginning June 1,
1997 and ending August 31, 1997.
All such Basic Rental shall be payable by Tenant in accordance
with the terms of Article 3. of the Lease.
C. EXPANSION SPACE FROM EXPANSION EFFECTIVE DATE THROUGH EXTENDED
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 the Extended
Lease Term is the following:
Tenant shall pay Landlord the sum of Thirteen Thousand Two
Hundred Eighty Three and 76/100 Dollars ($13,283.76) as Base Rental for
the Extended Term in ten (10) monthly installments as follows:
(i). One (1) installment of $699.15 payable on or before November
15, 1996 for the period beginning November 15, 1996 and ending
November 30, 1996.
(ii). Nine (9) equal installments of $1,398.29 each payable on or
before the first day of each month during the period beginning
December 1, 1996 and ending August 31, 1997.
All such Basic Rental shall be payable by Tenant in accordance with the
terms of Article 3. of the Lease.
IV. TENANT'S PRO RATA SHARE. For the period commencing with the
Expansion Effective Date and ending on the Extended Termination Date, Tenant's
pro rata share for the Expansion Space is three tenths percent (0.3%).
V. EXPENSE ESCALATION.
A. ORIGINAL PREMISES FOR THE EXTENDED TERM. For the
period commencing with the Extension Date and ending on the
Extended Termination Date,
(i). Tenant shall pay any increases in Operating
Expenses in accordance with Article 4. of the Lease.
B. EXPANSION SPACE FROM EXPANSION EFFECTIVE DATE THROUGH
EXTENDED TERMINATION DATE. For the period commencing with the
Expansion Effective Date and ending on the Extended
Termination Date,
(i). Tenant shall pay any increases in Operating
Expenses in accordance with Section 4. of the Lease
with respect to the Expansion Space.
VI. 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.
VII. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that
the Lease shall be amended in the following additional respects:
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A. Parking. Effective on or after the Expansion
Effective Date and upon request by Tenant, Landlord shall
provide Tenant three (3) additional unreserved parking spaces
in the Building's garage. Tenant shall pay $135.00 (plus
applicable tax) per month for said three (3) unreserved
spaces.
B. The first sentence of Section 39., Renewal Option. of
the Lease is hereby deleted in its entirety and the following
substituted therefor:
"If Tenant has not exercised the One Year Renewal Option
contained in the Third Amendment to the Lease and if, at the
end of the Primary term of this Lease the Tenant is not in
default of any of the terms, conditions or covenants of the
Lease, Tenant, but not any assignee or subtenant of Tenant
unless affiliate company or if otherwise agreed to in
writing, is hereby granted an option to renew this Lease for
an additional term of 60 months upon the same terms and
conditions contained in this Lease with the following
exceptions."
C. One Year Renewal Option.
1. Tenant shall have the right to extend the Lease Term
for an additional period of one year, commencing on the day
immediately following the Extended Termination Date of the
initial Lease Term and ending on the first anniversary of the
Termination Date (the "One Year Renewal Term"), if:
a. Landlord receives notice of exercise
(the "One Year Renewal Notice") not later
than November 15, 1996, which notice shall
specify which option is being exercised,
and
b. Tenant is not in default under the
Lease beyond any applicable cure periods at
the time that Tenant delivers its Initial
Renewal Notice or at the time Tenant
delivers its Binding Notice; and
c. Not more than 10% of the Premises is
sublet at the time that Tenant delivers its
One Year Renewal Notice or at the time
Tenant delivers its Binding Notice; and
d. The Lease has not been assigned
prior to the date that Tenant delivers its
One Year Renewal Notice or prior to the
date Tenant delivers its Binding Notice;
and
e. Tenant executes and returns the
Renewal Amendment (hereinafter defined)
within fifteen (15) days after its
submission to Tenant.
2. The initial Base Rental rate per rentable square foot
for the Premises during the One Year Renewal Term shall equal
the Prevailing Market (hereinafter defined) rate per rentable
square foot for the Premises.
3. Within thirty (30) days after receipt of Tenant's
Initial Renewal Notice, Landlord shall advise Tenant of the
applicable Base Rental rate for the Premises for the One Year
Renewal Term. Tenant, within thirty (30) days after the date
on which Landlord advises Tenant of the applicable Base
Rental rate for the One Year Renewal Term, shall either (i)
give Landlord final binding written notice ("Binding Notice")
of Tenant's exercise of its option, or (ii) if Tenant
disagrees with Landlord's determination, provide Landlord
with written notice of rejection (the "Rejection Notice"). If
Tenant fails to provide Landlord with either a Binding Notice
or Rejection Notice within such thirty (30) day period,
Tenant's One Year Renewal Option shall be null and void and
of no further force and effect. If Tenant provides Landlord
with a Binding Notice, Landlord and Tenant shall enter into
the Renewal Amendment upon the terms and conditions set forth
herein. If Tenant provides Landlord with a Rejection Notice,
Landlord and Tenant shall
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work together in good faith to agree upon the Prevailing
Market Base Rental rate for the Premises during the One Year
Renewal Term. Upon agreement Tenant shall provide Landlord
with Binding Notice and Landlord and Tenant shall enter into
the Renewal Amendment in accordance with the terms and
conditions hereof. Notwithstanding the foregoing, if Landlord
and Tenant are unable to agree upon the Prevailing Market
Base Rental rate for the Premises within thirty (30) days
after the date on which Tenant provides Landlord with a
Rejection Notice, Tenant's One Year Renewal Option shall be
null and void and of no force and effect.
4. If Tenant is entitled to and properly exercises its
One Year Renewal Option, Landlord shall prepare an amendment
(the "Renewal Amendment") to reflect changes in the Base
Rental, Lease Term, Extended Termination Date and other
appropriate terms. The Renewal Amendment shall be:
a. sent to Tenant within a reasonable time
after receipt of the One Year Renewal Notice; and
b. executed by Tenant and returned to Landlord
in accordance with paragraph C.1.e. above.
5. For purposes hereof, "Prevailing Market" shall mean
the arms length fair market annual rental rate per rentable
square foot under renewal leases and amendments entered into
on or about the date on which the Prevailing market is being
determined hereunder for space comparable to the Premises in
the Building and office buildings comparable to the Building
in Preston Center, Dallas, Texas area. The determination of
Prevailing Market shall take into account any material
economic differences between the terms of this Lease and any
comparison lease, such as rent abatements, construction costs
and other concessions and the manner, if any, in which the
Landlord under any such lease is reimbursed for operating
expenses and taxes. The determination of Prevailing Market
shall also take into consideration any reasonably anticipated
changes in the Prevailing Market rate and parking charges
from the time such Prevailing Market rate is being determined
and the time such Prevailing Market rate will become
effective under this Lease.
VIII. 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,
improvement allowance, leasehold improvements, or other work to the
Premises, 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 or the Lease.
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.
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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 Xxx Xxxxxx with Xxxxx & Xxxxx Company 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.
H. TENANT HEREBY WAIVES ALL RIGHTS TO PROTEST THE APPRAISED
VALUE OF THE PROPERTY OR TO APPEAL THE SAME AND ALL RIGHTS TO
RECEIVE NOTICES OF REAPPRAISALS AS SET FORTH IN SECTIONS 41.4113
AND 42.015 OF THE TEXAS TAX CODE.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
WITNESSES; ATTESTATION LANDLORD: ZML - Sterling Plaza Limited
Partnership
BY: EQUITY OFFICE HOLDINGS, L.L.C., as
Agent
/s/ Xxx Xxxxxxxxxx By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Xxx Xxxxxxxxxx SVP
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TENANT: Xxxxxxx Oil & Gas, L.P.,
a Delaware Limited Partnership
/s/ By: /s/ Xxxx X. Xxxxxxx
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/s/ Its: Executive Vice President
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