Exhibit 10.1


 


FIRST
AMENDMENT


TO


LEASE


 


This First Amendment to Lease (“First Amendment”)
is made and entered into effective as of May 23, 2008, by and between ASP, INC., the Managing Tenant for all Tenants in
Common (collectively, the “TICs” or “Landlord”) in Boulder Towers office
building as described below,
and HELMERICH & PAYNE, INC. (“H&P”).


 


RECITALS


 


A.    In May, 2003, the TICs’ predecessor, K/B
Fund IV, a Delaware general partnership (“K/B”), and H&P entered into that
certain Lease (the “H&P Lease”) covering certain office, data center and
storage space located in the building commonly known as Boulder Towers located
at 1437 South Boulder, Tulsa, Oklahoma;


 


B.    On or about December 27, 2007, the TICs
purchased from K/B all of K/B’s rights, title and interest in the Boulder
Towers and in all leases of space within the Boulder Towers, including the
H&P Lease; and


 


C.    The
parties desire to extend the Initial Term, expand the Premises, revise the
Annual Rental and amend certain other terms of the H&P Lease as set forth
below.


 


STATEMENT OF AGREEMENT


 


        NOW
THEREFORE, for good consideration paid, the parties hereto hereby agree as
follows:


 


1. Definitions.  Except as otherwise provided herein, all
capitalized terms defined in the H&P Lease that are not otherwise defined
herein shall have the same meaning herein as that provided in the H&P
Lease.


 


2. Amendment
of H&P Lease.  The H&P Lease is hereby amended in the
following respects:


 


(a) Leased
Premises.  The Leased Premises shall be expanded as of the
Term Commencement Date, to include an additional 21,168 rentable square
feet of office space (the “Expansion Space”), consisting of 12,825
rentable square feet (Suite 800), being the entire east wing of the 8th
floor and 8,343 contiguous rentable square feet on the west wing of the
8th floor (Suite 825) as described on Exhibit “A” attached
hereto. With such Expansion Space, the total rentable square feet of the Leased
Premises through January 31, 2010, is 135,853 rentable square feet
and the total rentable area of the Building is   521,802 
 rentable square feet. The
Landlord has remeasured the Building and for the extended term from February 1,
2010 through January 31, 2020, the total rentable square feet of the
Leased Premises shall be 137,792 rentable square feet and the total
rentable area of the Building is   521,802 
 rentable square feet.


 


(b) Expansion
Space -Tenant’s Share and Operating Expense Base.  Tenant’s Share attributable to the Expansion
Space shall be 4.06%.  Tenant’s
Share attributable to the entire Leased Premises after the addition of the
Expansion Space shall be 26.04% (through January 31, 2010) and 26.41%
(commencing February 1, 2010).  With
respect to the Expansion Space, Tenant shall pay no Operating Expense for
calendar 2008 and, effective as of January 1, 2009, and for each calendar
year thereafter, the Operating Expense Base shall mean the amount of Operating
Expenses for the calendar year 2008. 
From and after January 1, 2009, the 5% cap on increases in Tenant’s
Share attributable to the Expansion Space as to increases in Operating Expenses,
as set forth in Section 4.02(g) of the H&P Lease, shall be
applicable to the Expansion Space and Tenant’s Share shall be made in reference
to the base amount established in 2008.


 


 

















 


(c) Term.  The Initial Term of the H&P Lease shall
be extended to terminate on January 31, 2020.  Section 2.02 Renewal Term is hereby
deleted in its entirety.


 


(d) Rent.


 


(i) Commencing on
the Term Commencement Date, and continuing through January 31, 2010, the
total Annual Rental payable by Tenant under the H&P Lease shall be as
follows:


 


	
  Type of Space

  	
   

  	
  Square Footage

  	
   

  	
  Amount per

  Rentable

  Square Foot

  	
   

  	
  Annual Rental

  	
   

  	
  Monthly

  Installment

  	
   

  
	
  Office Space

  	
   

  	
  113,512

  	
   

  	
  $

  	
  13.50

  	
   

  	
  $

  	
  1,532,412.00

  	
   

  	
  $

  	
  127,701.00

  	
   

  
	
  Data Center

  	
   

  	
  3,617

  	
   

  	
  $

  	
  8.50

  	
   

  	
  $

  	
  30,744.50

  	
   

  	
  $

  	
  2,562.04

  	
   

  
	
  Storage

  	
   

  	
  18,724

  	
   

  	
  $

  	
  5.75

  	
   

  	
  $

  	
  107,663.00

  	
   

  	
  $

  	
  8,971.92

  	
   

  



 


provided, however, no Annual
Rent shall be payable with respect to the Expansion Space for the first sixty
(60) days following the Term Commencement Date.


 


(ii) Commencing February 1,
2010 and continuing through January 31, 2020, the total Annual Rental
payable by Tenant under the H&P Lease shall be as follows:


 


	
  Type of Space

  	
   

  	
  Square Footage

  	
   

  	
  Amount per

  Rentable

  Square Foot

  	
   

  	
  Annual Rental

  	
   

  	
  Monthly

  Installment

  	
   

  
	
  Office Space

  	
   

  	
  115,421

  	
   

  	
  $

  	
  14.50

  	
   

  	
  $

  	
  1,673,604.50

  	
   

  	
  $

  	
  139,467.04

  	
   

  
	
  Data Center

  	
   

  	
  3,564

  	
   

  	
  $

  	
  9.50

  	
   

  	
  $

  	
  33,858.00

  	
   

  	
  $

  	
  2,821.50

  	
   

  
	
  Storage

  	
   

  	
  18,807

  	
   

  	
  $

  	
  5.75

  	
   

  	
  $

  	
  108,140.25

  	
   

  	
  $

  	
  9,011.69

  	
   

  



 


(e) Contraction
Option.  Tenant shall
have an ongoing right (the “Contraction Right”) to reduce by up to an aggregate
of 34,605 rentable square feet the amount of Office Space leased by Tenant
pursuant to the H&P Lease at any time after February 1, 2015.  That part of the Office Space eliminated from
the H&P Lease as a result of Tenant’s exercise of the Contraction Right
shall be referred to herein as the “Eliminated Space” and shall be determined as
set forth on Exhibit “B” attached hereto.  Should Tenant desire to exercise this
Contraction Right, Tenant shall provide to Landlord six (6) months prior
written notice (the “Contraction Notice”) and shall pay to Landlord an amount
equal to the “Contraction Fee,” as defined below, at the time such Eliminated
Space is vacated by Tenant. As used herein, the term “Contraction Fee” shall be
the sum of (i) $7.25 per rentable square feet of Eliminated Space (as
specified in the Contraction Notice and consistent with Exhibit “B”), plus
(ii) the amount of “Unamortized TI,” as defined below, attributable to that
portion of the Eliminated Space which is Expansion Space, plus (iii) the
amount of “Unrecouped Commission,” as defined below, attributable to that
portion of the Eliminated Space.   The
“Unamortized TI” shall be an amount, as of the date Tenant vacates the
Eliminated Space, equal to the remaining unamortized balance of the Tenant
Improvement Allowance attributable to that portion of the


 


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Eliminated Space which is
Expansion Space, as set forth in Section 2(f)(i) below, when
amortized, using an 8% per annum interest rate, over the period from the Term
Commencement Date through January 31, 2020. Within thirty (30) days of the
Term Commencement Date, the parties shall prepare, attach and incorporate into
this First Amendment a new, mutually satisfactory Exhibit “C” which will
show the amortization schedule for the Unamortized TI.  The “Unrecouped Commission” shall be an
amount, as of the date Tenant vacates the Eliminated Space, equal to the
remaining unrecouped balance of the leasing commissions payable with respect to
the Eliminated Space, when allocated on a straight line basis over the period
from the Term Commencement Date through January 31, 2020.  Within thirty (30) days of the Term
Commencement Date, the parties shall prepare, attach and incorporate into this
First Amendment a new, mutually satisfactory Exhibit “D” which will show the
amortization schedule for the Unrecouped Commission.  Landlord shall pay all commissions that may
be owing as a result of the execution of this First Amendment and shall
indemnify and hold Tenant harmless therefrom.


 


(f) Tenant
Improvement Allowance.


 


(i) The Landlord
shall provide Tenant a $20.00 per rentable square foot Tenant Improvement
Allowance to reduce the cost of Tenant Improvements to be constructed in the
Expansion Space (in the same manner as set forth in Exhibit B of the
H&P Lease), inclusive of demolition, above ceiling modification,
preliminary space planning and construction documents and construction.  The timeline for plan completion and
construction pricing is as follows:


 


1.  May 15, 2008 — Preliminary plans
completed.


2.  May 30, 2008 — Construction Documents
completed and delivered to Tenant.


3.  June 4, 2008 — Construction Documents
approved or revised by Tenant.


4.  June 5, 2008 — Construction Documents
delivered to Subcon.


5.  June 13, 2008 — Pricing from Subcon
completed and delivered to Tenant.


6.  June 18, 2008 — Pricing approved or
revised by Tenant.


 


Items 2, 4 and 5 above are
Landlord’s obligations.  As such, in the
event Items 2, 4 and/or 5 are not completed by Landlord in accordance with the
above deadlines, the Term Commencement Date shall be delayed one day for each
day of delay in connection with the completion of such items.


 


(ii) In addition to
the $20.00 per rentable square foot Tenant Improvement Allowance set forth
above, the Landlord will also provide to Tenant the additional sum of $344,055.00
(the “Additional Allowance”) which shall further reduce Tenant’s cost of Tenant
Improvements.


 


In the event that the total
cost of Tenants Improvements is less than the Tenant Improvement Allowance and
the Additional Allowance described above, then the balance shall be paid to
Tenant within seven (7) days of Substantial Completion (provided however,
any such amounts owed to Tenant shall not be credited against Annual Rental as
contemplated by Exhibit B of the Lease but shall be payable to Tenant in
cash).  In the event that the total cost
of Tenant Improvements is more than the Tenant Improvement Allowance and the
Additional Allowance described above, then Tenant shall pay such excess costs when
such amounts become due and owing to the contractors.


 


(g) Parking.  With respect to the Expansion Space, the
Landlord shall provide Tenant ninety-four (94) parking spaces, including
twenty-five (25) reserved covered spaces in the attached parking structure and sixty-nine
(69) on a non-reserved basis on the existing surface lots. As of the Term
Commencement Date, Tenant shall have a total of three hundred-thirty (350)
parking spaces, which shall consist of eighty (80) reserved covered spaces in
the attached parking structure and two hundred-seventy (270) on a non-reserved


 


3

















 


basis on the existing
surface lots. These spaces are free of charge.  In the event that Tenant exercises the
Contraction Right, the reserved parking spaces and the non-reserved parking
spaces attributable to the Eliminated Space shall be reduced on a pro-rata
basis.


 


(h) Right
of First Offer.  Tenant shall
have a continuing right of first offer to lease any office space (the “ROFR
Space”) on the eigth floor - West Tower, not subject to the H&P Lease, as
hereby amended.  Landlord shall give
written notice (the “Landlord’s ROFR Notice”) to Tenant no later than ninety
(90) days prior to the lease expiration date for any such ROFR Space.  Upon receipt of such notice, Tenant shall
have ten (10) business days to give to Landlord written notice (the “Tenant’s
ROFR Notice”) that Tenant desires to lease the ROFR Space.  If Tenant so notifies Landlord, then Tenant and
Landlord shall enter into good-faith negotiations and shall attempt to agree
upon lease terms for such ROFR Space.  If
Tenant and Landlord fail to agree upon lease terms for such ROFR Space within 7
business days after Landlord receives the Tenant’s ROFR Notice, Landlord shall
be entitled to lease the ROFR Space to any other person or entity, on such
terms and conditions as Landlord, in Landlord’s sole discretion, shall
determine.  If Landlord has not leased
the space subject to Landlord’s ROFR Notice within 180 days after the date of
Landlord’s ROFR Notice, then Landlord must provide a new Landlord ROFR Notice
to Tenant.  Notwithstanding the foregoing
in this Section 2(h), Landlord must during the entire term of the H&P
Lease, as amended, provide a Landlord ROFR Notice to Tenant each time ROFR
Space becomes available to lease.


 


3. Authority. Each of
Landlord and Tenant represents and warrants to the other that the execution,
delivery and performance of this First Amendment by such party is within the
requisite power of such party, has been duly authorized and is not in
contravention the terms of such party’s organizational or governmental
documents.


 


4. Binding Effect. Each of
Landlord and Tenant further represents and warrants to the other that this First
Amendment, when duly executed and delivered, will constitute a legal, valid,
and binding obligation of such party, fully enforceable in accordance with its
respective terms, except as may be limited by bankruptcy, moratorium,
arrangement, receivership, insolvency, reorganization or similar laws affecting
the rights of creditors generally and the availability of specific performance
or other equitable remedies.


 


5. Ratification.    Except
as otherwise expressly amended herein, all terms and provisions of the H&P
Lease are hereby ratified and reaffirmed and shall continue in full force and
effect, without modification.


 


6. Miscellaneous.


 


(a) This First
Amendment will be binding on the parties’ successors and assigns.


 


(b) In the event
there is a conflict between the provisions of this First Amendment and the H&P
Lease, then the provisions of this First Amendment shall control.  This First Amendment is not intended to be,
nor shall it be construed to create, any novation, accord or satisfaction.


 


(c) This First
Amendment may be executed simultaneously in two or more multiple original
copies, each of which shall be deemed an original, but all of which together
shall constitute one and the same agreement.


 


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THIS FIRST AMENDMENT REPRESENTS
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.


 


        IN WITNESS WHEREOF, the parties hereto
have executed and delivered this First Amendment effective as of the day and
year first above written. 


 


	
  A.S.P., INC., Managing
  Tenant for all Boulder 

  	
  HELMERICH & PAYNE,
  INC.  

  
	
  Towers Tenants in Common 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By
  

  	
   

  	
   

  	
  By
  

  	
   

  	
   

  
	
   

  	
  William
  H. Mizener, President

  	
   

  	
   

  	
  Steven
  R. Mackey, Vice President

  	
   

  



 


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EXHIBIT “A”


Description of Expansion Space


 





6

















 


EXHIBIT “B”


Eliminated Space Possibilities


 


If
Tenant exercises the Contraction Right, Tenant shall designate in the
Contraction Notice the Eliminated Space, which shall be any combination of the
blocks of space listed below, as determined in Tenant’s sole discretion, not to
exceed 34,605 rentable square feet in the aggregate.  The exact amount of rentable square feet of
any Eliminated Space shall be determined by Kinslow, Keith & Todd or
other mutually agreeable building space planner.


 




	
  Block*

  
	
  4th Floor — North 1⁄2 of East Tower

  
	
  4th Floor — South 1⁄2 of East Tower

  
	
  4th Floor — North 1⁄2 of West Tower

  
	
  4th Floor — South 1⁄2 of West Tower

  
	
  4th Floor — Bridge

  
	
  8th Floor — North 1⁄2 of East Tower

  
	
  8th Floor — South 1⁄2 of East Tower

  
	
  8th Floor — West Tower

  
	
  13th Floor — North 1⁄2 of East Tower

  
	
  13th Foor — South 1⁄2 of East Tower

  
	
  13th Floor — North 1⁄2 of West Tower

  
	
  13th Floor — South 1⁄2 of West Tower

  
	
  14th Floor — North 1⁄2 of East Tower

  
	
  14th Floor — South 1⁄2 of East Tower

  
	
  14th Floor — North 1⁄2 of West Tower

  
	
  14th Floor — South 1⁄2 of East Tower

  






 






*In
order to make any Eliminated Space available for multi-tenant use the Landlord
and Tenant shall equally share the actual and documented costs to demise and
provide any hallway access required by applicable building code.


 


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