Exhibit No. 10.11
FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("Amendment") is made as of this 16th day
of September, 1996, by and between the Parkside Salt Lake Corporation, a
Delaware corporation ("Landlord") and Crown Energy Corporation, a Utah
corporation ("Tenant") with reference to the following facts
and circumstances:
1. Landlord is the Owner of that certain building located at 000
X. Xxxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx ("Property");
2. Landlord's predecessor in interest, State of California Public
Employees' Retirement System, and Tenant entered into a
certain Lease Agreement ("Lease") dated August 20, 1993.
3. American Realty Advisors ("Advisor") is the real estate
investment manager to the Landlord.
4. Landlord and Tenant desire to amend the Lease upon terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing facts and
circumstances, the mutual covenants and promises contained herein and other good
and valuable consideration, the receipt and legal sufficiency of which is
acknowledged by each of the parties, the parties do hereby agree to the
following:
1. Definitions. Each capitalized term used in this Amendment shall have
the same meaning as is ascribed to such capitalized term in the Lease, unless
otherwise provided for herein.
2. Expiration Date. The expiration date of the Lease shall be extended
to September 30, 2001.
3. Basic Annual Rent. Effective October 1, 1996, Basic Annual Rent,
pursuant to Article 3 of the Basic Lease Provisions, shall increase as follows:
Basic Annual Rent Monthly Rent
----------------- ------------
October 1, 1996 - September 30, 1997 $32,011.70 $2,667.64
October 1, 1997 - September 30, 1998 $34,314.70 $2,859.56
October 1, 1998 - September 30, 1999 $36,617.70 $3,051.48
October 1, 1999 - September 30, 2000 $38,920.70 $3,243.39
October 1, 2000 - September 30, 2001 $41,223.70 $3,435.31
4. Tenant Improvements to Premises. Landlord shall provide Tenant with
an improvement allowance of $3.00 per usable square foot or $5,955.00 (the
"Improvement Allowance") for the purposes of constructing and installing
Tenant's improvements pursuant to working plans and drawings approved by
Landlord. Said Improvement Allowance shall include the cost of space planning
and working drawings. All costs incurred to improve the Premises, above and
beyond the Improvement Allowance shall be the Tenant's sole responsibility. The
Landlord's construction obligations are further clarified in the Work Letter
attached hereto as Exhibit A.
5. Broker. Tenant represents to Landlord that Tenant has not dealt with
any real estate broker, salesperson or finder in connection with this Amendment,
and no other such person initiated or participated in the negotiation of this
Amendment or is entitled to any commission in connection herewith. Tenant hereby
agrees to indemnify, defend and hold Landlord, its property manager and their
respective employees harmless from and against any and all liabilities, claims,
demands, actions, damages, costs and expenses (including attorneys' fees)
arising from either (a) a claim for a fee or commission made by any broker
claiming to have acted by or on behalf of Tenant in connection with this
Amendment, or (b) a claim of, or right to lien under the statutes of Utah
relating to real estate broker liens with respect to any such broker retained by
Tenant.
6. Binding. The Lease, as amended hereby, shall continue in full force
and effect, subject to the terms and provisions thereof and hereof. In the event
of any conflict between the terms of the Lease and the terms of this Amendment,
the terms of this Amendment shall control. This Amendment shall be binding upon
and inure to the benefit of Landlord, Tenant and their respective successors and
permitted assigns.
7. Submission. Submission of this Amendment by Landlord to Tenant for
examination and/or execution shall not in any manner bind Landlord and no
obligations on Landlord shall arise under this Amendment unless and until this
Amendment is fully signed and delivered by Landlord and Tenant; provided,
however, the execution and delivery by Tenant of this Amendment to Landlord
shall constitute an irrevocable offer by Tenant to lease the Premises on the
terms and conditions herein contained, which offer may not be revoked for thirty
(30) days after such delivery.
8. Limit of Liability. Neither Landlord nor any principal of Landlord
nor any owner of the Property, whether disclosed or undisclosed, shall have any
personal liability with respect to any of the provisions of the Lease, as hereby
amended, and if Landlord is in breach or default with respect to Landlord's
obligations under the Lease, as hereby amended, or otherwise, Tenant shall look
solely to the equity interest of Landlord in the Property for the satisfaction
of Tenant's remedies or judgments.
9. Address for Payments and Notices. Article 12 of the Basic Lease
Provisions is hereby amended to provide that any notices to Landlord shall be
addressed to Landlord as designated below in item (a), with a copy to Xxxxxxx
Associates ("Building Manager") at the address designated below in item (b).
(a) Parkside Salt Lake Corporation
c/o American Realty Advisors
000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn.: Xxxxxxx Xxxxxx
(b) Xxxxxxx Associates
Xxxxx Xxxx, Building Manager
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
10. Miscellaneous.
10.1 Attorneys' and Other Fees. Should either party institute
any action or proceeding to enforce or interpret this Amendment or any provision
hereof, for damages by reason of any alleged breach of this Amendment or of any
provision hereof, or for a declaration of rights hereunder, the prevailing party
in any such action or proceeding shall be entitled to receive from the other
party all costs and expenses, including actual attorneys' and other fees,
reasonably incurred in good faith by the prevailing party in connection with
such action or proceeding. The term "attorneys' and other fees" shall mean and
include attorneys' fees, accountants' fees, and any and all consultants and
other similar fees incurred in connection with the action or proceeding and
preparations therefor. The term "action or proceeding" shall mean and include
actions, proceedings, suits, arbitrations, appeals and other similar
proceedings.
10.2 TIME OF ESSENCE. TIME IS OF THE ESSENCE OF
THIS AMENDMENT AND EACH AND EVERY TERM AND PROVISION HEREOF.
10.3 Modification. A modification of any provision herein
contained, or any other amendment to this Amendment, shall be effective only if
the modification or amendment is in writing and signed by both Lessor and
Lessee.
10.4 Waiver. No waiver by any party hereto of any breach or
default shall be considered to be a waiver of any other breach or default. The
waiver of any condition shall not constitute a waiver of any breach or default
with respect to any covenant, representation or warranty.
10.5 Successors and Assigns. This Amendment shall inure to the
benefit of, and be binding upon, the parties hereto and their respective heirs,
successors and assigns.
10.6 Number and Gender. As used in this Amendment, the neuter
includes the masculine and feminine, and the singular includes the plural.
10.7 Governing Law. This Amendment shall be governed by,
interpreted under, and construed and enforced in accordance with the laws of the
State of Utah applicable to agreements made and to be performed wholly within
the State of Utah.
10.8 Construction. Headings at the beginning of each Section
and subsection are solely for the convenience of the parties and are not a part
of this Amendment. Except as otherwise provided in this Amendment, all exhibits
referred to herein are attached hereto and are incorporated herein by this
reference. Unless otherwise indicated, all references herein to Articles,
Sections, subsections, paragraphs, subparagraphs or provisions are to those in
this Amendment. Any reference to a Section herein includes all subsections
thereof. This Amendment shall not be construed as if it had been prepared by
only Lessor or Lessee, but rather as if both Lessor and Lessee had prepared the
same. In the event any portion of this Amendment shall be declared by any court
of competent jurisdiction to be invalid, illegal or unenforceable, such portion
shall be deemed severed from this Amendment, and the remaining parts hereof
shall remain in full force and effect, as fully as though such invalid, illegal
or unenforceable portion had never been part of this Amendment.
10.9 Integration of Other Agreements. This Amendment sets
forth the entire agreement and understanding of the parties with respect to the
matters set forth herein and supersedes all previous written or oral
understandings, agreements, contracts, correspondence and documentation with
respect thereto. Any oral representations or modifications concerning this
Amendment shall be of no force or effect.
10.10 Indemnification by Lessee. Lessee agrees to indemnify,
defend and hold Lessor free and harmless of, from and against any and all
claims, demands, damages, losses, liabilities, causes of action, costs or
expenses (including reasonable attorneys' fees), directly or indirectly arising
in connection with the breach of any covenant, agreement, representation or
warranty of Lessee under the terms of this Amendment.
10.11 Duplicate Originals; Counterparts. This Amendment may be
executed in any number of duplicate originals, all of which shall be of equal
legal force and effect. Additionally, this Amendment may be executed in
counterparts, but shall become effective only after a counterpart hereof has
been executed by each party; all said counterparts shall, when taken together,
shall constitute the entire single Amendment between the parties.
10.12 Non-Waiver of Rights. No failure or delay of either
party in the exercise of any right given to such party hereunder shall
constitute a waiver thereof unless the time specified herein for exercise of
such right has expired, nor shall any single or partial exercise of any right
preclude other or further exercise thereof or of any other right.
10.13 Days. The term "days," as used herein, shall mean actual
days occurring, including Saturdays, Sundays and holidays. The term "business
days" shall mean days other than Saturdays, Sundays and holidays. If any item
must be accomplished or delivered hereunder on a day that is not a business day,
it shall be deemed to have been timely accomplished or delivered if accomplished
or delivered on the next following business day.
10.14 Further Assurances. Lessor and Lessee each agree to
execute any and all other documents and to take any further actions reasonably
necessary to consummate the transactions contemplated hereby.
10.15 Joint and Several Liability. If Lessee consists of two
(2) or more parties, each of such parties (and each of Lessee's general
partners) shall be liable for Lessee's obligations under this Amendment, and all
documents executed in connection herewith, and the liability of such parties
shall be joint and several. Additionally, the obligations and liabilities
hereunder of the general partners or other appropriate persons or entities that
comprise Lessee, if any, are and shall be joint and several.
10.16 No Third Party Beneficiaries. Except as otherwise
provided herein, no person or entity shall be deemed to be a third party
beneficiary hereof, and nothing in this Amendment (either expressed or implied)
is intended to confer upon any person or entity, other than Lessor and/or Lessee
(and their respective nominees, successors and assigns), any rights, remedies,
obligations or liabilities under or by reason of this Amendment.
11. Full Force and Effect. All other terms and
conditions of the Lease shall remain unchanged and in full
force and effect.
IN WITNESS WHEREOF, this Amendment is executed as of the day and year
first written above.
LANDLORD: TENANT:
PARKSIDE SALT LAKE CORPORATION CROWN ENERGY CORPORATION,
a Utah corporation
By: Xxxxx X. Birsberger, By: Xxx Xxxxxx
Asset Manager Its: President
Date: Date:
