3
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:
A. Landlord is the Owner of that certain building located at
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ("Property");
B. 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.
C. American Realty Advisors ("Advisor") is the real estate
investment manager to the Landlord.
D. 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 parities, 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 attorney's 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 ▇▇▇▇▇▇▇ Associates ("Building Manager")
at the address designated below in item (b).
(a) Parkside Salt Lake Corporation
c/o American Realty Advisors
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Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(b) ▇▇▇▇▇▇▇ Associates
▇▇▇▇▇ ▇▇▇▇, Building Manager
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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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, By: ▇▇▇▇ ▇▇▇▇▇▇
Asset Manager
Its: President
Date: 10/10/96 Date: 10/1/96