Exhibit 10.17
SIXTH AMENDMENT TO LEASE
This agreement made as of the 20th day of June, 2007, between Oral Roberts
University, an Oklahoma corporation ("Landlord") and ENGIobal Engineering, Inc.,
a Texas Corporation ("Tenant").
WHEREAS, Landlord and Tenant entered into that certain "Lease Agreement"
dated January 27, 2005 with respect to premises consisting of approximately
50,631 square feet of Net Rentable Area (the "Leased Premises") in the building
located at 2448 E. 81st Street, Suite 3300, Tulsa, Oklahoma 74137 and known as
CityPlex Towers (the "Building"), said premises being more particularly
described in the Lease; and
WHEREAS, Landlord and Tenant (the "parties") have made and executed that
certain First Amendment to Lease dated April 7, 2005 (expanding space by 5,319
RSF, totaling 55,950 RSF), modifying and amending the Lease upon the terms and
conditions contained therein, and;
WHEREAS, Landlord and Tenant (the "parties") have made and executed that
certain Second Amendment to Lease dated June 13, 2005 (expanding space by 11,250
RSF, totaling 67,200 RSF), modifying and amending the Lease upon the terms and
conditions therein contained and;
WHEREAS, Landlord and Tenant (the "parties") have made and executed that
certain Third Amendment to Lease dated December 28, 2005 (expanding space by
11,250 RSF, totaling 78,450 RSF), modifying and amending the Lease upon the
terms and conditions therein contained and;
WHEREAS, Landlord and Tenant (the "parties") have made and executed that
certain Fourth Amendment to Lease dated February 27, 2006 (expanding space by
11,250 RSF, totaling 89,700 RSF), modifying and amending the Lease upon the
terms and conditions therein contained and;
WHEREAS, Landlord and Tenant (the "parties") have made and executed that
certain Fifth Amendment to Lease dated July 26, 2006 (expanding space by 11,250
RSF, totaling 100,950 RSF), modifying and amending tide Lease upon the terms and
conditions therein contained and;
WHEREAS, Landlord and Tenant (the "parties") now desire to amend and modify
said Lease Agreement in the following particulars;
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant agree as follows:
1. The provisions of this Agreement shall supersede any inconsistent
provisions contained in the Lease, whether such inconsistent provisions are
contained in the printed portion of the Lease or any addendum, rider or exhibit
annexed thereto. All capitalized items not otherwise defined herein shall have
the same meanings ascribed to them in the Lease.
2. Effective February 1, 200B, the Premises shall be expanded to include
1,682 net rentable square feet previously held under a separate Lease, as
outlined in Exhibit "A", resulting in a total of 102,632 RSF.
3. The Lease Term shall be extended for sixty (60) months, commencing on
February 1, 2008 and expiring on January 31, 2013. The monthly Base Rental for
the Renewal space shall be as follows:
Year 1 - $10.25
Year 2 - $10.50
Year 3 - $10.75
Year 4 - $11.00
Year 5 - $11.25
4. Section 29. Consumer Price Index Adjustment is hereby deleted in us
entirety.
5. Improvement Allowance. Landlord will provide an allowance equal to $2.50
RSP to be used by ENGlobal for Tenant improvements to the Lease premises,
including but not limited to Construction, Architectural and Engineering soft
costs, and Systems Furniture. Fifty percent of the Allowance will be available
in the first twelve months of the renewal term with the remaining Allowance
available anytime thereafter. Tenant shall have the right to apply any
improvement allowance funds remaining at the end of the twenty fourth month of
the renewal term toward the abatement of rent.
6. Landlord will provide a continuing Right of First Refusal for ALL
unencumbered space in the middle elevator bank for Floors 12 - 36.
Rental for any expansion will be coterminous with the then-escalated Rental
currently being paid by Tenant. Space will be delivered in an "as-is" condition,
however; Landlord will provide a Tenant Improvement allowance equal to the
following:
Year 1 - $7.00 RSF
Year 2 - $5.60 RSF
Year 3 - $4.20 RSF
Year 4 - $2.80 RSF
7. Landlord shall make available to Tenant, at no charge, one (1) reserved
parking space per floor. In addition, Landlord agrees to provide ten (10)
additional reserved spaces.
8. Tenant shall have the right to terminate one (1) floor of the Lease
effective on the second anniversary of the renewal term, one (1) floor of the
Lease effective on the third anniversary of the renewal term, and one (1) floor
of the Lease effective on the fourth anniversary of the renewal term by giving
the Landlord ninety (90) days prior written notice of its intent to terminate.
Tenant shall pay a penalty equal to three (3) months rent and any unamortized
costs.
9. Provided that this Lease is then in full force and effect, and provided
further that Tenant is not then in material breach or default under any of the
terms, covenants or conditions in this Lease on Tenant's part to observe or
perform, Tenant shall have the right to renew the Lease for one (1) additional
period of five (5) years provided Tenant gives Landlord six (6) months prior
written notice to the then expiring Lease Term. If the Option to Renew is
exercised, the Base Rent during the Renewal Terms shall be at the then
prevailing fair market rent. The "fair market rent" shall mean the amount that a
willing, comparable, renewal tenant with a renewal right at market would pay and
a willing, comparable, landlord of a comparable office building in the market
area would accept at arm's length.
10. Section 30. of the Lease shall be replaced with the following:
Over. In the event of holding over by Tenant after expiration or
other termination of this Lease, or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Paragraph 27 (c)(ii) hereof, Tenant shall, throughout the entire holdover
period, pay rent equal on a per diem basis, to 150% the Base Rental and
additional Base Rental which would have been applicable had the term of this
Lease continued through the period of such holding over by Tenant. No holding
over by Tenant after the expiration of the Lease Term shall be construed to
extend the term of the Lease. The provision of this paragraph shall not be in
place of or in lieu of, but shall be in addition to, the provisions of Paragraph
27(b).
11, Assignment and .Subletting.
(a) Tenant shall not directly or indirectly, voluntarily or
involuntarily, by operation of law or otherwise, assign, sublet, mortgage,
hypothecate or otherwise encumber all or any portion of its interest in
this Lease or in the Premises or grant any license in or suffer any person
other than Tenant or its employees to use or occupy the Premises or any
part thereof without obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld. Any such attempted assignment,
subletting, license, mortgage, hypothecation, other encumbrance or other
use or occupancy without the consent of Landlord shall be null and void and
of no effect, Any mortgage, hypothecation or encumbrance of all or any
portion of Tenant's interest in this Lease or in the Premises and any grant
of a license or sufferance of any person other than Tenant or its employees
to use or occupy the Premises or any part thereof shall be deemed to be an
"assignment" of this Lease. In addition, the term "Tenant" shall also mean
any entity that has guaranteed Tenant's obligations under this Lease, and
the restrictions applicable to Tenant contained herein shall also be
applicable to such guarantor. Landlord's agreement to not unreasonably
withhold its consent shall only apply to the first assignment or sublease
under the Lease. Provided no event of default has occurred and is
continuing tinder this Lease, upon thirty (30) days prior written notice to
Landlord, Tenant may, without Landlord's prior written consent, assign this
Lease to any entity into which Tenant is merged or consolidated or to an
entity to which substantially all of Tenant's assets are transferred or to
an entity controlled by or is commonly controlled with Tenant, provided (i)
such merger, consolidation, or transfer of assets is for a good business
purpose and not principally for the purpose of transferring Tenant's
leasehold estate, and (ii) the assignee or successor entity has a tangible
net worth, calculated in accordance with generally accepted accounting
principles (and evidenced by financial statements in form reasonably
satisfactory to Landlord) at least equal to the tangible net worth of
Tenant immediately prior to such merger, consolidation, or transfer. The
term "controlled by" or "commonly controlled with" shall mean the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such controlled person or
entity; the ownership, directly or indirectly, of at least fifty-one
percent (51%) of the voting securities of, or possession of the right to
vote, in the ordinary direction of is affairs, at least fifty-one percent
(51%) of the voting interest in, any person or entity shall be presumed to
constitute such control.
(b) No permitted assignment or subletting shall relieve Tenant of its
obligation to pay the Rent and to perform all of the other obligations to
be performed by Tenant hereunder. The acceptance of Rent by Landlord from
any other person shall not be deemed to be a waiver by Landlord of any
provision of this Lease or to be a consent to any subletting or assignment.
Consent by Landlord to one subletting or assignment shall not be deemed to
constitute consent to any other or subsequent attempted subletting or
assignment. If Tenant desires at any time to assign this Lease or to sublet
the Premises or any portion thereof, it shall first notify Landlord of its
desire to do so and shall submit in writing to Landlord all pertinent
information relating to the proposed assignee or Sublessee, all pertinent
information relating to the proposed assignment or sublease, and all such
financial information as Landlord may reasonably request concerning the
proposed assignee or subtenant. Any approved assignment or sublease shall
be expressly subject to the terms and conditions of this Lease.
(c) At any time within thirty (30) days after Landlord's receipt of
the information specified in subparagraph (b) above, Landlord may by
written notice to Tenant elect to terminate this Lease as to the portion of
the Premises so proposed to be subleased or assigned (which may include all
of the Premises), with a proportionate abatement in the Rent payable-
hereunder.
(d) Tenant acknowledges that it shall be reasonable for Landlord to
withhold its consent to proposed assignment or sublease in any of the
following instances;
(i) The assignee or Sublessee is not, in Landlord's reasonable
opinion, sufficiently creditworthy to perform the obligations
such assignee or Sublessee will have under this Lease;
(ii) The intended use of the Premises by the assignee or
Sublessee is not the same as set forth in this Lease or otherwise
reasonably satisfactory to Landlord;
(iii) The intended use of the Premises by the assignee or
Sublessee would materially increase the pedestrian or vehicular
traffic to the Premises or the Building;
(iv) Occupancy of the Premises by the assignee or Sublessee
would, in the good faith judgment of Landlord, violate any
agreement binding upon Landlord, the Building or the Project with
regard to the identity of tenants, usage in the Building, or
similar matters;
(v) The assignee or Sublessee is then negotiating with Landlord
or has negotiated with Landlord within the previous six (6)
months, or is a current tenant or subtenant within the Building
or Project;
(vi) The identity or business reputation of the assignee or
Sublessee will, in the good faith judgment of Landlord, tend to
damage the goodwill or reputation of the Building or Project; or
(vii) in (he case of a sublease, the subtenant has not
acknowledged that the Lease controls over any inconsistent
provision in the sublease.
The foregoing criteria shall not exclude any other reasonable
basis for Landlord to refuse its consent to such assignment or
sublease.
(e) Notwithstanding any assignment or subletting, Tenant and any
guarantor or surety of Tenant's obligations under this Lease shall at ail
times during the initial term and any subsequent renewals or extensions
remain fully responsible and liable for the payment of the rent and for
compliance with all of Tenant's other obligations under this Lease. In the
event that the Rent due and payable by a Sublessee or assignee (or a
combination of the rental payable under such sublease or assignment, plus
any bonus or other consideration therefore or incident thereto) exceeds the
Rent payable under this Lease, then Tenant shall be bound and obligated to
pay Landlord, as additional rent hereunder, all such excess Rent and other
excess consideration within ten (10) days following receipt thereof by
Tenant,
(f) If this Lease is assigned or if the Premises is subleased (whether
iti whole or in part), or in the event of the mortgage, pledge, or
hypothecation of Tenant's leasehold interest, or grant of any concession or
license within the Premises, or if the Premises are occupied in whole or in
part by anyone other than Tenant, then upon a default by Tenant hereunder
Landlord may collect Rent from the assignee, Sublessee, mortgagee, pledgee,
party to whom the leasehold interest was hypothecated, concessionee or
licensee or other occupant and, except to the extent set forth in the
preceding paragraph, apply the amount collected to the next Rent payable
hereunder; and all such Rent collected by Tenant shall be held in deposit
for Landlord and immediately forwarded to Landlord, No such transaction or
collection of Rent or application thereof by Landlord, however, shall be
deemed a waiver of these provisions or a release of Tenant from the further
performance by Tenant of its covenants, duties, or obligations hereunder.
(g) Should Tenant request of Landlord the right to assign or sublet
its rights under this Lease, Landlord shall charge Tenant and Tenant shall
pay to Landlord the actual cost of Landlord's legal fees up to a maximum
amount of Seven Hundred Fifty and No/100 Dollars ($750.00).
(h) Notwithstanding any provision of this Lease to the contrary, in
the event this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other
consideration payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute the property of
Tenant or Tenant's estate within the meaning of the Bankruptcy Code. AH
such money and other consideration not paid or delivered to Landlord shall
be held in trust for the benefit of Landlord and shall be promptly paid or
delivered to Landlord.
12, Except as herein expressly amended or modified the terms and conditions
of the Lease are hereby ratified and confirmed and shall remain in full force
and effect.
13. This Agreement shall not constitute an agreement by Landlord or Tenant
and shall not be binding upon Landlord or Tenant unless and until (his Agreement
shall be executed by Landlord and Tenant.
14. This Agreement may be changed only in writing, signed by both parties,
and shall be binding upon and inure to the benefit of Landlord and 'Tenant,
their respective heirs, successors and, as permitted, their assigns.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Sixth Amendment
to Lease as of the date first written above.
LANDLORD:
ORAL ROBERTS UNIVERSITY,
An Oklahoma corporation
By: /s/ David Elsworth
-------------------------
Title: EVP
----------------------
TENANT:
ENGLOBAL ENGINEERING, INC.
A Texas corporation
By: /s/ William A. Coskey
-------------------------
Title: CEO
----------------------
Exhibit "A"
Floor Plan
Cityplex Towers
[GRAPHIC ON FILE]