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HomeMy WebLinkAboutAGMT - Energy Tubulars, Inc. (Bixby Office Park Office Lease) BIXBY OFFICE PARK 3010 OLD RANCH PARKWAY SEAL BEACH, CALIFORNIA THIRD AMENDMENT TO LEASE (ENERGY TUBULARS, INC.) THIS THIRD AMENDMENT TO LEASE (this "Amendment") is made as of July 9, 2010, by and between BIXBYBIT - BIXBY OFFICE PARK, LLC, a Delaware limited liability company ("Landlord") and ENERGY TUBULARS, INC., a California corporation ("Tenant"). RECITALS A. Landlord (as successor-in-interest to EOP-Bixby Ranch, L.L.C.) and Tenant entered into that certain Office Lease Agreement dated as of June 2, 2003, as amended by that certain First Amendment dated as of June 5, 2005 and that certain Second Amendment to Office Lease Agreement dated as of July_, 2007 (collectively, as amended, the "Lease"), with respect to certain premises located at 3010 Old Ranch Parkway, Seal Beach, California 90740 (the "Building"). All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Lease. B. Pursuant to the Lease, Tenant leases from Landlord certain premises consisting of 3,642 rentable square feet and commonly known as Suite 400 (the "Premises"), as more particularly described in the Lease. C. Landlord and Tenant desire to amend the Lease to extend the Term and to modify other provisions of the Lease, all as more particularly set forth herein and subject to the terms hereof. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants contained herein, Landlord and Tenant agree as follows: 1. TERM. The Lease is hereby extended for an additional term of forty and one-half (40-112) months (the "Extended Term"), commencing on August 15, 2010 (the "Extension Date") and expiring December 31, 2013 (the "Expiration Date"). From and after the date hereof, all references to "Term" in the Lease or this Amendment shall be deemed references to the Term, as extended by this Amendment, and all references to the date of expiration of the Lease shall be deemed references to the Expiration Date. It is understood and agreed that since the Extension Date occurs pursuant to the terms of this Amendment on a day other than the first (1s`) day of a calendar month, the period commencing on the Extension Date and ending on the last day of the calendar month in which the Extension Date occurs shall be an initial partial month period which is a part of the Extended Term for the Premises and Tenant shall pay all Rent and other charges with respect to such partial month period (on a prorated basis as referenced in Section IV.A (Payments) of the Lease) at the same rate applicable to the first (1st) full calendar month of the Extended Term. Commencing as of the first (18t) day of the first on full calendar month following the month in which the Extension Date occurs, Tenant shall commence the payment of Rent and other charges payable hereunder as if the Extended Term had actually commenced on such date. It is further understood and agreed that all rental adjustments will be determined as of the first (1s1) day of a calendar month and the Term of the [FINAL EXECUTION COPY] -1- BIXBY OFFICE PARK W 02-W EST:1 PLW2W02711473.3 Energy Tubulers,Inc. 070810 1402-153365 Lease will end as of the last day of a calendar month (unless earlier terminated pursuant to the terms of the Lease). 2. CONDITION OF THE PREMISES. Except as expressly set forth in Exhibit A (Landlord Work) attached hereto, Landlord shall have no obligation whatsoever to construct leasehold improvements for Tenant or to repair or refurbish the Premises. Tenant confirms that (a) it has accepted the Premises and will continue to occupy such space "AS-IS", (b) the Premises are suited for the use intended by Tenant, and (c) the Premises are in good and satisfactory condition. 3. BASE RENT. a. Base Rent Effective as of the Extension Date, in addition to all other amounts payable under the Lease, Tenant shall pay Base Rent for the Premises as set forth below, in accordance with the terms of the Lease. Months of the Annual Monthly Monthly Base Rent per Extended Term Base Rent Base Rent Rentable Square Foot 1*- 12 $87,408.00 $7,284.00** $2.00 13—24 $89,593.20 $7,466.10 $2.05 25-40 $91,778.40 $7,648.20 $2.10 - *including the initial partial month period at the beginning of the Extended Term (August 15, 2010—August 31, 2010) since the Extension Date does not occur on the first day of a calendar month. **Base Rent for the months of September 2010 and October 2010 shall be abated, pursuant to the terms of Section 3.b below. b. Rent Abatement. Notwithstanding anything to the contrary contained herein and provided that Tenant faithfully performs all of the terms and conditions of the Lease, as amended, and no default by Tenant occurs under the Lease, Landlord hereby agrees that Tenant shall not be required to pay Base Rent for the months of September 2010 and October 2010 (the "Abatement Period"). During the Abatement Period, Tenant shall still be responsible for the payment of all of its other monetary obligations under the Lease, as amended. In the event of a default by Tenant under the terms of the Lease that results in termination of the Lease in accordance with the provisions of Article XIX (Events of Default) of the Lease, then as a part of the recovery set forth in Article XX (Remedies) of the Lease, Landlord shall be entitled to the recovery of the Base Rent that was abated under the provisions of this Section 3. 4. EXPENSES AND TAXES. Effective as of the Extension Date, (i)the Expense Excess and the Tax Excess for the Premises payable by Tenant under the Lease will be calculated using a 2010 Base Year, and (ii) all references to "Base Year" in the Lease and this Amendment shall be deemed to be references to the calendar year 2010. Accordingly, in addition to the Base Rent for the Premises set forth in Section 3 of this Amendment, Tenant shall pay Tenant's Pro Rata Share of Expenses with respect to the Premises in excess of the Expense Excess and Tax Excess for the 2010 Base Year. Notwithstanding anything to the contrary contained herein, Tenant shall not be required to pay Tenant's Pro Rata Share of any [FINAL EXECUTION COPY] -2- BIXBY OFFICE PARK W02-W EST:I PLW2W02711473.3 Energy Tubulars,Inc. 070810 14CZ-153365 Expense Excess or Tax Excess during the first (191) twelve (12) months of the Extended Term (through August 14, 2011); provided, however, Tenant shall be responsible for any separately metered utilities and for any above-standard services such as after hours HVAC charges (as described in Section 6 hereof), during the first (19) twelve (12) months of the Extended Term. 5. SECURITY DEPOSIT. Landlord is currently holding a Security Deposit in the amount of $12,860.10 under the Lease. Notwithstanding Article VI (Security Deposit) of the Lease, so long as Tenant is not in default under the Lease (the Reduction Condition"), Tenant shall be entitled to a reduction of the Security Deposit as set forth in this Section 5. Subject to satisfaction of the Reduction Condition, the Security Deposit shall be reduced by $4,447.08 (the "Reduction Amount') effective as of the date of full execution and delivery hereof. The Reduction Amount shall be applied to Base Rent next coming due under the Lease. In no event shall the Reduction Amount exceed the total amount of the Security Deposit held and unapplied by Landlord. It is understood and agreed that, if the Reduction Amount is applied as set forth above, the Security Deposit shall total $8,413.02, and there shall be no further reduction in the amount of the Security Deposit for the remainder of the Lease Term, and the Security Deposit, as reduced hereby, shall continue to be held pursuant to the terms Article VI of the Lease, through the date Tenant has satisfied all of its obligations under the Lease, as amended hereby. 6. PARKING. During the Extended Term, Tenant shall be entitled to use fifteen (15) parking passes for unreserved parking spaces and three (3) parking passes for reserved parking spaces, at no cost to Tenant. Additionally, subject to availability, as determined by Landlord (or Landlord's parking operator) from time to time, Tenant shall have the option to convert one (1) or more of its parking passes for unreserved parking spaces to parking passes for reserved parking spaces, at the prevailing market rate charged by Landlord (or Landlord's parking operator) from time to time, which is currently $50.00 per parking pass per month for reserved parking spaces, and which rate shall increase by three percent (3%) of the previous year's rate on each anniversary of the Extension Date. Except as amended hereby, Tenant's rights and obligations with respect to parking, shall continue to be as set forth in the Lease, including, without limitation, Exhibit F (Parking Agreement) attached thereto, and the parking rules for the Building, as may be amended or established by Landlord (or Landlord's parking operator) from time to time. Tenant agrees to pay for such parking passes as Additional Rent under the Lease (as defined in Article IV of the Lease). Accordingly, Section 7 (Parking) of the Second Amendment, Section 8.01 (Parking) of the First Amendment and Section 2 of Exhibit G (Parking Agreement) of the Lease are hereby deleted in their entirety and shall be of no further force or effect. Tenant's use of the parking passes shall be subject to the terms and conditions of the Lease, including, without limitation, Exhibit F (Parking Agreement) thereof. It is further acknowledged and agreed that during any extension or renewal of the Extended Term, the parking passes shall be at the prevailing market rate charged by Landlord (or Landlord's parking operator) from time to time, which rate shall increase by three percent (3%) of the previous year's rate. 7. BUSINESS DAYS. Effective as of the date hereof, Section I.N of the Lease is hereby amended to specify that "Business Days" are Monday through Friday of each week, except for the date of observation of New Year's Day, President's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day and other locally or nationally recognized holidays as designated by Landlord ("Holidays"). 8. NORMAL BUSINESS HouRS. Effective as of the date hereof, Section 1.0 of the Lease is hereby amended to specify that "Normal Business Hours" for the Building are 7:00 a.m. to 6:00 p.m. on Business Days. Accordingly, Section 6 of the Second Amendment is hereby deleted in its entirety and shall be of no further force or effect. [FINAL EXECUTION COPY] -3- BIXBY OFFICE PARK W02-1.NEST:IPLW2\402711473.3 Energy Tubulars,Inc. 070810 140Z-153365 9. AFTER-HOURS HVAC. Effective as of the date hereof, Landlord confirms that the current hourly cost for HVAC provided to the Premises during other than Normal Business Hours, which rate is subject to increase in Landlord's reasonable discretion, is Sixty-Five Dollars ($65.00) per hour. 10. NOTICES. Effective immediately, all notices to the Landlord shall be sent to the following address: BIXBYBIT—BIXBY OFFICE PARK, LLC c/o Bixby Land Company 2211 Michelson Drive, Suite 500 Irvine, California 92612 Attention: Mr. Steve Center 11. ADDITIONAL LEASE MODIFICATION. Effective as of the date hereof, Article I (Renewal Option) of Exhibit E (Additional Provisions) of the Lease is no longer applicable, and is hereby deleted in its entirety and shall be of no further force or effect. 12. FINANCIAL STATEMENTS. At any time during the Term of this Lease upon ten (10) days prior written notice from Landlord, Tenant agrees to provide Landlord with a current financial statement for Tenant and any guarantors of Tenant and financial statements for the two (2) years prior to the current financial statement year for Tenant and any guarantors of Tenant. Such statements are to be prepared in accordance with generally accepted accounting principles and, if such is the normal practice of Tenant, audited by an independent certified public accountant. 13. BROKERS. Tenant represents and warrants to Landlord that, other than Hamilton Pacific Real Estate Group, Inc. (Darren Hamilton), it has not engaged any broker, finder or other person who would be entitled to any commission or fees in respect of the negotiation, execution or delivery of this Amendment, and shall indemnify, defend and hold harmless Landlord against any loss, cost, liability or expense incurred by Landlord as a result of any claim asserted by any broker, finder or other person on the basis of any arrangements or agreements made or alleged to have been made by or on behalf of Tenant. The provisions of this section shall not apply to brokers with whom Landlord has an express written broker agreement. 14. CONTINUING EFFECTIVENESS. The Lease, except as amended hereby, remains unamended, and, as amended hereby, remains in full force and effect. 15. COUNTERPARTS. This Amendment may be executed in counterparts, each of which shall constitute an original, and all of which, together, shall constitute one document. 16. EXECUTION BY Born PARTIES. Submission of this instrument for examination or signature by Tenant does not constitute a reservation of or option to lease, and it is not effective as an amendment to lease or otherwise until execution by and delivery to both Landlord and Tenant, and execution and delivery hereof. 17. AUTHORIZATION. The individuals signing on behalf of Tenant each hereby represents and warrants that he or she has the capacity set forth on the signature pages hereof and has full power and authority to bind Tenant to the terms hereof. Two (2) authorized officers must sign on behalf of Tenant and this Amendment must be executed by the president or vice- president and the secretary or assistant secretary of Tenant, unless the bylaws or a resolution [FINAL EXECUTION COPY] .4- BIXBY OFFICE PARK W02•WEST:IPLW214 0 2 711 4 7 3.3 Energy Tubulars,Inc. 070810 14C2-153365 of the board of directors shall otherwise provide. In such case, the bylaws or a certified copy of the resolution of Tenant, as the case may be, must be furnished to Landlord. [SIGNATURES ON NEXT PAGE] [FINAL EXECUTION COPY] -g_ BIXBY OFFICE PARK W02-WEST:1 PLW214 0 2 71 1 47 3.3 Energy Tubulars,Inc. 070810 14CZ-153365 EXHIBIT A LANDLORD WORK This Exhibit is attached to and made a part of the Third Amendment to Lease (the"Third Amendment") by and between BIXBYBIT - BIXBY OFFICE PARK, LLC, a Delaware limited liability company ("Landlord") and ENERGY TUBULARS, INC., a California corporation ("Tenant") for space in the building located at 3010 Old Ranch Parkway, Seal Beach, California 90740. Landlord shall, at Landlord's sole cost and expense, cause the work more particularly described below (collectively, the "Landlord Work") to be performed within the Premises, utilizing Landlord's current standard grade, quality, make, style, design and color materials and construction methods for the Building and/or the Project, as applicable: 1. Install new Building standard carpet in the Premises; 2. Re-paint the interior of the Premises using Building standard paint; 3. Provide up to five (5) new VAV boxes to address current HVAC issues (as reasonably determined by Landlord); and 4. Provide insulation ("insulquit") at the locations indicated by an asterisk on the plan attached hereto as Schedule 1. The Landlord Work shall not include any of Tenant's trade fixtures, equipment, furniture, furnishings, telephone and data equipment, or other personal property. Tenant shall assume full responsibility to ensure that all items associated with the Landlord Work are adequate to fully meet the requirements of Tenant's intended use of the Premises. Any additions or changes to the Landlord Work shall be at Tenant's sole cost and expense and shall be subject to Landlord's written approval. Tenant understands that the Landlord Work may be performed during Tenant's occupancy and use of the Premises, and Tenant acknowledges that the completion of such work may result in inconvenience to Tenant (including noise, vibration and displacement from portions of the Premises from time to time). Tenant will fully cooperate with Landlord's efforts to efficiently complete the Landlord Work by, among other things, vacating portions of the Premises from time to time to permit work to proceed, and by moving any furniture or personal property within the Premises that is necessary for the completion of the Landlord Work. Landlord will make reasonable efforts to minimize the inconvenience and disturbance caused by the Landlord Work, but is not responsible for business interruption or damage to property which results from the Landlord Work. It is hereby acknowledged and agreed that the Extension Date shall in no way be affected by the date the Landlord Work is completed pursuant to this Exhibit A. [FINAL EXECUTION COPY] EXHIBIT A BIXBY OFFICE PARK W02-WE5T:I PLW2\402711473.3 -1- Energy Tubulare,Inc, 070310 14CZ-153365 SCHEDULE t TO EXHIBIT A PLAN j 'A I I I 1 �t I d I ----- -._— I yl ip H . tibiI I I I i TENANT'S INITIAL .i . — SCHEDULE 1 TO EXHIBIT A [FINAL EXECUTION COPY] BIXBY OFFICE PARK W02-WEST:1 PLW21402711473.3 -1- Energy Tubulars,Inc. 070810 14CZ-153365 IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written. LANDLORD: BIXBYBIT - BIXBY OFFICE PARK, LLC, a Delaware limited liability company By; BixbyBlT Investments, LLC, a Delaware limited liability company its sole member By: BLC Incentive Management, LLC, a Delaware limited liability company, its Managing Member By: Bixby Land Company, a California corpor- 'on, its Managing Merv_.:r By: Ii Name:. Aaron D Hill Title:. /ice President BL# . . DRE# By: P bivr, ` . Q p�Nam Martin T. - a Title: chief Finanrial Officer BL# DRE# [SIGNATURES CONTINUED ON FOLLOWING PAGE] [FINAL EXECUTION COPY] S_1 BIXBY OFFICE PARK W02-WEST:1 PLW2\402711473.3 Energy Tubule's,Inc. 070810 14CZ-153365 TENANT: ENERGY TUBULARS, INC., a California corporation Pir By: /,' 0 Name:v •_a, ir,7yaie Title: p By: Name: Title: Tenant's Tax ID Number(SSN or FEIN) [FINAL EXECUTION COPY] S-2 BIXBY OFFICE PARK W02-WEST:IPLW2\402711473.3 Energy Tubulars,Inc. 070610 14CZ-153365 • r©OI LI 0 A_ 4 C V n� 4 OND AMENDMENT TO OFFICE LEASE AGREEMENT 4 , C)* (Bixby Ranch Office Park) lit L lIS SECOND AMENDMENT TO OFFICE LEASE AGREEMENT ("Second Amendment") is made and entered into as of the day of July, 2007, by and between BIXBYBIT-BIXBY OFFICE PARK, LLC, a Delaware limited liability company ("Landlord") and ENERGY TUBULARS, INC., a California corporation ("Tenant"). RECITALS: A. EOP Bixby Ranch, L.L.C., a Delaware limited liability company ("Original Landlord") and ENERGY TUBULARS, INC, a California corporation, ("Tenant") entered into that certain Office Lease Agreement dated as of June 2, 2003, and that certain First Amendment - dated as of June 5, 2005, (as amended, the "Lease"), whereby Original Landlord leased to Tenant and the Tenant leased from Original Landlord certain office space known as Suite 400 (the "Premises") in that certain building located and addressed at 3010 Old Ranch Parkway, Seal Beach, California (the "Building"). Landlord is the successor-in-interest under the Lease to Original Landlord. B. Landlord and Tenant hereby desire to extend the Term of the Lease and to otherwise modify the Lease as provided herein. C. Unless otherwise defined herein, capitalized terms as used herein shall have the same meanings as given thereto in the Lease. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants . contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: AGREEMENT: 1. Extended Lease Term. The Lease Termination Date shall be extended such that the Lease shall terminate on August 14, 2010 ("New Termination Date"). The period from July 15, 2007 through the New Termination Date specified above, shall be referred to herein as the "Extended Term." Tenant shall not have any right to extend the Lease beyond the Extended Term; consequently, Exhibit E of the Lease shall be null and void. 2. Base Rent. Concurrently with Tenant's execution of this Second Amendment, Tenant shall pay the sum of Five Thousand Four Hundred Ninety-One and 20/100 Dollars ($5,491.20) constituting Base Rent for the month of August, less the abated amount applicable to August. Notwithstanding anything to the contrary in the Lease, during the Extended Term, Tenant shall pay, in accordance with the provisions of this Section 2, Base Rent for the Premises as follows: Period Annual Base Rent Monthly Base Rent 7/15/07-7/14/08* $131,112.00 $10,926.00 7/15/08-7/14/09 $135,696.00 $11,308.00 7/15/09-8/14/10 $140,448.00 $11,704.00 All such Base Rent shall be payable by Tenant in accordance with the terms of the Lease as amended hereby(the "Amended Lease"). * Notwithstanding the foregoing, provided Tenant is not in default under the Amended Lease beyond any applicable cure period, Landlord agrees to abate Tenant's obligation to pay Base Rent during the first month of the Term (i.e., July 15, 2007 through August 14, 2007 (such total amount of abated Base Rent being hereinafter referred to as the "Abated Amount"). During such BIXBY RANCH OFFICE PARK 817955 01/0C [ENERGY TUBULARS,INC. 88888-993/7.19-07/IJL/LJL • • abatement period, Tenant will still be responsible for the payment of all other monetary obligations under the Amended Lease. Tenant acknowledges that any default by Tenant under the Amended Lease will cause Landlord to incur costs not contemplated hereunder, the exact amount of such costs being extremely difficult and impracticable to ascertain, therefore, should Tenant at any time during the Extended Term be in default after having been given notice and opportunity to cure, then the total unamortized sum of such Abated Amount (amortized on a straight line basis over the Extended Term) so conditionally excused shall become immediately due and payable by Tenant to Landlord; provided, however, Tenant acknowledges and agrees that noting in this paragraph is intended to limit any other remedies available to Landlord at law or in equity under applicable law (including, without limitation, the remedies under Civil Code Section 1951.2 and/or 1951.4 and any successor statutes or similar laws), in the event Tenant defaults under the Amended Lease beyond any applicable notice and cure period. 3. Condition of the Premises. Tenant hereby agrees to accept the Premises in its "as-is" condition and Tenant hereby acknowledges that Landlord shall not be obligated to provide or pay for any improvement work or services related to the improvement of the Premises. Tenant also acknowledges that Landlord has made no representation or warranty regarding the condition of the Premises. 4. Additional Security Deposit. Concurrently with Tenant's execution of this Second Amendment, Tenant shall deposit with Landlord the sum of Three Thousand Eight Hundred Eighteen and 09/100 Dollars ($3,818.09) which shall be added to and becomes part of the Security Deposit under the Lease, as amended herein. Landlord shall hold the Security Deposit in accordance with the terms and conditions of Section VI of the Lease. 5. Base Year. During the Extended Term, the Base Year for purposes of calculating Tenant's Pro Rata Share of Expenses and/or Taxes shall be 2007. Commencing January 1, 2008, Tenant shall pay Tenant's Pro Rata Share of the Expenses and/or Taxes in excess of the Base Year Expenses and/or Taxes, respectively, on a monthly basis pursuant to the terms of the Lease. 6. Building Service Hours. Effective as of the date of this Second Amendment, the Normal Building Hours set forth in Section I(Q) of the Lease are revised to 8:00 a.m. to 5:00 p.m. on Business Days and 8:00 a.m. to 1:00 p.m. on Saturdays. 7. Parking. During the Extended Term, Tenant shall lease fifteen (15) unreserved parking spaces in the parking areas at Thirty-Five and No/100 Dollars ($35.00) per stall per month (the "Parking Fee"). Tenant shall have the right, subject to availability, to upgrade some or all or its unreserved stalls to reserved covered parking at One Hundred and No/100 Dollars ($100.00) per stall per month (the "Reserved Parking Fee"). Notwithstanding the foregoing, provided Tenant is not in default under the lease beyond any applicable cure period, Landlord hereby agrees to abate Tenant's obligation to pay the Parking Fee for the first twelve (12) months of the Extended Term (such total amount of abated Parking Fees being herein referred to as the "Abated Parking Fee Amount"). During such abatement period, Tenant will still be responsible for the payment of all other monetary obligations under the Lease. The Parking Fee during the Extended Term shall increase according to the following schedule: Period Parking Fee (per stall, unreserved) July 15, 2007—July 14, 2008 $35.00* July 15, 2008—July 14, 2009 $36.00 July 15, 2009—August 30, 2010 $37.00 * Subject to the Abated Parking Fee Amount. On each anniversary of the Extended Term Commencement Date, the Reserved Parking Fee shall increase by three percent (3%) of the previous year's Reserved Parking Fee. Except as set forth in this Section 7, the lease of such parking spaces shall be subject to the Rules and Regulations as set forth in Exhibit F to the Lease. 8. Brokers. Each party represents and warrants to the other that no broker, agent or finder negotiated or was instrumental in negotiating or consummating this Second Amendment BIXBY RANCH OFFICE PARK 817955 01/OC [ENERGY TUBULARS,INC.I 88888-993/7-19-07/UL/UL -2- • • other than Coldwell Banker Commercial R.E.A.G on behalf of Tenant. Each party agrees to defend, protect, indemnify and hold harmless the other party from and against any claim for commission or finder's fee by any other person or other entity who claims or alleges that they were retained or engaged by the first party or at the request of such party in connection with this Second Amendment. 9. Defaults. Tenant hereby represents and warrants to Landlord that, as of the date of this Second Amendment, Tenant is in full compliance with all terms, covenants and conditions of the Lease and that there are no breaches or defaults under the Lease by Landlord or Tenant, and that Tenant knows of no events or circumstances which, given the passage of time, would constitute a default under the Lease by either Landlord or Tenant. 10. ERISA. Tenant represents and warrants to Landlord that neither Tenant nor any guarantor of Tenant's obligations under the Lease is (a) a party in interest, as defined in Section 3(14) of the of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), to the AFL-CIO Building Investment Trust ("Trust"), or of any of the plans participating therein, or (b) a disqualified person under Section 4975(e)(2) of the Internal Revenue Code of 1986, as amended ("Code"), with respect to the Trust or the plans participating. therein. Neither Tenant nor any guarantor of Tenant's obligations under the Lease shall take any action that would cause the Lease or the exercise by Landlord or the Trust of any rights hereunder, to be a non-exempt prohibited transaction under ERISA. Notwithstanding any contrary provision of the Lease, Tenant shall not assign the Lease or sublease all or any portion of the Premises unless (i) such assignee or subtenant delivers to Landlord a certification (in form and content satisfactory to Landlord) with respect to the status of such assignee or subtenant (and any guarantor of such assignee's or subtenant's obligations) as a party in interest and a disqualified person, as provided above; and (ii) such assignee or subtenant undertakes not to take any action that would cause the Lease or the exercise by Landlord or the Trust of any rights hereunder, to constitute a non-exempt prohibited transaction under ERISA. Notwithstanding any contrary provision of the Lease, Tenant shall not (a) sublease all or any portion of the Premises under a sublease in which the rent is based on the net income or net profits of any person, or (b) take any other action with respect to the Lease or the Premises such that the revenues to be received by Landlord or the Trust from time to time in connection with the Lease would, as a result of such action, be subject to the Unrelated Business Income Tax under Sections 511 through 514 of the Code. Tenant agrees that it shall incorporate the requirements of this Section 8 in any sublease of the Premises (without implying Landlord's consent thereto). 11. Labor. Tenant shall use Union Labor (defined below) for all maintenance, repair, and replacement of the Premises (the "Maintenance Labor Covenant"). Notwithstanding the foregoing, the Maintenance Labor Covenant shall not apply to (i) the services for installation, operation, maintenance and repair of personal property owned exclusively by Tenant (e.g., computer systems, telephones, and furniture other than modular furniture) or for any of Tenant's specialized equipment, (ii) a specific item or instance of maintenance, repair or replacement to the extent Union Labor is not available in the market to perform such specific item or instance of maintenance, repair or replacement, and/or (iii) maintenance, repairs and replacements that may be and are self-performed by the existing staff of Tenant without the retention, engagement or hiring of any third party or additional employee. Tenant shall (a) include the Maintenance Labor Covenant in each of its service contracts, (b)provide such evidence as Landlord may reasonably require, from time to time during the Lease Term, that the Maintenance Labor Covenant is being fully and faithfully observed and Tenant shall include the obligation to provide such evidence in each service contract entered into by Tenant for such services, and (c) incorporate the foregoing requirements in any sublease, license, or occupancy agreement relating to all or any part of the Premises (without implying Landlord's consent to same). In addition to any other conditions contained in the Lease with respect to Tenant making any alterations or improvements, before making any alterations or improvements to the interior or exterior of the Premises, Tenant shall (a) deliver to Landlord evidence satisfactory to Landlord that Tenant shall cause such construction or alteration work (collectively, the "Construction Activities") to be performed by contractors who employ craft workers who are members of unions that are affiliated with The Building and Construction Trades Department, AFL-CIO BIXBY RANCH OFFICE PARK 81795501/OC - [ENERGYTUBULARS,INC.] 88888-993/7-19-07/IJUIJL -3- • • ("Union Labor"), and such work shall conform to traditional craft jurisdictions as established in the area (the "Construction Labor Covenant"), (b) include the Construction Labor Covenant in each of its contracts for the Construction Activities, (c) provide such evidence as Landlord may reasonably require, from time to time during the course of the Construction Activities, that the Construction Labor Covenant is being fully and faithfully observed and Tenant shall include the obligation to provide such evidence in each contract entered into by Tenant for the Construction Activities, and (d) incorporate the foregoing requirements in any sublease, license, or occupancy agreement relating to all or any part of the Premises (without implying Landlord's consent to same). Tenant shall require that all contractors and subcontractors, of whatever tier, performing Construction Activities agree to submit all construction jurisdictional disputes (i.e., disputes about which union is the appropriate union to perform a given contract) to final and binding arbitration to the procedures of the jointly administered "Plan for the Settlement of Jurisdictional Disputes in the Construction Industry," a dispute resolution plan established and administered by The Building and Construction Trades Department, AFL-CIO, and various construction industry employer associations. If a resolution to a construction-related jurisdictional dispute cannot be obtained through The Building and Construction Trades Department, AFL-CIO, contractors and subcontractors, of whatever tier, shall agree to submit all such disputes to final and binding arbitration procedures to be administered by the American Arbitration Association ("AAA") and in conformity with AAA's Commercial Arbitration Rules, Expedited Procedures, with an arbitrator who is an experienced labor arbitrator and is a member of the National Academy of Arbitration. 12. No Further Modification. Except as set forth in this Second Amendment, all of the terms and provisions of the Lease shall remain unmodified and in full force and effect. Effective as of the date hereof, all references to the "Lease" shall refer to the Lease as amended by this Second Amendment. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS] BIXBY RANCH OFFICE PARK 817955 01/0C [ENERGY TUBULARS,INC.] 88888-997/7-19-07/LBJLJL -4- • • IN WITNESS WHEREOF, this Second Amendment has been executed as of the day and year first above written. "LANDLORD" BIXBYBIT-BIXBY OFFICE PARK LLC, a Delaware limited liability company By: BixbyBIT Investments, LLC, a Delaware limited liability company its sole member By: BLC Ventures I, LLC, a Delaware limited liability company, its Managing Member By: Bixby Land Company, a California corporation, its sole membev / By: I N. TA An/ i Title:_ \I ' By: �� tame: dtAyh'lIS U'CAM 11 Title: C,Dvfitrl� �L [SIGNATURES CONTINUED ON FOLLOWING PAGE] BIXBY RANCH OFFICE PARK 817955.01/OC [ENERGY TUBULARS,INC.] 88888-993p-19-07/IJIJ JL -5- "TENANT" ENERGY TUBULARS, INC., a California co .a S n By : ��� / sue Print Name: Title: / 4 �0 A By: Print Name: Title: BIXBY RANCH OFFICE PARK 817955 0I/OC [ENERGY TUBULARS,INC.] 88888-993/7-19-07/LIUUL -6-