Exhibit 10.10
OFFICE
LEASE
THIS OFFICE
LEASE (this “ Lease ”) is made as of March 31,
2009, by and between SEMGROUP ENERGY PARTNERS, L.L.C., a Delaware
limited partnership (“Landlord”), and SEMCRUDE, L.P., a
Delaware limited partnership (“ Tenant
”).
RECITALS
WHEREAS,
Landlord owns the real property described on the Exhibit A
attached hereto and made a part hereof (the “ Real
Property ”), and Landlord owns the buildings and
improvements located on the Real Property, including without
limitation a building comprising office space and garage (the
“ Building ”), together with all landscaped
areas, driveways, surface parking lots, sidewalks, fencing,
exterior lighting and other appurtenances to the Building (the
“ Common Areas ”).
WHEREAS,
Landlord desires to lease to Tenant, and Tenant desires to lease
from Landlord, all that portion of the interior of the Building
comprising office space (the “ Leased Premises
”), not including the portion on the first floor to be
retained by Landlord as shown on the Exhibit B attached
hereto and made a part hereof (“ Landlord’s Office
Space ”), on the terms and conditions set forth
herein. Landlord and Tenant acknowledge that the garage
space in the Building shall be used and occupied exclusively by
Landlord and Tenant shall have no right to use or occupy such
garage space. For purposes of this Lease, the parties
agree that the Leased Premises contains 11,856 rentable square
feet, and the Landlord’s Office Space contains 2,900 rentable
square feet, and the Building, inclusive of office space and garage
space, contains 28,448 square feet.
1.
TERM.
The term of
this Lease (the “ Term ”) shall begin on April
1, 2009 (the “ Commencement Date ”), and shall
terminate on March 31, 2014, unless sooner terminated or extended
as provided herein. “ Term ” shall include any
Renewal Term. “ Lease Year ” means a
period of twelve (12) calendar months during the Term, the first of
which shall commence on the Commencement Date and end on the
expiration of the twelfth (12th) full calendar month
thereafter. Each successive Lease Year shall commence on
the day following the last day of the prior Lease Year and end
twelve (12) calendar months thereafter.
2.
PERMITTED USE .
The Leased
Premises shall be used by Tenant solely for general office
purposes, in compliance with all Legal Requirements (as defined in
the next sentence) and the terms and provisions of this Lease, and
for no other purposes (the “ Permitted Use
”). For purposes hereof, the term “ Legal
Requirements ” shall mean all laws, rules, orders,
ordinances, regulations, statutes, requirements and codes of all
governmental authorities, and all rules, regulations and government
orders with respect thereto, and of any applicable fire rating
bureau, or other body exercising similar functions, governing the
use and occupation of the Leased Premises, the Building or Common
Areas or the maintenance, use or occupation thereof; provided,
however, Tenant shall not be obligated to cause the Leased Premises
to comply with Legal Requirements except and only to the extent
expressly provided herein. In addition to the Permitted
Use of the Leased Premises, Tenant is also granted the nonexclusive
right to use the Common Areas together with Landlord, and their
respective guests and invitees, and for Tenant’s employees,
guests and invitees to park vehicles within the surface parking lot
on the Real Property.
3.
RENT .
A. Base Rent
. Tenant shall pay to Landlord, as Base Rent, the amount
set forth on the Exhibit C attached hereto and made a part
hereof (the “ Base Rent ”). Base Rent
shall be paid monthly by Tenant to Landlord in advance on the first
day of each month of the Term, commencing on the Commencement
Date. At the commencement of each Lease Year, the Base
Rent shall be adjusted for increases in CPI (as defined below) over
the immediately preceding Lease Year, provided, that if there shall
be no increase, or there shall be a decrease, in the CPI, then the
Base Rent for the immediately preceding Lease Year shall be the
Base Rent for such new Lease Year. “ CPI
” means the United States Consumer’s Price Index for
All Urban Consumers-Oklahoma City Area (1982-84=100), as published
by the United States Bureau of Labor Statistics bi-monthly, or if
such publication should be discontinued, “CPI” shall
then refer to such comparable statistics or changes in the cost of
living for urban consumers as the same may be computed and
published (on the most frequent basis available) by an agency of
the United States or by a reasonable periodical of recognized
authority
B. Additional Rent
. “ Additional Rent ” shall mean all
sums and amounts other than Base Rent payable by Tenant to Landlord
from time to time under this Lease, including without limitation
Taxes (as hereinafter defined), and any costs incurred by Landlord
in order to cure any Default by Tenant under this
Lease. Tenant shall pay Additional Rent at the times and
in the manner set forth in this Lease. The term “
Rent ”, as used in this Lease, shall mean,
collectively, Base Rent and Additional Rent.
C. Proration of Rent
. Landlord and Tenant understand and agree that if the
Commencement Date or last day of the Term occurs on a date that is
other than the first or last day (as applicable) of a month, the
Rent for that month shall be prorated on a per diem
basis.
D. Payment of Rent
. All Rent due and payable by Tenant under this Lease
shall be paid to Landlord at Two Warren Place, 6120 South Yale
Avenue, Suite 500, Tulsa, Oklahoma 74136-4216, or to such other
address as Landlord may from time to time designate in
writing. Except as expressly provided herein, all Base
Rent shall be paid by Tenant without notice or demand, and without
any set-off, counterclaim, abatement or deduction whatsoever, in
lawful money of the United States by bank check or wire transfer of
immediately available funds.
4.
TAXES .
Landlord shall
pay as billed all Taxes. Landlord shall invoice Tenant
for Tenant’s share of the Taxes so paid and Tenant shall pay
Landlord within fifteen (15) days of receipt of such
invoice. In the event Landlord elects to pay Taxes in
installments, Landlord shall invoice Tenant only the amount paid
for each installment, as such installments are
paid. Tenant’s share of Taxes shall be calculated
based on the square footage of the Leased Premises, divided by the
total square footage of the Building (inclusive of office space and
garage space), and, as of the date hereof, shall mean
41.68%. “ Taxes ” shall mean all real
estate taxes, assessments, business improvement district charges,
fees and assessments, sewer and water rents or assessments (but not
utility charges), rates and other governmental levies, impositions
or charges, whether general, special, ordinary, extraordinary,
foreseen or unforeseen, which may be assessed, levied or imposed
upon all or any part of the Real Property, (ii) all personal
property taxes, assessments, rates and charges and other
governmental levies, impositions or charges, whether general,
special ordinary, extraordinary, foreseen or unforeseen, which may
be assessed, levied or imposed upon all or any part of any personal
property owned or held by Landlord and used solely in operation and
ownership of the Real Property, including, without limitation, any
fixtures, machinery, equipment, apparatus, plant, transformers,
duct work, cable, wires, and other facilities, equipment and
systems designed to supply heat, ventilation, air conditioning,
humidity or any other services or utilities, or comprising or
serving as any component or portion of the electrical, gas, steam,
plumbing, sprinkler, communications, alarm, security or
fire/life/safety systems or equipment, and any other mechanical,
electrical, electronic, computer or other systems or equipment for
the Real Property, all to the extent that the same do not
constitute part of the Real Property (the “ Personal
Property ”), and (iii) all expenses (including reasonable
attorneys’ fees and reasonable disbursements and
experts’ and other witnesses’ fees) incurred in
contesting the assessed valuation of all or any part of the Real
Property by Landlord, to the extent Tenant consents to such contest
in advance. Notwithstanding anything to the contrary
contained in this Lease, Taxes shall not include (x) interest or
penalties incurred by Landlord as a result of Landlord’s late
payment of Taxes, except for interest payable in connection with
the installment payment of assessments pursuant to the next
sentence or (y) franchise, transfer, capital stock, inheritance,
succession, gift, estate or other taxes to the extent applicable to
general or net income of Landlord. For purposes hereof,
“ Taxes ” for any Lease Year shall be deemed to
be the amount of Taxes assessed for such Lease Year. If
at any time the methods of taxation prevailing on the date hereof
shall be altered so that in lieu of the whole or any part of Taxes,
there shall be assessed, levied or imposed (1) a tax, assessment,
levy, imposition or charge based on the income or rents received
from the Real Property whether or not wholly or partially as a
capital levy or otherwise, (2) a Lease fee measured by the rents,
or (3) any other tax, assessment, levy, imposition, charge or Lease
fee however described or imposed, then all such taxes, assessments,
levies, impositions, charges or Lease fees or the part thereof so
measured or based, to the extent and only to the extent assessed in
lieu of Taxes, shall be deemed to be Taxes.
5.
UTILITIES .
Tenant shall
pay as billed, prior to delinquency or default, all utilities
consumed on the Real Property including, without limitation,
electricity, gas, oil, steam, water, air conditioning and other
fuel and utilities (collectively, the “ Utilities
”). Tenant shall invoice Landlord for
Landlord’s share of the Utilities so paid and Landlord shall
pay Tenant within fifteen (15) days of receipt of such
invoice. Landlord acknowledges that all deposits with
all Utility providers, existing or hereinafter made, are the
property of Tenant. Landlord’s share of the
Utilities payments shall be that portion of the square footage of
the Landlord’s Office Space and the square footage of the
garage space within the Building occupied by Landlord, divided by
the total square footage of the Building.
6.
CONDITION OF LEASED PREMISES .
Tenant has
examined the Leased Premises. Subject to
Landlord’s obligations under Section 7 , Tenant hereby
accepts the condition of the Leased Premises in its AS-IS, WHERE-IS
CONDITION, WITH ALL FAULTS. Landlord has not agreed to
pay for or make any tenant or leasehold improvements as
consideration for Tenant’s execution and delivery of this
Lease. Except as expressly set forth in this Lease,
Landlord and Landlord’s agents have made no warranties,
representations, statements or promises with respect to (a) the
rentable or usable square footage of the Leased Premises or the
Building, or (b) the suitability of the Leased Premises for any
particular use or purpose. No rights, easements or
licenses are acquired by Tenant under this Lease except as
expressly set forth herein or to the extent such rights, easements
or licenses have been or will be acquired by Landlord through
ownership of the Leased Premises and relate to the use of the
Leased Premises, in which event Tenant shall be entitled to the
nonexclusive exercise of the Landlord’s rights thereunder in
its possession and use of the Leased
Premises. Notwithstanding any of the foregoing, in the
event the Leased Premises or any portion thereof, as of the date
hereof, do not comply in all material respects with Legal
Requirements, and/or the current zoning for the Leased Premises
does not permit the use of the Leased Premises for general office
use, and Tenant deems it necessary to obtain another location for
its operations, then Tenant may terminate this Lease by delivery of
written notice to Landlord without liability
therefor. Upon such termination, this Lease shall
terminate and neither Landlord nor Tenant shall have any further
liability to each other hereunder, except for such obligations that
are expressly stated to survive the termination hereof.
The parties
acknowledge that Tenant requires the Leased Premises and the
Landlord’s Office Space to be separated and sealed off with
interior walls or lockable doors. Such separation shall
be performed on or before the earlier to occur of (i) ninety (90)
days from the Commencement Date or (ii) the reorganization of
Tenant. The parties shall cooperate in the completion of
the work, and the parties shall share the cost
thereof. Upon payment by Landlord of the cost of the
work, Landlord shall invoice Tenant for seventy-five percent (75%)
of the cost, and Tenant shall pay its share of the cost within
fifteen (15) days after receipt of the invoice
therefor. This obligation of Tenant shall survive the
expiration or earlier termination of this Lease.
7.
MAINTENANCE; SERVICES .
A. Tenant agrees at its sole cost and
expense, to keep and maintain the Leased Premises in a clean and
sanitary condition and in good repair, commensurate with the
conditions existing at the time this Lease is executed and
thereafter at all times during the Term hereof, subject to ordinary
wear and tear. Tenant may, at its sole cost and expense,
during the Term, redecorate the Leased Premises as required by
Tenant (and as approved by Landlord in accordance with Section
10 hereof). Tenant shall hire a janitorial service
to clean the office portions of the
Building. Tenant shall invoice Landlord for
Landlord’s share of the janitorial service so paid and
Landlord shall pay Tenant within fifteen (15) days of receipt of
such invoice. Landlord’s share of the janitorial
service shall be calculated based on the square footage of the
Landlord’s Office Space, divided by the total square footage
of the office space within the Building, and, as of the date
hereof, shall mean 19.7%.
B. Tenant agrees to make available to
the Landlord the use of the large conference room on the first
floor of the Leased Premises when not in use by the Tenant, upon
reasonable advance notice by Landlord, which use shall be at no
cost to Landlord.
C. Landlord shall install a separate
telephone system for its separate use in the
Building. During the period from the Commencement Date
until such separate system is installed, Landlord may utilize
Tenant’s telephone system and during any such period all cost
of the telephone service shall be shared between the
parties. Tenant shall invoice Landlord for
Landlord’s share of the telephone service as paid and
Landlord shall pay Tenant within fifteen (15) days of receipt of
such invoice. Landlord’s share of the cost of such
telephone service shall be calculated based on the average number
of persons that Landlord has occupying the space occupied by
Landlord in the Building, divided by the average number of all
persons occupying the Building during the same period, plus any
applicable long distance charges. After May 1, 2009, if
such separate telephone system has not been installed by Landlord,
Landlord will pay its share of the cost of the Tenant’s
telephone service plus fifteen percent (15%), until
installed.
D. Landlord shall maintain, at
Landlord’s cost and expense, in good repair the Real Property
and the Building and all systems of the Building, including without
limitation the roof, structure, load bearing and fire walls,
foundation, water system, gas system, sewer system, and electrical
wiring, together with the heating and air conditioning facilities
and all controls, including the cutting and mowing of grass and
weeds, commensurate with the conditions existing at the time this
Lease is executed, normal wear and tear excepted, and thereafter at
all times during the Term hereof. In the event that
Tenant becomes aware of a structural problem on the Leased
Premises, Tenant will notify Landlord of such
problem. Landlord agrees to replace all broken or
cracked glass, in the windows and doors of the Leased Premises,
with glass of the same size and quality as that broken or cracked,
and will replace all damaged plumbing fixtures with others of equal
quality. Landlord shall invoice Tenant for
Tenant’s share of the cost to mow grass and cut weeds as paid
and Tenant shall pay Landlord within fifteen (15) days of receipt
of such invoice. Tenant’s share of the cost of the
service shall be calculated based on the square footage of the
Leased Premises, divided by the total square footage of the
Building, and, as of the date hereof, shall mean
41.68%. If any such maintenance or repair, or any such
services, are required due to the act, omission or negligence or
willful misconduct of any member of the Tenant Group (as defined in
Section 11 hereof), Tenant shall pay Landlord for the cost
of such maintenance or repair within fifteen (15) days after
receipt from Landlord of an invoice therefor.
E. Landlord’s covenants under
Section 5 hereof shall only impose on Landlord the
obligation to use reasonable efforts to cause the applicable
utility providers to furnish the Utilities. Landlord has
made no representation, warranty or covenant of any kind regarding
the availability (or future availability) of any Utilities and
services, and interruption of any Utilities or services shall not
give rise to any right or remedy in favor of Tenant under this
Lease, including, without limitation, a claim for abatement or
reduction of the Rent or damages, nor shall Tenant be relieved of
its obligations under this Lease. Notwithstanding the
foregoing, if an interruption of the Utilities occurs and such
condition prohibits Tenant from using all or a portion of the
Leased Premises for the purpose of office space and such condition
exists for fifteen (15) consecutive days after Tenant provides
written notice of the condition to Landlord, then the Rent shall
abate as to that portion of the Leased Premises that is rendered
untenable for the purpose of office space, as reasonably determined
by Landlord. The abatement shall commence upon the
expiration of the fifteen (15) day period and continue for so long
as the condition exists; provided, however, if the condition
continues for two (2) consecutive months, Tenant shall have the
right to terminate this Lease upon written notice to Landlord
(which notice may only be given after the expiration of the two (2)
month period), effective on the date of such
notice. Upon such termination, this Lease shall
terminate and neither Landlord nor Tenant shall have any further
liability to each other hereunder, except for such obligations that
are expressly stated to survive the termination hereof.
8.
SURRENDER OF LEASED PREMISES; RESTORATION
.
Tenant agrees
that, upon termination of the Term of this Lease, whether by
expiration or otherwise, Tenant will peaceably quit and surrender
the Leased Premises to Landlord, and will, at its sole cost and
expense, remove all Tenant’s personal property, fixtures,
structures and improvements, and will restore the Leased Premises
to substantially the same condition the Leased Premises were in on
the date hereof (other than any improvements, installations and
modifications made by Landlord), subject to ordinary wear and
tear. Any and all property which may be removed from the
Leased Premises by Landlord pursuant to the authority of this Lease
or of law, to which Tenant is or may be entitled, may be handled,
removed and stored, as the case may be, by or at the direction of
Landlord at the risk, cost and expense of Tenant, and Landlord
shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon
demand, any and all expenses incurred in such removal and all
storage charges against such property so long as the same shall be
in Landlord’s possession or under Landlord’s
control. Any such property of Tenant not retaken by
Tenant from storage within thirty (30) days after removal from the
Leased Premises shall, at Landlord’s option, be deemed
conveyed by Tenant to Landlord under this Lease as by a bill of
sale without further payment or credit by Landlord to
Tenant. This Section 8 shall survive the
expiration or earlier termination of the Lease.
9.
COMPLIANCE WITH LAWS; WASTE .
A. Tenant covenants and agrees that
it will not commit waste, loss or damage to the Leased
Premises.
B. Tenant acknowledges that Landlord
may incur costs as a result of the enactment of new Legal
Requirements relating to the Leased Premises, and/or changes in
Legal Requirements relating to the Leased
Premises. Tenant agrees that any such costs incurred by
Landlord for complying with such new or changed Legal Requirements
which are due to Tenant’s use and/or occupancy of the Leased
Premises shall be an expense recoverable by Landlord from
Tenant. Landlord shall notify Tenant in advance of the
estimated cost of any such compliance, and Tenant shall have the
right to terminate this Lease if Tenant determines that the cost
thereof exceeds the benefit to Tenant, by delivery of written
notice to Landlord on or prior to the date thirty (30) days after
Tenant receives such notice from Landlord (and failure to deliver
any such notice by the expiration of such thirty (30) day period
shall be deemed Tenant’s waiver of such right of
termination. Upon such termination, this Lease shall
terminate and neither Landlord nor Tenant shall have any further
liability to each other hereunder, except for such obligations that
are expressly stated to survive the termination
hereof. To the extent any such expense paid by Tenant is
subsequently recovered by or reimbursed to Landlord through
insurance or recovery from responsible third parties or other
action, Tenant shall be entitled to such recovery or
reimbursement. If a portion of such expense is paid by
Landlord, then Landlord shall be entitled to deduct from such
recovery its proportionate share thereof.
C. Each party shall promptly provide
to the other party with written notice: (i) upon its obtaining
knowledge of any material violation of any Legal Requirements
relating to the Leased Premises, Building, Common Areas or Real
Property, and/or (ii) of its receipt of any notice, correspondence,
demand or communication of any nature from any governmental
authority alleging a violation of any Legal Requirements relating
to the Leased Premises, Building, Common Areas or Real
Property.
D. Each party shall comply with all
Legal Requirements applicable to the Real Property, Building and
Common Areas and its use and occupation thereof.
E. Tenant shall not cause or permit
any “ Hazardous Substance ” (defined as any
chemical, pollutant, waste, compound or other substance in such
forms, concentrations, quantities or other conditions that are
prohibited, regulated or require assessment, monitoring, removal or
remediation under any law or regulation pertaining to health or the
environment) to be used, installed, stored, treated, generated,
released or disposed on or in the Leased Premises, Building, Common
Areas or Real Property. Tenant shall reimburse Landlord
for all costs and expenses incurred by Landlord (whether incurred
before or after termination of this Lease), within fifteen (15)
days after demand, to correct any violation of the preceding
sentence, or to remove or render harmless any Hazardous Substance
resulting from such a violation, or to comply with applicable
regulatory requirements, in connection with any such removal, or to
contest such requirements. This Section 9.E shall
survive the expiration or earlier termination of the
Lease.
F. Landlord shall not cause or permit
any Hazardous Substance to be used, installed, stored, treated,
generated, released or disposed on or in the Common Areas, Building
or Real Property. Landlord shall reimburse Tenant for
all costs and expenses incurred by Tenant (whether incurred before
or after termination of this Lease), within fifteen (15) days after
demand, to correct any violation of the preceding sentence, or to
remove or render harmless any Hazardous Substance resulting from
such a violation, or to comply with applicable regulatory
requirements, in connection with any such removal, or to contest
such requirements. This Section 9.F shall survive
the expiration or earlier termination of the Lease.
10.
ALTERATIONS .
Tenant shall
not make any alterations, installations, improvements, additions or
other physical changes (collectively, the “
Alterations ”) in or about the Leased Premises without
Landlord’s prior written consent in each instance, which
consent shall not be unreasonably denied or conditioned by
Landlord. Any Alterations shall be performed: (i) by
Tenant, at Tenant’s sole cost and expense (and Landlord shall
have no duty or obligation with respect thereto), (ii) pursuant to
plans and specifications (including, as applicable, layout,
architectural, mechanical, electrical, plumbing, sprinkler and
structural drawings) reasonably approved in writing by Landlord,
(iii) in compliance with all Legal Requirements, and (iv) in a good
and workmanlike manner, free of all liens. Tenant shall,
at Tenant’s sole cost and expense, obtain any and all permits
and approvals necessary for the performance of any
Alterations. During the performance of any Alterations,
Tenant shall carry, or shall cause its contractors and
subcontractors to carry, customary builder’s
insurance.
11.
INDEMNITY .
A. By Tenant . To
the maximum extent permitted under Legal Requirements, Tenant
agrees to protect, indemnify, defend (with counsel reasonably
acceptable to Landlord) and hold harmless Landlord and its parents,
subsidiaries and affiliates, and their respective officers,
directors, shareholders, employees, representatives, agents,
contractors, licensees, lessees, guests, invitees, successors and
assigns (collectively, the “ Indemnified Parties
”) from and against any and all losses, costs, damages,
liabilities, expenses (including, without limitation, reasonable
attorneys’ fees) and/or injuries (including, without
limitation, damage to property and/or bodily injury) suffered or
incurred by any of the Indemnified Parties (regardless of whether
contingent, direct, liquidated or unliquidated, but not including
consequential) (collectively, “ Losses ”), and
any and all claims, demands, suits and causes of action
(collectively, “ Claims ”) brought or raised
against any of the Indemnified Parties, arising out of, resulting
from, relating to or connected with: (1) Tenant’s use of the
Leased Premises; (2) any negligent act or omission or willful
misconduct of Tenant or its officers, directors, shareholders,
employees, representatives, agents, contractors, licensees,
lessees, guests, invitees (collectively, “ Tenant
Group ”) at, on or about the Real Property or Building,
or (3) the failure of any of them to comply with Legal
Requirements, and notwithstanding anything to the contrary in this
Lease, such obligation to indemnify, defend and hold harmless the
Indemnified Parties shall survive any termination of this
Lease. This indemnification shall include, without
limitation, claims made under any workman’s compensation law
or under any plan for employee’s disability and death
benefits (including, without limitation, claims and demands that
may be asserted by employees, agents, contractors and
subcontractors).
B.
By Landlord . To the maximum extent permitted
under Legal Requirements, Landlord agrees to protect, indemnify,
defend (with counsel reasonably acceptable to Tenant) and hold
harmless Tenant and its parents, subsidiaries and affiliates, and
their respective officers, directors, shareholders, employees,
representatives, agents, contractors, licensees, lessees, guests,
invitees, successors and assigns (collectively, the “
Tenant Indemnified Parties ”) from and against any and
all Losses incurred by any of the Tenant Indemnified Parties, and
any and all Claims brought or raised against any of the Tenant
Indemnified Parties, arising out of, resulting from, relating to or
connected with: (1) Landlord’s use of the Real Property or
Building, (2) any negligent act or omission or willful misconduct
of Landlord or its officers, directors, shareholders, employees,
representatives, agents, contractors, licensees, lessees, guests,
invitees (collectively, “ Landlord Group ”) at,
on or about the Real Property or Building, or (3) the failure of
any of them to comply with Legal Requirements, and notwithstanding
anything to the contrary in this Lease, such obligation to
indemnify, defend and hold harmless the Tenant Indemnified Parties
shall survive any termination of this Lease. This
indemnification shall include, without limitation, claims made
under any workman’s compensation law or under any plan for
employee’s disability and death benefits (including, without
limitation, claims and demands that may be asserted by employees,
agents, contractors and subcontractors).
C.
Indemnity Procedure . If an Indemnified Party or
Tenant Indemnified Party (in each case, the “
Indemnitee ”) receives notice of any claim, action or
proceeding (an “ Action ”) against Indemnitee
with respect to which indemnification is to be sought from the
party with the obligation to indemnify (the “
Indemnitor ”) under this Section 11.C ,
Indemnitee shall promptly notify Tenant or Landlord, as indemnitor
and as applicable (in such capacity, “ Indemnitor
”) of the Action in writing. Indemnitee
may direct Indemnitor to assume the defense of the Action and to
pay all reasonable costs and expenses incurred as a result
thereof. If Indemnitee shall not have directed
Indemnitor to assume the defense of the
Action, Indemnitor shall have the right to participate
at its own expense in the defense of any such
Action.&nb
