Sequent II
FIFTH AMENDMENT TO LEASE
THIS AMENDMENT is made this 30 day of September 1997 by and between
the undersigned Landlord and Tenant.
RECITALS
A. Landlord and Tenant are parties to that certain Lease Agreement
dated May 8, 1987 (the "Lease Agreement") and the following documents (the
"Amendments") which amend such Lease Agreement (the Lease Agreement and all
such Amendments are herein collectively referred to as the "Lease"):
(a) Letter dated January 12, 1988;
(b) Amended Memorandum of Lease dated July 28, 1988
(c) First Amendment dated July 28, 1988
(d) Second Amendment dated September 13, 1991;
(e) Third Amendment dated December 2, 1992; and
(f) Fourth Amendment dated April 5, 1993.
B. Landlord and Tenant desire to amend the Lease as set forth
herein.
NOW, THEREFORE, for good and valuable consideration, it is agreed as
follows:
1 Lease Revisions.
1.1 Exercise Notice. Section 6.2.1 of the Lease Agreement
is hereby deleted and the following is inserted in its place:
6.2.1 LESSEE must give written notice (herein the
"Notice") of the exercise of the Option to Purchase, which
Notice shall be delivered to LESSOR no earlier than May 31,
1997 nor later than September 30, 1997, and any attempted
exercise of the Option to Purchase at any other time shall
be null, void and of no legal effect; further, LESSEE must
simultaneously give "Notice" of the exercise of the "Option
to Purchase" under the Third Lease; and
1.2 Defined Term Change. All references in Sections 6.3.2 and
6.4.2 of the Lease Agreement to the "Expiration Date of the Initial Term" or
the "Expiration Date" are hereby changed to be references to April 1, 1998.
1.3 Delays in Closing. Section 6.4.2 of the Lease Agreement is hereby
deleted and the following is inserted in its place:
6.4.2 Delays in Closing. The Closing shall occur on April 1,
1998. LESSEE shall have no right to Close the purchase of the
Property absent simultaneously closing of the purchase of the
land and improvements covered by the third building Lease which
was executed by LESSOR and LESSEE and is dated July 28, 1988
(the "Third Lease"). Any failure by LESSEE to close the
purchase of the land and improvements covered by the Third
Lease on April 1, 1998 shall be deemed a rescission of the
exercise of the Option to Purchase the Property pursuant to
Section 6.8 below.
1.4 Rescission Election. A rescission election given pursuant to
Section 6.8.1.2 of the Lease Agreement shall not constitute an election to
renew the Lease Agreement. Accordingly, item (b) of Section 6.8.1.2 of the
Lease Agreement is hereby deleted. No rescission notice shall be valid
unless LESSEE simultaneously gives a rescission notice under Section 6.8.2
of the Third Lease.
1.5 Rescission Election -- Costs. Section 6.8.2 of the Lease
Agreement (including Sections 6.8.2.1, 6.8.2.2 and 6.8.2.3) is hereby
deleted and the following is inserted in its place:
6.8.2 Costs. LESSEE acknowledges that LESSOR shall incur
costs in connection with the exercise of the Option to Purchase.
In the event the Option to Purchase is exercised but LESSEE
subsequently rescinds such exercise pursuant to this
Section 6.8, then LESSEE shall pay to LESSOR, within five (5)
days of written request, an amount equal to (a) all such costs
incurred by LESSOR, including, but not limited to, appraisal
costs, attorney fees, and title report cancellation fees,
(b) interest at the rate set forth in Section 4.5 above from
the date of payment of each such cost by LESSOR to the date of
full reimbursement of the same by LESSEE, and (c) the sum of
$500 per day from the date that the Option to Purchase is
exercised to the date that the rescission notice is given.
1.6 Remedies. Section 6.9 of the Lease Agreement is hereby deleted
and the following is inserted in its place:
6.9 Remedies of Lessor. In the event LESSEE exercises the
Option to Purchase, and the transaction of purchase and sale of
the Property contemplated hereby does not Close when and as
provided herein for any reason attributable to LESSEE or any
person or entity in a relationship to LESSEE (except in the
case of a rescission allowed pursuant to Section 6.8.1 above),
then such event shall be treated as the giving by LESSEE of a
rescission notice under Section 6.8.1 above effective as of the
later of the date specified for Closing pursuant to Section
6.4.2 above or the date that LESSOR gives to LESSEE written
notice of LESSEE's failure to Close. LESSOR shall accept the
payment of costs under Section 6.8.2 above as liquidated damages
and as its sole remedy for such a failure of LESSEE to Close.
2 Status of Lease. Except as expressly amended hereby, the Lease
remains in full force and effect and is hereby ratified and affirmed.
IN WITNESS WHEREOF, this Amendment has been executed as of the date and
year indicated above.
LANLORD: PETULA ASSOCIATES, LTD., an Iowa
corporation, and XXXX WOODSIDE
ASSOCIATES, a California general
partnership, tenants-in-common, doing
business as XX XXXXXXXX
PETULA ASSOCIATES, LTD, an Iowa
corporation
By: /s/Xxx Xxxxxxxx
Its: Vice President of Commerical
Real Estate
By: /s/Xxxx Xxxxx Xxxxx
Its: Counsel
TENANT: SEQUENT COMOUTER SYSTEMS, INC.,
an Oregon corporation
By: /s/Xxxx Xxxxx for Xxx Xxxx
Its: Vice President of Information
Services
