MARKETING AGREEMENT
Exhibit
10.3
THIS MARKETING AGREEMENT (the
“Agreement”) is made as of the 13th day of November, 2009 (the “Effective
Date”), by and between XXXXX & XXXXXXXXXX COMPUTER CORPORATION, a Utah
corporation (“Xxxxx”) and WASATCH
RESEARCH PARK I, LLC, a Utah limited liability company (“Wasatch”).
RECITALS:
A. Wasatch
is the current lessee under that certain University of Utah Research Park Master
Lease Agreement dated 1 April 1988, as amended by that certain First Addendum to
Lease Agreement dated 31 December 1990 (the “Ground Lease”), whereby Wasatch has
leased certain real property located at 000 Xxxxx Xxxxx and 000 Xxxxx Xxxxx,
Xxxx Xxxx Xxxx, Xxxx (the “Real Property”).
B. Pursuant
to the terms of the Ground Lease, Wasatch’s predecessor constructed three
commercial buildings upon the Real Property, which shall be referred to
hereafter as (i) the “770 Komas Drive Building;” (ii) the “790 Komas Drive
Building;” and (iii) the “Substation Building.”
X. Xxxxx
currently leases the 000 Xxxxx Xxxxx Building, the 000 Xxxxx Xxxxx Building and
the Substation Building from Wasatch pursuant to a commercial lease dated
November 13, 2009 (the “Lease”).
D. Wasatch
and Xxxxx have agreed to jointly market and sell the Substation Building,
together with all equipment located therein (the “Equipment”) and to allocate
the net sales proceeds as more fully set forth in this Agreement.
NOW, THEREFORE, in consideration of the
mutual promises and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties do hereby agree as follows:
1. Joint Marketing of
Substation Building. Wasatch and Xxxxx hereby agree to jointly
market the Substation Building and the Equipment for sale to such third parties
as may show interest in the Substation Building and the
Equipment. Such prospective purchasers may be parties known to
Wasatch or Xxxxx prior to the date of this Agreement.
2. Acceptance of
Offers. Wasatch, as the owner of the Substation Building and
Equipment, shall have the sole right to accept offers to purchase the Substation
Building and Equipment, upon such terms and conditions as Wasatch may deem
acceptable; subject, however, to the written consent of Xxxxx, which shall not
be unreasonably withheld. Wasatch further agrees that it shall not
close the sale of the Substation Building pursuant to any such offer without
having first provided Xxxxx with an advance thirty (30) day written notice of
such offer, to provide Xxxxx adequate time to exercise its option to repurchase
the Substation Building in advance of any such closing. Wasatch’s
written notice of an acceptable offer (and seeking the consent of Xxxxx) may
constitute such thirty (30) day notice.
3. Marketing Costs. Any costs related to the
advertising or marketing of the Substation Building and Equipment (the
“Marketing Costs”) shall be approved in writing by Wasatch prior to being
incurred. Wasatch shall pay all Marketing Costs that Wasatch has
approved in advance; however, Wasatch shall have no liability for unapproved
Marketing Costs, which shall be paid by the party who ordered or incurred the
same.
4. Commission
Agreements. Xxxxx hereby agrees that it is not authorized to
enter into a commission agreement with real estate brokers or agents (a
“Commission Agreement”), and that any such Commission Agreement, to be valid and
enforceable, must be executed by the Manager of Wasatch. Any
commissions payable at the closing of the sale of the Substation Building and
Equipment (the “Closing”) pursuant to a Commission Agreement executed by Wasatch
shall be paid at Closing, and shall not be included in the Net Sales Proceeds
(as defined below).
5. Net Sales
Proceeds. For purposes of this Agreement, the term, “Net Sales
Proceeds” shall be defined as the net cash payable to Wasatch at the closing of
the sale of the Substation Building and Equipment, after deducting all closing
costs, prorations, Marketing Costs and related expenses attributable to the sale
of the Substation Building and Equipment. The Net Sales Proceeds
shall be shown on the Settlement Statement at Closing as the “Cash to
Seller.”
6. Allocation of Net Sales
Proceeds. At Closing, the parties hereby agree to allocate the
Net Sales Proceeds as follows:
(a) Xxxxx
has the option to repurchase the Substation Building and Equipment pursuant to
the terms of that certain Repurchase Option Agreement of even date herewith (the
“Repurchase Option”). If Xxxxx exercises its option to repurchase the
Substation Building and Equipment and closes on such repurchase prior to the
Closing, the Net Sales Proceeds shall be calculated and distributed in
accordance with the terms set forth in Section 8 of the Repurchase
Option.
(b) If
Xxxxx does not exercise its option to repurchase the Substation Building and
Equipment and close on such repurchase prior to the Closing, the Net Sales
Proceeds shall be calculated and distributed as follows:
(i) A
portion of the Net Sales Proceeds equal to the out-of-pocket costs incurred by
Wasatch in the payment of any Marketing Costs (excluding any sales commissions
paid at Closing) shall be paid to Wasatch to reimburse Wasatch for such
Marketing Costs.
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(ii) Twenty-five
percent (25%) of the Net Sales Proceeds (after reimbursement of the Marketing
Costs) shall be disbursed to Xxxxx as a marketing fee earned by Xxxxx,
regardless of whether Xxxxx was principally responsible for locating the
ultimate purchaser of the Substation Building and Equipment.
(iii) The
remaining seventy-five percent (75%) of the remaining Net Sales Proceeds (after
reimbursement of the Marketing Costs) shall be retained by Wasatch.
7. Tax
Consequences. Each of Wasatch and Xxxxx shall be liable for
the tax consequences resulting from the allocation of the Net Sales Proceeds as
set forth in Section 6, above.
8. Term of
Agreement. This Agreement shall commence on the date set forth
above, and shall terminate upon the earlier of: (a) the date that Xxxxx no
longer occupies any of the Buildings located on the Real Property, as a tenant
under the New Lease (as defined in the Purchase Agreement); (b) the date that
Xxxxx is in default under the New Lease, after any required notice and the
expiration of any cure periods provided by the Lease; (c) the date that the New
Lease terminates, for any reason; (d) the date that Xxxxx files for bankruptcy
protection under any bankruptcy statute; or (e) September 30, 2014.
9. Indemnification. Xxxxx
hereby agrees to indemnify Wasatch and hold Wasatch harmless from and against
any and all damages, claims or liabilities incurred by Wasatch as a result of
Xxxxx’ failure to pay any taxes assessed on the Net Sales Proceeds allocated to
Xxxxx pursuant to this Agreement, including any and all attorneys fees and costs
incurred by Wasatch with respect to any such damages, claims or
liabilities. Wasatch hereby agrees to indemnify Xxxxx and hold Xxxxx
harmless from and against any and all damages, claims or liabilities incurred by
Xxxxx as a result of Wasatch’s failure to pay any taxes assessed on the Net
Sales Proceeds allocated to Wasatch pursuant to this Agreement, including any
and all attorneys fees and costs incurred by Xxxxx with respect to any such
damages, claims or liabilities.
10. Successors and
Assigns. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, successors and
assigns; provided, that this provision shall not be construed as permitting
assignment, substitution, delegation or other transfer of rights or obligations
except strictly in accordance with the provisions of the other Sections of this
Agreement.
11. Integration of Other
Agreements. This Agreement supersedes all previous contracts,
correspondence and documentation relating to the sale of the Substation Building
and Equipment, including such provisions as may be set forth in the Purchase
Agreement. Any oral representations or modifications concerning this
Agreement shall be of no force or effect. This provision shall survive the
Closing.
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12. Counterparts. This
Agreement may be executed in any number of duplicate originals or counterparts,
each of which shall be of equal force and effect.
13. Further
Actions. Wasatch and Xxxxx agree to execute such additional
documents and take such further actions as may reasonably be required to carry
out each of the provisions and the intent of this Agreement.
14. Authorized
Assignment. Either party shall have the right to assign its
rights and obligations hereunder to a related entity of its choice.
15. Severability. Whenever
possible, each provision of this Agreement and every related document shall be
interpreted in such manner as to be valid under applicable law; but, if any
provision of any of the foregoing shall be invalid or prohibited under said
applicable law, such provision shall be ineffective to the extent of such
invalidity or prohibition without invalidating the remainder of such provision
or the remaining provisions of this document.
16. Governing
Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Utah without giving effect to the
conflicts of laws provisions thereof.
17. Attorney
Fees. In the event either party brings suit to enforce or
interpret this Agreement or for damages on account of the breach of a covenant
or representation or warranty contained herein, the prevailing party shall be
entitled to recover from the other party or parties its reasonable attorney fees
and costs incurred in any such action, in addition to other relief to which the
prevailing party is entitled.
IN WITNESS WHEREOF, this Agreement is
executed by the parties as of the date first set forth above.
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