EIGHTH AMENDMENT TO LEASE
THIS EIGHTH AMENDMENT TO LEASE is made as of March 26, 1998 between PETULA
ASSOCIATES, LTD., an Iowa corporation and EQUITY FC, LTD., an Iowa corporation
(collectively, "Lessor"), and SEQUENT COMPUTER SYSTEMS, INC., an Oregon
corporation ("Lessee").
RECITALS
A. Lessor and Lessee are parties to that certain Lease Agreement dated July
9, 1990 (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"):
1. First Amendment dated April 29, 1990;
2. Second Amendment dated April 29, 1991;
3. Third Amendment dated June 10, 1991;
4. Fourth Amendment dated July 3, 1991;
5. Fifth Amendment dated August __, 1991;
6. Sixth Amendment dated December 2, 1992; and
7. Seventh Amendment dated April 5, 1993
B. Capitalized terms not defined in this Amendment have the meanings set
forth in the Lease.
X. Xxxxxx and Lessee desire to amend the Lease as set forth herein.
AGREEMENT
1. LEASE REVISIONS.
1.1 Closing Costs and Title Insurance. The following is added after the
last sentence of Section 6.4.3 of the Lease and is hereby made a part of
Section 6.4.3:
"If available from Escrow Agent and if requested by Lessor, Escrow
Agent shall issue to Lessor at its expense a 'simultaneous issue'
seller's policy of title insurance."
1.2 Conveyance. The following shall be added after the last sentence of
Section 6.4.4 of the Lease and is hereby made a part of Section 6.4.4:
"At Lessee's request, Lessor shall convey title to the Property
to an institutional lender or trustee providing synthetic
lease financing or other institutional financing to Lessee
in connection with its acquisition of the Property; provided,
however, use of such designee will not affect (or operate
as a release of) Lessee's obligations or liability under
the Lease, including the Option to Purchase provisions
of the Lease."
1.3 Lease Termination. The following is added as a new Section 6.4.8 to the
Lease:
"6.4.8 Termination of Lease. This Lease shall automatically
terminate effective upon the Closing of the sale of the
Property from Lessor to Lessee pursuant to this Section 6;
provided, however, the Survival Provisions of Section 50 shall
apply in connection with any such termination. If requested
by Lessee, Lessor shall enter into a lease termination agreement
with Lessee to evidence the agreement of the parties in this
Section 6.4.8, and Lessee shall have the right to record such
lease termination agreement in the records of Washington County,
Oregon at any time following the recording of the statutory
special warranty deed referenced in Section 6.4.4."
1.4 Traffic Signal. The following is added as a new Section 52 to the Lease:
"52 Traffic Signal. Lessor and Lessee agree that the cost to
install a traffic signal (the "Signal") at the intersection of
Xxxx Parkway, Xxxxxx Road and SW 150th Avenue shall be treated
as a Special Common Area Assessment pursuant to the Declaration
of Covenants, Conditions and Restrictions dated March 12, 1986,
as amended by First Amendment thereto dated October 28, 1996
and Section Amendment thereto dated March 13, 1998 (collectively,
the "Declaration"), which Declaration encumbers the Property and
other property. Once the Signal has been installed and is
operational (the "Signal Completion Date"), Lessor shall furnish
to Lessee a statement in commercially reasonable detail showing
the portion of the cost to install such Signal (the "Signal
Cost") that is allocated to the Property as a Special Common
Area Assessment pursuant to the Declaration and, upon request
from Lessee, shall furnish copies of invoices received and paid
by Lessor in connection with the installation of the Signal.
Lessee agrees to reimburse Lessor for the portion of the Signal
Cost allocated to the Property, provided, however, that, except
as provided herein, Lessee shall not be required to pay such cost
in a lump sum, but rather such cost, together with a financing
charge of ten percent (10%) per annum, shall be amortized over an
estimated useful life of ten (10) years and Lessee shall reimburse
Lessor for such cost by paying Lessor in equal monthly installments
beginning on the first day of the second calendar month following
the Signal Completion Date (or on the first day of the next
calendar month if the Signal Completion Date is the first day of
a calendar month) and on the first day of each month thereafter
during the remaining term of this Lease that portion of such cost
attributable to the month preceding such payment based on such
amortization plan. If the Signal Completion Date is a day other
than the first day of a calendar month, then on the first day
of the calendar month following the Signal Completion Date, Lessee
shall pay to Lessor interest at the rate provided herein from the
Signal Completion Date through the last day of the month in which
the Signal Completion Date occurs. In the alternative, Lessee
shall have the right to prepay all or any portion of the outstanding
balance of such cost at any time without any prepayment charge. If
Lessee purchases the Property pursuant to the Option to Purchase
in this Lease and the Signal has been installed and is operational,
upon the closing of such purchase Lessee shall pay to Lessor the
outstanding balance of the Signal Cost allocated to the Property. If
Lessee does not purchase the Property pursuant to the Option to
Purchase in this Lease and this Lease expires or otherwise
terminates, the (i) Lessee shall pay to Lessor within ten (10) days
of such expiration or termination that portion of the Signal Cost
allocated to the Property that is attributable to the period
commencing with the first day of the month in which this Lease
expires or otherwise terminates, and (ii) Lessee's obligation to
reimburse Lessor for the remaining balance of the Signal Cost
allocated to the Property shall cease upon such expiration or
termination of this Lease, provided, however, that if this Lease
terminates due to the default of Lessee, Lessor may recover from
Lessee the unpaid portion of the Signal Cost allocated to the
Property, if any, in addition to other amounts allowed under Section
20.2 of this Lease. Nothing herein shall be deemed an agreement by
Lessee that the cost of any other traffic signal(s) installed near
the Property in the future should be passed through to Lessee under
this Lease."
1.5 Monument Sign/Landscape Strip. Notwithstanding that the monument sign
used by Lessee in connection with its use of the Premises is located within
an area designated as common area under the Declaration, during the term of
this Lease the expense of maintaining the sign shall not be treated as a
common area expense, but rather shall be the responsibility of Lessee.
Upon termination of this Lease, the expense of maintaining the sign shall
be treated as a common area expense under the Declaration unless the sign
is used exclusively by the owner of the Premises or any new tenant of such
owner, in which case such expense shall be the responsibility of such owner
or such tenant.
2. STATUS OF LEASE. Except as expressly amended hereby, the Lease remains
in full force and effect and is hereby ratified and affirmed.
3. COUNTERPARTS. This Amendment may be executed simultaneously or in
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Amendment.
4. FACSIMILE TRANSMISSION. Facsimile transmission of any signed original
document, and retransmission of any signed facsimile transmission, shall
be the same as delivery of an original. At the request of either party,
the parties shall confirm facsimile transmitted signatures by signing an
original document.
IN WITNESS WHEREOF, this Eighth Amendment to Lease has been executed as of
the date set forth above.
LESSOR: PETULA ASSOCIATES, LTD., an Iowa corporation
By: /s/ XXXXXXX X. XXXXX
Name: XXXXXXX X. XXXXX
Title: VICE PRESIDENT
By: /s/ XXXXXXX X. XXXXXX
Name: XXXXXXX X. XXXXXX
Title: VICE PRESIDENT
EQUITY FC, LTD., an Iowa corporation
By: /s/ XX XXXXXXXXX
Name: XX XXXXXXXXX
Title: COUNSEL
By: /s/ XXXXXX X. XXXXXXXX
Name: XXXXXX X. XXXXXXXX
Title: VICE PRESIDENT
LESSEE: SEQUENT COMPUTER SYSTEMS, INC.,
an Oregon corporation
By: /s/ XXXXXX X. XXXX
Name: XXXXXX X. XXXX
Title: VICE PRESIDENT & CIO
