SIXTH AMENDMENT TO LEASE
THIS SIXTH AMENDMENT TO LEASE is made as of March 26, 1998 between
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, an Iowa corporation, and 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 28, 1988 (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 July 28, 1989;
2. Second Amendment dated September 13, 1991;
3. Third Amendment dated December 2, 1992;
4. Fourth Amendment dated April 5, 1993; and
5. Fifth Amendment dated September 30, 1997.
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 Delays in Closing. Section 6.4.2 of the Lease is hereby deleted and
the following is inserted in its place:
"6.4.2 Delays in Closing. The Closing shall occur on April1, 1998.
Lessee shall have no right to close the purchase of the Property absent
simultaneously closing the purchase of (I) the land and improvements
covered by the second building lease between Petula Associates, Ltd. and
Xxxx Xxxxxxxx Associates, tenants-in-common, doing business as XX
Xxxxxxxx ("Woodside"), as lessor, and Lessee, as lessee, dated May 8,
1987, as amended by letter dated January 12, 1988, Addendum of 1987
(undated) and amendments dated July 28, 1988, September 13, 1991,
December 2, 1992, April 5, 1993, September 30, 1997 and of even date
with this Amendment (collectively, the "Second Lease") and (ii) the
land and improvements covered by the fourth building lease between
Woodside, as lessor, and Lessee dated July 28, 1989, as amended by
amendments dated September 13, 1991, August 13, 1992, December 2, 1992,
April 5, 1993, September 30, 1997 and of even date with this Amendment
(collectively, the "Fourth Lease"). Any failure by Lessee to close the
purchase of the land and improvements covered by the second Lease and
Fourth Lease on April 1, 1998 shall be deemed a rescission of the
exercise of the Option to Purchase the Property pursuant to Section 6."
"In the event the Closing does not occur on April 1, 1998, then (I)
Lessor shall continue to lease to Lessee and Lessee shall continue to
lease from Lessor the Premises at the rental and upon all of the terms
and conditions set forth in this Lease until the Closing occurs as
provided herein or until the expiration or termination of this Lease,
whichever occurs first, and (ii) if the Closing does not occur on
April 1, 1998 for any reason attributable to Lessee, Lessee shall have
an additional fifteen (15-) day period during which Lessee shall exert
best efforts to close the purchase of the Property. If the closing does
not occur within such fifteen- (15-) day period for any reason
attributable to Lessee, the Option to Purchase shall terminate, Lessor
shall not have any obligation to convey the Property to Lessee and Lessor
shall have all remedies available to Lessor under Section 6.9 of the
Lease. If the delay in Closing is attributable to Lessor or to a third
party not in relationship with Lessee, then the fifteen- (15-) day
period shall be extended, on the same terms until a Closing can be
accomplished and Lessee shall have all remedies available to it under
this Lease."
1.2 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.
1.3 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."
1.4 Lease Termination. The following is added as a new Section 6.4.7 to
the Lease:
"6.4.7 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
Provision 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 6.4.7, 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."
1.5 Traffic Signal. The following is added as a new Section 51 to the Lease:
"51 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 Second 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, then (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 through the date the 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 with respect to
any portion of the Signal Cost that is attributable to any period from
and after the 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."
1.6 The following is added at the end of Section 6.8.1.2 of the Lease and
is made a part of such Section:
"No rescission notice given by Lessee to Lessor pursuant to this
Section 6.8.1.2 will be valid unless Lessee simultaneously gives to
Lessor a rescission notice to rescind its exercise of the Option to
Purchase under the Third Lease and the Fourth Lease."
1.7 The last sentence of Section 6.9 of the Lease is hereby deleted and the
following is inserted in its place:
"In such event, 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, and Lessor shall continue to lease
to Lessee and Lessee shall continue to lease from Lessor the Premises
for the term, at the rental, and upon all of the terms and conditions
set forth in this Lease, except that the Option to Purchase in Section
6 shall terminate and Lessor shall not have any obligation to convey
the Property to Lessee."
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 and 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 Sixth Amendment to Lease has been executed as of
the date set forth above.
LESSOR: PRINCIPAL MUTUAL LIFE INSURANCE COMPANY,
an Iowa corporation
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Assistant Director, Commercial Real Estate
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Director, Commercial Real Estate
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
LESSEE: SEQUENT COMPUTER SYSTEMS, INC.,
An Oregon corporation
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President & CIO
