Exhibit 10.10
LEASE AGREEMENT
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THIS LEASE AGREEMENT (this "Lease"), dated this 3rd day of December, 1994,
but effective as of the 4th day of December, 1994, is by and between NOVELL,
INC., a Delaware corporation ("Landlord"), and X.X. XXXXXXXXX & SONS COMPANY, a
Delaware corporation ("Tenant").
W I T N E S S E T H:
l. Leased Premises.
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A. In consideration of the obligation of Tenant to pay rent as
hereinafter provided, and in consideration of the other terms, provisions, and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby accepts and leases from Landlord, all those certain lots, parcels or
pieces of land situated in Lindon, Utah, as the same are more particularly
described in Exhibit A attached hereto and made a part hereof (the "Land"),
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together with the buildings containing in the aggregate approximately 338,008
square feet (less the Labeltech Space (as hereinafter defined) until such time
as the requirements of Paragraph 1(B) hereof have been satisfied) located on the
Land and commonly known as Buildings l, 1.5, 2, 2.5 and 3, 000 Xxxxx 000 Xxxx,
Xxxxxx, Xxxx 00000 (collectively, the "Building"), and all appurtenances,
fixtures and improvements now or hereafter erected on the Land, including,
without limitation, all walkway, road and parking improvements and facilities
and all other facilities used in connection with the operation or occupancy of
the Land (collectively, the "Leased Premises").
B. Landlord and Tenant acknowledge that a portion of the 338,008
square feet included within the Leased Premises is or was formerly leased by
Landlord to Labeltech, Inc. ("Labeltech") pursuant to a lease agreement between
Landlord and Labeltech (the "Labeltech Lease"). The area covered by the
Labeltech Lease consists of approximately two thousand two hundred seventy-nine
(2,279) square feet as more fully described in the Labeltech Lease and as
depicted on Exhibit A-1 attached hereto and made a part hereof (the "Labeltech
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Space"). Landlord and Tenant agree to determine the exact square footage of the
Labeltech Space, promptly after the date hereof, and to confirm such
determination in writing. Landlord and Tenant expressly acknowledge that,
notwithstanding anything to the contrary contained herein, the Leased Premises
shall not include the Labeltech Space, and Tenant shall have no obligations or
liabilities whatsoever with respect thereto, whether arising under this Lease or
otherwise, including, without limitation, the obligation to pay Rent thereon,
unless and until (i) the Labeltech Lease has been terminated, (ii) all equipment
and materials associated with the operations of Labeltech have been removed from
the Labeltech Space, (iii) all chemicals, hazardous substances, hazardous
materials, hazardous wastes and solid wastes have been properly removed from the
Labeltech Space, and (iv) the Labeltech Space has been inspected and approved by
Tenant in writing. Upon the satisfaction of the foregoing requirements, the
Labeltech Space will be automatically added to the Leased Premises without the
necessity of an amendment to this Lease, provided that Landlord and Tenant agree
to execute such an amendment upon the request of either party.
2. Condition of Leased Premises. Tenant acknowledges that the Leased
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Premises are in satisfactory condition and that no promises to decorate, alter,
repair or improve the Leased Premises have been made by Landlord or its agents
to Tenant, except as expressly set forth herein. Tenant accepts the Leased
Premises "AS IS" with no representations respecting the condition thereof except
as expressly set forth herein or in the Purchase Agreement (as hereinafter
defined).
3. Term.
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A. Tenant shall have and hold the Leased Premises unto itself, its
successors and assigns, for a term of three (3) years, commencing on December 4,
1994 (the "Commencement Date"), and ending on the date which is three (3) years
after the Commencement Date (the "Termination Date"), or such other date as this
Lease may be terminated or extended pursuant to any provision hereof (the "Lease
Term").
B. Provided there is no ongoing Event of Default (as hereinafter
defined) hereunder at the time Tenant exercises the option, Tenant shall have an
option to renew this Lease for one (1) additional term of two (2) years (the
"Renewal Term"), exercisable by giving Landlord written notice not less than
ninety (90) days prior to the Termination Date, upon the same terms and
conditions as provided in this Lease, except that Base Rent (as hereinafter
defined) for the Renewal Term shall be the then fair market rental, determined
as follows:
Within twenty (20) days following Tenant's exercise of the renewal option,
Landlord and Tenant shall attempt to agree on the fair market rental of the
Leased Premises. Absent an agreement as to the fair market rental of the
Leased Premises within such twenty (20) day period, Landlord and Tenant
shall, within ten (10) days thereafter, each choose an appraiser (qualified
by an "M.A.I." designation). Within fifteen (15) days after the appraisers
have been selected, the two appraisers shall each make their respective
determination as to the fair market rental of the Leased Premises, and fair
market rental for the Renewal Term shall be determined by averaging the
appraisals of each of the two appraisers.
4. Base Rent.
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A. Tenant covenants and agrees to pay to Landlord for the Leased
Premises base rent ("Base Rent") at the rate of thirty-four cents (34 cents) per
square foot per month (the "Base Rent Rate"), in advance, in equal monthly
installments of $114,147.86 per month ($1,369,744.32 per year). Landlord and
Tenant acknowledge that the foregoing monthly and annual amounts are based on
the assumption that the Labeltech Space constitutes 2,279 square feet. At the
time Landlord and Tenant determine the actual square footage of the Labeltech
Space as provided in Paragraph 1(B) above, the monthly and annual Base Rent
amounts will be adjusted accordingly. Further, at such time as the Labeltech
Space is added to the Leased Premises in accordance with the provisions of
Paragraph 1(B), Tenant will pay Base Rent with respect thereto at the Base Rent
Rate. Base Rent shall be payable, in lawful money of the United States, on or
before the first day of each calendar month during the Lease Term, except that
the rental payment for any fractional calendar month at the commencement or end
of the Lease Term shall be prorated.
B. All sums, charges and other payments to be made by Tenant under
any of the provisions of this Lease other than Base Rent shall be deemed to be
supplemental rent ("Supplemental Rent"). Base Rent and Supplemental Rent shall
be collectively referred to herein as "Rent".
C. All Rent payable to Landlord shall be paid by Tenant to Landlord
at Landlord's address specified herein, or to such other person and/or at such
other address as Landlord may direct by notice to Tenant.
D. It is the purpose and intent of Landlord and Tenant that the Rent
payable hereunder shall be absolutely net to Landlord and that Tenant shall pay,
without notice or demand
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(except as otherwise provided herein) and without abatement or set-off, all
costs, Impositions (subject to the provisions of Paragraph 5 hereof), insurance
premiums, water, gas and electric light and power bills, and other utilities,
taxed, levied or charged against the Leased Premises for and during the Lease
Term and any extensions thereof, and all other expenses and obligations of any
kind and nature relating to the Leased Premises, except to the extent expressly
provided herein.
5. Impositions.
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A. Tenant shall pay, as Supplemental Rent, all Impositions (as
hereinafter defined), or cause the same to be paid, as and when the same become
due and before any fine, penalty, interest or cost may be added thereto for the
nonpayment thereof. As used herein, the term "Impositions" shall mean all
general and special taxes, duties, assessments, water and sewer rents, rates and
charges, charges for public utilities, excises, levies, license and permit fees,
parking surcharges and other charges of governmental authorities which at any
time during the Lease Term may have been or may be laid, assessed, levied,
confirmed, imposed upon, or arise or become due or payable out of or in respect
of or become a lien on, the Leased Premises or any part thereof;
provided, however, that:
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i. If any Imposition relating to a fiscal period of a taxing
authority, all of which period is included within the Lease Term, may,
at the option of the taxpayer be paid in installments, Tenant may,
subject to Landlord's approval (which shall not be unreasonably
withheld), pay such Impositions in installments;
ii. Any Imposition with respect to a fiscal period of a taxing
authority part of which is included within the Lease Term and part of
which is not included within the Lease Term shall be prorated between
Landlord and Tenant as of the Termination Date; and
iii. Impositions shall not include (i) income taxes assessed
against Landlord, (ii) any capital levy, corporation franchise, excess
profits, estate, succession, inheritance or transfer taxes of
Landlord, or (iii) any mechanics' or materialmen's lien or other lien
or charge created or suffered by or through Landlord, all of the
foregoing being the sole obligation of Landlord.
Landlord represents and warrants to Tenant that it has no notice or knowledge of
any pending or threatened special assessment or other Imposition with respect to
the Leased Premises.
B. Upon request of Landlord, Tenant shall deliver to Landlord within
twenty (20) days of such request, copies of all bills for such Impositions,
showing such Imposition to be paid in accordance with the terms thereof.
C. Tenant shall have the right, subject to Landlord's approval (which
shall not be unreasonably withheld) and at Tenant's own expense, to contest the
amount or validity, in whole or in part, of any Imposition, by appropriate
proceedings. Upon termination of any such proceedings, it shall be the
obligation of Tenant to pay the amount of such Imposition or part thereof as
finally determined in such proceedings to the extent applicable to the Lease
Term. Landlord agrees that whenever Landlord's cooperation is required in any
proceedings brought by Tenant as aforesaid, Landlord will cooperate therein.
6. Use of Premises. Tenant shall use the Leased Premises for light
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manufacturing and for general office purposes and other ancillary uses. Tenant
shall have access to the Leased Premises 24 hours per day, 7 days per week, 52
weeks per year. Tenant will not occupy or use, nor permit any portion of Leased
Premises to be occupied or used, for any use or purpose which is
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unlawful, nor permit anything to be done which will render void or in any way
increase the rate of any insurance on the Building or its contents.
7. Surrender of Leased Premises. Tenant shall and will upon the expiration
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of this Lease surrender and deliver up the Leased Premises (except Tenant's
trade fixtures, as herein provided) into the possession of Landlord without
delay, broom clean and in at least as good condition as on the Commencement Date
of the Lease Term, ordinary wear and tear excepted.
8. Alterations. Any Alteration (as hereinafter defined) which Tenant
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elects to make shall be made at the cost and expense of Tenant and, with respect
to individual Alterations the cost of which exceeds $50,000.00, in accordance
with plans and specifications which have been previously submitted to and
approved in writing by Landlord (which approval shall not be unreasonably
withheld). As used herein, the term "Alteration" shall mean any demolition,
repair, addition, betterment, improvement or rebuilding of the Leased Premises,
excluding structural, mechanical or electrical modifications which shall require
the approval of Landlord in all instances. All Alterations erected by Tenant
shall be and remain the property of Tenant during the term of this Lease. Upon
the Termination Date or upon earlier termination of this Lease or vacating of
the Leased Premises, such Alterations shall become the property of Landlord,
with the exception of Tenant's trade fixtures which shall remain the property of
Tenant and shall be removed by Tenant at the termination of this Lease, and
Tenant shall repair any damage to the Leased Premises caused by such removal.
Any Alteration requiring Landlord's prior approval shall, at Landlord's request
(which request shall be given at the time Landlord approves such Alteration), be
removed upon the termination of this Lease, and the Leased Premises shall be
restored to their original condition.
9. Maintenance of Leased Premises.
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A. Tenant shall, at its sole cost and expense, maintain the Leased
Premises (including all fixtures installed by Tenant but excluding those areas
or items to be maintained by Landlord under Paragraph 9(B) hereof) in good
repair, reasonable wear and tear excepted, and in a generally clean and
healthful condition in accordance with the standards set forth in Exhibit B
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attached hereto and made a part hereof. Any repairs or replacements shall be
with materials and workmanship of the same character, kind and quality as the
original.
B. Landlord shall, at its sole cost and expense, maintain the roof,
foundation, exterior walls (excluding windows, window glass and plate glass) and
any structural components of the Building in good condition and repair, except
for any damage or repairs occasioned by Tenant. Any damage or repairs occasioned
by Tenant shall be promptly corrected by Tenant at Tenant's sole expense. Tenant
shall promptly notify Landlord of the need for repairs to any of the foregoing
matters, and Landlord shall proceed promptly to make such repairs at Landlord's
expense. Landlord represents and warrants to Tenant that, to the best of
Landlord's knowledge, the plumbing, electrical, HVAC systems and elevator are in
good working order and condition.
10. Prohibition Against Liens. Tenant shall not permit any lien or claim
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for lien of any mechanic, laborer or supplier to be filed against the Land
arising out of the performance of any repairs or replacements made by or on
behalf of Tenant. If any lien or claim for lien is filed, Tenant, at Tenant's
sole expense, shall within thirty (30) days after written request from Landlord,
either (i) have such lien or claim for lien released of record, (ii) deliver to
Landlord a bond in form, content and amount reasonably satisfactory to Landlord,
protecting Landlord from all liability resulting from such lien or claim for
lien, or (iii) establish a title indemnity agreement with Landlord's title
insurer whereby such title insurer agrees to insure title in the Land over such
lien.
11. Compliance with Laws. Tenant shall comply with all applicable laws,
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ordinances, orders, rules, and regulations with respect to Tenant's occupancy of
the Leased Premises. Landlord represents and warrants to Tenant that Landlord
has no knowledge of any violations of
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any applicable laws or orders (excluding laws or orders governing Hazardous
Substances as hereinafter defined) applicable to the Leased Premises and
Landlord's operations therein as of the date of this Lease, with the exception
of the elevator in Building 3. Landlord acknowledges that Tenant's proposed use
of the Leased Premises, as represented by Tenant to Landlord, is substantially
the same as that of Landlord as of the date of this Lease. Notwithstanding
anything to the contrary contained herein, in the event that any alterations,
including but not limited to structural or capital improvements, to the Leased
Premises are required in order to comply with any applicable laws or orders,
including, without limitation, the Americans with Disabilities Act (any such
alteration being hereinafter referred to as a "Compliance Alteration"), Landlord
and Tenant agree to proceed as follows:
A. If a Compliance Alteration is required solely as a result of a
change in Tenant's use of the Leased Premises from that currently represented to
Landlord, such Compliance Alteration shall be at Tenant's sole cost and expense.
B. If it is unclear or disputed that a Compliance Alteration falls
within the parameters of Paragraph 11(A) above, the cost of such Compliance
Alteration shall be amortized over the useful life of such Compliance Alteration
(as such useful life is determined in accordance with Internal Revenue Code of
1986, as amended), and Tenant shall be responsible for only that portion of such
amortized cost as falls within the then remaining balance of the Lease Term (and
any extensions thereof, if Tenant has exercised the same).
C. Any Compliance Alterations costing less than Ten Thousand Dollars
($10,000.00) in the aggregate over the Lease Term (and any extensions thereof)
shall be at Tenant's sole cost and expense, regardless of the cause therefor.
Tenant shall have the right, upon Landlord's prior consent (which shall not be
unreasonably withheld or delayed) to contest by appropriate legal proceedings
the validity or application of any laws or orders, and Landlord shall, upon
request from Tenant, execute and deliver any appropriate papers which may be
necessary or proper to permit Tenant to so contest the validity or application
of any such law or order.
12. Inspections. Landlord shall have the right to enter the Leased
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Premises, at any reasonable time following reasonable notice to Tenant (provided
that no such notice shall be required in the event of an emergency), to
ascertain the condition of the Leased Premises or to make such repairs as may be
required or permitted to be made by Landlord under the terms of this Lease.
During the nine (9) months prior to the Termination Date, Landlord shall have
the right to enter the Leased Premises at any time during business hours for the
purpose of showing the Leased Premises to prospective tenants. Notwithstanding
the foregoing, Landlord must be accompanied by Tenant, or Tenant's authorized
employees or representatives during any non-emergency inspections or entries,
including, without limitation, during any showing of the Leased Premises to
prospective tenants as aforesaid.
13. Assignment and Subletting. Tenant shall not have the right to assign
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or pledge this Lease or to sublet the whole or any part of the Leased Premises,
whether voluntarily or by operation of law, or permit the use or occupancy of
the Leased Premises by anyone other than Tenant (any of the foregoing, a
"Transfer"), without the prior written consent of Landlord which shall not be
unreasonably withheld, qualified or delayed, and such restrictions shall be
binding upon any assignee or subtenant to which Landlord has consented.
Landlord's consent will be deemed to have been reasonably withheld if the
proposed assignee or sublessee does not have a financial condition reasonably
acceptable to Landlord. No such Transfer (including a Permitted Transfer as
hereinafter defined) shall release Tenant from its obligations hereunder.
Notwithstanding anything to the contrary contained herein, Tenant shall have the
right to assign this Lease or to sublet all or any part of the Leased Premises,
without the consent of Landlord, to (a) any entity resulting from a
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merger or consolidation with Tenant, (b) any entity succeeding to the assets of
Tenant, or (c) any entity controlled by, controlling or under common control
with Tenant (any of the foregoing, a "Permitted Transfer").
14. Fire and Casualty Damage.
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A. If the Leased Premises are rendered partially or wholly
untenantable by fire or other casualty, and if such damage cannot be materially
restored within one hundred twenty (120) days of such damage, then either
Landlord or Tenant may terminate this Lease as of the date of such fire or
casualty. Landlord or Tenant shall exercise the option to terminate provided
herein by written notice to the other within thirty (30) days of such fire or
other casualty. For purposes hereof, the Building or Leased Premises shall be
deemed to be "materially restored" if they are in such condition as would not
prevent or materially interfere with Tenant's use of the Leased Premises for the
purpose for which it was then being used, which condition shall be as near as
feasibly possible to the condition thereof immediately prior to such fire or
casualty.
B. If this Lease is not terminated pursuant to Paragraph 14(A), then
Landlord shall proceed with all due diligence to repair and restore the Leased
Premises within such one hundred twenty (120) day period; provided that Tenant
shall make available to Landlord for such repair and restoration the proceeds of
the insurance policies maintained by Tenant pursuant to Paragraph 15(A) hereof.
In no event shall Landlord be required to rebuild, repair or replace any part of
the partitions, fixtures, additions and other improvements which may have been
placed in or about the Leased Premises by Tenant or to advance funds beyond the
amount of the proceeds provided by Tenant's insurance policies.
C. If this Lease shall be terminated pursuant to Paragraph 14(A), the
term of this Lease shall end on the date of such damage as if that date had been
originally fixed in this Lease as the Termination Date. If this Lease shall not
be terminated by Landlord or Tenant pursuant to Paragraph 14(A) and if the
Leased Premises are untenantable in whole or in part following such damage, the
rent payable during the period in which the Leased Premises are untenantable
shall be reduced on a pro rata basis. In the event that Landlord should fail to
complete such repairs and material restoration within one hundred twenty (120)
days after the date of such damage, Tenant may at its option, terminate this
Lease by delivering written notice to Landlord, whereupon this Lease shall end
on the date of such notice as if the date of such notice were the date
originally fixed in this Lease as the Termination Date.
D. Whenever (a) any loss, cost, damage or expense resulting from
fire, explosion or any other casualty or occurrence is incurred by either
Landlord or Tenant in connection with the Leased Premises or the Building, and
(b) such party is then covered in whole or in part by insurance with respect to
such loss, cost, damage or expense, then the party so insured hereby releases
the other party from any liability it may have on account of such loss, cost,
damage or expense to the extent of any amount recovered by reason of such
insurance, and waives any right of subrogation which might otherwise exist in or
accrue to any person on account thereof, provided that such release of liability
and waiver of the right of subrogation shall not be operative in any case where
the effect thereof is to invalidate such insurance coverage or increase the cost
thereof (provided, that in the case of increased cost, the other party shall
have the right within thirty (30) days following notice to pay such increased
cost, thereupon keeping such release and waiver in full force and effect). Each
of Landlord and Tenant agrees that it will request its insurance carriers to
include in its policies such a clause or endorsement.
15. Insurance. Tenant, during the term hereof and any extensions, renewals
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and/or modifications shall provide, at its sole cost and expense, and
continuously maintain in full force and effect policies of insurance covering:
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A. Loss or damage to the Leased Premises (including windows, window
glass and plate glass) by fire, lightning, vandalism and malicious mischief, and
those risks now or hereafter normally covered by the term "extended coverage" in
an amount equal to the full replacement value thereof;
B. Tenant's personal property in an amount equal to its actual cash
value;
C. Workers Compensation and Occupational Disease insurance as
required by law, and Employers Liability with limits of $500,000.00 per
occurrence for Tenant's employees;
D. Comprehensive General Liability insurance, including contractual
liability, insuring against any loss, liability or damage on, about or relating
to the Leased Premises, or any portion thereof, with limits of not less than
$2,000,000.00 combined single limit, per occurrence and aggregate, for bodily
injury and property damage, naming Landlord as an additional insured and
containing a Cross Liability (severability of interests) clause which provides
that the insurance afforded applies separately to each insured against whom a
claim is made or a suit is brought, or comparable language, the effect of which
is that coverage shall be provided with respect to Landlord for injury to
employees or other insureds or loss or damage to property in the custody of
other insureds; and
E. Comprehensive Automobile Liability insurance, covering all owned
or rented vehicles, each with limits of not less than $1,000,000.00 per
occurrence for bodily injury and $1,000,000.00 per occurrence for property
damage.
The Comprehensive General Liability insurance and the Comprehensive Automobile
Liability insurance referenced above shall be written on a contractual basis so
that Tenant's insurance carrier is bound by Tenant's undertakings set forth
herein and coverage is extended under such policies to all liability assumed by
Tenant hereunder. Tenant shall obligate his insurers to notify Landlord at least
30 days prior to any significant changes in Tenant's insurance coverage. All
policies of insurance shall be written by Utah licensed companies reasonably
acceptable to Landlord. Tenant shall cause to be inserted in the policy or
policies of insurance required above, a Waiver of Subrogation clause as to
Landlord, except to the extent that such policies specifically name Landlord as
an additional insured. Notwithstanding the foregoing, Tenant shall have the
option to self-insure in accordance with the terms and conditions as stated
herein or to effect any insurance provided for in this Paragraph 15 by a blanket
policy or policies.
16. Liability and Indemnification.
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Tenant shall hold Landlord harmless from and defend Landlord against
any and all claims, liability or damages (but excluding any special or
consequential damages) relating to any injury or damage to any person or
property whatsoever occurring during the Lease Term in, on or about the Leased
Premises or any part thereof when such injury or damage shall be caused by the
act, neglect, fault of, or omission of any duty with respect to the same by
Tenant, its agents, servants and employees or any failure on the part of Tenant
to perform or comply with any of the provisions contained in this Lease on its
part to be performed or complied with. Landlord shall hold Tenant harmless and
defend Tenant against any and all claims, liability or damages (but excluding
any special or consequential damages) relating to any injury or damage to any
person or property whatsoever occurring in, on or about the Leased Premises or
any part thereof, when such injury or damage shall be caused by the act,
neglect, fault of, or omission of any duty with respect to the same by Landlord,
its agents, servants and employees or any failure on the part of Landlord to
perform or comply with any of the provisions contained in this Lease on its part
to be performed or complied with. The provisions of this Paragraph 16 shall
survive the expiration or termination of this Lease with respect to any claims
or liability occurring prior to such expiration or termination.
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17. Condemnation.
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A. If any part of the Leased Premises should be taken for any public
or quasi-public use under governmental law, ordinance or regulation, or by right
of eminent domain, or by private purchase in lieu thereof (any of the foregoing
being a "Taking") and the Taking would prevent or materially interfere with
Tenant's use of the Building or the Leased Premises for the purpose for which it
is then being used, this Lease shall terminate effective when the Taking shall
occur in the same manner as if the date of such Taking were the date originally
fixed in this Lease as the Termination Date. Tenant shall be entitled to make a
claim against a condemning authority for moving expenses, the unamortized
balance of leasehold improvements done at Tenant's expense and the value of the
unexpired term of Tenant's leasehold estate so long as such claim does not have
a preclusive effect on any award made to Landlord.
B. In the event of any such Taking, and if this Lease is not
terminated as provided in Paragraph 17(A), this Lease shall not terminate but
the rent payable hereunder during the unexpired portion of this Lease shall be
reduced on a pro rata basis, and Landlord shall undertake to restore the
Building and Leased Premises to a condition suitable for Tenant's use, as near
to the condition thereof immediately prior to such taking as is reasonably
feasible under the circumstances, within ninety (90) days of such Taking. In the
event that Landlord should fail to complete such repairs and material
restoration within ninety (90) days after the date of such Taking, Tenant may at
its option, terminate this Lease by delivering written notice to Landlord,
whereupon this Lease shall end on the date of such notice as if the date of such
notice were the date originally fixed in this Lease as the Termination Date.
C. In the event of any such Taking, Landlord and Tenant shall each be
entitled to receive and retain such separate awards and/or portion of lump sum
awards as may be allocated to their respective interests in any condemnation
proceedings.
18. Holding Over. Tenant will, at the termination of this Lease by lapse
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of time or otherwise, yield up immediate possession to Landlord. If Tenant
retains possession of the Leased Premises or any part thereof after such
termination, then Landlord may, at its option, serve written notice upon Tenant
that such holding over constitutes the creation of a tenancy at sufferance upon
the terms and conditions set forth in this Lease; provided, however, that rent
shall, in addition to all other sums which are to be paid by Tenant hereunder,
be equal to 150% of the Base Rent being paid to Landlord under this Lease
immediately prior to such termination (prorated on the basis of a 365 day year
for each day Tenant remains in possession). The provisions of this paragraph
shall not constitute a waiver by Landlord of any right of re-entry as herein set
forth; nor shall receipt of any rent or any other act in apparent affirmance of
the tenancy operate as a waiver of the right to terminate this Lease for a
breach of any of the terms, covenants, or obligations herein on Tenant's part to
be performed.
19. Quiet Enjoyment. Landlord represents and warrants to Tenant that
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Landlord has full right and authority to enter into this Lease and that Tenant,
while paying the rent and performing its other covenants and agreements herein
set forth, shall peaceably and quietly have, hold and enjoy the Leased Premises
for the term hereof without hindrance or molestation from Landlord. Landlord
shall provide Tenant with non-disturbance agreements, in form and content
reasonably acceptable to Tenant, from any present or future mortgagee or holders
of other superior interests, if any.
20. Events of Default. The following events shall be deemed to be events
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of default by Tenant under this Lease (each, an "Event of Default"):
A. Tenant shall fail to pay when or before due any installment of
Rent, and such failure shall continue for a period of five (5) days after
written notice from Landlord; or
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B. Tenant shall fail to comply with any term, provision or covenant
of this Lease other than the payment of Rent, and shall not cure such failure
within thirty (30) days after written notice thereof from Landlord (or, if such
cure requires more than thirty (30) days, Tenant shall fail to commence such
cure within thirty (30) days after written notice from Landlord and thereafter
shall fail to diligently prosecute such cure to completion); or
C. Tenant shall fail to vacate the Leased Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only; or
D. Tenant shall make a transfer in fraud of creditors; file or have
filed against it a petition under any appropriate federal or state bankruptcy or
insolvency law which petition is not dismissed within sixty (60) days of its
filing; be adjudged bankrupt or insolvent; fail or admit it cannot meet its
financial obligations as and when they become due; or a receiver or trustee
shall be appointed for all or substantially all of the assets of Tenant and such
appointment is not vacated within sixty (60) days thereof.
21. Remedies. Upon the occurrence of any Event of Default by Tenant,
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Landlord may pursue any and all remedies which it may then have hereunder or at
law or in equity, including, without limitation, any one or more of the
following, in each case, without any notice or demand:
A. Terminate this Lease, in which event Tenant immediately shall
surrender the Leased Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have for
possession or any arrearage in Rent, enter upon and take possession of the
Leased Premises. Tenant agrees to pay to Landlord on demand the amount of all
loss, cost, expense and damage which Landlord may suffer or incur by reason of
such termination, whether through inability to relet the Premises on
satisfactory terms or otherwise, including the following:
(i) the worth at the time of award of any unpaid Rent which had
been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss which Tenant
proves could have been reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the
unpaid Rent for the balance of the term after the time of award
exceeds the amount of such rental loss that Tenant proves could have
been reasonably avoided; plus
(iv) any other amount, including court costs, or costs of
reletting (including leasing and refitting costs), necessary to
compensate Landlord for all detriment proximately caused by Tenant's
failure to perform Tenant's obligations under this Lease; plus
(v) all reasonable attorneys' fees incurred by Landlord relating
to the default and termination of this Lease.
All Rent shall be computed on the basis of the amount thereof which was due and
payable to Landlord for the month immediately prior to the default. As used in
subparagraph (iii) above, the "worth at the time of award" is to be computed by
discounting such amount at the discount rate of the Federal Reserve Bank of New
York at the time of the award plus one percent (1%).
9
B. Enter upon and take possession of the Leased Premises by virtue of
the laws of the State of Utah for summary proceedings for possession of real
estate or such other proceeding as may be applicable, and use reasonable efforts
to relet all or any part of the Leased Premises on such terms as Landlord shall
deem advisable (including, without limitation, such concessions and free rent as
Landlord deems necessary or desirable) and receive and retain all of the rent
therefor; and Tenant agrees (i) to pay to Landlord on demand any deficiency that
may arise by reason of such reletting for the remainder of the Lease Term (or
any extension thereof, if the event of default occurs during the Renewal Term),
and (ii) that Tenant shall not be entitled to any rents or other payments
received by Landlord in connection with such reletting even if such rents and
other payments are in excess of the amounts that would otherwise be payable to
Landlord under this Lease. Tenant shall be liable immediately to Landlord for
all costs Landlord incurs in reletting the Premises, including, without
limitation, brokers' commissions, reasonable attorneys' fees incurred in
connection with the reletting and in connection with Tenant's default hereunder,
expenses of repairing, altering and remodeling the Premises required by the
reletting and like costs.
C. Make such payments or enter upon the Leased Premises, and perform
whatever Tenant is obligated to pay or perform under the terms of this Lease;
and Tenant agrees to reimburse Landlord on demand for any expenditures and
expenses which Landlord may make or incur in thus affecting compliance with
Tenant's obligations under this Lease.
D. Receive from Tenant all sums, the payment of which may have been
waived or abated by Landlord or which may have been paid by Landlord pursuant to
any agreement to grant Tenant a rental abatement or other monetary inducement or
concession, including but not limited to any tenant finish allowance or moving
allowance, it being agreed that any such concession or abatement was made on the
basis that Tenant fully perform all obligations and covenants under the Lease
for the entire Lease Term.
E. Collect, from time to time, by suit or otherwise, each installment
of Rent or other sum as it becomes due hereunder, or to enforce, from time to
time, by suit or otherwise, any term or provision hereof on the part of Tenant
required to be kept or performed.
F. No re-entry or taking possession of the Leased Premises by
Landlord shall be construed as an election on Landlord's part to terminate this
Lease, unless a written notice of such intention be given to Tenant.
Notwithstanding any such reletting or re-entry or taking possession, Landlord
may at any time thereafter terminate this Lease for a previous default. Pursuit
of any remedy set forth herein shall not preclude pursuit of any other remedy
provided herein or available at law, nor shall pursuit of any remedy constitute
a forfeiture or waiver of any Rent due to Landlord hereunder or of any damage
suffered by Landlord because of the violation of any term of this Lease.
Landlord's acceptance of any Rent following an Event of Default hereunder shall
not waive such Event of Default. No payment by Tenant or receipt by Landlord of
any amount less than the amounts due by Tenant hereunder shall be deemed to be
other than on account of the amounts due by Tenant hereunder, nor shall an
endorsement or statement on any check or document accompanying any payment be
deemed an accord and satisfaction.
G. If Landlord takes possession of the Leased Premises as permitted
herein, Landlord may keep in place and use all furniture, fixtures and equipment
at the Leased Premises, including that which is owned by Tenant at all times
prior to any foreclosure thereon by Landlord. Landlord also may remove from the
Leased Premises (without the necessity of obtaining a distress warrant, writ of
sequestration or other legal process, to the extent permitted by applicable law)
all or any portion of such furniture, fixtures, equipment and other property
located thereon and store same at any premises within the City of Lindon, Utah.
In such event, Tenant shall pay to Landlord all costs incurred by Landlord in
connection with such removal and storage and shall indemnify and hold Landlord
harmless from all loss, damage, cost, expense and liability in connection with
such removal and storage. Landlord's rights herein are in addition to any and
all other rights which
10
Landlord has or may hereunder have at law or in equity. Tenant agrees that the
rights herein granted Landlord are commercially reasonable.
H. If Landlord must notify Tenant of any failure (monetary or
nonmonetary) of Tenant to comply with any provision of this Lease, that
obligation to notify Tenant shall terminate following the second such notice
delivered to Tenant within any twelve-month period during the Lease Term.
22. Notices. Any notice or other document required or permitted to be
-------
delivered hereunder shall be addressed to the parties hereto at the respective
addresses set out below, or at such other address as they have theretofore
specified by written notice delivered in accordance herewith and shall be deemed
to be delivered (i) upon personal delivery thereof, (ii) three (3) days after
deposit in the continental United States Mail, postage prepaid, certified or
registered mail, (iii) the next business day after given by a nationally
recognized overnight delivery service, or (iv) upon confirmation of complete
receipt if given by telecopy during normal business hours (or the next business
day if not confirmed during normal business hours):
If to Tenant: X.X. Xxxxxxxxx & Sons Company
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy: 312/326-7706
with a copy to: Xxxxx, Day, Xxxxxx & Xxxxx
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy: 312/782-8585
If to Landlord: Novell, Inc.
0000 Xxxxx Xxxxxxxxxx Xxx
Xxxx, Xxxx 00000
Attention: Real Estate Department
Telecopy: 801/228-8676
with a copy to: Novell, Inc.
0000 Xxxxx Xxxxxxxxxx Xxx
Xxxx, Xxxx 00000
Attention: Legal Department
Telecopy: 801/228-7077
All parties included within the terms "Landlord" and "Tenant," respectively,
shall be bound by notices given in accordance with the provisions of this
paragraph to the same effect as if each had received such notice.
23. Signage/Identification. Upon Landlord's prior consent (which shall not
----------------------
be unreasonably withheld) Tenant, at Tenant's sole cost and expense, shall be
permitted to erect exterior building and/or monument signage identifying
Tenant's presence in the Building, which signage shall be in compliance with all
applicable codes and ordinances. In addition, Tenant shall have the right to use
its standard graphics at the entrance to the Leased Premises. Upon the
expiration or earlier termination of this Lease, Tenant shall remove such
signage, at Tenant's expense, and restore the Building and/or landscaping to
substantially the same condition as existed prior to the erection of such signs.
11
24. Environmental Matters.
---------------------
A. Tenant hereby agrees that, during the term of this Lease, Tenant
shall conduct no activities on the Leased Premises that shall produce or Release
any Hazardous Substance or Contaminant, except for such activities that are part
of Tenant's ordinary course of business and are conducted in accordance with
applicable law. Tenant shall indemnify, defend and hold harmless Landlord and
its agents, contractors, employees, invitees and customers, from and against all
fines, suits, claims, actions, damages, liabilities, costs and expenses
(including reasonable attorney's and consultant's fees) asserted against or
sustained by any such person arising out of Tenant's failure to comply with its
obligations under this Paragraph 24(A).
C. The provisions of this Paragraph 24 shall survive the expiration
or termination of this Lease with respect to any claims or liability occurring
prior to such expiration or termination. As used herein, the term "Hazardous
Substance" shall include, without limitation, flammables, explosives,
radioactive materials, asbestos containing materials, polychlorinated biphenyls,
pollutants, contaminants, hazardous wastes, toxic substances, petroleum and
petroleum products, chloroflurocarbons and substances declared to be hazardous
or toxic under any federal, state or local law, ordinance or regulation.
25. Option to Purchase.
------------------
A. Landlord hereby grants to Tenant the option to purchase the Leased
Premises (the "Option") at any time during the Lease Term or any extensions
thereof. To exercise the Option, Tenant must give written notice ("Tenant's
Notice") to Landlord of its intent to purchase the Leased Premises on a date
specified in Tenant's Notice, which date shall be at least ninety (90) days from
the date of Tenant's Notice. The option price payable with respect to the Leased
Premises (the "Option Price") shall be the fair market value of the Leased
Premises as of the date Tenant exercises the Option, which fair market value
shall be determined in accordance with Paragraph 25(l) hereof. Notwithstanding
the foregoing, Tenant shall receive a credit against the Option Price in an
amount equal to fifty percent (50%) of the Base Rent paid by Tenant to Landlord
pursuant to this Lease from the Commencement Date through the first to occur of
(i) the Closing Date (as hereinafter defined), or (ii) the expiration of the
Initial Term (the "Rent Credit").
B. Notwithstanding anything to the contrary contained herein, Tenant
shall not be entitled to exercise the Option unless, at the time of the exercise
thereof, this Lease shall be in full force and effect and no uncured Event of
Default shall exist hereunder.
C. If Tenant elects to exercise the Option, the closing of such
purchase shall take place on later to occur of (i) the date set forth in
Tenant's Notice, or (ii) fifteen (15) days after the Option Price has been
determined in accordance with the procedures set forth in Paragraph 25(l) hereof
(the "Closing Date") at the offices of the Title Insurer (as hereinafter
defined) at a mutually agreeable time on such Closing Date. Landlord shall
deliver a general warranty deed, in form proper for recording and sufficient to
convey marketable title to the Leased Premises, free and clear of all mortgages,
liens, encumbrances, restrictions, easements and other defects in title other
than general real estate taxes not yet due and payable and those title matters
approved by Tenant pursuant to Paragraph 25(F) hereof (collectively, the
"Permitted Exceptions").
D. Landlord shall furnish, not later than thirty (30) days prior to
the Closing Date, a commitment for an ALTA Owner's Title Insurance Policy (the
"Commitment"), issued by a title company licensed to do business in Utah (the
"Title Insurer") in the amount of the Option Price, showing marketable and
insurable title to the Leased Premises to be solely in Landlord, and including
an extended coverage endorsement, a zoning 3.1 endorsement and such other
endorsements as Tenant may reasonably require. Landlord shall also deliver with
the Commitment legible copies of all title exceptions shown or referenced in the
Commitment.
00
X. Xxxxxxxx shall also furnish, not later than thirty (30) days prior
to the Closing Date, a survey of the Leased Premises prepared by a Utah licensed
surveyor in accordance with the 1992 "Minimum Standard Detail Requirements for
ALTA/ACSM Surveys", dated as of a date not more than six (6) months prior to the
Closing Date and certified to Tenant and the Title Insurer (the "Survey").
F. Tenant shall have ten (10) days after receipt of both the
Commitment and the Survey in which to review the same. In the event that the
Commitment or the Survey shall show any exceptions to, or matters affecting,
Landlord's title to the Leased Premises which are unacceptable to Tenant, Tenant
shall notify Landlord within such ten (10) day period. Any matters as to which
Tenant does not so notify Landlord shall be deemed to be "Permitted Exceptions".
Landlord shall have twenty (20) days after receipt of such notice from Tenant to
cause such unpermitted exceptions to be removed from the Commitment or
affirmatively insured over by endorsement to the Commitment. If Landlord is
unwilling or unable to cure such unpermitted exceptions, Tenant shall have the
right, at its option, to elect not to proceed with the exercise of the option or
to accept title subject to such unpermitted exceptions. Notwithstanding the
foregoing, Landlord covenants that Landlord shall remove all title exceptions
pertaining to liens or encumbrances of a definite or ascertainable amount which
may be removed by the payment of money or otherwise at closing (but excluding
matters payable by Tenant pursuant to this Lease).
G. At closing, Landlord, at Landlord's expense, shall cause the Title
Insurer to issue and deliver to Tenant an ALTA Form B-1970 Owner's Title
Insurance Policy, insuring Tenant's title to the Leased Premises in the amount
of the Option Price, subject only to the Permitted Exceptions and with the
endorsements specified in Paragraph 25(D) hereof.
H. All Rent and Impositions shall be prorated as of the Closing Date.
State, county and local transfer taxes, if any, shall be paid by the party
designated in the statute or ordinance creating such tax. Either party may elect
to close through an escrow, the cost of which shall be divided equally between
them.
I. Within thirty (30) days following Tenant's exercise of the Option,
Landlord and Tenant shall attempt to agree on the fair market value of the
Leased Premises. Absent an agreement as to the fair market value of the Leased
Premises within such thirty (30) day period, Landlord and Tenant shall, within
ten (10) days thereafter, jointly choose an appraiser (qualified by an "M.A.I."
designation) (the "Appraiser"), or, if Landlord and Tenant are unable to jointly
choose the Appraiser within such ten (10) day period, Landlord and Tenant shall
each choose an appraiser and the two appraisers shall jointly choose the
Appraiser. Thereafter, within fifteen (15) days after the Appraiser has been
selected, Landlord and Tenant shall each submit to the Appraiser their
respective proposals of the fair market value of the Leased Premises (each, a
"FMV Proposal"). Within fifteen (15) days after the Appraiser has received the
FMV Proposals, the Appraiser shall select either Landlord's FMV Proposal or
Tenant's FMV Proposal as the closest to the fair market value of the Leased
Premises, and the decision of the Appraiser and the FMV Proposal selected shall
be conclusive and binding upon both Landlord and Tenant. Notwithstanding the
foregoing, Landlord or Tenant shall have the right to terminate negotiations by
giving the other party written notice if the difference between Option Price as
determined by the Appraiser and such party's FMV Proposal is greater than five
percent (5%). Such notice of termination shall be delivered within ten (10) days
after the date the Appraiser has determined the Option Price in accordance with
this Paragraph 25(l).
J. Upon the closing of the sale of the Leased Premises, this Lease
shall terminate. If the term of this Lease expires while the closing of the
purchase is pending, this Lease shall be extended from day to day at the then
existing monthly Base Rent (expressed as a per diem amount) until such closing
has occurred, not to exceed thirty (30) days. Landlord and Tenant agree
13
to cooperate in the closing of any sale and purchase of the Leased Premises
within the time periods provided herein and prior to the expiration of this
Lease.
K. Tenant shall be permitted to record a Memorandum of Purchase
Option, in substantially the form as Exhibit C attached hereto and made a part
---------
hereof, against the Leased Premises.
26. Right of First Refusal.
----------------------
A. In addition to the Option provided in Paragraph 25 hereof, Tenant
shall have a continuing right of first refusal with respect to any proposed
sales of the Leased Premises to any third party during the Lease Term or any
extension thereof. In the event that Landlord receives an offer to purchase the
Leased Premises which Landlord intends to accept, Landlord shall, prior to
accepting such offer, furnish Tenant with written notice of the material terms
and conditions of such offer ("Landlord's Notice"). Tenant shall have thirty
(30) days from the date of Landlord's Notice within which to notify Landlord in
writing that Tenant desires to purchase the Leased Premises on the substantially
same terms and conditions contained in Landlord's Notice, except that Tenant
shall receive the Rent Credit. If Tenant gives timely notice of its desire to
purchase the Leased Premises on the terms and conditions contained in Landlord's
Notice, Landlord shall be obligated to sell the Leased Premises to Tenant on
substantially the same terms and conditions (but subject to the Rent Credit),
and the sale shall close within forty-five (45) days after Tenant's written
exercise of such right.
B. If Tenant fails to exercise such right within such thirty (30) day
period, Landlord may proceed to sell the Leased Premises to such third party
within ninety (90) days thereafter (the "Sale Period") on substantially the same
terms and conditions contained in Landlord's Notice, subject to Tenant's
occupancy and all of Tenant's other rights under this Lease (other than the
Option), and this right of first refusal shall then terminate. Landlord hereby
covenants to Tenant that if Landlord has not sold the Leased Premises to such
third party within the Sale Period (or such longer period as may be necessary
provided that Landlord is diligently prosecuting such sale) or if the terms and
conditions of such sale will not be substantially the same as those contained in
Landlord's Notice, Landlord shall resubmit Landlord's Notice to Tenant pursuant
to the procedures set forth in Paragraph 26(A) hereof with respect to any
modified or additional proposed sales of the Leased Premises.
27. Landlord's Right to Subdivide. Landlord and Tenant acknowledge that
-----------------------------
the Land included within the Leased Premises is part of a larger, unsubdivided
tract of land owned by Landlord ("Landlord's Land"). Landlord shall have the
right to subdivide the Land from the remainder of Landlord's Land, provided that
(A) as a result of such subdivision, the Land shall become a single, separately
subdivided lot, (B) such subdivision shall not operate to increase the monetary
obligations of Tenant hereunder or affect Tenant's operations at the Leased
Premises in any manner whatsoever, and (C) such subdivision shall be at
Landlord's sole cost and expense. Tenant shall, upon request from Landlord,
execute and deliver any appropriate papers or otherwise cooperate with Landlord
(provided that such cooperation shall be at no cost to Tenant) as may be
necessary to permit Landlord to so subdivide Landlord's Land. The parties hereto
further acknowledge that, as a result of such subdivision, Landlord and Tenant
may be required to enter into a cross easement agreement to permit Landlord and
its respective agents, customers and invitees to have non-exclusive rights of
ingress and egress over such private drives as may be from time to time located
on the Land and to permit Tenant and its respective agents, customers and
invitees to have non-exclusive rights of ingress and egress over such private
drives as may be from time to time located on the balance of Landlord's Land.
14
28. Landlord's Liability. Landlord shall not be in default under this
--------------------
Lease solely with respect to matters or conditions existing exclusively within
the Leased Premises unless and until it has failed to perform its obligation
hereunder with respect to such matters or conditions within thirty (30) days
after written notice by Tenant to Landlord specifying the obligation which
Landlord has not performed. However, if Landlord's obligation reasonably
requires more than thirty (30) days for its performance, Landlord shall not be
in default if it commences performance within such thirty-day period and uses
reasonable diligence to complete the same. Tenant has no right to claim any
nature of lien against the Leased Premises or to withhold, deduct from or offset
against any Rent or other sums to be paid to Landlord hereunder. All obligations
of Landlord are binding upon Landlord only during the period of its ownership of
the Leased Premises. The term "Landlord" means only the owner of the Leased
Premises. In the event of a transfer by such owner of its interest in the Leased
Premises, such owner shall thereupon be released and discharged from all
covenants and obligations of Landlord thereafter accruing (except to the extent
expressly provided herein to the contrary), but such covenants and obligations
shall be binding during the Lease Term upon each new owner for the duration of
such owner's ownership. Any liability of Landlord to Tenant relating to this
Lease shall be limited to the interest of Landlord in the Leased Premises, and
Landlord shall not be personally liable for any deficiency.
29. Subordination and Non-Disturbance.
---------------------------------
A. Landlord represents and warrants to Tenant that, as of the date of
this Lease, there is no deed of trust, mortgage or other instrument of security
(any of the foregoing, a "Security Instrument") covering the Leased Premises or
any part thereof or any interest of Landlord therein. Landlord hereby expressly
reserves the right, at its option, to place Security Instruments on and against
any of the Leased Premises or any interest of Landlord therein. Provided that
Tenant has been provided with a non-disturbance agreement in form and substance
reasonably acceptable to Tenant from the holder (a "Holder") of any Security
Instrument, this Lease shall be subject to and subordinate to any Security
Instruments that hereafter cover any of the Leased Premises or any interest of
Landlord therein. The foregoing subordination shall be self-operative and no
further instrument of subordination need be required; however, upon the
reasonable request of a Holder, Tenant shall execute any instrument intended to
evidence the subordination of this Lease to any such Security Instrument.
B. In the event of the enforcement by a Holder of the remedies
provided for by law or by such Security Instrument and provided that Tenant has
been provided with a non-disturbance agreement in form and substance reasonably
acceptable to Tenant from such Holder, Tenant will attorn to and automatically
become the tenant of such successor in interest without change in the terms or
other provisions of this Lease and this Lease shall continue in full force and
effect; provided, however, that such successor in interest shall not be bound by
or liable for (i) any payment of Rent for more than one month in advance, or
(ii) any offset, claim or cause of action which Tenant may have against Landlord
relating to the period which is prior to the time Tenant becomes the tenant of
such successor in interest. Upon reasonable request of any Holder, Tenant shall
execute and deliver an instrument confirming the attornment provided for herein.
C. Provided that Tenant has been notified in writing of the existence
and address or any Holder, Tenant agrees to deliver by certified mail to any
such Holder a copy of any written notice of nonperformance given by Tenant to
Landlord, specifying the alleged failure to perform in reasonable detail. Tenant
further agrees that if Landlord fails to cure any nonperformance within the time
provided for in this Lease, then any such Holder shall have an additional thirty
(30) days within which to cure such nonperformance, or if such nonperformance
cannot be cured within that time, then such additional time as may be necessary
for cure if, within such thirty day period, such Holder has commenced
performance of such obligation and diligently pursues the same to completion,
including, but not limited to commencement of foreclosure proceedings necessary
to effect such cure.
15
30. Estoppel Certificates. Tenant agrees to furnish to Landlord from time
---------------------
to time, when requested by Landlord or a Holder or prospective Holder or
purchaser of the Leased Premises, a certificate in the form attached hereto as
Exhibit D, signed by Tenant, within twenty (20) days of Tenant's receipt of such
---------
request. If Tenant fails to return a fully executed copy of such certificate to
Landlord within said twenty (20) day period, then Tenant conclusively shall be
deemed to have approved and confirmed the matters contained in such certificate.
31. Relationship to Purchase Agreement. Landlord and Tenant expressly
----------------------------------
acknowledge that nothing in this Lease is intended to limit or preclude any of
the rights or obligations of either X.X. Xxxxxxxxx & Sons Company or Novell,
Inc. arising under that certain Asset Purchase Agreement of even date herewith
between X.X. Xxxxxxxxx & Sons Company and Novell, Inc. (the "Purchase
Agreement"). Further, nothing in the Purchase Agreement is intended to limit or
preclude the rights or obligations of X.X. Xxxxxxxxx & Sons Company or Novell,
Inc. arising under this Lease. All capitalized terms not otherwise defined in
this Lease shall have the meaning ascribed to such terms in the Purchase
Agreement.
32. Miscellaneous.
-------------
A. Words of any gender used in this Lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions contained in
this Lease shall apply to, inure to the benefit of, and be binding upon, the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise expressly provided herein.
C. The captions inserted in this Lease are for convenience only and in
no way define, limit or otherwise describe the scope or intent of this Lease, or
any provision hereof.
D. This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
E. If any clause, phrase, provision or portion of this Lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not affect, impair or
render invalid or unenforceable the remainder of this Lease nor any other
clause, phrase, provision or portion hereof, nor shall it affect the application
of any clause, phrase, provision or portion hereof to other persons or
circumstances, and it is also the intention of the parties to this Lease that in
lieu of each such clause, phrase, provision or portion of this Lease that is
invalid or unenforceable, there be added as a part of this Lease contract a
clause, phrase, provision or portion as similar in terms to such invalid or
unenforceable clause, phrase, provision or portion as may be possible and be
valid and enforceable.
F. Each of the parties (i) represents and warrants to the other that
it has not dealt with any broker or finder in connection with this Lease; and
(ii) indemnifies and holds the other harmless from any and all losses,
liability, costs or expenses (including attorneys' fees) incurred as a result of
an alleged breach of the foregoing warranty.
G. This Lease shall be construed and enforced in accordance with and
governed by the laws of the State of Utah.
H. This Lease may be executed in any number of counterparts, each of
which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
16
I. If either party commences or becomes a party to any action arising
out of or in connection with this Lease, the prevailing party shall be entitled
to have and recover from the non-prevailing party expenses incurred in
connection therewith, including but not limited to reasonable attorney's fees,
cost of suit, investigation and discovery costs and costs of appeal.
J. Each of Landlord and Tenant hereby waives trial by jury in any
action, proceeding or counterclaim brought by or against the other in connection
with any matter arising out of or in any way connected with this Lease.
K. Landlord and Tenant acknowledge that this Lease is a negotiated
agreement and the interpretation of any provision will not be construed against
either party as the drafter thereof.
L. Any approval by Landlord or Landlord's architects and/or engineers
of any of Tenant's drawings, plans and specifications that are prepared in
connection with any construction of improvements in the Leased Premises shall
not in any way be construed or operate to bind Landlord or to constitute a
representation or warranty of Landlord as to the adequacy or sufficiency of such
drawings, plans and specifications or the improvements to which they relate, for
any use, purpose, or condition, but such approval shall merely be the consent of
Landlord as may be required hereunder.
M. Tenant shall deliver to Landlord upon execution of this Lease a
Secretary's Certificate certifying the standing resolutions of the executive
committee of Tenant's board of directors naming the officers who are authorized
to execute this Lease on behalf of Tenant.
N. Any signature on this Lease transmitted by telecopy shall be
treated in all manner and respects as an original signature of such party.
[Remainder of page intentionally left blank]
17
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed on the date and year first written above.
TENANT:
X.X. XXXXXXXXX & SONS COMPANY
By: /s/ [Signature illegible]
-----------------------------
Title Senior Vice President
--------------------------
LANDLORD:
NOVEL, INC.
By: /s/ [Signature illegible]
-----------------------------
Title Executive Vice President
-------------------------
18
EXHIBIT A
---------
LAND
EXHIBIT A-1
-----------
LABLETECH SPACE
EXHIBIT B
---------
MAINTENANCE SCHEDULE
Page 1 of 6
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JANUARY
1. Lube all air handlers and mechanical room equipment.
2. Check all condenser fan motors and fuses.
3. Check all air pressure bleed off valves on boilers and dry coolers.
4. Clean all mechanical rooms.
5. Clean all drinking fountain condensers.
--------------------------------------------------------------------------------
FEBRUARY
1. Check all pre-filters and change as needed.
2. Change Data-Aire filters and lube.
3. Do 6 month check-up on all Data Aires. (refer to check-up form)
4. Change fan powered VAV box filters in building #1.
5. Clean all condensers at food services.
6. Clean and maintain ice machines.
--------------------------------------------------------------------------------
MARCH
1. Lube and oil all pumps and motors.
2. Change filters on all air conditioning units outside.
3. Change fan powered VAV box filters in building #2.
4. Oil and lube fan powered VAV boxes.
--------------------------------------------------------------------------------
APRIL
1. Clean and inspect boilers. (refer to form)
2. Wash all condensing and evaporator coils.
3. Change fan powered VAV box filters in building #3.
4. Check the glycol on the close loop systems for temperature and rust
inhibitor.
5. Check all fan belts.
6. Check all condenser fan motors and fuses.
--------------------------------------------------------------------------------
MAY
1. Lube all roof-top units.
2. Clean return air grills.
3. Clean all condensers on refrigerators.
4. Tighten all nuts and bolts in mechanical rooms.
--------------------------------------------------------------------------------
JUNE
1. Check all pre-filters and change as needed.
2. Change filters on all air conditioning units outside.
3. Leak check all air conditioning units.
4. Check all condenser fan motors.
5. Change fan powered VAV box filters in building #1.
EXHIBIT B
---------
MAINTENANCE SCHEDULE
Page 2 of 6
--------------------------------------------------------------------------------
JULY
1. Lube all air handlers and mechanical room equipment.
2. Check all condenser fan motors and fuses.
3. Check all air pressure bleed off valves on boilers and dry coolers.
4. Change fan powered VAV box filters in building #2.
--------------------------------------------------------------------------------
AUGUST
1. Take acid test on all compressors.
2. Change fan powered VAV box filters in building #3.
3. Do 6 month check-up on all Data Aires. (refer to check-up form)
4. Change Data-Aire filters and lube.
5. Clean all condensers at food services.
6. Clean and maintain ice machines.
--------------------------------------------------------------------------------
SEPTEMBER
1. Lube and oil all pumps and motors.
2. Check all condenser fan motors.
3. Change filters on all air conditioning units outside.
4. Wash all condensing and evaporator coils outside.
--------------------------------------------------------------------------------
OCTOBER
1. Check all pre-filters and change as needed.
2. Change fan powered VAV box filters in building #1.
3. Check all fan belts.
4. Clean all air grills in restrooms and check motors.
5. Check all condenser fan motors and fuses.
--------------------------------------------------------------------------------
NOVEMBER
1. Change fan powered VAV box filters in building #2.
2. Lube all roof-top units.
3. Clean and inspect boilers. (refer to form)
4. Oil and lube fan powered VAV boxes.
--------------------------------------------------------------------------------
DECEMBER
1. Change fan powered VAV box filters in building #3.
2. Change filters on all air conditioning units outside.
3. Leak check all air conditioning units.
EXHIBIT B
---------
Page 3 of 6
================================================================================
Data Air unit Comments
--------------------------------------------------------------------------------
Temperature setpoint
--------------------------------------------------------------------------------
Humidity setpoint
--------------------------------------------------------------------------------
Dehumidify setpoint (deadband)
--------------------------------------------------------------------------------
Water changeover temperature
--------------------------------------------------------------------------------
Inspect filters
--------------------------------------------------------------------------------
Inspect belts for wear
--------------------------------------------------------------------------------
Check belt tension
--------------------------------------------------------------------------------
Check all fuses
--------------------------------------------------------------------------------
Tighten all connections
--------------------------------------------------------------------------------
Check humidifier
--------------------------------------------------------------------------------
Check heating elements
--------------------------------------------------------------------------------
Calibrate temperature sensor
--------------------------------------------------------------------------------
Calibrate humidity sensor
--------------------------------------------------------------------------------
Check blower bearings
--------------------------------------------------------------------------------
Amperage draw blower motor
--------------------------------------------------------------------------------
Operating pressure compressor #1
--------------------------------------------------------------------------------
Sightglass condition comp. #1
--------------------------------------------------------------------------------
Amperage draw compressor #1
--------------------------------------------------------------------------------
Superheat compressor #1
--------------------------------------------------------------------------------
Check crankcase heater comp. #1
--------------------------------------------------------------------------------
Operating pressure compressor #2
--------------------------------------------------------------------------------
Sightglass condition comp. #2
--------------------------------------------------------------------------------
Amperage draw compressor #2
--------------------------------------------------------------------------------
Superheat compressor #2
--------------------------------------------------------------------------------
Check crankcase heater comp. #2
--------------------------------------------------------------------------------
Check for refrigerant leaks
================================================================================
Name______________________________
Date______________________________
Location__________________________
EXHIBIT B
---------
Page 4 of 6
Boilers
Annual Open and Inspect
================================================================================
Fire boiler to check all safeties
--------------------------------------------------------------------------------
Blow down low water cutoff -- should stop burner
--------------------------------------------------------------------------------
Test operating controls
--------------------------------------------------------------------------------
Test limit controls
--------------------------------------------------------------------------------
Test relief valve
--------------------------------------------------------------------------------
Shuts off boiler and let cool down
--------------------------------------------------------------------------------
Lockout tagout all important areas
--------------------------------------------------------------------------------
Dismantle boiler for internal inspection
--------------------------------------------------------------------------------
Inspect burner for dirt, lint, etc.
--------------------------------------------------------------------------------
Check burner ports and passages for obstructions
--------------------------------------------------------------------------------
Inspect for complete combustion--soot buildup
--------------------------------------------------------------------------------
Check linkage -- tighten if required
--------------------------------------------------------------------------------
Examine all exposed metal surfaces for scale,
corrosion, cracks on seams, etc.
--------------------------------------------------------------------------------
Check fire surfaces for bulging, blistering, and
leaks and cracks
--------------------------------------------------------------------------------
Check manholes and shell plates thoroughly for
cracks, leakage, or any other distress
--------------------------------------------------------------------------------
Check ligaments for leakage or breakage
--------------------------------------------------------------------------------
Check pipe connections and fittings for leaks
--------------------------------------------------------------------------------
Check fire brick for breakage or large cracks
--------------------------------------------------------------------------------
Check flue collector and barometric damper
--------------------------------------------------------------------------------
Check spacing of flame rod and ignition electrodes
--------------------------------------------------------------------------------
Check low water cutoff piping, make sure it is clear
--------------------------------------------------------------------------------
Dismantle low water cutoff and inspect bowl for
sediment or other hard deposits
--------------------------------------------------------------------------------
Check float, make sure it isn't waterlogged
================================================================================
EXHIBIT B
---------
Page 5 of 6
================================================================================
Check mecury bulb for separation, discoloration
-------------------------------------------------------------------------------
Make sure water isn't leaking into wiring box
-------------------------------------------------------------------------------
Tighten all electrical connections
--------------------------------------------------------------------------------
Clean tubes as required
--------------------------------------------------------------------------------
Check relief valve for any accumulation of rust, scale
--------------------------------------------------------------------------------
Check annodes
--------------------------------------------------------------------------------
Reassemble boiler
--------------------------------------------------------------------------------
Remove all lockout tagout devices
--------------------------------------------------------------------------------
Check ventilation air to mechanical room
--------------------------------------------------------------------------------
Check water chemistry
--------------------------------------------------------------------------------
Check operation of makeup water
--------------------------------------------------------------------------------
Light off boiler -- if refractory got wet, step fire
burner to dry it out
--------------------------------------------------------------------------------
Check supply gas pressure
--------------------------------------------------------------------------------
Check manifold pressure
--------------------------------------------------------------------------------
Check main and pilot burner flames
--------------------------------------------------------------------------------
Test operating controls
--------------------------------------------------------------------------------
Test limit controls
--------------------------------------------------------------------------------
Test relief valve
--------------------------------------------------------------------------------
Observe boiler operation until it gets up to
temperature and cycles a few times
================================================================================
Comments
------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Date
---------------------------
Signature
----------------------
EXHIBIT B
---------
Page 6 of 6
Electrical Preventative Maintenance at the Manufacturing Facility:
Building 1 UPS System
.UPS Battery Systems -3 months - individual battery test.
.UPS Control Cabinet -6 months - visual check, check connections, check display
readings against meter readings.
All Buildings
.Panels, Disconnects & Transforms/Yearly - visual check and heat test.
.Emergency Lighting - 6 months - test all lights.
.Fire Alarm System - 6 months - clean smoke detector sensors.
.Halon System - 6 months - have system checked by Firetrol.
EXHIBIT C
MEMORANDUM OF OPTION TO PURCHASE
THIS MEMORANDUM, is made as of December ___, 1994, by X.X. XXXXXXXXX &
SONS COMPANY, a Delaware corporation ("Tenant").
In consideration of the covenants to be performed by Tenant as set
forth in that certain unrecorded Lease Agreement dated December ____, 1994 by
and between Novell, Inc., a Delaware corporation ("Landlord"), and Tenant (the
"Lease"), Landlord has granted Tenant, according to the terms of the Lease, an
option to purchase the real property commonly known as 000 Xxxxx 000 Xxxx,
Xxxxxx, Xxxx, and legally described on Exhibit A attached hereto and made a part
hereof (the "Property").
Tenant's option to purchase expires automatically on the earlier to
occur of (i) the termination of the Lease, or (ii) the recording of a deed
conveying the Property from Landlord to Tenant or to any other third party, but
in any event by July l, 2000.
The purpose of this instrument is to give notice of the option and all
of its terms, covenants and conditions to the same extent as if the Lease were
fully set forth herein.
IN WITNESS WHEREOF, Tenant has executed this instrument as of the day
and year first above written.
TENANT:
X.X. XXXXXXXXX & SONS COMPANY
By:_________________________________________
Title:______________________________________
C-1
EXHIBIT D
ESTOPPEL CERTIFICATE
[DATE]
---------------------
---------------------
---------------------
---------------------
Re: 000 Xxxxx 000 Xxxx, Xxxxxx, Xxxx
Gentlemen and Mesdames:
The undersigned, as Tenant under that certain Lease dated December ____,
1994, by and between Novell, Inc., as Landlord and X.X. Xxxxxxxxx & Sons
Company, as Tenant, [as amended by that certain _______________________________]
(the "Lease") covering the premises therein described and referenced above,
hereby certifies:
1. Tenant is in possession of the Leased Premises.
2. The Lease is in full force and effect and has not been amended or
modified except as above stated.
3. The Lease term commenced December 4, 1994, and shall continue to
December 3, 1997, subject to Tenant's right to renew as set forth in the terms
of the Lease.
4. Tenant pays monthly rent which has been paid through ______________.
5. Tenant has paid no security deposit.
6. As of this date, as far as can be ascertained, without due inquiry,
Tenant does not have any offsets against the payment of rent under the terms of
the Lease.
7. As of this date, as far as can be ascertained, without due inquiry, all
improvements and work required under the terms of the Lease to be done by
Landlord have been completed to the satisfaction of Tenant.
OR
As of this date, as far as can be ascertained, without due inquiry, all
improvements and work required under the terms of the Lease to be done by
Landlord have not been completed to the satisfaction of Tenant. Please note
______________________________________________
______________________________________________________________________________.
Very truly yours,
X.X. XXXXXXXXX & SONS COMPANY
By _______________________________
D-1
STATE OF _____________ )
)ss.
County of ____________ )
On the ___ day of December, 1994, personally appeared before me
XXXXX X. XXXXX who being by me duly sworn, did say, for himself, that he is the
SENIOR VICE PRESIDENT of X.X. XXXXXXXXX & SONS COMPANY, a Delaware corporation,
and that the within and foregoing instrument was signed in behalf of said
corporation by authority of the written consent of the Executive Committee of
its Board of Directors, and said SENIOR VICE PRESIDENT duly acknowledged to me
that said corporation executed the same.
-------------------------------------
Notary Public
Seal
This instrument prepared by
and upon recording return to:
Xxxxx X. Xxxxxxxx
XXXXX DAY XXXXXX & XXXXX
00 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
C-2
Personal Property Lease
This Personal Property Lease ("Lease") is made by and between Novell, Inc.,
("Lessor") and X.X. Xxxxxxxxx & Sons Company ("Lessee") to be effective the 5th
day of December, 1994.
1. Property and Rent
In consideration at the covenants and promises contained
in this Lease, Lessor hereby leases to Lessee the personal property
("Equipment") at the rental rate listed in this paragraph 1 commencing
December 4, 1994. Rent shall be paid at the office of Lessor in advance on
the first day of the month. Payment for the months of December, 1994,
January, 1995, and March 1995 shall be due upon execution hereof by both
parties. The term of this Lease shall run with the term of that certain
Real Property Lease between the parties dated December 3, 1994 and
effective December 4, 1994. Termination of the Real Property Lease shall
constitute termination hereof. Lessee shall have the option to purchase the
phone switch at any time during time term hereof, or at termination, at a
price to be determined by the parties to be its fair market value at the
time of the purchase.
Equipment
---------
a. Phone switch, including:
i. ROLM Model 8751
ii. Software revision 9005
iii. Phone rectifier equipment
iv. Uninterruptible Power Supply System
Lease Amount: $285,000 (based upon a three-year term.)
b. Pallet Racking, including
i. 9,066 standard pallet positions
ii. 312 push back pallet positions
Lease Amount: $51,158 (based upon a three-year term)
-------
Total Lease Amount: $336,158 payable in monthly installments of
--------
$9,337.72.
2. Delivery and Return
Lessor acknowledges that the Equipment has been delivered and as of the
date of commencement hereof is in possession of the Equipment. No later
than the end of the term hereof, Lessee shall return possession of the
Equipment to Lessor in as good condition as exists at the commencement
hereof, reasonable wear and tear excepted. The Equipment shall be subject
to inspection by Lessor before being returned to Lessor and in case a
reasonable price for restoring the Equipment to such condition cannot be
agreed upon, each party will appoint an appraiser, and the two appraisers
appoint a third. The price of recondition as fixed by the three appraisers
shall be binding upon both parties.
3. Taxes
Lessee agrees that, during the term hereof, in addition to the rent to be
paid, it will promptly pay all taxes, assessments and other governmental
charges levied or assessed upon the interest of the Lessee in the Equipment
or upon the use or operation thereof or on the earnings arising therefrom,
and as additional rent will promptly pay or reimburse the Lessor for all
taxes, assessments and other governmental charges levied or assessed
against and paid by the Lessor on account of it ownership of the Equipment
or any part thereof, or the use or operation thereof to the
Lessee, of the rent herein provided for or the earning arising therefrom.
4. Compliance With Laws, Insurance
Lessee agrees, at its own expense:
a. To pay all charges and expenses in connection with the operation of
each item of Equipment;
b. To comply with all governmental laws, ordinances, regulations,
requirements and rules with respect to the use, maintenance and
operation of the Equipment;
c. To maintain at all times public liability, property damage, fire,
theft and comprehensive insurance in an amount satisfactory to Lessor,
protecting Lessor's interest as it may, delivering to Lessor evidence
of such insurance coverage; and
d. To make all repairs and replacements required to be made to maintain
the Equipment in good condition, reasonable wear and tear excepted.
5. Reservation of Title
Title to the Equipment shall at all times remain in the Lessor and Lessee
will at all times protect and defend, at is own cost and expense, the title
of the Lessor from and against all claims liens and legal processes of
creditors of the Lessee and keep the Equipment free and clear from all such
claims, liens and processes. The Equipment is and shall remain personal
property.
6. Default
There shall be deemed to be a breach of this Lease (a) if Lessee shall
default in the payment of any rent hereunder and such default shall
continue for a period of 10 days, (b) if Lessee shall default in the
performance of any other covenants herein and such default shall continue
uncured for 15 days after written notice thereof to Lessee by Lessor, or
(c) if Lessee ceases doing business as a going concern, or if a petition is
filed by or against Lessee under the Bankruptcy Act or any amendment
thereto, or (d) if Lessee attempts to remove or sell or transfer or
encumber or sublet of part with possession of the Equipment or any party
thereof without prior written consent of Lessor. In the event of a breach
of this Lease, the Equipment shall upon Lessor's demand forthwith be
delivered to Lessor at Lessee's expense at such place as Lessor shall
designate and Lessor may, without notice or liability or legal process,
enter into any premises of or under control of Lessee where the Equipment
may be and repossess all or any part of the Equipment.
7. Right of Inspection
Lessor shall have the right from time to time during reasonable business
hours to enter upon the Lessee's premises for the purpose of confirming the
existence, condition and the proper maintenance of the Equipment.
8. Location and Use
Lessee shall use the Equipment only at the manufacturing facility in
Lindon, Utah and shall not at any time remove the same from the place
except in returning the same to Lessor or except as may be permitted by
Lessor by consent thereto in writing. Lessee shall use Equipment at all
times in a workmanlike manner and in such manner as will not injure the
same except by the ordinary wear and tear of such Equipment when in good
workmanlike use and shall at Lessee's cost and expense replace with new
parts any and/or all parts which may require replacement during the term of
this lease. In the installation, location and use of the Equipment, Lessee
shall comply fully with all the laws of the State of Utah and with all
county or municipal ordinances likewise appertaining.
9. Indemnification of Lessor
Lessee shall and does hereby agree to protect and save Lessor harmless
against any an all losses on damage to the Equipment by fire, flood,
explosion, tornado or theft and Lessee shall and does hereby assume all
liability to any person whomsoever arising from the location, condition or
use of the Equipment, and shall indemnify and does indemnify Lessor
of and from all liability, claim, and demand whatsoever arising from the
location, condition, or use of the Equipment whether in operation or not,
and growing out of any cause, including allege imperfect or defective
Equipment, and from every other liability, claim and demand whatsoever
during the term of this lease or arising while the Equipment is in the
possession of Lessee. Lessee also agrees to promptly reimburse Lessor, in
cash, for any and all personal property taxes levied against the Equipment
and paid by Lessor.
10. Waiver
Lessor's waiver of or failure to enforce strict performance by Lessee of
any terms, warranties, covenants and promises herein shall not be construed
as a waiver of any terms or conditions contained herein.
11. Assignment
The rights of Lessee under this Agreement shall not be assignable by Lessee
without the written consent of Lessor except to an affiliate of Lessee,
provided that the assignee shall assume in writing all of Lessee's
obligations to Lessor hereunder. For purposes of this Lease, affiliate
shall mean any person or entity which directly controls, is controlled by,
or is under common control with such person or entity. Lessee shall not
lease, sublease, transfer or otherwise encumber or remove the Equipment
from the Lindon site or part with possession thereof without the written
consent of Lessor.
Lessor may assign this Lease and such Assignee shall succeed to the rights
of Lessor upon notification of such assignment, all payments required
hereunder shall be made directly to Lessor's assignee.
12. Choice of Law
This Lease shall be deemed to have been executed and entered into in the
State of Utah and shall be construed, enforce and performed in accordance
with the laws thereof.
13. Entire Agreement
This Lease contains the entire understanding at the parties with respect to
the lease of the Personal Property. No oral or other statements, shall be
binding upon the parties except in writing subsequent to this Lease.
In witness whereof, the parties have caused this Lease to be executed effective
the date above,
NOVELL, INC. X. X. XXXXXXXXX & SONS COMPANY
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxx
------------------------------- -------------------------------
Authorized Signature Authorized Signature
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx
------------------------------- -------------------------------
Name Printed Name Printed
VP Operations Sr. VP OPS/Stream Intl.
------------------------------- -------------------------------
Title Title
ASSIGNMENT AND ASSUMPTION OF LEASE
----------------------------------
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, X.X. XXXXXXXXX & SONS COMPANY, a Delaware
corporation ("Assignor"), hereby assigns, transfers and conveys to STREAM
INTERNATIONAL INC., a Delaware corporation (formerly known as X.X. Xxxxxxxxx
Global Software Services Corp.) ("Assignee"), all of Assignor's right, title and
interest of Assignor in and to that certain lease described on Schedule 1
----------
attached to this Assignment, as the same may have been modified or amended (the
"Lease").
Assignee hereby assumes and agrees to keep, perform and fulfill all of
Assignor's obligations arising on or after the date of this Assignment as lessee
or tenant under the Lease.
This Assignment and Assumption of Lease may be executed in any number
of counterparts, all of which constitute one and the same document.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption of Lease as of April 21, 1995.
X.X. XXXXXXXXX & SONS COMPANY, a
Delaware corporation
By: [illegible signature]
---------------------------
Its: Vice President
--------------------------
STREAM INTERNATIONAL INC., a
Delaware corporation
By: [illegible signature]
---------------------------
Its: Vice President
--------------------------
000 X 000 Xxxx
Xxxxxx, XX
Schedule 1
----------
Lease Agreement dated December 2, 1994, but effective as of December 4, 1994,
between Novell, Inc., as Landlord, and Assignor, as Tenant.
XXXX AND XXXX LLP
COUNSELLORS AT XXX
0X Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
000-000-0000 . FAX 000-000-0000
Xxxxxxx X. Xxxxxx
000-000-0000
xxxxxxx.xxxxxx@xxxxxxxx.xxx
May 7, 1997
BY FEDERAL EXPRESS AND
CERTIFIED MAIL, RETURN
RECEIPT NUMBER Z 759 387 823
----------------------------
Novell, Inc.
0000 Xxxxx Xxxxxxxxxx Xxx
Xxxx, Xxxx 00000
Attention: Real Estate Department
Re: Lease dated December 3, 1994 by and between Novell,
Inc. ("Landlord") and X.X. Xxxxxxxxx & Sons Company, as
assigned by Assignment and Assumption of Lease dated
April 21, 1995 by and between X.X. Xxxxxxxxx & Sons
Company and Stream International Holdings, Inc.,
formerly known as Stream International Inc. ("Tenant"),
of premises located at 000 Xxxxx 000 Xxxx, Xxxxxx, Xxxx
(the "Lease")
--------------------------------------------------------
Ladies and Gentlemen:
This letter serves to notify you that Tenant soon will undergo a corporate
restructuring (the "Restructuring"). The Restructuring will involve (a) the
merger of Tenant with one of its wholly-owned subsidiary corporations, (b) the
contribution by Tenant to a newly-formed subsidiary corporation, Modus Media
International, Inc. ("Modus"), of certain assets related to the business being
conducted at the Premises, (c) the assignment of the Lease by Tenant to Modus,
its wholly-owned subsidiary, (d) the contribution of stock in Modus by Tenant to
a limited liability company (the "LLC"), all of the membership interests in
which, at that time, will be held by Tenant, (e) the distribution by Tenant to
various current shareholders of Tenant of the membership interests in the LLC,
and (f) the subsequent initial public offering of stock in Tenant. Following the
Restructuring, the tenant under the Lease will be Modus. There will be no change
in the business conducted at the Premises.
WASHINGTON, DC BOSTON, MA LONDON, UK*
--------------------------------------------------------------------------------
XXXX AND DORE LLP INCLUDES PROFESSIONAL CORPORATIONS
*XXXXXXX XXXX AND XXXX INTERNATIONAL (AN INDEPENDENT JOINT VENTURE LAW FIRM)
Novell, Inc.
May 7, 1997
Page 2
I enclose for your information the form of Assignment of Lease that will be
used in connection with the Restructuring.
Landlord's consent may be required for the transactions constituting the
Restructuring. Please indicate your consent to the Restructuring by signing and
returning the counterpart of this letter in the enclosed Federal Express
envelope at your earliest convenience. We would be pleased to answer any
questions you may have concerning the Restructuring; call me if I may be of any
assistance.
Thank you for your cooperation.
Very truly yours,
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
cc: Novell, Inc.
0000 Xxxxx Xxxxxxxxxx Xxx
Xxxx, Xxxx 00000
Attention: Legal Department
Xxxx X. Xxxxxxxx, Esq.
Xxxx Xxxxxxxxxx, Esq.
CONSENT GRANTED:
NOVELL, INC.
By: Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Its: Director, Corporate Real Estate
FIRST AMENDMENT OF LEASE
FIRST AMENDMENT OF LEASE dated as of December 4, 1997, by and between
NOVELL, INC., a Delaware Corporation, having an office at 0000 Xxxxx Xxxxxxxxxx
Xxx, Xxxx, Xxxx, 00000, ("Landlord") and MODUS MEDIA INTERNATIONAL, Inc., a
Delaware Corporation (formerly a business unit of STREAM INTERNATIONAL, Inc., a
Delaware Corporation), ("Tenant") with Tenant having an office at 000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx, 00000-0000.
WITNESSETH:
WHEREAS, Landlord and X.X. Xxxxxxxxx & Sons Company, a Delaware
Corporation, ("Donnelley") entered into said Lease Agreement dated effective as
of the 4th day of December, 1994 (the "Lease"), with respect to all those
certain lots, parcels or pieces of land, including the facilities located
thereon (the "Leased Premises") situated in Lindon, Utah which premises are more
particularly shown and described in the original Lease; and
WHEREAS, Donnelley assigned all of its right, title and interest in the
Lease to Stream International, Inc., a Delaware Corporation, as Tenant in the
Lease, which is hereby acknowledged, agreed, and accepted by the parties hereto,
and
WHEREAS, Stream International, Inc., a Delaware Corporation, assigned all
of its right, title and interest in the Lease to Tenant, Modus Media
International, a Delaware Corporation, which is hereby acknowledged, agreed, and
accepted by the parties, and
WHEREAS, Landlord and Tenant desire to amend the original Lease on the
terms and conditions hereafter set forth,
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein the foregoing recitals, which are deemed contractual, and other
good and valuable consideration, the receipt and sufficiency of which is
conclusively acknowledged, the parties hereto agree as follows:
1. Definitions, All capitalized terms used but not defined herein shall have
-----------
the respective meanings ascribed to them in the original Lease as amended
by this First Amendment. The original Lease as amended by this First
Amendment, is sometimes referred to herein as the "Lease".
2. Lease Term, Upon and subject to the terms, provisions and conditions
----------
contained in the original Lease, as amended by this First Amendment, and in
consideration of the rent to be paid, Landlord does hereby deliver, lease,
demise and let unto Tenant the Premises commencing on December 4, 1997 (the
"Commencement Date") and ending on December 31, 1999 (the "Termination
Date"), or such other date as this Lease may be terminated or extended
pursuant to any provision thereof or any provision of this First Amendment.
3. Base Rent, Tenant covenants and agrees to pay to Landlord for the Leased
---------
Premises base rent ("Base Rent") at the rate of thirty-four cents ($.34)
per square foot per month (the "Base Rent Rate"), in advance, in equal
monthly installments of $114,922.72 per month during the period beginning
December 4, 1997 and ending December 31, 1997. Tenant covenants and agrees
to pay to Landlord for the Leased Premises Base Rent at the rate of thirty-
seven ($.37) per square foot per month, in advance, in equal monthly
installments of $l25,063 per month beginning January 1, 1998 and continuing
until the Termination Date.
4. Termination, After July 1, 1998 and upon six (6) months written notice to
-----------
the Tenant, Landlord may terminate this Lease. Landlord may only exercise
this right on the condition of having received a signed Letter of Intent or
Offer to Purchase the property from a third party. Tenant has the right to
extend the notice period an additional three (3) months upon five (5)
business days written notice to the Landlord.
5. Option to Renew, Tenant shall have the right, at Tenant's option, to extend
---------------
the Lease Term upon the same terms and conditions contained in the Lease as
herein amended, except the Base Rent, for three (3) additional periods of
one (1) year each (the "Extension Periods"), exercisable by providing
Landlord written notice not less than three (3) months prior to the
expiration of the Lease Term as extended by one or more Extension Periods.
The renewal Base Rent Rate during any of the Extension Periods shall be
negotiated by the parties; upon the failure of the parties to mutually
agree the rent will be determined in accordance with the provisions of the
Lease.
6. Option to Purchase, The Option to Purchase in the Lease was not exercised
------------------
and is now declared to be null and void.
7. Right of First Refusal, Tenant shall have a right of first refusal with
----------------------
respect to any proposed sale of the Leased Premises to any third party
during the Lease Term and any of the Extension Periods. In thc event that
Landlord receives a signed Letter of Intent or Offer to Purchase, Landlord
shall, prior to accepting such offer, furnish Tenant with written notice of
the material terms and conditions of such offer ("Landlord's Notice").
Tenant shall have thirty (30) days from the date of Landlord's Notice
within which to notify Landlord in writing that Tenant desires to purchase
the Leased Premises on at least the same terms and conditions contained in
Landlord's Notice. If Tenant does not exercise its right of first refusal
within the thirty (30) day period, the right of first refusal contained in
this Amendment and in Paragraph 26(B) of the Lease terminates. Landlord may
proceed to sell the Leased Premises without any further first refusal
obligations to the Tenant. All other rights and obligations of the parties
shall be determined according to the Lease.
8. Notification to Show, Landlord or Landlord's agent shall have the right to
--------------------
show the Leased Premises during normal business hours. Landlord or
Landlord's agent shall give reasonable notice (24 hours if possible) to
Tenant that Landlord will show the Leased Premises.
9. For Sale Signage, Landlord covenants and agrees that no "For Sale" sign
----------------
shall be placed anywhere on the property without written consent of Tenant,
which consent shall not unreasonably be withheld.
10. Financial Statements of Tenant, Landlord acknowledges and agrees that prior
------------------------------
to execution of this First Amendment it has reviewed and approved copies of
Tenant financial statements.
11. Subdivision of the Property, Landlord retains the right to subdivide the
---------------------------
property according to the terms of the Lease.
12. Commissions, Landlord shall be responsible to pay any commission earned by
-----------
any real estate broker engaged by Landlord. Landlord shall not be
responsible for the commission earned by any real estate broker engaged by
any other party.
13. Representation, Landlord is represented by Xxxxxxx Commercial Real Estate
--------------
Services, Inc. Tenant is represented by themselves.
14. Notice, In addition to the notice information provided in the Lease,
------
Landlord shall also give notice to Tenant as follows:
To: Modus Media International, Inc.
000 Xxxx 000 Xxxxx
Xxxxxx, Xxxx 00000
Telecopy: 000-000-0000
Attention: Xxxx Xxxxxxx, General Manager
With a Copy to: Modus Media International, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Telecopy: 000-000-0000
Attention: General Counsel
15. Personal Property Lease Extension, The parties acknowledge that certain
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Personal Property Lease dated effective December 5, 1994 between Novell,
Inc. as Landlord and X.X. Xxxxxxxxx & Sons Company. That Personal Property
Lease also deemed amended, as to parties and terms, consistent with this
First Amendment, and is extended on its same terms to run with the terms of
this Lease and First Amendment, its extension, renewal or termination. Any
extension beyond the term (as extended by one or more Extension Periods) of
the Lease as herein amended, shall be separately negotiated; otherwise the
Personal Property Lease terminates when the Lease (as extended by one or
more Extension Periods), as herein amended, terminates.
16. Release, Landlord hereby forever releases and discharges Donnelley from any
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liability or obligation whatsoever (whether as tenant, guarantor or
otherwise) under the Lease. Landlord further agrees that it will execute
any and all documents requested by Tenant to confirm such release and
discharge, subject to the review and approval of Landlord's legal and real
estate departments.
17. Financing Consent, In good faith, Landlord agrees that it will execute any
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and all bank consent letters and similar documents required by Tenant's
financing institutions, subject to the review and approval of Landlord's
legal and real estate departments.
18. Property Taxes, Landlord and Tenant acknowledge that Tenant is responsible
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for paying the real property taxes on the Leased Premises when the same
become due and before any fine, penalty, interest or cost may be added
thereto for the nonpayment thereof. The parties hereby acknowledge that the
real property taxes on the Leased Premises for the years 1995, 1996 and
1997 have been paid by the Landlord and the Tenant has reimbursed the
Landlord for same. This action does not change, diminish or set any
precedent as to Tenant's present or future responsibility to pay the real
property taxes on the Leased Premises when the same become due.
19. Miscellaneous, Landlord and Tenant confirm and agree that (i) except as
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amended by this First Amendment, the original Lease is unmodified, (ii) the
Lease is in full force and effect in accordance with its terms, and (iii)
to the best knowledge of Landlord and Tenant the other party is not in
default in the performance of any of its obligations under the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment
as of the day and year first above written.
NOVELL, INC., MODUS MEDIA INTERNATIONAL, Inc.,
A DELAWARE CORPORATION A DELAWARE CORPORATION
By: [illegible signature] By: [illegible signature]
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Its: V.P. Its: Senior VP-North America
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