EXHIBIT 10.18
ATTORNMENT AGREEMENT
Name of Owner Sun Borne XII, LLC; Caleb Development, LLC;
and Woodmen Joint Ventures, LLP
Name of Sublessor: Colorado Electronics Corporation, LLC,
a Colorado limited liability corporation
Name of Sublessee: Circuit Technology Corporation, a Utah
corporation
Prime Lease: Net Lease dated January 8, 1998, between
Owner and ETA Technologies Corporation
Address of Property: 0000-0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
THIS ATTORNMENT AGREEMENT is made and entered into as of the 30th day
of November, 2001, between Owner, Sublessor and Sublessee.
RECITALS:
A. Owner and ETA Technologies Corporation entered into the Prime
Lease with respect to the property referred to therein (the
Property).
B. ETA Technologies Corporation ("ETA") assigned to Sublessor all of
its rights, title and interest in and to the Prime Lease pursuant
to that certain Assignment dated November 30, 1998, which Owner
approved.
C. Sublessor, as lessor, and Sublessee, as lessee, have entered or
are about to enter into a Sublease Agreement, the form of which
has been provided to Owner (the Sublessee), pursuant to which
Sublessor has agreed to sublease to Sublessee all or a portion of
the Property, which is more particularly described in Exhibit A
attached hereto (the Leased Premises).
D. The parties hereto desire to assure Sublessee's possession of the
Leased Premises upon the terms and conditions of the Sublease,
regardless of a termination of the Prime Lease.
NOW, THEREFORE, in consideration of the covenants hereinafter set
forth, the parties hereto hereby covenant and agree as follows:
1. Owner consents to the execution and delivery of the Sublease.
2. Owner hereby agrees that, in the event the Prime Lease is terminated
or the right to possession of Sublessee and/or ETA under the Prime Lease is
terminated without termination of the Prime Leases for any reason whatsoever,
the Sublease shall continue in full force and effect as a direct lease between
Owner and Sublessee upon and subject to the terms, covenants and conditions
thereof for the remaining balance of the term hereof. This attornment shall be
effective and self-operative without the execution of any further instruments on
the part of Owner or Sublessee, immediately upon the termination of the Prime
Lease or the right of possession of Sublessor and/or ETA thereunder. So long as
Sublessee is not in default (beyond any period given Sublessee in the Sublease
to cure such default) in the payment of rent or additional charges or in the
performance of any of the other terms, covenants or conditions of the Sublease
on Sublessee's part to be performed, Sublessee shall not be disturbed by Owner
in its possession of the Leased Premises during the term of the Sublease, or any
extension or renewal thereof, or in the enjoyment of its rights thereunder.
3. From and after such termination of the Prime Lease or the right of
possession of Sublessor and/or ETA thereunder:
(a) Sublessee will attorn to Owner, and Owner will accept such
attornment.
(b) Owner will have the same remedies against Sublessee for the
breach of any agreement contained in the Sublease which Sublessor had or would
have had against Sublessee if the Prime Lease had not been terminated.
(c) Sublessee shall have the same remedies against Owner for the
breach of any agreement contained in the Sublease that Sublessee had or would
have had against Sublessor if the Prime Lease had not been terminated, except
that Owner shall not be (i) liable for any act or omission of Sublessor or (ii)
subject to any offsets or defenses which Sublessee might have against Sublessor.
4. In the event that Sublessee shall obtain the written consent of
Owner to make any changes or alterations to the Property or remove or add any
improvements to the Property, then, in such event, notwithstanding any provision
of the Prime Lease, Owner agrees that Sublessee shall not be obligated to
restore the Property to its condition prior to such changes or alterations.
5. Sublessor hereby consents to this Agreement and agrees that neither
the execution of this Agreement nor anything done pursuant to the provisions
hereof shall be deemed to modify the Prime Lease.
6. Sublessor and Sublessee may not amend the Sublease in any way
without the written consent of Owner.
7. The term "Owner" as used in this Agreement means the then current
owner of the Property, so that in the event of any sale or other transfer of the
Property, the former Owner shall thereupon have no further obligations or
liabilities hereunder. The provisions of this Agreement, however, shall bind all
subsequent Owners of the Property.
8. The rights under this Agreement shall inure to the benefit of and be
binding upon Sublessee and its permitted successors, assigns, executors and
administrators as provided in the Sublease.
9. This Agreement shall be governed by and construed in accordance with
the laws of the State in which the Property is located.
10. This Agreement may only be amended in a writing executed by each of
Owner, Sublessor and Sublessee.
11. The substantially prevailing party in any litigation arising
hereunder shall be entitled to its reasonable attorneys fees and court costs,
including appeals, if any.
12. Owner shall pay Sublessee and its successors, assigns,
shareholders, officers and directors (collectively "Indemnified Parties"), upon
demand and defend them against and hold them harmless from all costs, including
reasonable attorney fees, expenses, fines, penalties, damages, expert and
consulting fees, and other costs and expenses of any nature whatsoever
(collectively "Costs") incurred by, imposed on or asserted against the
Indemnified Parties, or any one of the them, with respect to or related in any
manner whatsoever to the chloroform issue, including without limitation, Costs
associated with monitoring, remediation, clean up, administrative or judicial
orders, and liability to third parties, and to obtaining from the Colorado
Department of Health ("CDH") a no-action letter with respect to the chloroform
issue under C.R.S. ss. 00-00-000, as may be amended or re-enacted from time to
time. The "chloroform issue" relates to any possible presence of chloroform in
the ground water under the Leased Premises or as such may have migrated to the
Leased Premises, as disclosed by the Phase I prepared by GES, Inc. dated
December 30, 1997, and the Phase I prepared by Encon dated March 29, 1993. This
indemnity includes, without limitation, the Costs that may be incurred as a
result of any requirements of CDH or the Environmental Protection Agency as a
condition of obtaining the no-action letter. The foregoing indemnity with
respect to the no-action letter shall apply only if the letter is required by an
individual or entity other than Sublessee or if Owner elects to pursue the
letter during the term of the Sublease. It shall not by necessary for Sublessee
to have actually paid any Costs as a condition precedent to any indemnification,
but rather Owner shall pay such Costs directly when due and shall have the right
to use legal counsel of its choice in obtaining the no-action letter or
otherwise defending the Indemnified Parties, subject to Sublessee's reasonable
approval. The Indemnified Parties shall cooperate with Owner and take all
action, at no expense to the Indemnified Parties, that may be required to obtain
the no-action letter. This indemnity shall not apply to any chloroform
generated, placed, disposed of, or caused to be present on or under the Leased
Premises by the Indemnified Parties.
13. At such time as Owner decides to sell the Property, if at all, and
so long as Sublessee is not in default of the Sublease and the Sublease is in
effect, Owner shall give Sublessee the first option to purchase the Property at
Owner's initial offering price to be determined at Owner's sole discretion.
Sublessee shall have seven (7) days after receipt of Owner's price within which
to give written notice to Owner of its intent to purchase at Owner's price,
otherwise this option will automatically be deemed terminated. If Sublessee so
exercises the option, the option is further contingent upon Sublessee and Owner
entering into a mutually agreeable purchase and sale contract providing for a
closing within sixty (60) days after Owner gives notice to Sublessee of the
offered price. If the parties fail to enter into any such mutually agreeable
written agreement within seven (7) days of Sublessee's exercise of this option,
the option shall be deemed terminated. If the option is not exercised by
Sublessee or a definitive written purchase and sale agreement is not entered
into between Sublessee and Owner as provided above, Owner may offer to and sell
the Property to any other person or entity at any price and on any terms it
deems advisable in its sole discretion.
IN WITNESS WHEREOF, the parties hereto have caused this Attornment
Agreement to be duly executed as of the day and year first above written.
OWNER: SUN BORNE XII, LLC
By: /s/ XxXxx Xxxxxxxx
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Its: Managing Member
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CALEB DEVELOPING, LLC
By: /s/ XxXxx Xxxxxxxx
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Its: Managing Member
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WOODMEN JOINT VENTURES, LLP
By: /s/ XxXxx Xxxxxxxx
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Its: Partner
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SUBLESSOR: COLORADO ELECTRONICS CORPORATION, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Its: General Manager
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SUBLESSEE CIRCUIT TECHNOLOGY CORPORATION
By: /s/ Xxxxx Xxxxxxxx
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Its: President
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AGREED TO AND
APPROVED By: /s/ Xxxxxxx Xxxxxx Xxxxxxx
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Its: President
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STATE OF UTAH )
: SS.
COUNTY OF SALT LAKE )
The foregoing instrument was acknowledged before me this _____ day of
October, 2001, by _____________________________, the ___________________________
of __________________________, a ___________________________ corporation.
_________________________________
Notary Public
My Commission Expires: Residing at:
________________________ _________________________________
STATE OF UTAH )
: SS.
COUNTY OF SALT LAKE )
The foregoing instrument was acknowledged before me this _____ day of
October, 2001, by _____________________________, the ___________________________
of __________________________, a ___________________________ corporation.
_________________________________
Notary Public
My Commission Expires: Residing at:
_____________________ _________________________________
STATE OF UTAH )
: SS.
COUNTY OF SALT LAKE )
The foregoing instrument was acknowledged before me this _____ day of
October, 2001, by _____________________________, the ___________________________
of __________________________, a ___________________________ corporation.
_________________________________
Notary Public
My Commission Expires: Residing at:
_____________________ _________________________________
STATE OF UTAH )
: SS.
COUNTY OF SALT LAKE )
The foregoing instrument was acknowledged before me this _____ day of
October, 2001, by _____________________________, the ___________________________
of __________________________, a ___________________________ corporation.
_________________________________
Notary Public
My Commission Expires: Residing at:
______________________ _________________________________
EXHIBIT A
Legal Description of Leased Premises
That certain real property located in El Paso County, Colorado, more
particularly described as follows:
142,500 SQUARE FEET ON XXXX 0 XXX 0, XXXXX 0, XXX XXXXXXXXXXX
XX. 0 XX THE CITY OF COLORADO SPRINGS, EL PASO COUNTY,
COLORADO;
and known by street address as 0000-0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx,
Xxxxxxxx, 00000.
