EIGHTH AMENDMENT TO LEASE
THIS EIGHTH AMENDMENT TO LEASE is made as of March 26, 1998 between PETULA
ASSOCIATES, LTD., an Iowa corporation and EQUITY FC, LTD., an Iowa
corporation (collectively, "Lessor"), and SEQUENT COMPUTER SYSTEMS, INC., an
Oregon corporation ("Lessee").
RECITALS
A. Lessor and Lessee are parties to that certain Lease Agreement dated May
8, 1987 (the "Lease Agreement") and the following documents (the
"Amendments"), which amend such Lease Agreement (the Lease Agreement
and all such Amendments are herein collectively referred to as the
"Lease"):
1. First Amendment dated December 29, 1987;
2. Second Amendment dated July 28, 1988;
3. Third Amendment dated July 28, 1989;
4. Fourth Amendment dated September 20, 1991;
5. Fifth Amendment dated December 2, 1992;
6. Sixth Amendment dated April 5, 1993; and
7. Seventh Amendment dated September 30, 1997
B. Capitalized terms not defined in this Amendment have the meanings set
forth in the Lease.
X. Xxxxxx and Lessee desire to amend the Lease as set forth herein.
AGREEMENT
1. LEASE REVISIONS.
1.1 Closing Costs and Title Insurance. The following is added after the
last sentence of Section 6.4.3 of the Lease and is hereby made a part
of Section 6.4.3:
"If available from Escrow Agent and if requested by Lessor, Escrow
Agent shall issue to Lessor at its expense a "simultaneous issue"
seller's policy of title insurance."
1.2 Conveyance. The following shall be added after the last sentence of
Section 6.4.4 of the Lease and is hereby made a part of Section 6.4.4:
"At Lessee's request, Lessor shall convey title to the Property to
an institutional lender or trustee providing synthetic lease financing
or other institutional financing to Lessee in connection with its
acquisition of the Property; provided, however, use of such designee
will not affect (or operate as a release of) Lessee's obligations or
liability under the Lease, including the Option to Purchase
provisions of the Lease."
1.3 Lease Termination. The following is added as a new Section 6.4.7 to
the Lease:
"6.4.7 Termination of Lease. This Lease shall automatically
terminate effective upon the Closing of the sale of the Property from
Lessor to Lessee pursuant to this Section 6; provided, however, the
Survival Provisions of Section 51 shall apply in connection with any
such termination. If requested by Lessee, Lessor shall enter into a
lease termination agreement with Lessee to evidence the agreement of
the parties in this Section 6.4.7, and Lessee shall have the right to
record such lease termination agreement in the records of Washington
County, Oregon at any time following the recording of the statutory
special warranty deed referenced in Section 6.4.4."
1.4 Skybridge. Lessor and Lessee acknowledge that Lessee has exercised its
option to purchase the Section Building (as defined in Section 47.3.4
of the Lease) which includes the skybridge connecting the Premises to
the improvements which are the subject of the Second Lease. And that
upon closing of such purchase Lessor shall not be responsible for any
obligations of Lessor under the Lease with respect to such skybridge
that accrue after the closing of such purchase. In connection with the
closing of such purchase, Lessor, Lessee and, if applicable, Lessee's
designee shall enter into a skybridge easement agreement with respect
to such skybridge in form and content mutually agreeable to Lessor and
Lessee.
1.5 Traffic Signal. The following is added as a new Section 52 to the
Lease:
"52 Traffic Signal. Lessor and Lessee agree that the cost to
install a traffic signal (the "Signal") at the intersection of Xxxx
Parkway, Xxxxxx Road and SW 150th Avenue shall be treated as a Special
Common Area Assessment pursuant to the Declaration of Covenants,
Conditions and Restrictions dated March 12, 1986, as amended by First
Amendment thereto dated October 28, 1996 and Section Amendment thereto
dated March 13, 1998 (collectively, the "Declaration"), which
Declaration encumbers the Property and other property. Once the Signal
has been installed and is operational (the "Signal Completion Date"),
Lessor shall furnish to Lessee a statement in commercially reasonable
detail showing the portion of the cost to install such Signal (the
"Signal Cost") that is allocated to the Property as a Special Common
Area Assessment pursuant to the Declaration and, upon request from
Lessee, shall furnish copies of invoices received and paid by Lessor in
connection with the installation of the Signal. Lessee agrees to
reimburse Lessor for the portion of the Signal Cost allocated to the
Property, provided, however, that, except as provided herein, Lessee
shall not be required to pay such cost in a lump sum, but rather such
cost, together with a financing charge of ten percent (10%) per annum,
shall be amortized over an estimated useful life of ten (10) years and
Lessee shall reimburse Lessor for such cost by paying Lessor in equal
monthly installments beginning on the first day of the second calendar
month following the Signal Completion Date (or on the first day of the
next calendar month if the Signal Completion Date is the first day of a
calendar month) and on the first day of each month thereafter during the
remaining term of this Lease that portion of such cost attributable to
the month preceding such payment based on such amortization plan. If
the Signal Completion Date is a day other than the first day of a
calendar month, then on the first day of the calendar month following
the Signal Completion Date, Lessee shall pay to Lessor interest at the
rate provided herein from the Signal Completion Date through the last
day of the month in which the Signal Completion Date occurs. In the
alternative, Lessee shall have the right to prepay all or any portion of
the outstanding balance of such cost at any time without any prepayment
charge. If Lessee purchases the Property pursuant to the Option to
Purchase in this Lease and the Signal has been installed and is
operational, upon the closing of such purchase Lessee shall pay to
Lessor the outstanding balance of the Signal Cost allocated to the
Property. If Lessee does not purchase the Property pursuant to the
Option to Purchase in this Lease and this Lease expires or otherwise
terminates, the (i) Lessee shall pay to Lessor within ten (10) days of
such expiration or termination that portion of the Signal Cost
allocated to the Property that is attributable to the period
commencing with the first day of the month in which this Lease expires
or otherwise terminates, and (ii) Lessee's obligation to reimburse
Lessor for the remaining balance of the Signal Cost allocated to the
Property shall cease upon such expiration or termination of this Lease,
provided, however, that if this Lease terminates due to the default of
Lessee, Lessor may recover from Lessee the unpaid portion of the Signal
Cost allocated to the Property, if any, in addition to other amounts
allowed under Section 20.2 of this Lease. Nothing herein shall be
deemed an agreement by Lessee that the cost of any other traffic
signal(s) installed near the Property in the future should be passed
through to Lessee under this Lease."
1.6 Monument Sign. Notwithstanding that the monument sign used by Lessee
in connection with its use of the Premises is located within an area
designated as common area under the Declaration, during the term of
this Lease the expense of maintaining the sign shall not be treated as
a common area expense, but rather shall be the responsibility of
Lessee. Upon termination of this Lease, the expense of maintaining the
sign shall be treated as a common area expense under the Declaration
unless the sign is used exclusively by the owner of the Premises or any
new tenant of such owner, in which case such expense shall be the
responsibility of such owner or such tenant.
2. STATUS OF LEASE. Except as expressly amended hereby, the Lease remains
in full force and effect and is hereby ratified and affirmed.
3. COUNTERPARTS. This Amendment may be executed simultaneously or in
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Amendment.
4. FACSIMILE TRANSMISSION. Facsimile transmission of any signed original
document, and retransmission of any signed facsimile transmission,
shall be the same as delivery of an original. At the request of either
party, the parties shall confirm facsimile trasmitted signatures by
signing an original document.
IN WITNESS WHEREOF, this Eighth Amendment to Lease has been executed as of
the date set forth above.
LESSOR: PETULA ASSOCIATES, LTD., an Iowa corporation
By: /s/ XXXXXXX X. XXXXX
Name: XXXXXXX X. XXXXX
Title: VICE PRESIDENT
By: /s/ XXXXXXX X. XXXXXX
Name: XXXXXXX X. XXXXXX
Title: VICE PRESIDENT
EQUITY FC, LTD., an Iowa corporation
By: /s/ X.X. XXXXXXXXX
Name: X.X. XXXXXXXXX
Title: COUNSEL
By: /s/ XXXXXX X. XXXXXXXX
Name: XXXXXX X. XXXXXXXX
Title: VICE PRESIDENT
LESSEE: SEQUENT COMPUTER SYSTEMS, INC., an Oregon corporation
By: /s/ XXXXXX X. XXXX
Name: XXXXXX X. XXXX
Title: VICE PRESIDENT & CIO
