Exhibit 10(LL)
AGREEMENT REGARDING CERTIFICATE OF DEPOSIT
This Agreement Regarding Certificate of Deposit ("Agreement") is entered
into by and between Draper Land Partnership II, a Utah limited partnership
("Landlord"), and I-Link Worldwide, Inc., a Utah corporation ("Tenant").
I. RECITALS.
A. Tenant and Landlord are parties to a Commercial Lease dated the 11TH
day of September, 1996 (the "Lease"), pursuant to which Tenant will lease
certain real property located in Draper, Utah (the "Property") from Landlord for
office use.
B. The Lease requires Tenant to make a Security Deposit to ensure the
faithful performance by Tenant of all of the provisions of the Lease.
C. In view of the fact that Tenant is a newly formed business enterprise
with no performance history, Landlord and Landlord's lender ("Lender") desire a
substantial Security deposit with provision for future reduction in amount
consistent with the terms and conditions hereof.
II. AGREEMENT.
1. Tenant will obtain and deliver to Landlord as the Security Deposit
required under the Lease four separate Certificates of Deposit each in the same
amount and totaling in the aggregate Two Hundred Fifteen Thousand Dollars
($215,000.00) (the "CDs"), which Landlord shall be entitled to redeem for cash
pursuant to the terms of the Lease and this Agreement.
2. Notwithstanding anything to the contrary Tenant shall be entitled to
all interest earned on the CDs.
3. The CDs are held by Landlord as the Security Deposit securing the
faithful performance by Tenant of all of the provisions of the Lease to be
performed or observed by Tenant, including, without limitation, the payment of
any and all payments owing of any kind by Tenant under the Lease. In the event
Tenant fails to perform or observe any of the provisions of the Lease to be
performed or observed by it, then, at the option of the Landlord, Landlord may
(but shall not be obligated to do so) apply the Security Deposit, or so much
thereof as may be necessary to remedy such default or to repair damages to the
Premises caused by Tenant. In the event Landlord applies any portion of the
security Deposit to remedy any such default or to repair damages to the Premises
caused by Tenant, Tenant shall pay to Landlord, within thirty (30) days after
written demand for such payment by Landlord, all monies necessary to restore the
Security Deposit up to the original amount. Any portions of the Security Deposit
remaining upon termination of the Lease shall be returned.
4. After the second anniversary of this Agreement, and provided that
Tenant is in good standing and not in default under the terms and conditions of
the Lease, and provided further that Tenant has achieved a level of performance
that satisfies Lender, the CDs may be returned to the Tenant at the rate of one
per year over the next four years, provided further that at the beginning of the
sixth year Tenant then deposits with Landlord the final month's base rent
($11,362 plus the applicable 4% annual increases calculated in accordance with
paragraph 4 of the Lease) to be held by Landlord as the Security Deposit for the
remainder of the Lease Term.
5. Landlord may without the further permission of Tenant deliver the CDs
over to Lender who shall hold the same for the benefit of Landlord hereunder
such that Landlord's security interest therein shall be deemed perfected by
possession under (S)70A-9-304 of the Utah Code Annotated (1953), as amended,
provided only that Lender shall hold the CDs under the terms and conditions of
this Agreement.
6. Should Landlord or Lender request that Tenant execute a UCC-1 form for
filing consistent with the terms and conditions of this Agreement, or any other
document necessary to carry out the intent of the parties hereunder, Tenant
agrees to execute the same.
7. This Agreement contains the entire agreement between the parties
relating to the transactions contemplated hereby, and all prior or
contemporaneous agreements, understandings, representations and statements, oral
or written, are merged herein. Notwithstanding the foregoing, the Lease shall
remain in full force and effect except to the extent it is inconsistent with
this Agreement, which shall govern in the event of a conflict between the two
instruments.
8. No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by the party
against which the enforcement or such modification, waiver, amendment, discharge
or change is or may be sought.
9. This Agreement may be executed in counterparts, all of which when taken
together shall be deemed fully executed originals.
10. In the event either party commences litigation for the judicial
interpretation, enforcement, termination, cancellation or rescission hereof, or
for damages for the breach hereof, then, in addition to any or all other relief
awarded in such litigation, the prevailing party therein shall be entitled to a
judgment against the other for an amount equal to reasonable attorneys' fees and
court and other costs incurred.
2
11. Tenant or Landlord shall not, by virtue of this Agreement, in any way
or for any reason be deemed to have become a partner of the other in the conduct
of business or otherwise, or a joint venturer.
12. This Agreement shall be construed and enforced in accordance with the
laws of the State of Utah.
13. In the event any term, covenant, condition, provision or agreement
herein contained is held to be invalid, void or otherwise unenforceable by any
court of competent jurisdiction, the fact that such term, covenant, condition,
provision or agreement is invalid, void or otherwise unenforceable shall in no
way affect the validity or enforceability of any other term, covenant,
condition, provision or agreement herein contained.
14. All terms of the Agreement shall be binding upon, inure to the benefit
of, and be enforceable by the parties hereto and their respective legal
representatives, successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date and year first written above.
TENANT, LANDLORD,
I-Link Worldwide, Inc. Draper Land Partnership II
By: By:
----------------------------- -----------------------------
Its: Its:
---------------------------- ----------------------------
3
