Exhibit 10.6
INDEMNITY AGREEMENT
This Indemnity Agreement is made as of November 20, 1998, by Pacific Xxxx
Corporation, a California corporation ("PacBell"), in favor of ComStream
Corporation, a Delaware corporation "ComStream"), who agree as follows:
1. RECITALS. ComStream and ADI Communication Partners, L.P.,
predecessor-in-interest to Xxxxxx Realty, L.P. ("Landlord"), entered into the
Lease dated as of April 23, 1997, as amended by the First Amendment dated as of
July 16, 1997, and the Second Amendment to Lease dated as of November 1 , 1998
(the "Lease"). Pursuant to the Lease, ComStream leased from Landlord the
property described in the Lease (the "Original Premises"), but has agreed under
the Lease to vacate, on or before November 27, 1998, that portion of the
Original Premises consisting of approximately 33,000 square-feet described and
depicted on the attached Exhibit "A" (the "Vacated Space"). Landlord and PacBell
have entered into an agreement whereby Landlord is granting PacBell the rights
to occupy the Vacated Space commencing on November 27, 1998. As partial
consideration for ComStream's agreement to vacate the Vacated Space, ComStream
has requested this Indemnity.
2. INDEMNITY. PacBell shall defend, indemnify, and hold ComStream harmless from
and against all costs, liabilities, claims, and damages ("Obligations")
occurring within the Vacated Space or arising out of PacBell's occupancy of, or
operation out of, the Vacated Space between November 27, 1998, and December 15,
1998, inclusive, including Obligations to Landlord or others under the Lease.
The foregoing Indemnity EXCLUDES, however, Base Rent and the Additional
Obligations (as defined in the Lease) and other Obligations which ComStream
would have incurred under the Lease regardless of PacBell's occupancy of, or
operation out of, the Vacated Space. For purposes of this Indemnity, PacBell is
responsible for the acts and omissions of its officers, agents, employees,
independent contractors, clients, guests, and other third parties (but only to
the extent such other third parties' acts, omissions, or presence at the
Original Premises relate solely to PacBell's occupancy of the Vacated Space).
ComStream shall defend, indemnify and hold PacBell harmless from and against all
Obligations occurring within the Original Premises other than the Vacated Space
between November 27, 1998, and December 15, 1998, inclusive, or arising out of
ComStream's occupancy of, or operation out of, the Original Premises other than
the Vacated Space. For purposes of this Indemnity, ComStream is responsible for
the acts and omissions of its officers, agents, employees, independent
contractors, clients, guests, and other third parties (but only to the extent
such other third parties' acts, omissions, or presence at the Original Premises
relate solely to ComStream's occupancy of the Original Premises other than the
Vacated Space).
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3. MISCELLANEOUS. Each party to this Agreement shall execute and deliver all
instruments and documents and take all actions as may be reasonably required or
appropriate to carry out the purposes of this Agreement. The prevailing
party(ies) in any litigation, arbitration, mediation, bankruptcy, insolvency or
other proceeding ("Proceeding") relating to the enforcement or interpretation of
this Agreement may recover from the unsuccessful party(ies) all costs, expenses,
and actual attorneys' fees (including expert witness and other consultants' fees
and costs) relating to or arising out of (a) the Proceeding (whether or not the
Proceeding proceeds to judgment), and (b) any post-judgment or post-award
proceeding including, without limitation, one to enforce or collect any judgment
or award resulting from the Proceeding. All such judgments and awards shall
contain a specific provision for the recovery of all such subsequently incurred
costs, expenses, and actual attorney's fees. Each provision of this Agreement is
valid and enforceable to the fullest extent permitted by law. If any provision
of this Agreement (or the application of such provision to any person or
circumstance) is or becomes invalid or unenforceable, the remainder of this
Agreement, and the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, are not
affected by such invalidity or unenforceability. Each of the individuals signing
below on behalf of an entity represents and warrants that it is fully authorized
to do so on behalf of such entity.
This Agreement is effective only if PacBell enters into a lease agreement with
Landlord relating to the Vacated Space.
(STAMP)
PACIFIC XXXX, a California corporation
By: /s/Xxxxxxx X. Xxxxxx
COMSTREAM CORPORATION, a Delaware corporation
By: /s/ Xxxxx Xxxxxxxx, Vice President and CFO
By: /s/ Xxxxx Xxxxxxxx, Secretary
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November 18, 1998
Xx. Xxxx Xxxxxxxx
Senior Vice President & Chief Financial Officer
Spar Aerospace Limited
000 Xxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxx
X0X 0X0
Dear Xxxx:
Please find enclosed the Second Amendment to Lease ("Amendment") dated November
18, 1998 between Xxxxxx Realty and ComStream Corporation regarding the Sequence
Drive real estate. The total costs pursuant to this Amendment are estimated to
be $US 2,570,000 and are described in Schedule A.
Radyne Corp. hereby releases Spar Aerospace Limited ("Spar") from any and all
liabilities or obligations under the Lease dated April 23, 1997 between ADI
Communication Partners, L.P., and ComStream Corporation as amended June 16, 1997
and November 18, 1998 (collectively, the "Lease") and under the Stock Purchase
Agreement dated as of August 28, 1998 between Radyne Corp. and Spar with respect
to the Lease under the following terms and conditions:
1. Spar agrees to pay to ComStream or its successor $US 980,000 by
wire transfer on or before March 1, 1999.
2. Spar shall continue to be responsible for the rent and operating
costs for Building B through December 15, 1998 and afterwards shall
have no such responsibility.
3. Spar agrees to reimburse ComStream for 50% of actual costs incurred
in connection with completion of the Surrender Work (as described
in Exhibit B to the Amendment) to a maximum of $US 75,000, 50% of
any commissions paid to CB Commercial Xxxx in connection with the
Amendment to a maximum of $70,000, and 50% of legal fees paid to
Xxxxxxx Xxxx in connection with the Amendment to a maximum of $US
3,500. Such amounts will be paid to ComStream within ten business
days of receipt of invoices by Spar.
4. Spar agrees to reimburse ComStream for 50% of the costs of Building A during
the period of December 16, 1998 to February 28, 1999, which amount shall be
reduced by 50% of the credit described in paragraph H of the Amendment. The
estimated amount shall be paid to ComStream in two installments; $US 68,000
shall be payable on January 1, 1999 and $US 68,500 shall be payable on
February 1, 1999.
If the foregoing accurately describes your understanding, please sign in the
space provided below.
Sincerely,
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Vice President & CFO
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AGREED AND ACCEPTED:
/ S / Xxxx X. Xxxxxxxx
---------------------------------------
Date: 26 November 1998
Xxxx X. Xxxxxxxx
Senior Vice President & CFO
Spar Aerospace Limited
/ S /Xxxxxx X. Fitting
---------------------------------------
Date: 18 November 1998
Xxxxxx Fitting
President
Radyne Corp.
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Schedule A
ESTIMATED LEASE AMENDMENT COST ($000S)
Total Spar Radyne
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Cost ComStream
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A. Cash buyout
1. March 1, 1999 payment $ 1,000.0 $ 980.0 $ 20.0
2. September 1, 1999 payment (undiscounted) $ 1,000.0 $ 1,000.0
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$ 2,000.0 $ 980.0 $ 1,020.0
B. Estimated Surrender Work costs:
1. Return volleyball court, satellite farm and loading
dock areas to parking to create additional 40 spaces
2. Remove lab area cable trays and replace
ceiling tiles $ 150.0 $ 75.0 $ 75.0
C. CB commission (as if building B sublease $ 140.0 $ 70.0 $ 70.0
was successful)
D. Rent payments for Sequence A during vacant period $ 273.0 $ 136.5 $ 136.5
of 12/16/98 thru 2/28/99
E. Legal $ 7.0 $ 3.5 $ 3.5
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$ 2,570.0 $1,265.0 $ 1,305.0
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NOTES
1. Between the Closing date of the Spar/Radyne transaction and 12/15/98, Spar
would continue to fund the Building B costs and Radyne-Com Stream would fund
the Building A costs as per the Stock Purchase Agreement.
2. Commencing December 15, 1998, Radyne-ComStream would occupy and fund
Building B.
Schedule B
SEQUENCE A COSTS DURING VACANCY PERIOD
(December 16, 1998 to February 28, 1999)
BLDG A
SF 132600
Rent $ 145,260
Costs of vacant space
2.5 months $ 363,151
Prorated amount of rent credit (90,000)
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$ 273,151
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SUMMARY OF CREDIT TO TENANT DESCRIBED IN PARAGRAPH 11 OF THE AMENDMENT
NOV 26TH TO DEC 15TH
"Rent" (33,000 SF *$1.10 per month * 19/31 days 22,000
Operating costs 8,000
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30,000
DEC 16TH TO FEB 28TH
"Rent" (33,000 SF * $1.10 per month for 2.5 months) 90,000
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120,000
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