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EXHIBIT 2.3
LEASE
BETWEEN
INTERNATIONAL BUSINESS MACHINES CORPORATION
(LANDLORD)
AND
MULTILAYER TEK L.P.
(TENANT)
________, 1997
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TABLE OF CONTENTS
ARTICLE PAGE
1. Other Agreements................................. 1
2. Lease of Premises................................ 2
Section 2.01. Lease of Premises.................. 2
Section 2.02. Net Lease.......................... 2
Section 2.03. IBM Property....................... 3
Section 2.04. Access to the Complex.............. 3
3. Term............................................. 3
Section 3.01. Term............................... 3
Section 3.02. Termination Upon Conveyance of
Fee Title.......................... 4
Section 3.03 Ownership of Leased Premises....... 4
4. Rent and Tenant's Obligations.................... 4
Section 4.01. Basic Fixed Rent................... 4
Section 4.02. Tenant's Obligations............... 4
Section 4.03. Real Estate Taxes.................. 4
Section 4.04. Personal Property Taxes............ 5
5. Leased Premises "As Is".......................... 6
6. Services......................................... 6
7. Parking.......................................... 6
8. Use of Leased Premises........................... 7
9. Repairs and Maintenance.......................... 7
10. Insurance........................................ 7
Section 10.01. Casualty Insurance................ 7
Section 10.02. Liability Insurance............... 8
Section 10.03. Default........................... 9
11. Alterations and Improvements..................... 9
12. Access by Landlord............................... 10
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TABLE OF CONTENTS
ARTICLE PAGE
13. Compliance with Laws............................. 10
14. Mechanics' Liens................................. 10
15. Separation of Utilities/Services................. 11
16. Default.......................................... 11
Section 16.01. Default by Tenant................. 11
Section 16.02. Default by Landlord............... 11
Section 16.03. Payment Offset.................... 12
Section 16.04. Separate Agreement ............... 13
17. Notices.......................................... 13
18. Transfer or Encumbrance.......................... 14
Section 18.01. Transfer or Encumbrance........... 14
Section 18.02. Liability of Landlord............. 16
Section 18.03. Transfer of Landlord.............. 16
19. Equal Employment Opportunity..................... 16
20. Quiet Enjoyment.................................. 16
21. No Waiver........................................ 17
22. Partial Invalidity............................... 17
23. Estoppel Certificates............................ 17
Section 23.01. Tenant's Estoppel Certificate..... 17
Section 23.02. Landlord's Estoppel Certificate... 17
24. Memorandum of Lease.............................. 18
25. The DII Group, Inc. Guarantee.................... 18
EXHIBIT A DESCRIPTION OF LEASED PREMISES AND ENCUMBRANCES
EXHIBIT B SECURED AREAS
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LEASE
THIS LEASE, made as of the ____ day of ________, 1997, between
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation, having its
principal office at Xxxxxx, Xxx Xxxx 00000 (hereinafter referred to as
"Landlord"), and MULTILAYER TEK L.P., a Texas limited partnership, having an
office at 00000 Xxxxxx Xxxx, Xxxxxx, Xxxxx 00000 (hereinafter referred to as
"Tenant").
RULES OF CONSTRUCTION
Except as otherwise specifically defined herein, all words shall be
given the meaning assigned to them in the Project Operations Agreement; each
provision hereof shall be deemed both a covenant and a condition running with
the Land; except as otherwise expressly provided in this Lease and its EXHIBITS
and other attachments, the singular includes the plural and the plural includes
the singular; "or" is not exclusive; a reference to an agreement or other
contract includes supplements and amendments thereto to the extent permitted by
this Lease; a reference to the Laws includes any amendment or supplement to such
Laws; all EXHIBITS hereto shall be considered as part of this Lease, subject to
Article ONE and Section 16.03; accounting provisions have the meanings assigned
to them by generally accepted accounting principles applied on a consistent
basis; the words "such as," "include," "includes" and "including" are not
limiting; except as specifically agreed upon in this Lease, any right may be
exercised at any time and from time to time and all obligations are continuing
obligations throughout the term of this Lease; in calculating any time period,
the first day shall be excluded and the last day shall be included and all days
are calendar days unless otherwise specified; and, when used herein with its
initial letter capitalized, a word shall be given the meaning assigned to it in
this Lease.
ARTICLE ONE
Other Agreements
Landlord and Tenant are parties to the Asset Purchase Agreement,
Project Operations Agreement and other agreements executed and delivered as of
the date hereof in connection with the sale of Landlord's panel manufacturing
business to Tenant
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(such agreements are collectively called the "Other Agreements" and the Other
Agreements together with this Lease are collectively called the "Operative
Agreements"). Landlord and Tenant shall comply with all of the provisions of the
Other Agreements (including the Project Operations Agreement) and, anything
herein to the contrary notwithstanding, the provisions of this Lease shall not
supersede, alter, amend or modify the provisions of the Other Agreements
(including the Project Operations Agreement). If there is any conflict between
the provisions of this Lease and any provisions of the Other Agreements, the
provisions of the Other Agreements shall control.
ARTICLE TWO
Lease of Premises
SECTION 2.01. Lease of Premises. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, upon and subject to the covenants,
agreements, provisions and conditions of this Lease, that certain parcel of land
("Land") located in the City of Austin, State of Texas and more particularly
described in EXHIBIT A, annexed hereto and those certain buildings located on
the Land, known as Buildings 60, 61, 63, 64 and 65 (herein collectively called
the "Buildings") together with all mechanical, electrical, plumbing, sewage and
waste treatment, sprinkler, telecommunications and any other building equipment
and systems located within or outside of the Buildings, and other improvements
owned by Landlord and located on and under the Land, excepting all Excluded
Assets as that term is defined in the Asset Purchase Agreement, subject only to
the "Permitted Encumbrances" as defined in the Asset Purchase Agreement,
including the Encumbrances described in EXHIBIT A. The Land, the Buildings and
all other improvements now or hereafter located on the Land or in the Buildings,
excepting Excluded Assets, are herein collectively called the " Leased
Premises."
SECTION 2.02. Net Lease. (a) It is the intent of the parties that this
Lease is in effect "triple net" so as to provide for the assumption by Tenant of
all obligations and responsibilities with respect to the Leased Premises and
Multek's use and operations thereon, excepting only Landlord's obligation with
respect to Subdivision and making the Utilities/Services Independent as
described in the Project Operations Agreement.
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All costs, expenses, charges, fees, liabilities and obligations (herein
collectively "Tenant's Obligations") of every kind, character and nature
whatsoever relating to the Leased Premises and its use and operation which may
arise during the term of this Lease or the Project Operations Agreement, whether
foreseeable or not foreseeable, structural or non-structural, reasonable or
unreasonable, major or minor, shall be the sole responsibility of and be paid by
Tenant excepting only the following, which shall be paid for by Landlord: (a)
certain agreed upon costs and expenses to be incurred by Landlord to complete
the Subdivision and to make the Utilities/Services Independent, (b) costs and
expenses incurred by Tenant by reason of the negligence or wilful misconduct of
Landlord and (c) costs and expenses of Remediation of IBM's Contamination.
Without limiting the foregoing, the obligations of Tenant under this Lease shall
not be affected by reason of loss or damage to or destruction of the Leased
Premises or any of the Buildings, or portion thereof, from any cause or the
taking of the Leased Premises or any of the Buildings or any portion thereof by
eminent domain, except that Tenant's Obligations hereunder shall be equitably
abated in the proportion that the damaged or taken property bears to the
remaining Leased Premises. To the extent permitted by Law, Tenant hereby waives
any and all rights which it may now have or which at any time hereafter may be
conferred upon it by statute or otherwise, to terminate, cancel, quit or
surrender this Lease.
(b) Supplementing but not limiting paragraph (a), Tenant shall not be
relieved of any obligation to complete the Real Estate Closing pursuant to the
conditions of the Asset Purchase Agreement, and Tenant shall not be entitled to
any refund of any part of the consideration paid by Tenant as Buyer to IBM as
Seller pursuant to the Asset Purchase Agreement, or be relieved of Tenant's
Obligations, by reason of any loss or damage to or destruction of the Leased
Premises on or after the Term Commencement Date (defined in Section 3.01), it
being the intent of the parties that this Lease be "triple net" as aforesaid.
SECTION 2.03. IBM Property. The Multek Site is contiguous to the IBM
Property on which Landlord operates a business operation and from which Landlord
will provide certain Services to the Leased Premises in accordance with and
subject to the provisions of the Project Operations Agreement.
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SECTION 2.04. Access to the Complex. In accordance with and subject to
the provisions of the Project Operations Agreement (including Section 1.1 of
EXHIBIT B thereto), (a) Landlord shall continue to own and shall maintain,
repair and replace the Access Roads, (b) Landlord hereby irrevocably grants to
Tenant, and to Tenant's employees, contractors, subcontractors, licensees,
tenants and other agents and invitees (collectively "Tenant's Agents"),
non-exclusive access to the Leased Premises over the Access Roads, and (c)
Tenant hereby grants to Landlord and to Landlord's employees, contractors,
subcontractors, licensees and agents access to the Leased Premises as is
reasonably required for Landlord to perform its obligations under the Project
Operations Agreement.
ARTICLE THREE
Term
SECTION 3.01. Term. Tenant hereby leases the Leased Premises for a term
of ninety-nine (99) years plus ten (10) successive renewal terms of ten (10)
years each, exercisable by Tenant giving Landlord notice at least six (6) months
prior to the expiration of the Term (the initial ninety-nine (99) year period
and each renewal period collectively referred to herein as the "term of this
Lease" or the "Term"), to commence on the date hereof (the "Term Commencement
Date") and expire at 11:59 pm on the day preceding the ninety-ninth (99th)
anniversary of the Term Commencement Date, as the Term may be extended by
Tenant, or as the Term may be terminated earlier in accordance with the
provisions of this Lease.
SECTION 3.02. Termination Upon Conveyance of Fee Title. If Landlord
completes "making the Utilities/Services Independent" and the "Subdivision" (as
each term is defined in the Project Operations Agreement), then upon Landlord's
conveyance to Tenant of fee title to the Leased Premises, issuance of a fee
title insurance policy to Tenant which insures indefeasible title, and subject
only to the Permitted Encumbrances, this Lease shall be canceled in accordance
with Section 8.4(d) of the Asset Purchase Agreement.
SECTION 3.03. Ownership of Leased Premises. Landlord shall not claim
ownership of the Leased Premises for purposes of United
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States federal, state or local taxation except as required by Section 4.03 and
by the Laws.
ARTICLE FOUR
Rent and Tenant's Obligations
SECTION 4.01. Basic Fixed Rent. Part of the consideration paid by
Tenant to Landlord pursuant to the provisions of the Asset Purchase Agreement
includes payment in full for all basic fixed rent due and owing hereunder.
SECTION 4.02. Tenant's Obligations. In addition to Basic Fixed Rent,
which Landlord acknowledges it has received in full, Tenant shall be responsible
for all of Tenant's Obligations (defined in Section 2.02), including all
payments arising therefrom. In the event of nonpayment of Tenant's Obligations,
Landlord may exercise any of the rights and remedies to which Landlord is
entitled under Article 6 of the Project Operations Agreement. Tenant shall pay
Tenant's Obligations to Landlord at IBM Corporation, 00000 Xxxxxx Xxxx, Xxxxxx,
XX 00000, Attention: Xx. Xxxxx X'Xxxxxx, or to such other Person or at such
other place as Landlord may designate in writing from time to time.
SECTION 4.03. Real Estate Taxes.
(a) Landlord shall pay when due all ad valorem taxes, special
assessments and other charges of Governmental Authorities which shall be levied
or assessed or which become liens at any time upon the Leased Premises,
including Substitute Taxes (hereinafter called "Real Estate Taxes"). The parties
agree that, pending the Subdivision and sale of the Leased Premises to Tenant
and creation of a separate tax lot and separate assessment of the Leased
Premises by the taxing Governmental Authority (after which Tenant shall pay Real
Estate Taxes directly to the taxing Governmental Authority), Tenant's share of
Real Estate Taxes imposed on the Complex shall be twenty-four percent (24%) for
Real Estate Taxes. If the Subdivision is not completed, then this Lease shall
remain in full force and effect and Tenant shall have the right, upon reasonable
advance notice to Landlord, to audit Landlord's books and records with respect
to the tax allocation for the purpose of verifying or contesting the twenty-four
percent (24%) allocation applicable to the balance of the
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Term. Any dispute with respect to the allocation shall be resolved by Mediation.
Tenant shall pay Landlord one-twelfth (1/12) of Tenant's share of estimated Real
Estate Taxes, which is agreed to be one of Tenant's Obligations, within ten (10)
days after receipt of Landlord's monthly xxxx for Real Estate Taxes. Such
estimated taxes will be the Real Estate Taxes paid in the current year plus
three percent (3%) of such Real Estate Taxes. When actual Real Estate Taxes for
the current year become known, Landlord shall issue a reconciliation statement
within forty-five (45) days after it receives the Real Estate Tax xxxx issued by
the taxing authority. If Tenant overpaid, Landlord will reimburse Tenant at the
time it issues the reconciliation statement and shall include such Real Estate
Tax xxxx. If Tenant underpaid, Tenant shall pay Landlord the underpaid amount
within thirty (30) days after receipt of Landlord's reconciliation statement and
a copy of such Real Estate Tax xxxx.
(b) Tenant shall pay any increased Real Estate Taxes resulting from and
to the extent expressly allocable to: (i) any improvements or alterations made
after the date hereof on or in the Leased Premises by or for Tenant, (ii) the
installation of any Tenant's Personal Property (defined below), (iii) any use of
the Leased Premises by Tenant, (iv) any Multek Contamination, and (v) any other
activity on the Leased Premises by or on behalf of Tenant.
SECTION 4.04. Personal Property Taxes. Within ten (10) days after
receipt of Landlord's monthly xxxx for taxes assessed on Personal Property,
Tenant shall pay one-twelfth (1/12) of all estimated ad valorum taxes,
assessments and other charges of Governmental Authorities (including Substitute
Taxes) which shall be levied or assessed or which become liens at any time upon
fixtures, machinery, equipment, furniture and other personal property ("Personal
Property") located on, or used in connection with the occupancy, operation,
maintenance, repair or management of the Leased Premises. Such estimated taxes
shall be the taxes paid in the current year plus three percent (3%) and
estimated payments shall be reconciled against actuals in the same manner and in
the same time frame as Real Estate Taxes.
ARTICLE FIVE
Leased Premises "AS IS"
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Except for (i) Landlord's work required to be performed by Landlord
pursuant to Article FIFTEEN hereof, (ii) such representations, warranties and
covenants with respect to the "Real Estate," as provided in the Asset Purchase
Agreement and (iii) such representations, warranties, covenants and indemnities
with respect to environmental matters, as provided in the Asset Purchase
Agreement and the Project Operations Agreement, Tenant accepts possession of the
Leased Premises in their "AS IS" condition "WITH ALL FAULTS" and Landlord shall
not be required to perform any additional work or furnish any additional
materials or provide any additional services to or in connection with the Leased
Premises during the term of this Lease except as specifically provided in this
Lease or the Project Operations Agreement. The parties acknowledge and agree
that the Basic Fixed Rent was established in material reliance on Tenant
accepting the Leased Premises in their "AS IS" condition "WITH ALL FAULTS."
ARTICLE SIX
Services
Landlord shall furnish to Tenant and Tenant shall accept and pay for
the Services in accordance with and subject to the provisions of the Project
Operations Agreement, including Section 1.9 of EXHIBIT B thereof, and Landlord
shall have no obligations or responsibilities to Tenant or in connection with
the Leased Premises excepting only those expressly stated herein and in the
Project Operations Agreement.
ARTICLE SEVEN
Parking
Located on the Land are parking areas (the "Parking Areas") for the
exclusive use of Tenant. Subject to specific grants of access agreed upon
elsewhere in this Lease, Landlord, and Landlord's employees, contractors,
subcontractors, licensees, tenants and other agents and invitees (collectively,
"Landlord's Agents") shall not be permitted to use the Parking Areas without
Tenant's consent unless there is an emergency, a requirement to comply with a
Law or directive of a Governmental Authority, or by
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reason of a labor disturbance. Supplementing Section 2.02 and Article FIVE,
Tenant shall keep, maintain, repair and replace the Parking Area and all
sidewalks and paved dock areas located on the Land at its sole cost and expense.
Landlord shall, in accordance with and subject to the provisions of the Project
Operations Agreement, repair and replace the Access Roads.
ARTICLE EIGHT
Use of Leased Premises
Tenant or any other Affiliate of The DII Group, Inc. may use the Leased
Premises for the manufacturing operations currently conducted on the Leased
Premises by Landlord as well as any other uses by them which is authorized by
Law; provided, however, that Tenant shall obtain the written consent of Landlord
to any change in Tenant's use of the Leased Premises for purposes other than the
manufacturing operations, which consent shall not be unreasonably withheld or
delayed if Landlord determines that the proposed change in use (a) does not
materially change the volume of traffic or type of vehicle use at the Complex,
(b) does not violate or threaten violation of the provisions of the Project
Operations Agreement, and (c) complies with Law.
ARTICLE NINE
Repairs and Maintenance
Except as provided in Section 2.02 and Article FIVE, Tenant shall
perform or caused to be performed all maintenance and make all repairs and
replacements, without exception except for those necessitated by the negligence
or willful misconduct of Landlord, its employees, contractors, subcontractors,
licensees, and agents, as may be necessary to the Leased Premises at its sole
cost and expense. Without limitation, Tenant shall perform all repairs and
restoration required by reason of a casualty or condemnation.
ARTICLE TEN
Insurance
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SECTION 10.01. Casualty Insurance. During the term of this Lease,
Tenant shall purchase and maintain, at Tenant's sole cost and expense, property
damage insurance, written on an "all risk" of physical loss or damage basis, to
cover all loss or damage to or destruction of any portion of the Leased Premises
and Personal Property (defined in Section 4.04) in an amount of not less than
eighty percent (80%) of the full cost to replace the Buildings and other
structures located on the Leased Premises (including all Personal Property
necessary to maintain Tenant's business operations on the Leased Premises but
excluding foundations). Such amounts shall meet any co-insurance clause of
Tenant's policies. Landlord and Tenant each hereby waives its respective right
of recovery against the other and each releases the other from any claim arising
out of loss, damage or destruction to any improvements located in or on the
Leased Premises (in the case of Tenant) and to any improvements located in or on
the IBM Property (in the case of Landlord), including all Personal Property on
either property, to the extent such party actually receives full and complete
payment or reimbursement (excepting deductible amounts) for any such loss,
damage or destruction under an insurance policy required to be carried hereunder
but notwithstanding the fact that such loss, damage or destruction may be
attributable to the negligence of either party or Landlord's Agents (defined in
Article 7) or Tenant's Agents (defined in Section 2.04). Each casualty insurance
policy shall include a waiver of the insurer's rights of subrogation against the
party hereto who is not an insured under said policy. Each party shall look
first to the proceeds of its respective casualty insurance policy (and to its
own funds to the extent it is self-insured) to compensate it for any such loss,
damage or destruction. This waiver and release applies to any self-insured
(deductible) portion of the loss, damage or destruction, and such waiver and
release is fully effective and enforceable notwithstanding the fact that Tenant
or Landlord failed to purchase and maintain insurance coverage required herein
which may have reimbursed it for such loss, damage or destruction.
SECTION 10.02. Liability Insurance.
(a) During the term of this Lease, Tenant shall purchase and maintain,
at Tenant's sole cost and expense, general commercial public liability insurance
against any claims by reason of personal injury (including death) or property
loss,
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damage or destruction, occurring on the Leased Premises, except for the gross
negligence or misconduct of Landlord, its employees, suppliers, contractors or
subcontractors, in an amount of not less than one million U.S. dollars
($1,000,000.00) combined single limit for injury (including death) and for
damage to property, with umbrella coverage of not less than twenty million U.S.
dollars ($20,000,000.00). Tenant shall cause Landlord to be included as an
additional insured under each such policy. Each policy shall contain provisions,
if and to the extent available at no additional cost to Tenant, that the policy
will not be cancelable except upon at least thirty (30) days prior notice to all
insureds, including Landlord, and that the act or omission of one insured will
not invalidate the policy coverage of any of the other insureds. Tenant shall
furnish evidence reasonably satisfactory to Landlord that the insurance is in
effect at or before the Term Commencement Date. Tenant may self insure for up to
Two Million Five Hundred Thousand U.S. dollars ($2,500,000.00).
(b) During the Term of this Lease, Landlord shall purchase and
maintain, at Landlord's sole cost and expense, general commercial public
liability insurance against any claims by reason of personal injury (including
death) or property damage occurring on or about the IBM Property, except for the
gross negligence or misconduct of Tenant, its employees, suppliers, contractors,
or subcontractors, in an amount not less than one million U.S. dollars
($1,000,000.00) combined single limit for injury (including death) and for
damage to property, with umbrella coverage of not less than twenty million U.S.
dollars ($20,000,000.00). Landlord shall cause Tenant to be included as an
insured under each such policy. Each policy shall contain provisions, if and to
the extent available, that the policy will not be cancelable except upon at
least thirty (30) days prior notice to all insureds, including Tenant, and that
the act or omission of one insured will not invalidate the policy of any of the
other insureds. Landlord shall furnish evidence reasonably satisfactory to
Tenant that the insurance is in effect at or before the Term Commencement Date.
IBM may self insure for up to five million U.S. dollars ($5,000,000.00).
SECTION 10.03 Default. If either party fails to maintain and pay for
the insurance coverage required above, that party shall be in default hereunder
and, in addition to other rights
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and remedies available to the non-defaulting party under this Lease or under the
Project Operations Agreement, the non-defaulting party may purchase the required
insurance coverage and the defaulting party shall reimburse the non-defaulting
party for all costs and expenses incurred therefor within thirty (30) days after
the defaulting party receives an invoice demanding payment. Tenant's obligation
to purchase and pay for such insurance coverage is one of Tenant's Obligations.
ARTICLE ELEVEN
Alterations and Improvements
Supplementing Section 2.02 and Article FIVE, Tenant may perform any and
all initial construction, and may make any alterations and improvements within
the Leased Premises, whether structural or non-structural, foreseeable or not
foreseeable, reasonable or unreasonable, minor or major, at its sole cost and
expense, subject to compliance with the Laws and the provisions of this Lease
and the Project Operations Agreement; provided, however, that none of the
foregoing adversely affects or requires modification to wastewater, materials
storage, or any other environmental permit or license issued to Landlord, or
requires Landlord to obtain a new or substitute permit or license. Without
exception, Landlord shall have no obligations with respect to initial
construction or subsequent alterations or improvements except as provided in
Article FIFTEEN.
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ARTICLE TWELVE
Access by Landlord
(a) Landlord shall have the right to enter the Leased Premises on prior
reasonable oral notice to Tenant's representative, designated from time to time,
to complete Landlord's work described in Article FIFTEEN and for purposes agreed
upon in the Project Operations Agreement; otherwise, Landlord shall not have the
right to enter the Leased Premises without prior written notice to Tenant's
representative. In both cases, Landlord shall use reasonable good faith efforts
not to disturb Tenant's use and occupancy of the Leased Premises.
(b) Tenant has designated the areas outlined on EXHIBIT B as secured
areas, and Landlord shall have no right of access thereto without being
accompanied by Tenant's designated representative except in the case of
emergencies. If there is an emergency, Landlord shall exercise reasonable good
faith efforts to contact Tenant's designated representative by telephone for
such purposes.
(c) For purposes of this Article, Tenant's designated representative is
its General Manager (telephone number 000-000-0000).
ARTICLE THIRTEEN
Compliance with Laws
Subject to the representations, covenants, warranties and indemnities
provided in the Project Operations Agreement with respect to environmental
matters, Tenant shall comply with all Laws applicable to the Leased Premises.
Without limitation, Tenant shall be responsible, at Tenant's sole cost and
expense, for any restoration, alterations, replacements or repairs required to
be made pursuant to any Laws and as provided in the Project Operations
Agreement.
ARTICLE FOURTEEN
Mechanics' Liens
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During the term of this Lease, Tenant shall discharge by payment, bond
or otherwise those mechanics' liens filed against the Complex (or any part
thereof) for work, labor, services or materials claimed to have been performed
at or furnished to the Leased Premises (or any part thereof) for or on behalf of
Tenant. If not so discharged within sixty (60) days after the date of filing,
Landlord may discharge the lien in any manner it selects and Tenant shall pay
Landlord as one of Tenant's Obligations all reasonable costs and expenses
incurred by Landlord therefor, including attorneys' fees.
ARTICLE FIFTEEN
Separation of Utilities/Services
Landlord shall make application for and use reasonable good faith
efforts to complete the Subdivision, if required by the City of Austin, and make
the Utilities/ Services Independent subject, however, to the provisions of the
Project Operations Agreement.
ARTICLE SIXTEEN
Default
SECTION 16.01. Default by Tenant. Without limiting Landlord's rights
and remedies which are granted in the Operative Agreements (defined in the Asset
Purchase Agreement), and except as agreed upon in Section 10.03, if Tenant shall
default in the payment of Tenant's Obligations and such default shall continue
for ten (10) days after receipt of notice thereof from Landlord, or if Tenant
shall default in the performance or observance of any other covenants or
obligations set forth in this Lease, and if such default shall continue for
thirty (30) days after receipt of notice thereof from Landlord specifying in
what manner Tenant has defaulted (except that if such default cannot be cured
within said thirty (30) day period, this period shall be extended for a
reasonable additional time, provided that Tenant commences to cure such default
within the thirty (30) day period and proceeds diligently thereafter to effect
such cure), Landlord may (1) cure such default and any costs and expenses
incurred by Landlord therefor shall be deemed Tenant's Obligations and shall be
paid on demand or (2) exercise any one or more rights or remedies to
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which Landlord is entitled under the Project Operations Agreement.
SECTION 16.02. Default by Landlord. Except for events of default
specified in and remedies granted in the Other Agreements, and except as agreed
upon in Section 10.03, if Landlord shall default in the performance or
observance of any covenants or obligations set forth in this Lease, and if such
default shall continue for thirty (30) days after receipt of notice thereof from
Tenant specifying in what manner Landlord has defaulted (except that if such
default cannot be cured within said thirty (30) day period, this period shall be
extended for a reasonable additional time, provided that Landlord commences to
cure such default within the thirty (30) day period and proceeds diligently
thereafter to effect such cure), Tenant may exercise any one or more rights or
remedies to which Tenant is entitled under the Other Agreements.
SECTION 16.03 Payment Offset.
(a) If after notice to Landlord of its failure (i) to furnish Services
to be furnished to Tenant by Landlord hereunder, or (ii) to pay Tenant sums due
under the Project Operations Agreement for Services furnished by Tenant to
Landlord, Landlord fails or refuses to cure such default within the time period
agreed upon in this Agreement therefor (or otherwise within a reasonable time
specified by Tenant in its notice if such time period has not been agreed upon
herein), Tenant may declare an event of default and purchase such Services from
a third party. If Landlord disputes any default declared by Tenant pursuant to
this Section, or the costs incurred by Tenant to cure the default, or the
reasonableness of time granted to cure the default, Landlord may submit the
disputed matter to Mediation in accordance with Article SIX of the Project
Operations Agreement within five (5) business days after receiving Tenant's
notice or invoice. If the matter is submitted to Mediation as aforesaid and the
Mediator renders a decision in favor of Tenant, within thirty (30) days after
the decision is rendered, Landlord shall pay Tenant the amount stipulated to be
paid to Tenant in the decision, failing which Tenant may deduct such amount from
the sums due and to become due to Landlord for Services furnished to Tenant. If
Tenant declares an event of default and Landlord fails to exercise its right to
Mediation, within thirty (30) days
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after Landlord receives Tenant's invoice, Landlord shall pay Tenant all costs
and expenses claimed by Tenant by reason of the default, failing which Tenant
may deduct any such costs and expenses from the sums due and to become due to
Landlord for Services furnished to Tenant.
(b) If after notice to Tenant of its failure (i) to furnish Services to
be furnished to Landlord by Tenant hereunder, or (ii) to pay Landlord sums due
under the Project Operations Agreement for Services furnished by Landlord to
Tenant, Tenant fails or refuses to cure such default within the time period
agreed upon in this Agreement therefor (or otherwise within a reasonable time
specified by Landlord in its notice if such time period has not been agreed upon
herein), Landlord may declare an event of default and purchase such Services
from a third party. If Tenant disputes any default declared by Landlord pursuant
to this Section, or the costs incurred by Landlord to cure the default, or the
reasonableness of time granted to cure the default, Tenant may submit the
disputed matter to Mediation in accordance with Article SIX of the Project
Operations Agreement within five (5) business days after receiving Landlord's
notice or invoice. If the matter is submitted to Mediation as aforesaid and the
Mediator renders a decision in favor of Landlord, within thirty (30) days after
the decision is rendered, Tenant shall pay Landlord the amount stipulated to be
paid to Landlord in the decision, failing which Landlord may deduct such amount
from the sums due and to become due to Tenant for Services furnished to
Landlord. If Landlord declares an event of default and Tenant fails to exercise
its right to Mediation, within thirty (30) days after Tenant receives Landlord's
invoice, Tenant shall pay Landlord all costs and expenses claimed by Landlord by
reason of the default, failing which Landlord may deduct any such costs and
expenses from the sums due and to become due to Tenant for Services furnished to
Landlord.
SECTION 16.04. Separate Agreement. This Lease is separate from and
independent of the Other Agreements. No default by Landlord or Tenant under any
of the Other Agreements shall constitute a default hereunder, and no default by
Landlord or Tenant under this Lease shall constitute a default under the Other
Agreements.
ARTICLE SEVENTEEN
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19
Notices
Any notice, request or demand under this Lease shall be in writing and
shall be considered properly delivered when addressed as hereinafter provided,
and served (a) by telecopy, (b) five (5) days after deposit for mailing by
registered or certified mail, postage prepaid, (return receipt requested), or
(c) sent by a reputable messenger or nationally recognized overnight courier.
Any notice, request or demand by Landlord to Tenant shall be addressed to Tenant
at the Leased Premises, Attention the General Manager, with copies addressed and
sent simultaneously to Multilayer Technology Inc. at 00 Xxxxxxx, Xxxxxx, XX
00000, Attention: President, and to The DII Group, Inc., 0000 Xxxxxxx Xxxx
Xxxxx, Xxxxxxxx, XX 00000, Attention: Chief Financial Officer, until otherwise
directed in writing by Tenant and, if requested in writing by Tenant,
simultaneously served on or sent to such other parties as Tenant may request.
Any notice, request or demand by Tenant to Landlord shall be addressed to
Landlord, IBM Corporation, Real Estate Services, Armonk, New York 10504,
Attention: Xx. Xxxxxx X. Xxxxxx, with copies addressed and sent simultaneously
to Landlord, at the same address, Attention: Associate General Counsel, and to
the Austin Contract Administrator, IBM Corporation, 00000 Xxxxxx Xxxx, Xxxxxx,
Xxxxx 00000, until otherwise directed in writing by Landlord, or to such person
or address as either of the parties shall hereafter designate to the other from
time to time by similar written notice.
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20
ARTICLE EIGHTEEN
Transfer or Encumbrance
SECTION 18.01. Transfer or Encumbrance.
(a) Except as otherwise provided in this Article, Tenant shall not
without first obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed (i) sublet all or any part of the
Leased Premises or (ii) assign, mortgage, pledge, hypothecate or otherwise
encumber or transfer this Lease or any interest therein. Neither Landlord nor
Tenant shall make application to subdivide the Land or modify the existing
zoning designation of the Land, without the written consent of the other party,
except that Landlord is hereby authorized to proceed with the completion of the
Subdivision.
(b) Notwithstanding the foregoing, without the consent of Landlord,
Tenant may sublet the Leased Premises or mortgage, pledge, or assign its
leasehold interest in the Leased Premises only to an Affiliate or as security
for any financing required by Tenant; provided that Tenant first notifies
Landlord at least thirty (30) days before Tenant plans to close any such
transaction; provided, however, that the foregoing thirty (30) day notice
requirement shall not be applicable to any financing in connection with the
transaction contemplated by the Operative Agreements.
(c) Tenant may, from time to time during the term of this Lease,
mortgage, hypothecate, or encumber, in whole or in part, its leasehold estate,
provided in each case that Tenant or holder of the leasehold mortgage shall
promptly deliver to Landlord, in the manner herein provided for the giving of
notice to Landlord, a true copy of the leasehold mortgage and any assignment
thereof, and shall notify Landlord of the address of the holder of the leasehold
mortgage to which notices from Landlord may be sent.
(d) If Tenant encumbers or hypothecates its interest in this Lease as
security for a loan, and provided that Tenant delivers written notice to
Landlord of the name and address of the lender of such loan, then Landlord
hereby agrees that Landlord will give written notice of any default under the
terms of this Lease, by registered or certified mail, to such lender at
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21
the address contained in such notice. Provided Tenant gives to Landlord written
notice of the name and address of such lender as required above, no notice of
default by Landlord to Tenant shall be deemed to have been duly given to Tenant
unless and until a copy thereof has been mailed to such lender at the address
provided. Such lender, in case Tenant shall be in default under this Lease,
shall, within the period and otherwise as herein provided, have the right to
remedy such default, or cause the same to be remedied, and Landlord shall accept
such performance by or at the instance of such lender as if the same had been
made by Tenant, provided the remedy is in accordance with the terms of this
Lease. Provided Tenant gives to Landlord written notice of the name and address
of such lender as required above, Landlord shall not exercise any remedies
granted to Landlord under the Operative Agreements because of any default or
breach thereunder on the part of Tenant if such lender (i) within sixty (60)
days after mailing of written notice to such lender from Landlord of its
intention to exercise any remedies granted to Landlord under the Operative
Agreements for such default or breach, shall cure such default or breach if the
same can be cured by the payment of expenditure of money, or (ii) shall
diligently take action to obtain possession of the Leased Premises (including
possession by receiver) and to cure such default or breach in the case of a
default or breach which cannot be cured unless and until such lender has
obtained possession and shall, during such time, pay all rental and all other
payments required to be made under this Lease and the Project Operations
Agreement, or (iii) if such default or breach is not so curable under the
foregoing subparagraphs (i) or (ii), shall institute and carry forward with due
diligence foreclosure or sale proceedings under its mortgage securing such loan
and pay all rental and all other payments required to be made under this Lease
and the Project Operations Agreement until such time as Tenant's interest in
this Lease and the Project Operations Agreement shall be sold upon such
foreclosure or sale proceedings pursuant to said mortgage; provided, however,
such lender shall not be required to continue such action for possession or such
foreclosure or sale proceedings if such default or breach shall be cured by
Tenant. Upon completion of any such foreclosure or sale proceedings under said
mortgage, the purchaser (whether such lender or otherwise) at such sale will be
recognized by Landlord as Tenant under the terms of this Lease and as successor
to Tenant under the Project Operations Agreement for all purposes and the
purchaser and
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Landlord shall be bound hereby for the remaining term of this Lease and the
Project Operations Agreement. A lender who acquires title to Tenant's interest
in this Lease and the Project Operations Agreement by acceptance of a deed in
lieu of foreclosure shall be deemed a "purchaser" for these purposes.
(e) In connection with any financing to consummate the transaction
contemplated by the Operative Agreements, Landlord shall execute such amendments
or modifications of this Lease as Tenant's lender may reasonably request
provided that such amendment or modification shall not (i) alter the financial
obligations of Tenant or Landlord, nor (ii) materially diminish Landlord's
rights or materially increase Landlord's obligations hereunder, nor (iii)
require representations, warranties or indemnities in addition to those set
forth in the Asset Purchase Agreement.
SECTION 18.02. Liability of Landlord. If Tenant mortgages, pledges,
hypothecates, assigns or otherwise encumbers or transfers its interest in the
Leased Premises to an Affiliate or as security for financing as aforesaid,
Tenant shall notify Landlord thereof and provide Landlord with a duplicate
executed original of the instrument of assignment. Any instrument of assignment
shall include the assumption by the assignee of all of Tenant's obligations,
responsibilities, and liabilities set forth in the Operative Agreements
including Tenant's Obligations. Notwithstanding any such encumbrance, Tenant
shall remain responsible for the faithful performance and observance of all of
the covenants and obligations on Tenant's part to be performed under the
Operative Agreements.
SECTION 18.03. Transfer by Landlord. Landlord may assign, mortgage,
pledge, hypothecate or otherwise encumber or transfer its interest in this Lease
and the Project Operations Agreement as landlord and owner at any time without
the consent of Tenant or any successor in interest to Tenant; provided that such
assignment, mortgage, pledge, hypothecation or other encumbrance or transfer is
subordinated to any first lien on the Leased Premises and Tenant's leasehold
estate and shall not adversely affect Tenant's mortgage, pledge or assignment of
its leasehold interest as a tenant of the Leased Premises or the rights of any
lender which is secured by Tenant's leasehold estate.
ARTICLE NINETEEN
19
23
Equal Employment Opportunity
There are incorporated in this Lease the provisions of Executive Order
11246 (as amended) of the President of the United States on Equal Employment
Opportunities and the rules and regulations issued pursuant thereto with which
Landlord and Tenant represent that they will comply unless exempted.
ARTICLE TWENTY
Quiet Enjoyment
Provided Tenant performs the covenants and obligations in this Lease on
Tenant's part to be performed, Landlord covenants and agrees to secure and to
maintain for the benefit of Tenant the quiet and peaceful possession of the
Leased Premises for the term of this Lease, without unlawful hindrance, claim or
molestation by Landlord or any other Person.
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ARTICLE TWENTY ONE
No Waiver
Failure by either party to complain of any action, inaction or
default of the other party shall not constitute a waiver of the aggrieved
party's rights hereunder. Waiver by either party of any right for any default of
the other party shall not constitute a waiver of any right for either a
subsequent default of the same obligation or for any other default, past,
present or future.
ARTICLE TWENTY TWO
Partial Invalidity
If any covenant, condition or provision of this Lease, or the
application thereof to any Person or circumstance, shall be held to be invalid
or unenforceable by a court of law, then in each such event the remainder of
this Lease or the application of such covenant, condition or provision to any
other Person or any other circumstance (other than those as to which it shall be
invalid or unenforceable) shall not be thereby affected, and each covenant,
condition and provision hereof shall remain valid and enforceable to the fullest
extent permitted by the Laws.
ARTICLE TWENTY THREE
Estoppel Certificates
SECTION 23.01. Tenant's Estoppel Certificate. Tenant agrees, at any
time and from time to time, upon not less than ten (10) business days prior
notice from Landlord, to execute, acknowledge and deliver to Landlord or any
Person designated by Landlord a statement in writing providing substantially the
following: (1) certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that this Lease is in full force
and effect as modified and stating the modifications); (2) whether or not the
term of this Lease has commenced and if it has commenced, stating whether all of
Tenant's Obligations have been paid by Tenant; and (3) stating, to the best of
Tenant's knowledge, whether or not Landlord is in default in the performance of
any covenant, agreement or
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25
condition contained in this Lease, and if Tenant has knowledge of such a
default, specifying each such default.
SECTION 23.02. Landlord's Estoppel Certificate. During the term of this
Lease, at any time and from time to time, Landlord shall, within ten (10)
business days after Tenant's request, deliver an estoppel certificate to Tenant
or a Person designated by Tenant, in the form described in Section 23.01
(modified insofar as clause (3) is concerned to reflect Landlord's knowledge of
a Tenant default), relative to the status of this Lease.
ARTICLE TWENTY FOUR
Memorandum of Lease
Unless Tenant's lender requires this Lease to be recorded, this Lease
shall not be recorded by either Landlord nor Tenant, but either party may record
a memorandum of this Lease and the other party, if requested, shall execute a
memorandum of this Lease for recording purposes. If Tenant's lender requires
that this Lease be recorded, Tenant shall pay the cost thereof.
ARTICLE TWENTY FIVE
The DII Group, Inc. Guaranty
The DII Group, Inc. (the "Guarantor") hereby unconditionally and absolutely
guarantees to Landlord the performance and payment of any and all monetary and
other obligations of Tenant under this Lease and the other Operative Agreements
to which Tenant in accordance herewith and therewith is a party, independently
of the obligations of Tenant, and the Guarantor hereby agrees to indemnify
Landlord against any Loss (as defined in the Asset Purchase Agreement) incurred
by reason of any failure of Tenant to perform and pay such obligations in such
manner. This guarantee is a direct, absolute, unconditional, irrevocable,
present and continuing guarantee of performance and payment, and is a direct and
primary obligation of the Guarantor, and is in no way conditional or contingent
upon any attempt to enforce performance upon, or collection from, Tenant or upon
any other event, contingency or circumstances whatsoever. This shall be a
continuing guarantee and shall cover and secure any balance owing
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by Tenant under this Lease and the other Operative Agreements to which Tenant is
a party, and Landlord shall not be obligated to exhaust its recourse against
Tenant before being entitled to payment from the Guarantor, of all and every of
the obligations hereby guaranteed. The obligations of the Guarantor set forth
above shall not be subject to any deduction, diminution, abatement, setoff,
recoupment, suspension, determent, reduction, or defense (other than valid
defenses Tenant has against Landlord and all other rights of Tenant under this
Lease and the other Operative Agreements, full and strict compliance by the
Guarantor of its obligations hereunder) and shall remain in full force and
effect without regard to, and shall not be released, discharged or in any way
affected by, any circumstance or condition whatsoever (whether or not the
Guarantor or Tenant shall have any knowledge or notice thereof), other than full
and strict compliance by the Guarantor of its obligations hereunder.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year
first above written.
INTERNATIONAL BUSINESS MACHINES
CORPORATION
/s/Xxxx Xxxxxx By: /s/Xxxx X. Xxxxxx
----------------------------- -------------------------------
ATTEST
CORPORATE DEVELOPMENT
Title: CONSULTANT
---------------------------
Date: August 18, 1997
---------------------------
MULTILAYER TEK L.P.
/s/Xxxx Xxxxxx By: /s/Xxxx X. Xxxxxxx, Xx.
----------------------------- -------------------------------
ATTEST
Senior Vice President, Chief
Financial Officer and
Secretary of Multek Texas,
Inc.,in its capacity as
Title: General Partner
---------------------------
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Date: August 18, 1997
AS TO ARTICLE 25 ONLY:
THE DII GROUP, INC.
/s/Xxxx Xxxxxx By: /s/Xxxx X. Xxxxxxx, Xx.
----------------------------- -------------------------------
ATTEST
Senior Vice President, Chief
Financial Officer and
Secretary of Multek Texas,
Inc.,in its capacity as
Title: General Partner
---------------------------
Date: August 18, 1997
24
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STATE OF NEW YORK )
: ss.:
COUNTY OF WESTCHESTER )
On the 18th day of August, 1997, before me personally appeared Xxxx X.
Xxxxxx to me known, who, being duly sworn did depose and say that he resides at
000 Xxxxxx Xxxx, Xxxxxx, XX that he is CORPORATE DEVELOPMENT CONSULTANT of
International Business Machines Corporation, the corporation described in and
which executed the foregoing instrument; and that he signed his name thereto by
order of the board of directors of said corporation.
/s/Xxxxxxxx Xxxxx Xxxxxx
------------------------
Notary Public
STATE OF New York )
: ss.:
COUNTY OF New York )
On the 18th day of August, 1997, before me personally appeared Xxxx X.
Vertucan, Jr. to me known, who, being duly sworn did depose and say that he is
President of Multek Texas, the General Partner of Multilayer Tek L.P., the Texas
limited partnership described in and which executed the foregoing instrument;
and that he signed his name thereto on behalf of said partnership.
/s/Xxxxxxxx Xxx Skubina
-----------------------
Notary Public
00
XXXXX XX Xxx Xxxx )
: ss.:
COUNTY OF New York )
On the 18th day of August, 1997, before me personally appeared Xxxx X. Xxxxxxx,
Xx. to me known, who, being duly sworn did depose and say that he resides at
_______________, that he is Chief Financial Officer of The DII Group, Inc., the
corporation described in and which executed the foregoing instrument; and that
he signed his name thereto by order of the board of directors of said
corporation.
/s/Xxxxxxxx Xxx Skubina
-----------------------
Notary Public
30
EXHIBIT A*
DESCRIPTION OF LEASED PREMISES AND ENCUMBRANCES
*Exhibit A is not included and will be furnished supplementally to the
Commission upon request.
31
EXHIBIT B
SECURED AREAS
(a) Building Xx. 000 - Xxxxxxxx/Xxxxxxxxx (XXX xxxxx xxxxxx xxxx)
(b) Building No. 061 - Chemical Distribution Center
(c) IT Server Room - Location to be determined and provided in writing
to Landlord within thirty (30) days from the Term
Commencement Date.
32
ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION
AGREEMENT dated as of August 18, 1997
(this "Agreement"), between Multilayer Tek
L.P. ("Buyer"), and INTERNATIONAL
BUSINESS MACHINES CORPORATION, a
New York corporation ("Seller").
WHEREAS Buyer and Seller have entered into a Purchase
Agreement dated as of August 5, 1997 (the "Purchase Agreement"), providing for,
among other things, the purchase by Buyer of the Transferred Assets from Seller;
and
WHEREAS, in conjunction with such purchase, Seller desires to
sell, transfer, convey, assign and deliver to Buyer, and Buyer wishes to accept
and assume, all of Seller's rights, obligations, title and interest in and to
the Assumed Liabilities.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and conditions
herein set forth, the parties hereto agree as follows:
1. DEFINED TERMS. All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Purchase Agreement.
Nothing contained herein shall be deemed to alter or amend the terms and
provisions of the Purchase Agreement, and in the event of any conflict between
the terms and provisions of this Agreement and the Purchase Agreement, the terms
and provisions of the Purchase Agreement shall be deemed to govern and be
controlling in all circumstances.
2. ASSIGNMENT. Seller hereby irrevocably sells, transfers,
conveys, assigns and delivers to Buyer all of its rights, title and interest in
and to the Assumed Liabilities.
3. ASSUMPTION. Buyer does hereby accept such sale, transfer,
conveyance, assignment and delivery of all of Seller's right, title and interest
in and to the Assumed Liabilities by Seller and assumes all obligations and
liabilities of Seller thereunder pursuant to the terms and conditions of the
Purchase Agreement.
4. EFFECTIVE TIME. The assignment by Seller, and the
acceptance thereof by Buyer, of the Assumed Liabilities, pursuant to this
Agreement, shall be effective as of the date hereof.
5. NONCONTRAVENTION. Pursuant to Section 5.1. of the Purchase
Agreement, certain of the Assumed Liabilities may require the consent of third
parties to any assignment. Such assignments to Buyer are made subject to the
obtaining of such consents and shall be effective as of the date of such
consent. The execution of
33
this Agreement shall not be interpreted, and is not intended to be interpreted,
as any action taken by Seller that would be contrary to the terms and conditions
of any contract requiring the consent of any third party to such assignment.
Buyer and Seller shall fully cooperate with each other in an attempt to obtain
such consents, as set forth in the Purchase Agreement.
6. NOTICES. All notices and other communications hereunder
shall be as set forth in the Purchase Agreement.
7. AMENDMENT. This Agreement may be amended, modified or
supplemented, and any provision hereof may be waived, only by written agreement
of the parties.
8. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not limit or otherwise affect the meaning or
interpretation of this Agreement.
9. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the laws of the State of New York without reference to its principles of
conflict of law.
10. SEVERABILITY. If any one or more provisions contained in
this Agreement, or the application of such provision to any person or
circumstance, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
11. THIRD PARTY ACTIONS. Seller and Buyer hereby agree to
cooperate in defending or prosecuting any claims or litigation relating to the
transfer of title as provided herein, and to make available and furnish
appropriate documents and testimony in connection therewith.
12. ASSIGNMENT. Pursuant to Section 12.10. of the Purchase
Agreement, neither this Agreement nor any of the rights or obligations hereunder
shall be assigned by either party hereto without the prior written consent of
the other party, such consent not to be unreasonably withheld. Any purported
assignment of this Agreement other than in accordance with this paragraph 12
shall be null and void and of no force or effect.
13. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and shall become a binding
Agreement when one or more of the counterparts have been signed by each of the
parties and delivered to the other party.
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34
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
Multilayer Tek L.P.
By: /s/ Xxxx X. Xxxxxxx, Xx.
-----------------------------------------
Title: Senior Vice President,
Chief Financial Officer and
Secretary of Multek Texas Inc., in its
capacity as General Partner
--------------------------------------
Date: August 18,1997
---------------------------------------
The DII Group, Inc.
By: /s/ Xxxx X. Xxxxxxx, Xx.
-----------------------------------------
Title: Senior Vice President,
Chief Financial Officer and
Secretary of Multek Texas Inc., in its
capacity as General Partner
--------------------------------------
Date: August 18,1997
---------------------------------------
INTERNATIONAL BUSINESS
MACHINES CORPORATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Title: Corporate Development Consultant
--------------------------------------
Date: August 18, 1997
---------------------------------------
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