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EXHIBIT 10.6
EXABYTE
SUBLEASE AGREEMENT
THIS EXABYTE SUBLEASE AGREEMENT ("Agreement") dated and effective this
10th day of August, 1998, ("Effective Date"), between Exabyte Corporation, a
Delaware corporation, having its principal place of business at 1685 38th
Street, Boulder, Colorado 80301, ("Sublessor") and ILX Lightwave Corporation, a
Minnesota corporation, having its principal place of business at 31950 Frontage
Road, Bozeman, MT 59715 ("Sublessee"), also known as the parties, agree as
follows:
WHEREAS, Sublessor is the tenant of the Premises (described as, 4665 Nautilus
Court, Boulder, CO 80302) pursuant to the terms of a Lease dated May 18, 1995
("Lease"), a copy of which is attached hereto as Exhibit A and incorporated
herein by reference; and
WHEREAS, Sublessor desires to sublease to Sublessee a portion of the Premises,
subject to the terms and conditions as contained herein and in the Lease.
NOW, THEREFORE, in consideration of the rent reserved hereunder and the mutual
promises, covenants, warranties, and representations contained herein, Sublessor
and Sublessee agree as follows:
1. Scope of Agreement
1.1. Sublessee shall assume all obligations of the Sublessor in the
Lease dated May 18, 1995 as applicable only with respect to
the area which is subleased containing 10,560 square feet in
the Northwest section of the Premises, which floor plan is
attached hereto as Exhibit B ("Subleased Premises") except as
otherwise set forth herein. The terms, conditions and
respective obligations of Sublessor and Sublessee to each
other under this Agreement shall be the terms and conditions
of the Lease, except for those provisions of the Lease which
are directly contradicted by this Agreement, in which event
the terms of this Agreement shall take precedent to the Lease.
1.2. During the term of this Agreement, Sublessee hereby expressly
assumes and agrees to perform and comply with, each and every
obligation of Sublessor as tenant under the Lease. The
obligations which Sublessee has assumed under this Section 1.2
which are consistent with the terms of this Agreement
hereinafter referred to as the "Sublessee's Assumed
Obligations" except for Lease section(s) 29w and 31.
1.3. Sublessee shall hold Sublessor free and harmless of and from
any liability, judgment, costs and damages, claims and
demands, including reasonable attorney's fees, arising out of
Sublessee's failure to comply with or perform Sublessee's
Assumed Obligations as of the Effective Date of this Sublease.
Sublessor shall hold Sublessee
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free and harmless of and from any liability, judgment, costs,
damages, claims and demands, including reasonable attorney's
fees, arising out of Sublessor's failure to comply with its
obligations as Tenant under the Lease.
1.4. Sublessor agrees to do all things necessary on its part, as
tenant under the Lease, to maintain the Lease in full force
and effect during the entire term of this Agreement, subject
to however, to any early termination on the Lease without any
fault on the part of Sublessor.
1.5. Sublessor represents and warrants to Sublessee that, as of the
date hereof, the Lease is in full force and effect and the
copy attached is a complete copy, and that no default exists
on the part of either party to the Lease, nor does any set of
facts or circumstances exist which, with notice or the passage
of time, or both, could constitute an event of default.
1.6. Sublessor shall have all rights as defined in Section 23 of
the Lease in the event of default by Sublessee.
2. Term
This Agreement shall become effective as of the Effective Date above
upon its execution by the authorized representatives of the parties. In
the event the improvements specified in Exhibit D are not complete by
August 17, 1998, Sublessee may, at its option, delay the initial Rent
payment due hereunder by an amount of days equal to the days
commencement was delayed. This Agreement shall expire June 30, 2001,
unless terminated earlier pursuant to the Lease.
3. Premises
3.1. The parties agree that the Subleased Premises hereunder
consists of approximately 10,560 square feet as noted in
Exhibit B hereto. As of the Effective Date of this Agreement,
Sublessor warrants that the Subleased Premises complies with
all restrictive covenants and governmental regulations and
Sublessor shall be responsible to complete the improvement
specified on Exhibit D, secure and demise such Subleased
Premises and cause such to comply with all governmental and
quasi-governmental codes, requirements, and permits, etc. Both
parties acknowledge that the Subleased Premises shall be taken
on an "as-is" basis subject to Sublessor's obligations to
complete improvements.
3.2. Sublessee shall be responsible for pro-rata portion of the
operating expenses as defined in the Lease for the Subleased
Premises. As of the Effective Date, such pro-rata share is
28.45%.
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3.3. Sublessee shall be responsible for contracting for telephone,
gas, electric service, janitorial service and trash removal
and the expenses thereof. Gas and electric service expenses
are metered separately.
3.4. Sublessee shall have the right to use its pro rata share of
the available surface parking spaces at no additional charge
for the term of this Agreement. As of the Effective Date of
this Agreement, the quantity of such parking spaces total
twenty-eight (28) and shall be designated as Sublessee's.
3.5. Sublessor shall make available the equipment and fixtures
specified on Exhibit C for Sublessee's use during the terms of
this Agreement. Unless a purchase agreement is executed by the
Parties, Sublessor retains title and ownership of such
equipment. Sublessor represents that the equipment and
fixtures are free and clear from any liens.
3.6. Sublessor will pay up to $3,000 to Sublessee as a recarpeting
allowance upon Sublessee's submitting a receipt for such.
4. Insurance
Sublessee shall be responsible to maintain throughout the term of this
Agreement, fire and extended coverage insurance for the personal
property owned by Sublessee. Additionally, throughout the term of this
Agreement, Sublessee shall maintain commercial general liability
insurance including minimum limits of coverage as follows: (i) $1
million per occurrence; (ii) $1 million general aggregate; (iii) $1
million products/completed operations aggregate limit; (iv) $1 million
personal injury. Coverage shall be maintained with insurance companies
acceptable to Sublessor, which acceptance shall not be unreasonably
withheld. A certificate of insurance shall be provided to Sublessor
evidencing this coverage and shall provide that this coverage shall not
be changed, modified, reduced or cancelled without thirty (30) days
prior written notice to Sublessor. Sublessee insurance shall be
endorsed to name Sublessor as an additional insured.
5. Rent
5.1. Sublessee shall pay to Sublessor, as rent for the Premises,
the sum of $7.24 per square foot per annum in advance
("Rent"), on the first day of every month during the term of
this Sublease. Monthly Rent shall be $6,371.20 ($7.24 x 10,560
square feet / 12). The first month's Rent shall be due
September 1, 1998. Any increase in the above specified Rent
shall be in accordance Section 5b of the Lease.
5.2. Late Charge. If any installment of Rent or of the sum due from
Sublessee shall not be received by Sublessor within five (5)
days said amount is due, then Sublessee shall pay to Sublessor
a late charge equal to five percent (5%) of such overdue
amount. The parties hereby agree that such late charges
represents a fair and reasonable
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estimate of the cost that Sublessor will incur by reason of
the late payment by Sublessee. Acceptance of such late charges
by the Sublessor shall in no event constitute a waiver of
Sublessee's default with respect to such overdue amount, nor
prevent Sublessor from exercising any of the other rights and
remedies granted hereunder.
5.3. Additional Rent. If any sum or amount in addition to or in
excess of the Rent provided for in Section 5.1 above is due
pursuant to the Lease as Rent for the Subleased Premises, then
the Sublessee shall promptly pay any such sum or amount, and
Sublessee shall Indemnify and hold harmless Sublessor of and
from any and all claims, damages, or loses incurred or
suffered by Sublessee as a result of or arising out of any
failure or refusal on the part of Sublessee to pay any such
amount.
Sublessee shall be responsible for a pro-rata portion of the
operating expenses as specified in Section 3.2 above. Such
operating expenses are estimated at $7.15 per square foot per
annum. Additional Rental shall be $1,892.00 ($2.15 x 10,560
square feet/12). The first month's additional rent shall be
due September 1, 1998. Any increase in operating expenses
shall be in accordance with Section 7, of the Lease.
5.4. The termination of this Sublease by Sublessor or landlord due
to default of Sublessor: (a) does not relieve Sublessee of its
obligations to pay Rent accrued under this Sublease through
the date of termination; (b) does not waive any claim that
Sublessor may have against Sublessee, including, without
limitation, claims or indemnification as a result of any claim
asserted by Sublessor against by any third party relating to
Sublessee's use and occupancy of the Premises; and (c) does
not waive any right Sublessor may have to collect money
judgments against Sublessee that it may have or may obtain in
the future as a result of Sublessee's default under this
Sublease prior to such termination.
5.5. The parties agree the above-specified Rent includes the
equipment systems, cubicles, and telephone equipment currently
owned by Sublessor as specified as Exhibit C hereto.
6. Security Deposit
6.1. A security deposit in the amount of one (1) month's Rent shall
be required from Sublessee with respect to this Agreement and
held in accordance with respect to this Agreement and held in
accordance with the Lease. Such security deposit shall be paid
to Sublessor upon execution of this Agreement. Upon the
expiration of this Sublease, Sublessor shall return such
security deposit to Sublessee, provided all Sublessee's
obligations under this Sublease have been fulfilled.
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6.2. Sublessor shall provide written notice to Sublessee in the
event of any default under this Sublease. If Sublessee shall
(i) fail to pay the Rent, or any other sum required by this
Sublease to be paid to Sublessor at the time or in the manner
provided; or (iii) if Sublessee shall, voluntarily or
involuntarily, seek the protection of the Bankruptcy Act and
such matter is not dismissed within sixty (60) days; or (iv)
if default shall be made in any of the other covenants or
conditions on Sublessee's part agreed to be performed, and if
such failure to pay Rent or such other sum or such default in
performance shall continue for more than thirty (30) days
after the written notice of default then Sublessee shall be in
default. Sublessee expressly recognizes the right of Sublessor
and its agents to retain and have a key to the Premises.
Sublessor shall abide by Section 20 of the Lease.
6.3. Any such termination, refusal, cancellation, retention, entry,
or ejection shall in no manner prejudice any claim Sublessor
may then or thereafter have against Sublessee for any charges
due or other amounts, including collection and reasonable
attorney's fees incurred in connection with Sublessor's effort
to collect funds owed to it by Sublessee, or for damages for
breach of any of the terms and conditions hereof. Sublessee
does hereby agree to indemnify and hold Sublessor harmless for
any loss, liability, damage, or deficiency (including
reasonable attorney's fees and court costs) arising out of or
in any way related to any breach by Sublessee of any terms,
conditions, or provisions of this Sublease. Sublessor shall in
no way be liable to compensate Sublessee for any damages which
Sublessee may suffer by reason of such rightful termination,
refusal, cancellation, retention, entry, or ejection hereunder
or any other action taken by Sublessor pursuant hereto.
Sublessor is not and shall not be responsible for any of
Sublessee's personal property including, but not limited to,
business and financial records and files located in the
Premises in the event that Sublessor exercises its rights
against Sublessee pursuant hereto. In addition, Sublessor may
exercise all or any rights of a Sublessor as from time to time
permitted under Colorado law.
6.4. If Sublessee shall not remove all effects and personal
property belonging to it from the Subleased Premises or
Premises at the termination of this Agreement, Sublessor may,
at its option, consider such effects and personal property
abandoned and dispose of them in any manner that Sublessor
sees fit in Sublessor's sole discretion, or, as Sublessor's
option, remove all or part of such effects and personal
property and store them without liability to Sublessor for
loss thereof, and Sublessee shall be liable to Sublessor for
all expenses incurred in such removal and storage as
additional Rent.
7. Indemnification
7.1. Sublessee will indemnify and hold Sublessor harmless from and
against any loss, damage, or liability occasioned by or
resulting from any default hereunder or any
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willful or negligent act on the part of Sublessee, its agents,
employees, invitees, or persons permitted within the Premises.
7.2. Sublessor will indemnify and hold Sublessee harmless from and
against any loss, damage, or liability occasioned by or
resulting from any default hereunder or any willful or
negligent act on the part of Sublessor, its agents, employees,
invitees, or persons permitted within the Premises.
7.3. Neither Sublessor nor Sublessee shall be liable to the other
or to any insurance company (by way of subrogation or
otherwise) insuring them for any loss or damage to any
property or loss of income deriving therefrom, or losses under
Worker's Compensation laws and benefits, even though such
losses or damages might have been occasioned by the negligence
of the other party, its agents, or employees.
8. Rules and Regulations
Sublessee and Sublessee's agent's, employees, licensees, and invitees
shall faithfully observe and comply with any reasonable rules and
regulations set forth by Sublessor or stated in either this Agreement
or the Lease from time to time governing the Premises. Such rules and
regulations may apply, but need not be limited to, safety regulations,
and matters relating to security. Such rules and regulations shall be
binding upon Sublessee by delivery of a copy thereof to Sublessee. Such
rules and regulations current as of the Effective Date shall be
attached hereto as Exhibit B.
9. Headings
Headings, which include the underlined portion following the section
number, have been used for reference purposes only and shall have no
operative effect in the construction of the rights or obligations
pursuant to this Agreement.
10. References
Any reference to a section number shall include all subsections of such
section.
11. Jurisdiction and Venue
This Agreement shall be construed under and governed by the laws of the
State of Colorado, and the competent federal courts in the State of
Colorado shall decide any disputes between the parties with respect to
this Agreement.
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12. Entire Agreement Counterparts
This Agreement is intended to be the sole and complete statement of the
obligations of the parties as to the sublease of the Premises and
supersedes all previous understandings, negotiations and proposals.
This Agreement may not be altered, amended, rescinded or modified
except by written agreement between the parties and signed by an
officer of each party that expressly amends, rescinds, supersedes or
terminates this Agreement, and that specifically references this
Agreement.
13. Enforcement
In the event any provisions of this Agreement are declared
unenforceable by a duly authorized court having jurisdiction, then this
Agreement with respect to enforceable provisions shall continue in
force, and all rights and remedies under the remaining enforceable
provisions shall survive any such judicial declarations, provided this
Agreement still expresses the general intent of the parties. In the
event the general intent of the parties cannot be preserved, this
Agreement shall either be renegotiated or rendered null and void.
14. Notices
Notices and other communications by a party under this Agreement shall
be given in writing by mail, postage prepaid, certified, recorded, or
registered and addressed to the parties at their respective addresses
as set forth below:
Sublessee:
ILX Lightwave Corporation
31950 E. Frontage Road
Bozeman, MT 59715
Attn: Mr. Larry Johnson
Sublessor:
Exabyte Corporation
1685 38th Street
Boulder, Colorado 80301 U.S.A.
Attn: Mr. Stephen F. Smith
Such notices shall be deemed to have been given upon mailing. Notices
may also be given by facsimile, if in the case of Sublessee, they are
sent to the following number: (406) 586-9405, and in the case of
Sublessor, they are sent to the following number, (303) 417-7142. If
given by facsimile, notices shall be deemed to have been given on the
date of
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transmission. All facsimile notices shall be confirmed by written
notice mail, as provided above, within five (5) days of the date the
facsimile is sent.
15. Assignment
This Agreement is not assignable by either party without written
permission of the other party, which shall not be unreasonably withheld
or delayed. Sale of stock or assets of the Parties shall not constitute
assignment. Sublessee may not sublet the Subleased Premises or any part
thereof, or any right or privilege appurtenant thereto, or suffer any
other person (the employees, agents, servants and invitees of Sublessee
excluded) to occupy or use the Subleased Premises without the prior
written consent of the landlord and Sublessor, which consent shall not
be unreasonably denied.
16. Waiver
The waiver by Sublessor or Sublessee of any breach of any term
covenant, or conditions contained herein shall not be deemed to be a
subsequent waiver of such terms, covenants, or conditions. The
subsequent acceptance of payment of Basic Rent or Additional Rent shall
not be deemed a waiver of any preceding breach of payment by Sublessee
regardless of Sublessor's acknowledgment of such preceding breach at
the time of acceptance of such payment.
17. No Agency Created
Neither party is a partner, joint venturer, agent, legal
representative, or employee of the other. Neither party is granted the
right or authority to assume or create any obligation or
responsibility, express or implied, on behalf of or in the name of the
other party or to bind such other party in any manner to anything
whatsoever.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives, effective as of the date first set forth above.
EXABYTE CORPORATION
ILX LIGHTWAVE CORPORATION
By: By:
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Stephen F. Smith Lawrence A. Johnson
Title: Title: President/Chief Executive Officer
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Date: Date:
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CONSENT BY LANDLORD TO SUBLEASE
The undersigned Landlord, under the Lease dated May 18, 1995 by Nautilus Court
II Partnership, Ltd. (Landlord) and Exabyte Corporation (Tenant) hereby
acknowledges the Sublease by and between Exabyte Corporation (Sublessor) and ILX
Lightwave Corporation (Sublessee) and by its signature hereon consents to such
Sublease as of the day and year set forth herein below.
Landlord further agrees to give Sublessee written notification within five days
in the event of any default in the Lease by the Tenant. In the event of a
default by the Tenant, the Landlord, at the Sublessee's option, will enter into
a new lease with the Sublessee to remain in the premises for the remainder of
the original Sublease term. The new lease will include substantially the same
terms and conditions of the current Sublease, except for rent which will be at
market rate, to be reasonably determined by the Landlord.
Landlord:
Nautilus Court II Partnership
By:
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Date:
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ASSIGNMENT OF SUBLEASE
For value received and effective December 21, 1999, EXABYTE CORPORATION, a
Delaware corporation, Assignor, hereby assigns all its right, title and interest
in and to that certain Sublease Agreement dated August 10, 1998 by and between
EXABYTE CORPORATION, Sublessor, and ILX LIGHTWAVE, a Minnesota corporation,
Sublessee, including a security deposit in the amount of $6,371.20 unto NAUTILUS
COURT II PARTNERSHIP, LTD., a Colorado limited partnership, Assignee, its
successors and assigns. In consideration of this Assignment, said Assignee
hereby assumes and agrees to perform all the covenants and agreements in said
Sublease contained by the Sublessor therein agreed to be made and performed,
including but not limited to the use of the equipment and fixtures by Sublessee
in accordance with Section 3.5 of the Sublease.
ASSIGNOR: ASSIGNEE:
EXABYTE CORPORATION
NAUTILUS COURT II PARTNERSHIP, LTD.
a Delaware corporation a Colorado limited partnership
By: By:
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Stephen F. Smith Valtec Associates, Ltd.
Vice President and CFO by Byron Chrisman, General Partner
CONSENT TO ASSIGNMENT:
The undersigned Sublessee under the Sublease hereby consents to this Assignment
of Sublease as aforesaid.
ILX LIGHTWAVE CORPORATION
By:
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