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EXHIBIT 10.35
LEASE
BY AND BETWEEN
BOULDER WALNUT LLC
AND
EXABYTE CORPORATION
October 1, 1999
Lerner & Holmes PC
Execution Copy 3300 Walnut Street
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TABLE OF CONTENTS
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<Caption>
Page
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ARTICLE I REFERENCE DATA............................................................................................1
1.1 BASIC LEASE TERMS.........................................................................................1
1.2 EXHIBITS..................................................................................................2
ARTICLE II PREMISES AND TERM........................................................................................3
2.1 PREMISES..................................................................................................3
2.2 APPURTENANT RIGHTS AND RESERVATIONS.......................................................................3
2.3 TERM......................................................................................................3
ARTICLE III DELIVERY OF PREMISES; CONSTRUCTION......................................................................3
3.1 AS IS DELIVERY............................................................................................3
3.2 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION.............................................................3
ARTICLE IV RENT.....................................................................................................4
4.1 BASE RENT.................................................................................................4
4.2 ADDITIONAL RENT...........................................................................................5
4.3 REAL PROPERTY TAXES.......................................................................................6
4.4 CAM EXPENSES..............................................................................................6
4.5 PAYMENTS..................................................................................................7
ARTICLE V LANDLORD'S COVENANTS......................................................................................8
5.1 LANDLORD'S COVENANTS DURING THE TERM......................................................................8
5.2 INTERRUPTIONS.............................................................................................9
ARTICLE VI TENANT'S COVENENTS.......................................................................................9
6.1 TENANT'S COVENANTS DURING THE TERM........................................................................9
ARTICLE VII CASUALTY AND TAKING....................................................................................15
7.1 CASUALTY AND TAKING......................................................................................15
7.2 RESERVATION OF AWARD.....................................................................................15
</Table>
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<Table>
ARTICLE VIII RIGHTS OF MORTGAGEE...................................................................................16
8.1 SUBORDINATION............................................................................................16
8.2 SUCCESSOR LANDLORD.......................................................................................17
8.3 NO PREPAYMENT OR MODIFICATION, ETC. .....................................................................17
ARTICLE IX DEFAULT.................................................................................................17
9.1 EVENTS OF DEFAULT........................................................................................17
9.2 TENANT'S OBLIGATIONS AFTER TERMINATION...................................................................18
ARTICLE X MISCELLANEOUS............................................................................................19
10.1 NOTICES FROM ONE PARTY TO THE OTHER......................................................................19
10.2 BIND AND INURE...........................................................................................20
10.3 NO SURRENDER.............................................................................................20
10.4 NO WAIVER, ETC. .........................................................................................20
10.5 NO ACCORD AND SATISFACTION...............................................................................20
10.6 CUMULATIVE REMEDIES......................................................................................21
10.7 LANDLORD'S RIGHT TO CURE.................................................................................21
10.8 ESTOPPEL CERTIFICATE.....................................................................................21
10.9 WAIVER OF JURY TRIAL.....................................................................................22
10.10 ACTS OF GOD..............................................................................................22
10.11 BROKERAGE................................................................................................22
10.12 SUBMISSION NOT AN OFFER..................................................................................22
10.13 APPLICABLE LAW AND CONSTRUCTION..........................................................................22
10.14 SIGNS....................................................................................................23
EXHIBIT A - PLAN OF PREMISES......................................................................................A-1
EXHIBIT B - PLAN SHOWING RESERVED PARKING SPACES..................................................................B-1
EXHIBIT C - LANDLORD'S WORK.......................................................................................C-1
</Table>
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ARTICLE I
REFERENCE DATA
1.1 BASIC LEASE TERMS.
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section 1.1:
<Table>
LANDLORD: Boulder Walnut LLC, a Delaware limited
liability company
LANDLORD'S NOTICE ADDRESS: c/o Great Point Investors LLC
265 Franklin Street, 18th Floor
Boston, MA 02110
Attn: John H. Baxter
with a copy to:
Bancroft Capital Advisors, Inc.
1112 Ocean Drive, Suite 300
Manhattan Beach, CA
Attn: Douglas J. McDonald
Rent payments to be sent to:
Dean Callan & Company
1510 28th Street, Suite 200
Boulder, CO 80303
Attn: Scott Callan
TENANT: Exabyte Corporation, a Delaware
corporation
TENANT'S NOTICE ADDRESS: 1685 38th Street
Boulder, CO 80301
Attn: Craig Smith or Mark Harding
PREMISES: Approximately 51,337 rentable square feet
in the building commonly known as 3300
Walnut Street, Boulder, Colorado (the
"Building"), which Premises are shown on
the plan attached to this Lease as
Exhibit A. together with the right, in
common with others, to use certain
parking areas and other improvements
related to the Building (together with
the Building, the "Property")
</Table>
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<Table>
RENTABLE FLOOR AREA OF PREMISES: Approximately 51,337 rentable square feet
COMMENCEMENT DATE: October 1, 1999
RENT COMMENCEMENT DATE: November 1, 1999
BUILDING RENTABLE AREA: 146,560 rentable square feet
TENANT'S PRO RATA SHARE: 35.03%
TERM EXPIRATION DATE: September 30, 2002
TERM: Three years commencing on the Commencement
Date and expiring on the Expiration Date
LEASE YEAR: The period of twelve full calendar
months beginning with the first full
calendar month of the Term, and each
subsequent period of twelve full
calendar months during the Term
ANNUAL LEASE RENT: Lease Year 1 $269,519.25 ($5.25/RSF)
Lease Year 2 $276,257.23 ($5.38/RSF)
Lease Year 3 $283,163.66 ($5.52/RSF)
PARKING SPACES ALLOCATED TO TENANT: 82 reserved parking spaces (as shown on
Exhibit B)
SECURITY DEPOSIT: None
PERMITTED USES: Warehouse and related uses
BROKERS: Dean Callan & Company, Inc.
Frederick Ross & Company
Staubach
</Table>
1.2 EXHIBITS.
The exhibits listed below in this section are incorporated in this
Lease by reference and are to be construed as part of this Lease:
EXHIBIT A Plan of Premises
EXHIBIT B Plan Showing Reserved Parking Spaces
EXHIBIT C Landlord's Work
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ARTICLE II
PREMISES AND TERM
2.1 PREMISES
Landlord hereby leases to Tenant, and Tenant leases from Landlord the
Premises for the rents hereinafter reserved, and upon and subject to the terms
and conditions of this Lease.
2.2 APPURTENANT RIGHTS AND RESERVATIONS.
Tenant shall have, as appurtenant to the Premises, the nonexclusive
right to use and to permit its invitees to use the Parking Spaces Allocated to
Tenant and, in common with others, the other Common Areas (as defined in Section
4.4) of the Property. Such rights shall always be subject to reasonable rules
and regulations from time to time established by Landlord by written notice to
Tenant in advance and to the right of Landlord to reasonably designate and
change from time to time any Common Areas provided (i) Tenant is given written
notice before any such change and (ii) any such change does not materially
adversely affect Tenant's ability to use the Premises for the Permitted Uses.
2.3 TERM.
The Premises are leased for the Term unless the Term shall sooner
terminate pursuant to any of the terms of this Lease or pursuant to Law.
ARTICLE III
DELIVERY OF PREMISES; CONSTRUCTION
3.1 AS IS DELIVERY.
Other than the work listed on Exhibit C attached hereto, Landlord is
leasing and delivering the Premises to Tenant "as is," without any
representations or warranties of any kind (including, without limitation, any
express or implied warranties of merchantability, fitness or habitability),
subject to all recorded matters, laws, ordinances, and governmental regulations
and orders.
3.2 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION.
Tenant shall not make any installations, alterations, additions, or
improvements in or to the Premises, including, without limitation, any apertures
in the walls, partitions, ceilings or floors, without, on each occasion where
such installations, alterations, additions or improvements will cost in excess
of $50,000, obtaining the prior written consent of Landlord which shall not be
unreasonably withheld. Tenant shall reimburse Landlord for all costs incurred by
Landlord or any Superior Mortgagee (as defined below) in reviewing Tenant's
proposed installation, alterations, additions or improvements. Any such work so
approved by Landlord shall be performed only in accordance with plans and
specifications therefor approved by Landlord. Tenant shall
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procure at Tenant's sole expense all necessary permits and licenses before
undertaking any work on the Premises and shall perform all such work in a good
and workmanlike manner employing materials of good quality and so as to conform
with all applicable insurance requirements, laws, ordinances, regulations and
orders of governmental authorities. Tenant shall employ for such work only
contractors reasonably approved by Landlord and shall require all contractors
employed by Tenant to carry worker's compensation insurance in accordance with
statutory requirements and commercial general liability insurance covering such
contractors on or about the Premises with a combined single limit not less than
$2,000,000 and shall submit certificates evidencing such coverage to Landlord
prior to the commencement of such work. Landlord acknowledges that Tenant may
use its own employees to perform work and maintenance at the Premises. Tenant
shall indemnify and hold harmless Landlord from all injury, loss, claims or
damage to any person or property occasioned by or growing out of such work.
Landlord may inspect the work of Tenant at reasonable times and give notice of
observed defects. Upon completion of any such work, Tenant shall provide
Landlord with "as built" plans, copies of all construction contracts and proof
of payment for all labor and materials relating to such work.
With respect to work not performed by full-time employees of Tenant,
Tenant covenants and agrees that with respect to the carpentry work (meaning
work that would be performed by carpenters under a collective bargaining
agreement) on any and all alterations, improvements and/or additions that are
made to the Premises, Tenant's construction managers, general contractors and
subcontractors whenever possible shall be signatory to and in good standing
under a collective bargaining agreement with the Carpenters Union covering the
geographical area where the work is performed, and with respect to non-carpentry
work, whenever practicable such work shall be performed by contractors signatory
to and in good standing under the collective bargaining agreement of the local
building trades union affiliated with the AFL-CIO which covers that work. If the
construction manager, general contractor and/or subcontractor with
responsibility for the carpentry work is not signatory to and in good standing
under a collective bargaining agreement with the Carpenters Union, then the
Landlord shall have the right, upon 24 hours' written notice to Tenant, to order
Tenant to cease all work on the Premises, in which event all work then in
progress shall be halted and shall not be recommenced until and unless Tenant's
construction manager, general contractor and/or subcontractor becomes subject
to, covered by and in good standing under the Carpenters Union's collective
bargaining agreement.
ARTICLE IV
RENT
4.1 BASE RENT.
Beginning on the Rent Commencement Date, Tenant agrees to pay base rent
to Landlord without notice or demand and without any offset or reduction
whatever (except as made in accordance with the express provisions of this
Lease), equal to the Base Rent in equal installments in advance on the first day
of each calendar month
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included in the Term. If the Commencement Date occurs on a day other than the
first day of a calendar month, Tenant shall pay to Landlord, on the Commencement
Date, Base Rent for the partial month after the Commencement Date at the
proportionate rate payable for such portion.
4.2 ADDITIONAL RENT.
All sums payable by Tenant under this Lease other than Base Rent shall
be deemed "Additional Rent;" the term "Rent" shall mean Base Rent and Additional
Rent. Landlord shall reasonably estimate in advance by written notice to Tenant
at least thirty days in advance and charge to Tenant the following costs (the
"Total Operating Costs"), to be paid with the Base Rent throughout the Term in
equal monthly installments based on Landlord's most recent reasonable estimate:
(i) all Real Property Taxes for which Tenant is liable under Section 4.3 of the
Lease, (ii) all utility costs (if not separately metered) for which Tenant is
liable under Section 6.1.1 of the Lease, and (iii) all CAM Expenses for which
Tenant is liable under Section 4.4 of the Lease. Landlord may adjust its
estimates of Total Operating Costs at any time based upon Landlord's experience
and reasonable anticipation of costs, upon at least ten business days prior
written notice specifying the reasons for any adjustments. Such adjustments
shall be effective as of the next Rent payment date after notice to Tenant.
Within 120 days after the end of each fiscal year (which shall be January 1
through December 31 for this Lease) during the Term, Landlord shall deliver to
Tenant a statement (the "Statement") prepared in accordance with generally
accepted accounting principles setting forth, in reasonable detail, the Total
Operating Costs paid or incurred by Landlord during the preceding fiscal year.
Within thirty days after Tenant's receipt of such Statement, there shall be an
adjustment made in good faith between Landlord and Tenant, with payment to or
credit given by Landlord (as the case may be) in order that Landlord shall have
received the actual amount of Total Operating Costs for such period. Tenant (and
its accountants and representatives) shall have the right, within thirty days of
receipt of the Statement, to notify Landlord that it would like to audit
Landlord's books and records with respect to the Total Operating Costs. Such
audit is to be at Tenant's sole cost and expense (except as provided in the
following sentence) and is to performed and completed within two months of the
receipt of the Statement by Tenant. If such audit reveals that the Total
Operating Costs billed to Tenant exceed the actual Total Operating Costs by more
than five percent, Landlord shall pay the reasonable costs of such audit.
In addition to its obligation to pay Base Rent and Total Operating
Expenses, Tenant is required hereunder to pay directly to suppliers, vendors,
carriers, contractors, etc. certain insurance premiums, utility costs, personal
property taxes, cleaning and other expenses (collectively "Additional
Expenses"). If Landlord pays for any Additional Expenses in accordance with the
terms of this Lease, Tenant's obligation to reimburse such costs shall be an
Additional Rent obligation. Unless this Lease provides otherwise, Tenant shall
pay all Additional Rent then due with the next monthly installment of Base Rent
due after Tenant received written notice of the amount of such Additional Rent.
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4.3 REAL PROPERTY TAXES.
Tenant shall pay to Landlord Tenant's Pro Rata Share of all Real
Property Taxes on the Premises attributable to any period included in the Term;
provided, however, if the Term includes only a portion of a fiscal tax period,
the Real Property Taxes for such period shall be prorated according to the
fraction of the total days in such period falling within the Term, and Tenant
shall be responsible for paying only such prorated amount. The term "Real
Property Taxes" shall mean taxes, assessments (special, betterment, or
otherwise), levies, fees, rent taxes, impositions, excises, charges, water and
sewer rents and charges, and all other government levies and charges, general
and special, ordinary and extraordinary, foreseen and unforeseen, which are
imposed or levied upon or assessed against the Premises or any Rent or other
sums payable by any tenants or occupants thereof. If at any time during the term
the present system of ad valorem taxation of real property shall be changed so
that in lieu of the whole or any part of the ad valorem tax on real property, or
in lieu of increases therein, there shall be assessed on Landlord a capital levy
or other tax on the gross rents received with respect to the Property or a
federal, state, county, municipal, or other local income, franchise, excise or
similar tax, assessment, levy, or charge (distinct from any now in effect)
measured by or based, in whole or in part, upon gross rents, then all of such
taxes, assessments, levies, or charges, to the extent so measured or based,
shall be deemed to be a Real Property Tax. Notwithstanding any other provision
of this Lease, Real Property Taxes shall not include, and Tenant shall have no
obligation to pay, any taxes on Landlord's net income.
Landlord shall have the right, but not the obligation, to dispute any
Real Property Taxes attributable to any fiscal tax period included wholly or
partially within the Term. The cost of such contest shall be included in the
calculation of Total Operating Costs.
4.4 CAM EXPENSES.
"CAM Expenses" are all out-of-pocket costs and expenses paid or
incurred by Landlord in connection with the operation and maintenance of the
Common Areas (as defined below), the Building and the repair and maintenance of
the plumbing, electrical, utility, and safety systems, including, but not
limited to, the following: gardening and landscaping; snow removal; utility,
water and sewage services for the Common Areas or provided to all tenants of the
Building; maintenance of signs; worker's compensation insurance; personal
property taxes; rental or lease payments for rented or leased personal property
used in the operation or maintenance of the Common Areas; fees for required
licenses and permits; routine maintenance, repair and replacement of roof
membrane, flashings, gutters, downspouts, roof drains, skylights and
waterproofing; repair, maintenance and replacement of paving (including
sweeping, striping, repairing, resurfacing and repaving); general maintenance;
painting; lighting; cleaning; refuse removal; payroll of maintenance personnel
and management personnel not above the level of property manager; a property
management fee (not to exceed market rates); and premiums for the insurance
carried by Landlord pursuant to Section 5.1.4 of this Lease. Notwithstanding any
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other provision of this Lease, CAM Expenses shall not, however, include the
following: leasing commissions, advertising expenses, legal fees and other costs
in leasing and procuring new tenants for the Building; expenditures for capital
improvements except (i) capital expenditures which Landlord reasonably
anticipates will have the effect of reducing current and/or future CAM Expenses
and (ii) capital expenditures required by laws enacted or regulations
promulgated after the date of this lease (provided, however, only an amortized
portion of any capital expenditures permitted to be included in CAM Expenses
shall be included in CAM Expenses for the year in which the expenditures are
incurred and subsequent years, on a straight line basis, over an appropriate
useful life, with an interest factor reasonably determined by Landlord at the
time of Landlord's having incurred said expenditure); charges imposed on
Landlord pursuant to any recorded declarations; cost of repairs or replacements
incurred by reason of fire or other casualty or by the exercise of the right of
eminent domain to the extent to which Landlord is compensated therefor through
proceeds of insurance or a condemnation award; accounting and legal fees and
other expenses incurred in disputes with tenants; costs incurred in performing
work or furnishing services exclusively to or for the benefit of individual
tenants or prospective tenants and which are separately billed to such tenants,
including, but not limited to painting, redecorating and after hours HVAC;
payments of principal, interest and other charges under any Superior Mortgage or
rent and other charges payable under any Superior Lease; salaries, wages,
benefits and other expenses of administrative employees and other employees
involved in the operation or management of the Property above the level of
property manager; compensation paid to employees or other persons in connection
with commercial concessions operated by Landlord; and Landlord's general
overhead not directly related to the operation or maintenance of the Property.
As used in this Lease, "Common Areas" shall mean all areas within the
Property which are not part of the rentable areas of the Building, including,
but not limited to, parking areas, driveways, sidewalks, access roads,
landscaping, and planted areas.
4.5 PAYMENTS.
All payments of Rent shall be made to Landlord at the address specified
in Section 1.1, or to such other person as Landlord may from time to time
designate by written notice to Tenant. If any installment of Rent is paid more
than 5 days after the due date thereof, at Landlord's election, it shall bear
interest from such due date at a rate equal to the average prime commercial rate
from time to time established by BankBoston plus 4% per annum, which interest
shall be immediately due and payable as further Additional Rent. Notwithstanding
the foregoing, the first time in each Lease Year that Tenant is late in the
payment of any installment of Rent, interest shall not be charged until 10
business days after Tenant receives written notice of such non-payment.
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ARTICLE V
LANDLORD'S COVENANTS
5.1 LANDLORD'S COVENANTS DURING THE TERM.
Landlord covenants during the Term:
5.1.1 Repairs and Maintenance. Except as provided in Article VII,
Landlord shall perform all maintenance, repairs and replacements necessary to
keep in good condition and working order, and in compliance with all applicable
laws, the foundation, columns, exterior walls, floors, roof and other structural
elements of the Building (collectively, "Structural Components"), and the
parking areas, outdoor lighting, sprinkler system, plumbing system and all
Common Areas of the Building. Within a reasonable time after receiving actual
knowledge thereof, Tenant shall notify Landlord of any maintenance within the
Premises that Landlord is obligated to perform pursuant to this Section 5.1.1.
5.1.2 Quiet Enjoyment. That Landlord has the right to make this Lease
and that Tenant on paying the Rent and performing its obligations hereunder
shall peacefully and quietly have, hold and enjoy the Premises throughout the
Term without any manner of hindrance or molestation from Landlord or anyone
claiming under Landlord, subject however to all the terms and provisions hereof.
5.1.3 Insurance. During the Term, Landlord shall maintain in effect all
risk insurance covering loss of or damage to the Building and other improvements
at the Property in the amount of its replacement value with such endorsements
and deductibles as Landlord shall reasonably determine from time to time.
Landlord shall have the right to obtain flood, earthquake, and such other
insurance as Landlord shall reasonably determine from time to time or shall be
required by any lender holding a security interest in the Premises. Landlord
shall not obtain insurance for Tenant's trade fixtures, equipment or building
improvements. During the Term, Landlord shall also maintain a rental income
insurance policy, with loss payable to Landlord, in an amount equal to one
year's Base Rent, plus estimated Real Property Taxes, total Operating Costs, and
insurance premiums. Tenant shall not do or permit anything to be done which
shall invalidate any such insurance. Any policy obtained by Landlord shall not
be contributory, shall not provide primary insurance, and shall be excess over
any insurance maintained by Tenant. Landlord shall also maintain during the Term
a policy of general liability insurance with respect to the Premises naming
Tenant as an additional insured.
5.1.4 Representations and Warranties. Landlord represents and warrants
to Tenant that (a) as of the date hereof Landlord owns the Property; (b)
Landlord is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Delaware and is qualified to do
business in the State of Colorado; (c) Landlord has all necessary power and
authority to own, manage and operate the Property and to enter into this Lease;
and (d) Landlord and its members
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have taken all actions necessary to authorize the execution and delivery of this
Lease and to perform its obligations under this Lease.
5.1.5 Tenant's Access. Tenant shall have access to the Premises at all
times (24 hours each day and seven days each week).
5.1.6 Indemnity. To indemnify, defend with counsel satisfactory to
Landlord, and hold harmless Tenant from all claims for loss or damage resulting
from injury or losses to persons or property occurring at the Property to the
extent resulting from the negligence or willful misconduct of Landlord or its
agents, servants or employees, including the cost of reasonable attorneys' fees
and court costs incurred in defending against such claim, except to the extent
that such loss or damage is caused by the negligence or willful misconduct of
Tenant or its agents, employees or contractors.
5.2 INTERRUPTIONS.
Landlord shall not be liable to Tenant for any compensation or
reduction of Rent by reason of inconvenience or annoyance or for loss of
business arising from power losses or shortages or from the necessity of
Landlord's entering the Premises for any of the purposes in this Lease
authorized, or for repairing the Premises or any portion thereof. In case
Landlord is prevented or delayed from making any repairs, alterations or
improvements, or furnishing any service or performing any other covenant or duty
to be performed on Landlord's part, by reason of any cause beyond Landlord's
reasonable control, Landlord shall not be liable to Tenant therefor, nor, except
as expressly otherwise provided in Article VII, shall Tenant be entitled to any
abatement or reduction of rent by reason thereof, nor shall the same give rise
to a claim in Tenant's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Premises.
Landlord reserves the right to stop any service or utility system when
necessary by reason of accident or emergency acting in good faith, until
necessary repairs have been completed. Except in case of emergency repairs,
Landlord will give Tenant reasonable advance written notice of any contemplated
stoppage and will use reasonable efforts to avoid unnecessary inconvenience to
Tenant by reason thereof.
Landlord also reserves the right, by written notice to Tenant at least
10 days in advance, to institute such policies, programs and measures as may be
required to comply with applicable codes, rules, regulations or standards.
ARTICLE VI
TENANT'S COVENENTS
6.1 TENANT'S COVENANTS DURING THE TERM.
Tenant covenants during the Term and such further time as Tenant
occupies any part of the Premises:
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6.1.1 Tenant's Payments. To pay when due (a) all Base Rent and
Additional Rent, (b) all taxes which may be imposed on Tenant's personal
property in the Premises (including, without limitation, Tenant's fixtures and
equipment) regardless to whomever assessed, (c) all charges by public utilities
for telephone, electricity and other utility services (including service
inspections therefor) rendered to the Premises (which if the Building is fully
tenanted shall be, with respect to gas, electricity and water, Tenant's Pro Rata
Share of the amounts charged to the Building for such utilities provided the
other tenants of the Building have similar permitted uses), and (d) as
Additional Rent, all other charges payable to Landlord pursuant to this Lease.
6.1.2 Repairs and Yielding Up. Except as otherwise provided in Article
VII, at Tenant's sole expense to keep the Premises, including the heating,
ventilation and air conditioning systems and equipment serving the Premises, in
as good order, repair and condition as exists on the Commencement Date or in
such improved condition as it may be put during the Lease Term, reasonable wear
and damage by fire, casualty and eminent domain excepted, and to make all
necessary and customary repairs thereto in order to do so; and at the expiration
or termination of this Lease peaceably to yield up the Premises and all changes
and additions therein in good order, repair and condition, first removing all
goods and effects of Tenant and any items, the removal of which is required by
agreement or specified herein to be removed at Tenant's election and which
Tenant elects to remove, and repairing all damage caused by such removal and
restoring the Premises and leaving them clean and neat.
6.1.3 Cleaning. At its sole cost and expense enter into a service
contract or use its own employees to provide for the cleaning of the Premises.
Any outside cleaning contracts and the vendors thereunder shall be subject to
Landlord's reasonable approval.
6.1.4 Occupancy and Use. Continuously from the Commencement Date, to
use and occupy the Premises only for the Permitted Uses; not to injure or deface
the Premises; and not to permit in the Premises any use thereof which is
contrary to law or ordinances, or creates a nuisance or to render necessary any
alteration or addition to the Building; not to dump, flush, or in any way
introduce any hazardous substances or any other toxic substances into the
septic, sewage or other waste disposal system serving the Premises, not to
generate, store or dispose of hazardous substances in or on the Premises or
dispose of hazardous substances from the Premises to any other location without
the prior written consent of Landlord, which shall not be unreasonably withheld,
delayed or conditioned, and then only in compliance with all applicable laws,
ordinances and regulations; to notify Landlord of any incident which would
require the filing of a notice under applicable federal, state, or local law;
not to store or dispose of hazardous substances on the Premises without first
submitting to Landlord a list of all such hazardous substances and all permits
required therefor and thereafter providing to Landlord on an annual basis
Tenant's certification that all such permits have been renewed with copies of
such renewed permits; and to comply with the orders and regulations of all
governmental authorities with respect to zoning, building, fire, health and
other codes, regulations, ordinances or laws, to the extent applicable to
Tenant's use of the Premises, including without limitation, the
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Americans with Disabilities Act. "Hazardous substances" as used in this
paragraph shall mean "hazardous substances" as defined in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 and regulations adopted pursuant to said Act, provided,
however, "hazardous substances" shall not include customary quantities of
ordinary office and cleaning products, fuel for any generators on the Premises.
6.1.5 Rules and Regulations/Security. To comply with any reasonable
rules and regulations hereafter made by Landlord, of which Tenant has been given
notice, for the care and use of the Premises and the Property. To provide, at
its sole cost and expense, any security system serving the Premises. Tenant
acknowledges that Landlord is not providing any security system or security
guards at the Property.
6.1.6 Safety Appliances. To keep the Premises equipped with all safety
appliances required by law or ordinance or any other regulation of any public
authority because of any use made by Tenant and to procure all licenses and
permits so required because of such use and, if reasonably requested by
Landlord, to do any work so required because of such use, it being understood
that the foregoing provisions shall not be construed to broaden in any way
Tenant's Permitted Uses.
6.1.7 Assignment and Subletting. Not without the prior written consent
of Landlord (which shall not be unreasonably withheld) to assign this Lease, to
make any sublease, or to permit occupancy of the Premises or any part thereof by
anyone other than Tenant, voluntarily or by operation of law; as Additional
Rent, to reimburse Landlord promptly for reasonable and customary legal and
other expenses incurred by Landlord or any Superior Mortgagee in connection with
any request by Tenant for consent to assignment or subletting; no assignment or
subletting shall affect the continuing primary liability of Tenant (which,
following assignment, shall be joint and several with the assignee); no consent
to any of the foregoing in a specific instance shall operate as a waiver in any
subsequent instance. Landlord's consent to any proposed assignment or subletting
is required both as to the terms and conditions thereof, and as to the
creditworthiness of the proposed assignee or subtenant and the consistency of
the proposed assignee's or subtenant's business with the Permitted Uses of the
Premises. In the event that any assignee or subtenant pays to Tenant any
consideration attributable to the interest in this Lease or the Premises so
assigned or subleased in excess of the Rent then payable hereunder, or pro rata
portion thereof on a square footage basis for any portion of the Premises, after
deducting Tenant's reasonable attorneys' fees, brokerage commissions and other
expenses relating to such assignment or sublease, Tenant shall promptly pay 50%
of said net excess to Landlord as and when received by Tenant. If a Tenant
requests Landlord's consent to assign this Lease or sublet the Premises, or the
assignment or sublease term will begin three or fewer months before the end of
the Lease Term, Landlord shall have the option, exercisable by written notice to
Tenant given within 10 days after receipt of such request, to terminate this
Lease as of a date specified in such notice which shall be not less than 30 days
after the date of such notice.
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6.1.8 Indemnity. To defend, with counsel reasonably approved by
Landlord, all actions against Landlord, its officers, directors, members,
employees, agents, advisors and contractors and all others who could be liable
for the obligations of any of them, and any holders of mortgages secured by the
Property ("Indemnified Parties") with respect to, and to indemnify and save
harmless, to the extent permitted by law, all Indemnified Parties from and
against, any and all liabilities, losses damages, costs, expenses (including
reasonable attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments of any nature (a) to which any Indemnified Party is subject
because of its estate or interest in the Property, or (b) arising from (i)
injury to or death of any person, or damage to or loss of property, on the
Property, or connected with the use, condition or occupancy of any thereof, (ii)
a breach of Tenant's obligations under this Lease, or (iii) any act, negligence
or willful misconduct of Tenant or its employees, agents, contractors,
licensees, sublessees or invitees; except to the extent arising from the gross
negligence or willful misconduct of Landlord or any Indemnified Party.
6.1.9 Tenant's Liability Insurance.
a. Liability Insurance. To maintain in effect commercial
general liability insurance insuring Tenant against liability for bodily injury,
property damage (including loss of use of property) and personal injury at the
Premises. Such insurance shall name Landlord, its property manager, any
mortgagee of which Tenant has received written notice, and Great Point Investors
LLC, as additional insureds. The initial amount of such insurance shall be Two
Million Dollars ($2,000,000) per occurrence, Five Million Dollars ($5,000,000)
in the aggregate, and Ten Million Dollars ($10,000,000) as umbrella coverage,
and shall be subject to reasonable periodic increases specified by Landlord
based upon inflation, increased liability awards, recommendation of Landlord's
professional insurance advisers, and other relevant factors. The liability
insurance obtained by Tenant under this Section 6.1.8 shall (i) be primary and
(ii) insure Tenant's obligation to Landlord under Section 6.1.7 under a standard
contractual liability endorsement. The amount and coverage of such insurance
shall not limit Tenant's liability nor relieve Tenant of any other obligation
under this Lease.
b. Worker's Compensation Insurance. To maintain in effect
Worker's Compensation Insurance (including Employees' Liability Insurance) in
the statutory amount covering all employees of Tenant employed or performing
services at the Premises, in order to provide the statutory benefits required by
the laws of the state in which the Premises are located.
c. Automobile Liability Insurance. To maintain in effect
Automobile Liability Insurance, including but not limited to, passenger
liability, on all owned, nonowned, and hired vehicles used by Tenant or its
employees in connection with the Premises, with a combined single limit per
occurrence of not less than One Million Dollars ($1,000,000) per vehicle for
injuries or death of one or more persons or loss or damage to property.
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d. Personal Property Insurance. To maintain in effect Personal
Property Insurance covering Tenant's personal property and trade fixtures from
time to time in, on, or at the Premises, in an amount not less than 100% of the
full replacement cost, without deduction for depreciation, providing protection
against events protected under "All Risk Coverage," as well as against sprinkler
damage, vandalism, and malicious mischief. Any proceeds from the Personal
Property Insurance shall be used for the repair or replacement of the property
damaged or destroyed, unless this Lease is terminated under an applicable
provision herein.
e. Business Interruption Insurance. To maintain in effect
Business Interruption Insurance, providing in the event of damage or destruction
of the Premises an amount sufficient to sustain Tenant for a period of not less
than six months for: (i) the net profit that would have been realized had
Tenant's business continued; and (ii) such fixed charges and expenses as must
necessarily continue during a total or partial suspension of business to the
extent to which they would have been incurred had no business interruption
occurred, including, but not limited to, interest on indebtedness of Tenant,
salaries of executives, foremen, and other employees under contract, charges
under noncancelable contracts, charges for advertising, legal or other
professional services, taxes and rents that may still continue, trade
association dues, insurance premiums, and depreciation.
f. General Insurance Provisions.
(i) Any insurance which Tenant shall be required to
maintain under this Lease shall include a provision which requires the insurance
carrier to give Landlord not less than 30 days' written notice prior to any
cancellation or modification of such coverage.
(ii) Prior to the earlier of Tenant's entry into the
Premises or the Commencement Date, Tenant shall deliver to Landlord an insurance
company certificate that Tenant maintains the insurance required by Sections
6.1.8(a)-(e) and not less than 60 days prior to the expiration or termination of
any such insurance, Tenant shall deliver to Landlord renewal certificates
therefor. Tenant shall provide Landlord with copies of the policies promptly
upon request from time to time. If Tenant shall fail to deliver any certificate
or renewal certificate to Landlord required under this Lease within the
prescribed time period or if any such policy shall be canceled or modified in a
manner materially adverse to Landlord during the Lease Term without Landlord's
consent, Landlord may, after notice and the expiration of the applicable grace
period, obtain such insurance, in which case Tenant shall reimburse Landlord, as
Additional Rent, for the cost of procuring such insurance within 10 days after
receipt of a statement of the cost of such insurance.
(iii) Tenant shall maintain all insurance required
under this Lease with companies having a "General Policy Rating" of A-X or
better, as set forth in the most current issue of the Best Key Rating Guide.
Landlord and Tenant, on behalf of themselves and their insurers, each hereby
waive any and all rights of recovery against the other, or against the officers,
partners, members, employees,
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agents, or representatives of the other, for loss of or damage to its property
or the property of others under its control, if such loss or damage shall be
covered by any insurance policy in force (whether or not described in this
Lease) at the time of such loss or damage. All property insurance carried by
either party shall contain a waiver of subrogation against the other party to
the extent such right shall have been waived by the insured party prior to the
occurrence of loss or injury.
6.1.10 Landlord's Right of Entry. To permit Landlord and Landlord's
agents entry upon reasonable advance notice and without material interference
with Tenant's use of the Premises: to examine the Premises at reasonable times
and, if Landlord shall so elect, to make repairs or replacements as required or
permitted by this Lease; to remove, at Tenant's expense, any changes, additions,
signs, curtains, blinds, shades, awnings, aerials, flagpoles, or the like not
consented to in writing (to the extent required under this Lease); and to show
the Premises to prospective tenants during the 9 months preceding expiration of
the Term and to prospective purchasers and mortgagees at all reasonable times.
6.1.11 Loading. Not to place Tenant's property (as described in Section
6.1.12), upon the Premises so as to exceed the floor load capacities; Tenant's
business machines and mechanical equipment which cause vibration or noise that
may be transmitted to the Building structure shall be placed and maintained by
Tenant in settings of cork, rubber, spring, or other types of vibration
eliminators sufficient to eliminate such vibration or noise,
6.1.12 Landlord's Costs. In case Landlord shall be made party to any
litigation commenced by or against Tenant or by or against any parties in
possession of the Premises or any part thereof claiming under Tenant, except any
litigation arising out of a breach by Landlord of its obligations under this
Lease or the negligence or willful misconduct of Landlord or its agents,
employees or contractors (unless Landlord is the prevailing party in such
litigation), to pay, as Additional Rent, all reasonable costs including, without
implied imitation, reasonable counsel fees incurred by or imposed upon Landlord
in connection with such litigation and, as Additional Rent, also to pay all such
costs and fees incurred by Landlord in connection with the successful
enforcement by Landlord of any obligations of Tenant under this Lease.
6.1.13 Tenant's Property. All the furnishings, fixtures, equipment,
effects and property of every kind, nature and description of Tenant and of all
persons claiming by, through or under Tenant which, during the continuance of
this Lease or any occupancy of the Premises by Tenant or anyone claiming under
Tenant, may be on the Premises, shall be at the sole risk and hazard of Tenant,
and if the whole or any part thereof shall be destroyed or damaged by fire,
water or otherwise, or by the leakage or bursting of water pipes, steam pipes,
or other pipes, by theft, or from any other cause, no part of said loss or
damage is to be charged to or to be borne by Landlord, unless due to the gross
negligence of Landlord.
6.1.14 Labor or Materialmen's Liens. To pay promptly when due the
entire cost of any work done on the Premises by Tenant, its agents, employees,
or
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independent contractors; not to cause or permit any liens for labor or materials
performed or furnished in connection therewith to attach to the Premises; and to
discharge any such liens which may so attach within five business days after
receiving notice of such liens.
6.1.15 Holdover. (A) For each month or portion thereof that Tenant
shall retain possession of the Premises, to pay Landlord 200% of the greater of
(a) the then fair market rent as conclusively determined by Landlord or (b) the
total of the Base Rent and Additional Rent then applicable for each month or
portion thereof, and (B) also to pay all damages sustained by Landlord on
account thereof. The provisions of this Subsection 6.1.15 shall not operate as a
waiver by landlord of the right of re-entry provided in this Lease.
ARTICLE VII
CASUALTY AND TAKING
7.1 CASUALTY AND TAKING.
In case during the Term all or any substantial part of the Premises,
are damaged materially by fire or any other cause, or by action of public or
other authority in consequence thereof, or are taken by eminent domain, Landlord
shall have the right to terminate this Lease, by notice to Tenant within 30 days
after the occurrence of the event giving rise to the election to terminate,
which notice shall specify the effective date of termination which shall be not
less than 30 nor more than 60 days after the date of notice of such termination.
If Landlord does not terminate this Lease as provided above, Landlord shall use
due diligence to restore the Premises, or, in case of a taking, what may remain
thereof (excluding any items installed or paid for by Tenant which Tenant may be
required or permitted to remove) into proper condition for use and occupation
within 180 days of Landlord's receipt of insurance or condemnation proceeds to
the extent permitted by the net award of insurance or damages available to
Landlord, and a just proportion of the Base Rent according to the nature and
extent of the injury shall be abated until the Premises or such remainder shall
have been restored by Landlord to such condition; and in case of a taking which
permanently reduces the area of the Premises, a just proportion of the Base Rent
and shall be abated for the remainder of the Term.
7.2 RESERVATION OF AWARD.
Landlord reserves to itself any and all rights to receive awards made
for damages to the Premises and the leasehold hereby created, accruing by reason
of exercise of eminent domain or by reason of anything lawfully done in
pursuance of public or other authority. Tenant hereby releases and assigns to
Landlord all Tenant's rights to such awards, and covenants to deliver such
further assignments and assurances thereof as Landlord may from time to time
request. and hereby irrevocably designates and appoints Landlord its
attorney-in-fact to execute and deliver in Tenant's name and behalf all such
further assignments thereof. It is agreed and understood, however, that Landlord
does not reserve to itself, and Tenant does not
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assign to Landlord, any damages payable for (i) trade fixtures installed by
Tenant or anybody claiming under Tenant, at its own expense or (ii) relocation
expenses recoverable by Tenant from such authority in a separate action.
ARTICLE VIII
RIGHTS OF MORTGAGEE
8.1 SUBORDINATION.
This Lease and all rights of Tenant hereunder shall be subject and
subordinate in all respects to (a) all present and future ground leases,
operating leases, superior leases, overriding leases and underlying leases and
grants of term of the Premises or any portion thereof (collectively, including
the applicable items set forth in Subdivision (d) of this Section 8.1, the
"Superior Lease") whether or not the Superior Lease shall also cover other lands
or buildings, (b) all mortgages and building loan agreements, including
leasehold mortgages, which may now or hereafter affect the Premises or the
Superior Lease (collectively, including the applicable items set forth in
Subdivisions (c) and (d) of this Section 8. 1, the "Superior Mortgage"), whether
or not any Superior Mortgage shall also cover other lands or buildings or
leases, (c) each advance made or to be made under any Superior Mortgage, and (d)
all renewals, modifications, replacements, substitutions and extensions of the
Superior Lease and any Superior Mortgage. Any holder of a Superior Mortgagee (a
"Superior Mortgagee") may elect that this Lease shall have priority over such
Superior Mortgage and, upon notification thereof by such Superior Mortgagee to
Tenant, this Lease shall be deemed to have priority over such Superior Mortgage,
whether this Lease is dated prior to or subsequent to the date of such Superior
Mortgage. If, in connection with the obtaining, continuing or renewing of
financing for which the Premises or the interest of the lessee under the
Superior Lease represents collateral, in whole or in part, any bank, insurance
company, pension fund or other lending institution shall request reasonable
modifications of this Lease as a condition of its granting such financing,
Tenant will not unreasonably withhold its consent thereto, provided that such
modifications do not increase the Base Rent, materially and adversely increase
the obligations of Tenant hereunder or materially and adversely affect Tenant's
rights hereunder. Tenant agrees that it will take no steps to terminate this
Lease or abate Rent payable hereunder without giving each lessor under a
Superior Lease (a "Superior Lessor"), and any Superior Mortgagee requesting
same, written notice of any default by Landlord and the opportunity to cure such
default (without any obligation on the part of any such person to cure such
default) within 45 days thereafter or, if such Superior Lessor or Superior
Mortgagee commences such cure within 30 business days and diligently pursues
such cure, such longer period as may be reasonably necessary to effect such
cure. Landlord shall endeavor to obtain a subordination and non-disturbance
agreement, in recordable form, for each present and future Superior Mortgagee or
Superior Lessor.
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8.2 SUCCESSOR LANDLORD.
For purposes of this Section 8.2, the term "Successor Landlord" shall
mean and include (i) any person, including but not limited to any Superior
Lessor or Superior Mortgagee, who, prior to the termination of this Lease,
acquires or succeeds to the interest of Landlord under this Lease through
summary proceedings, foreclosure action, assignment, deed in lieu of foreclosure
or otherwise, and (ii) the successors and assigns of any person referred to in
clause (i) of this sentence. Upon any Successor Landlord's so acquiring, or so
succeeding to, the interest of Landlord under this Lease, Tenant shall, at the
election and upon the request of the Successor Landlord, fully attorn to and
recognize such Successor Landlord as Tenant's landlord under this Lease upon the
then executory terms of this Lease, but only if such Successor Landlord is bound
by a Non-Disturbance Agreement and only in accordance with such Non-Disturbance
Agreement. No Successor Landlord shall be bound by any prepayment of rent or
additional rent for more than one month in advance or any amendment or
modification of this Lease made without the consent of the Superior Mortgagee or
Superior Lessor from which such Successor Landlord derives its interest in this
Lease or the Premises. Upon demand of any such Successor Landlord, Tenant agrees
to execute instruments to evidence and confirm the foregoing provisions of this
Section reasonably satisfactory to any such Successor Landlord.
8.3 NO PREPAYMENT OR MODIFICATION, ETC.
Tenant shall not pay Rent, or any other charge more than thirty days
prior to the due date thereof, no prepayment of the Rent (except one monthly
installment of Base Rent) or other charge, no assignment of this Lease and no
agreement to modify the Lease so as to reduce the Rent, change the Term, or
otherwise materially change the rights of Landlord under this Lease, or to
relieve Tenant of any obligations or liability under this Lease, shall be
enforceable against any Superior Mortgagees unless consented to in writing by
all Superior Mortgagees, if any.
ARTICLE IX
DEFAULT
9.1 EVENTS OF DEFAULT.
There shall be an "Event of Default" hereunder if:
(i) any default by Tenant continues after written notice
(describing such default in reasonable detail), (a) in case of the
payment of Rent or any other monetary obligation to Landlord for more
than 5 days, (b) in case of the delivery of any document to Landlord
for more than 10 days or (c) in any other case for more than 30 days
and such additional time, if any, as is reasonably necessary to cure
the default if the default is of such a nature that it cannot
reasonably be cured in 30 days and Tenant diligently commences and
continues to cure such default and completes such cure within 90 days;
or
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(ii) if Tenant becomes insolvent, fails to pay its debts as
they fall due, files a petition under any chapter of the U.S.
Bankruptcy Code, 11 U.S.C, 101 et seq., as it may be amended (or any
similar petition under any insolvency law of any jurisdiction), or if
such petition is filed against Tenant and not dismissed within 60 days;
or
(iii) if Tenant proposes any dissolution, liquidation,
composition, financial reorganization or recapitalization with
creditors, makes an assignment or trust mortgage for benefit of
creditors, or if a receiver, trustee, custodian or similar agent is
appointed or takes possession with respect to any property of Tenant
and such appointment or taking is not dismissed within 60 days; or if
the leasehold hereby created is taken on execution or other process of
law in any action against Tenant.
If there shall be an Event of Default hereunder, Landlord and the
agents and servants of Landlord may, in addition to and not in derogation of any
remedies for any preceding breach of covenant, immediately or at any time
thereafter while such Event of Default continues and without further notice, at
Landlord's election, do any one or more of the following:
(a) give Tenant written notice stating that the Lease is
terminated, effective upon the giving of such notice or upon a date stated in
such notice, as Landlord may elect, in which event the Lease shall be
irrevocably extinguished and terminated as stated in such notice without any
further action; or
(b) with process of law, in a lawful manner enter and
repossess the Premises and expel Tenant and those claiming through or under
Tenant, and remove its and their effects, without being guilty of trespass, in
which event the Lease shall be irrevocably extinguished and terminated at the
time of such entry; or
(c) pursue any other rights or remedies permitted by law.
Any such termination of the Lease shall be without prejudice to any
remedies which might otherwise be used for arrears of Rent or prior breach of
covenant, and in the event of such termination Tenant shall remain liable under
this Lease as hereinafter provided. Tenant hereby waives all statutory rights
(including, without limitation, rights of redemption, if any) to the extent such
rights may be lawfully waived, and Landlord, without notice to Tenant, may store
Tenant's effects and those of any person claiming through or under Tenant at the
reasonable expense and risk of Tenant and, if Landlord so elects, may sell such
effects at public auction or private sale and apply the net proceeds to the
payment of all sums due to Landlord from Tenant, if any, and pay over the
balance, if any, to Tenant.
9.2 TENANT'S OBLIGATIONS AFTER TERMINATION.
In the event that this Lease is terminated under any of the provisions
contained in Section 9.1 or shall be otherwise terminated for breach of any
obligation of Tenant, Tenant covenants to pay forthwith to Landlord, as
compensation, the excess of the
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total rent reserved for the residue of the Term over the rental value of the
Premises for said residue of the Term. In calculating the rent reserved and the
rental value, there shall be included, in addition to the Base Rent and all
Additional Rent, the value of all other consideration agreed to be paid or
performed by Tenant for said residue. Tenant further covenants as an additional
and cumulative obligation after any such termination to pay punctually to
Landlord all the sums and perform all the obligations which Tenant covenants in
this Lease to pay and to perform in the same manner and to the same extent and
at the same time as if this Lease had not been terminated. In calculating the
amounts to be paid by Tenant under the next foregoing covenant, Tenant shall be
credited with any amount paid to Landlord as compensation as provided in the
first sentence of this Section 9.2 and also with the net proceeds of any rents
obtained by Landlord by reletting the Premises, after deducting all Landlord's
reasonable expenses in connection with such reletting, including, without
implied limitation, all repossession costs, brokerage commissions, fees for
legal services and expenses of preparing the Premises for such reletting, it
being agreed by Tenant that Landlord may (i) relet the Premises or any part or
parts thereof for a term or terms which may at Landlord's option be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the Term and may grant such concessions and free rent as Landlord in
its reasonable judgment considers advisable or necessary to relet the same and
(ii) make such alterations, repairs and decorations in the Premises as Landlord
in its sole judgment considers advisable or necessary to relet the same, and no
action of Landlord in accordance with the foregoing or failure to relet or to
collect rent under reletting shall operate or be construed to release or reduce
Tenant's liability as aforesaid.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amount of the loss or damages
referred to above.
ARTICLE X
MISCELLANEOUS
10.1 NOTICES FROM ONE PARTY TO THE OTHER.
All notices, requests and other communications required or permitted
under this Lease shall be in writing and shall be personally delivered or sent
by certified mail, return receipt requested, postage prepaid or by a national
overnight delivery service which maintains delivery records. Notices to Tenant
and Landlord shall be delivered to the address specified in Article I above. All
notices shall be effective upon delivery (or refusal to accept delivery). Either
party may change its notice address upon notice to the other party.
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10.2 BIND AND INURE.
The obligations of this Lease shall run with the land, and this Lease
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Landlord named herein and
each successive owner of the Property shall be liable only for the obligations
accruing during the period of its ownership. The obligations of Landlord shall
be binding upon the assets of Landlord which comprise the Property and the
proceeds of any insurance or action in the nature of eminent domain relating to
the Property, but not upon other assets of Landlord. No individual partner,
trustee, stockholder, officer, director, employee, member, beneficiary, agent or
advisor of Landlord shall be personally liable under this Lease and Tenant shall
look solely to Landlord's interest in the Property, and the proceeds of any
insurance or action in the nature of eminent domain relating to the Property
remedies upon an event of default hereunder, and the general assets of the
individual partners, trustees, stockholders, officers, employees, members or
beneficiaries of Landlord shall not be subject to levy, execution or other
enforcement procedure for the satisfaction of the remedies of Tenant.
10.3 NO SURRENDER.
The delivery of keys to any employee of Landlord or to Landlord's agent
or any employee thereof shall not operate as a termination of this Lease or a
surrender of the Premises.
10.4 NO WAIVER, ETC.
The failure of Landlord or of Tenant to seek redress for violation of,
or to insist upon the strict performance of any covenant or condition of this
Lease shall not be deemed a waiver of such violation nor prevent a subsequent
act, which would have originally constituted a violation, from having all the
force and effect of an original violation. The receipt by Landlord of Base Rent
or Additional Rent with knowledge of the breach of any covenant of this Lease
shall not be deemed a waiver of such breach by Landlord, unless such waiver is
in writing and signed by Landlord. No consent or waiver, express or implied, by
Landlord or Tenant to or of any breach of any agreement or duty shall be
construed as a waiver or consent to or of any other breach of the same or any
other agreement or duty.
10.5 NO ACCORD AND SATISFACTION.
No acceptance by Landlord of a lesser sum than the Rent then due shall
be deemed to be other than on account of the earliest installment of such Rent
due, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Rent be deemed as accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such installment or pursue any other remedy in
this Lease provided.
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10.6 CUMULATIVE REMEDIES.
The specific remedies to which Landlord may resort under the terms of
this Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which it may be lawfully entitled in case of any
breach or threatened breach by Tenant of any provisions of this Lease. In
addition to the other remedies provided in this Lease, Landlord shall be
entitled to the restraint by injunction of the violation or attempted or
threatened violation of any of the covenants, conditions or provisions of this
Lease or to a decree compelling specific performance of any such covenants,
conditions or provisions.
10.7 LANDLORD'S RIGHT TO CURE.
If Tenant shall at any time default in the performance of any
obligation under this Lease, Landlord shall have the right, but shall not be
obligated, to enter upon the Premises and to perform such obligation,
notwithstanding the fact that no specific provision for such substituted
performance by Landlord is made in this Lease with respect to such default. In
performing such obligation, Landlord may make any payment of money or perform
any other act. All sums so paid by Landlord (together with interest at the rate
of 4% per annum in excess of the then average prime commercial rate of interest
being charged by BankBoston) and all necessary incidental costs and expenses in
connection with the performance of any such act by Landlord, shall be deemed to
be Additional Rent under this Lease and shall be payable to Landlord immediately
on demand. Landlord may exercise the foregoing rights without waiving any other
of its rights or releasing Tenant from any of its obligations under this Lease.
10.8 ESTOPPEL CERTIFICATE.
Tenant agrees, from time to time, upon not less than 10 days' prior
written request by Landlord, to execute, acknowledge and deliver to Landlord a
statement in writing certifying that this Lease is unmodified and in full force
and effect; that, to Tenant's knowledge, Tenant has no defenses, offsets or
counterclaims against its obligations to pay the Rent and to perform its other
covenants under this Lease; that to the extent true, there is no default or
Event of Default then existing and Tenant has not received a notice of any
alleged default by Tenant under the Lease; that the Lease has not been modified
or amended (or, if there have been modifications, that this Lease is in full
force and effect as modified and stating the modifications, and, if there are
any defenses, offsets, counterclaims, or defaults, setting them forth in
reasonable detail); the dates to which the Base Rent, Additional Rent and other
charges have been paid; and such other factual matters as Landlord may
reasonably request. Any such statement delivered pursuant to this Section 10.8
shall be in a form reasonably acceptable to and may be relied upon by any
prospective purchaser or mortgagee of premises which include the Premises or any
prospective assignee of any such mortgagee.
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10.9 WAIVER OF JURY TRIAL.
THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY ANY PARTY(IES) AGAINST ANY OTHER PARTY(IES) ON ANY MATTER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP OF THE
PARTIES CREATED HEREUNDER.
10.10 ACTS OF GOD.
In any case where either party hereto is required to do any act, delays
caused by or resulting from Acts of God, war, civil commotion, fire, flood or
other casualty, labor difficulties not limited to the Premises or Tenant's or
Landlord's business operations, shortages of labor, materials or equipment,
government regulations, unusually severe weather, or other causes beyond such
party's reasonable control shall not be counted in determining the time during
which work shall be completed, whether such time be designated by a fixed date,
a fixed time or a "reasonable time", and such time shall be deemed to be
extended by the period of such delay.
10.11 BROKERAGE.
Tenant represents and warrants that it has dealt with no broker in
connection with this transaction other than the Brokers and agrees to defend,
with counsel reasonably approved by Landlord, indemnify and save Landlord
harmless from and against any and all cost, expense or liability for any
compensation, commissions or charges claimed by a broker or agent, other than
the Brokers, with respect to Tenant's dealings in connection with this Lease.
Landlord represents and warrants to Tenant that it has dealt with no broker in
connection with this transaction other than the Brokers and agrees to defend,
with counsel reasonably approved by Tenant, indemnify and save Tenant harmless
from and against any and all cost, expense or liability for any compensation,
commissions or charges claimed by a broker or agent with respect to Landlord's
dealings in connection with this Lease.
10.12 SUBMISSION NOT AN OFFER.
The submission of a draft of this Lease or a summary of some or all of
its provisions does not constitute an offer to lease or demise the Premises, it
being understood and agreed that neither Landlord nor Tenant shall be legally
bound with respect to the leasing of the Premises unless and until this Lease
has been executed by both Landlord and Tenant and a fully executed copy has been
delivered to each of them.
10.13 APPLICABLE LAW AND CONSTRUCTION.
This Lease shall be governed by and construed in accordance with the
laws of the state in which the Premises are located. If any term, covenant,
condition or provision of this Lease or the application thereof to any person or
circumstances shall be declared invalid or unenforceable by the final ruling of
a court of competent
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jurisdiction having final review, the remaining terms, covenants, conditions and
provisions of this Lease and their application to persons or circumstances shall
not be affected thereby and shall continue to be enforced and recognized as
valid agreements of the parties, and in the place of such invalid or
unenforceable provision, there shall be substituted a like, but valid and
enforceable provision which comports to the findings of the aforesaid court and
most nearly accomplishes the original intention of the parties.
There are no oral or written agreements between Landlord and Tenant
affecting this Lease, except as specified in this Lease. This Lease may be
amended, and the provisions hereof may be waived or modified, only by
instruments in writing executed by Landlord and Tenant.
The titles of the several Articles and Sections contained herein are
for convenience only and shall not be considered in construing this Lease,
Unless repugnant to the context, the words "Landlord" and "Tenant"
appearing in this Lease shall be construed to mean those named above and their
respective heirs, executors, administrators, successors and assigns, and those
claiming through or under them respectively to there be more than one tenant,
the obligations imposed by this Lease upon Tenant shall be joint and several.
10.14 SIGNS.
Tenant may install, at its sole cost and expense, signsat the Property.
All signage must comply with all applicable laws, codes and regulations,
including, without limitation, zoning and building codes. Tenant shall be
responsible for obtaining all necessary permits and approvals. The location,
materials, design and method of installation of all signage shall be subject to
Landlord's prior written approval.
SIGNATURES FOLLOW ON NEXT PAGE
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EXECUTED as a sealed instrument in two or more counterparts on the day
and year first above written.
LANDLORD:
BOULDER WALNUT LLC
By: Boulder Campus LLC, Manager
By: MSC Boulder LLC, Primary Member
By: /s/ JOHN H. BAXTER
----------------------------
Name: John H. Baxter
Title: Vice President
TENANT:
EXABYTE CORPORATION
By: /s/ WILLIAM L. MARRINER
--------------------------------------
Name: William L. Marriner
Title: President and Chief Executive Officer
A copy of Tenant's corporate authorization for such execution is attached
hereto.
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EXHIBIT 10.35
The Registrant hereby agrees to furnish supplementally a copy of the following
omitted Certificates and Appendices:
Certificate Certificate of Incumbency
Appendix A Plan of Premises