1
EXHIBIT 10.37
LEASE
BY AND BETWEEN
BOULDER 38TH LLC
AND
EXABYTE CORPORATION
October 1, 1999
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<Table>
ARTICLE I - REFERENCE DATA..................................................1
1.1 BASIC LEASE TERMS................................................1
1.2 EXHIBITS.........................................................3
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....................4
ARTICLE IV - RENT...........................................................4
4.1 BASE RENT........................................................4
4.2 ADDITIONAL RENT..................................................5
4.3 REAL PROPERTY TAXES..............................................6
4.4 PAYMENTS.........................................................6
ARTICLE V - LANDLORD'S COVENANTS............................................6
5.1 LANDLORD'S COVENANTS DURING THE TERM.............................6
5.2 INTERRUPTIONS....................................................7
ARTICLE VI - TENANT'S COVENENTS.............................................8
6.1 TENANT'S COVENANTS DURING THE TERM...............................8
ARTICLE VII - CASUALTY AND TAKING..........................................14
7.1 CASUALTY AND TAKING.............................................14
7.2 RESERVATION OF AWARD............................................14
ARTICLE VIII - RIGHTS OF MORTGAGEE.........................................14
8.1 SUBORDINATION...................................................14
8.2 SUCCESSOR LANDLORD..............................................15
8.3 NO PREPAYMENT OR MODIFICATION, ETC..............................16
ARTICLE IX - DEFAULT.......................................................16
9.1 EVENTS OF DEFAULT...............................................16
9.2 TENANT'S OBLIGATIONS AFTER TERMINATION..........................17
ARTICLE X - MISCELLANEOUS..................................................18
10.1 NOTICES FROM ONE PARTY TO THE OTHER.............................18
10.2 BIND AND INURE..................................................18
10.3 NO SURRENDER....................................................19
10.4 NO WAIVER, ETC..................................................19
10.5 NO ACCORD AND SATISFACTION......................................19
10.6 CUMULATIVE REMEDIES.............................................19
10.7 LANDLORD'S RIGHT TO CURE........................................20
10.8 ESTOPPEL CERTIFICATE............................................20
10.9 WAIVER OF JURY TRIAL............................................20
10.10 ACTS OF GOD.....................................................20
10.11 BROKERAGE.......................................................21
10.12 SUBMISSION NOT AN OFFER.........................................21
10.13 APPLICABLE LAW AND CONSTRUCTION.................................21
</Table>
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<Table>
10.14 SIGNS...........................................................22
10.15 SECURITY DEPOSIT................................................22
10.16 RENEWAL OPTIONS.................................................23
EXHIBIT A - PLAN OF PREMISES..........................................A-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:
LANDLORD: Boulder 38th 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 Property
Management Services Inc.
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 98,466 rentable square
feet in the complex commonly known as
1685-1695 38th Street and 1715-1775 38th
Street, Boulder, Colorado (the
"Buildings"), 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, other improvements and
easements related to the Buildings
(together with the Buildings, the
"Property")
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RENTABLE FLOOR AREA OF Approximately 98,466 rentable square
PREMISES: feet
COMMENCEMENT DATE: October 1, 1999
BUILDINGS RENTABLE AREA: 155,821 rentable square feet
TENANT'S PRO RATA SHARE: 63.20%
TERM EXPIRATION DATE: June 30, 2004
TERM: Four years and eight months 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 BASE RENT: 10/l/99-12/31/99 $1,192,423.20
1/1/00-12/31/00 $1,222,233.84
1/l/01-12/31/01 $1,252,789.68
1/l/02-12/31/02 $1,284,109.44
1/l/03-12/31/03 $1,316,212.20
1/l/04-6/30/04 $1,349,117.51
PARKING SPACES ALLOCATED TO TENANT: 312 unreserved parking spaces
SECURITY DEPOSIT: $17,500.00
PERMITTED USES: Office use and/or the administrative and
production facilities for the
manufacturing of computer products
BROKERS: None
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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
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 in common with others the Parking
Spaces Allocated to Tenant and the other Common Areas (as defined below) 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.
As used in this Lease, "Common Areas" shall mean all areas within the
Property which are not part of the rentable areas of the Buildings, including,
but not limited to, lobbies, loading docks, parking areas, driveways, sidewalks,
access roads, landscaping, and planted areas.
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.
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. Tenant acknowledges that it has been the
tenant of the Premises prior to the execution of this
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Lease and the Commencement Date and that it is fully aware of, and accepts the
condition of, the Premises as they are on the date hereof.
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 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. Notwithstanding the foregoing, Landlord's consent shall
not be required for any alterations or improvements to the Premises which do not
affect the structural integrity of the Premises or any of the Building systems
and which cost less than $50,000.
ARTICLE IV
RENT
4.1 BASE RENT.
Beginning on the 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 monthly installments in advance on the first day of
each calendar month 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
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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, (ill) all insurance premiums for which
Tenant is liable under Section 5.1.2 of the Lease and (iv) all roof and parking
lot repair and maintenance costs for which Tenant is liable under Section 5.1.3
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 maintenance expenses, 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 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.
ARTICLE V
LANDLORD'S COVENANTS
5.1 LANDLORD'S COVENANTS DURING THE TERM.
Landlord covenants during the Term:
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5.1.1 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.
5.1.2 Insurance. During the Term, Landlord shall maintain in effect all
risk insurance covering loss of or damage to the Buildings 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, operating costs for the
Property, 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.
5.1.3 Representations and Warranties. Landlord represents and warrants
to Tenant that (a) 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 have taken all actions necessary to authorize the execution and delivery
of this Lease and to perform its obligations under this Lease.
5.1.4 Tenant's Access. Tenant shall have access to the Premises at all
times (24 hours each day and seven days each week).
5.1.5 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
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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:
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, and (d) as Additional Rent, all
other charges payable to Landlord pursuant to this Lease.
6.1.2 Repairs to Premises 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
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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 Care of Property. Tenant shall, at its own cost, and in a manner
acceptable to Landlord, (A) operate, maintain, and repair the Building of which
the Premises is a part, including, without limitation, the interiors and
exteriors of the Building, including the roofs, drainage systems, gutters, walls
and foundations; mechanical, electrical, plumbing, security and communication
systems, including all connections to all services; exterior loading and trash
areas, walkways, driveways, entrances and the parking lot servicing the
Building; and (B) hire, supervise, direct and pay for the maintenance and repair
of all painted surfaces; all mechanical, plumbing, electrical and communication
systems and services; all walls, glass doors and other exterior areas of the
Buildings; all security and safety systems; all landscaping; the removal of
snow, trash, rubbish, garbage and other refuse; all supplies used in the
maintenance of the Property; all depreciation on the machinery and equipment
used in such maintenance and repairs; personnel to oversee such maintenance
operations and to perform maintenance jobs; all hallways, elevators, lobbies and
loading docks, all utilities necessary to operate and maintain the Building in
good operating condition and in a manner equal to that of other first-class
properties and building in the City of Boulder.
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 Buildings; not to dump, flush, or in any wav
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 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.
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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.
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
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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 6.1.9 shall (i) be primary and
(ii) insure Tenant's obligation to Landlord under Section 6.1.8 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.
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.
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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
6.1.9(a)-(e) and not less than 30 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, 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
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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
6.1.13), 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 I)remises, 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 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
(i) the then fair market rent as conclusively determined by Landlord or (ii) 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
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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
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 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,
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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.
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 tinder 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 for
more than one month in advance or any amendment or modification of this Lease
made without the
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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
(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
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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 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
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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.
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.
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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.
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.
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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.
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,
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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 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,
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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, signs on the Building
and the monument sign as presently existing. 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. Any changes in the location, materials, design and method
of installation of all signage, or any new signage, shall be subject to
Landlord's prior written approval.
10.15 SECURITY DEPOSIT.
Tenant has deposited with Landlord the Security Deposit as security for
the full, faithful and punctual performance by Tenant of all of the terms of
this Lease, whether in cash or by delivery to Landlord of a clean, irrevocable
letter of credit in the amount of the Security Deposit. In the event Tenant
defaults in the performance of any of the terms of this Lease, including the
payment of Rent, Landlord may use, apply or retain the whole or any part of the
Security Deposit to the extent required for the payment of any Rent or for any
sum which Landlord may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms of this Lease, including any damages or
deficiency in the re-letting of the Premises, whether accruing before or after
summary proceedings or other re-entry by Landlord. In the case of every such
use, application or retention, Tenant shall, on demand, pay to Landlord the sum
so used, applied or retained which shall be added to the Security Deposit so
that the same shall be replenished to its former amount and Tenant's failure to
do so shall be a material breach of this Lease. If the monthly Rent shall, from
time to time, increase during the Term, Tenant shall then deposit with Landlord
an additional security deposit so that the amount of such Security Deposit held
by Landlord shall at all times bear the same proportion to current Rent as the
original security deposit bears to the original monthly Rent set forth in this
Lease. Landlord shall not be required to keep such deposit separate from its
general accounts and Tenant shall not be entitled to interest on the Security
Deposit. The Security Deposit shall not be deemed a limitation on Landlord's
damages or a payment of liquidated damages or a payment of the monthly Rent due
for the last month of the Term of this Lease. If Tenant shall fully and
punctually comply with all of the terms of this Lease, the Security Deposit, or
so much of it as has not been applied by Landlord, shall be returned to Tenant,
without interest or other increment for its use, after the termination of this
Lease and after delivery of exclusive possession of the Premises to Landlord. In
the event of a sale or lease of the Building, Landlord shall have the right to
transfer the Security Deposit to the vendee or lessee and Landlord shall
immediately be released by Tenant from all liability for the return of such
Security Deposit; and Tenant agrees to look solely to the new owner or landlord
for the return of said Security Deposit; and it is agreed that the provisions
hereof shall
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apply to every transfer or assignment made of the Security Deposit to a new
owner or landlord. Tenant shall not assign or encumber or attempt to assign or
encumber the monies deposited herein as the Security Deposit and neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or encumbrance. This Lease does not create a
trust relationship between Landlord and Tenant with respect to such Security
Deposit, and Landlord shall be entitled to treat such Security Deposit as
Landlord's own property, subject only to Tenant's right to receive repayment of
it as and to the extent provided in this Section.
10.16 RENEWAL OPTIONS.
10.16.1 Provided Tenant is not in default under this Lease and that no
event or condition exists which with notice and the expiration of any grace
period would constitute an Event of Default under this Lease at the time the
option may be exercised and at the time the Renewal Period commences, Landlord
grants Tenant options (the "Renewal Options") to extend this Lease with respect
to all of the Premises for two additional consecutive periods of five years
(each a "Renewal Period"). The first Renewal Option shall be exercised by Tenant
delivering written notice to Landlord at least 9 months prior to the Expiration
Date of the initial Term, and provided that Tenant has exercised the first
Renewal Option, the second Renewal Option may be exercised by Tenant delivering
written notice to Landlord at least 9 months prior to the Expiration Date of the
Term of the first Renewal Period.
10.16.2 The rate of annual Base Rent (the "Renewal Rental Rate") for
each Renewal Period shall be the market rental rate, which shall be the rental
rate then being charged by landlords (including Landlord) in the metropolitan
area in which the Premises is located on new leases or on renewed leases to
tenants of a similar credit quality to Tenant for space of similar quality and
size as the Premises, but in no event shall the Renewal Rental Rate be less than
the Base Rent in effect for the last Lease Year of the initial Term.
10.16.3 Within fifteen days after Tenant's exercise of each Renewal
Option, Landlord shall notify Tenant in writing of Landlord's proposed Renewal
Rental Rate as determined by the above formula. Tenant shall have ten days from
the receipt of Landlord's notice to either accept or dispute Landlord's
determination of the Renewal Rental Rate. In the event that Tenant disputes
Landlord's determination, Tenant shall so notify Landlord and advise Landlord of
Tenant's determination of the Renewal Rental Rate for the Renewal Period as
determined by the above formula. If Landlord and Tenant cannot agree upon the
Renewal Rental Rate within thirty days of Tenant's original notice of its intent
to exercise its Renewal Option, the following "Dispute Resolution Mechanism"
shall be utilized: The parties, within ten days after the expiration of said
thirty day period, shall jointly appoint as arbitrator, a certified commercial
real estate appraiser with a minimum of ten years experience in the applicable
market, employed by a major real estate firm operating in the Boulder, Colorado
area. If Landlord and Tenant cannot agree on an acceptable arbitrator, Landlord
and Tenant shall each choose, within an additional ten days thereafter, its own
arbitrator who meets the qualifications described above. The arbitrators shall
then
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jointly select, within an additional ten days, an arbitrator to serve as the
arbitrator hereunder. Within twenty days after appointment, the arbitrator shall
choose either Landlord's or Tenant's determination of the Renewal Rental Rate.
The cost of the arbitrator(s) shall be borne by the party whose determination of
the Renewal Rental Rate was not selected by the arbitrator.
10.16.4 Landlord and Tenant shall execute an amendment to this Lease
within fifteen days after the determination of the Renewal Rental Rate, which
amendment shall set forth the extended Term and the Renewal Rental Rate. Except
for any change in the rate of Base Rent, the Renewal Period shall be subject to
all of the terms and conditions of this Lease.
10.16.5 Neither any option granted to Tenant to renew or extend the
Term, nor the exercise of any such option by Tenant, shall prevent Landlord from
exercising any option or right granted or reserved to Landlord in this Lease, or
that Landlord may otherwise have, to terminate this Lease or any renewal or
extension of the Term either during the original Term or during the renewed or
extended term. Any renewal or extension right granted to Tenant shall be
personal to Tenant and may not be exercised by any assignee, subtenant or legal
representative of Tenant. Any termination of this Lease shall serve to terminate
any such renewal or extension of the Term, whether or not Tenant shall have
exercised the option to renew or extend the Term. No option granted to Tenant to
renew or extend the Term shall be deemed to give Tenant any further option to
renew or extend.
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 38TH 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 10.37
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