EXHIBIT 10.33
QUANTUM CORPORATION
_
_
_
_
_ LEASE AGREEMENT
_
_ WESTERN MANUFACTURING WING
_
_
_
_1. PARTIES
_
_ This Lease, dated this 31st day of August, 1995, is entered
_into between CRAY COMPUTER CORPORATION, a Delaware corporation
_("Landlord"), whose address is 0000 Xxxxxxxx Xxxx, P.O. Box
_17500, Xxxxxxxx Xxxxxxx, XX 00000, and QUANTUM CORPORATION, a
_Delaware corporation ("Tenant"), whose address is 000 XxXxxxxx
_Xxxxx, Xxxxxxxx, XX 00000.
_
_2. PREMISES
_
_ Landlord hereby leases to Tenant, and Tenant hereby leases
_from Landlord, those certain premises shown in cross-hatch on the
_plan attached hereto as EXHIBIT A (hereinafter referred to as the
_"Premises"), and hereby by reference thereto made a part hereof.
_The Premises consist of approximately 128,000 rentable square
_feet inclusive of the western wing or section of that certain
_building known as the Cray Computer Corporation building located
_at 0000 Xxxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx, and
_approximately 26.4891 acres of land, all as shown on EXHIBIT A
_attached hereto and legally described on EXHIBIT B attached
_hereto (the "Project"). The Project does not include the vacant
_land which is owned by Cray and which is adjacent to the Premises
_and, accordingly, no Additional Rent shall be payable with
_respect to said vacant land. Tenant shall also have the right to
_use in conjunction with other tenants in the building, all common
_facilities in the Project including hallways, conference rooms,
_restroom facilities, elevators and stairs.
_
_ Said letting is upon and subject to the terms, covenants and
_conditions herein set forth, and Tenant covenants as a material
_part of the consideration for this Lease, to keep and perform
_each and all of the terms, covenants and conditions by it to be
_kept and performed, and that this Lease is made upon the
_condition of such performance.
_
_3. USE
_
_ (a) The Premises are to be used for general office purposes
_the design and manufacture of electronic components, chips, semi-
_conductors and parts, and the assembly and storage of same, and
_all uses appurtenant to any of the foregoing from time to time
_hereafter, and for no other purpose without the prior written
_consent of Landlord. Tenant shall be deemed at all times to be
_in compliance with all terms and conditions of this paragraph
_3(a) so long as Tenant's use of the Premises shall be
_substantially similar to the use of the Premises by Landlord
_prior to the commencement Date.
_
_ (b) Tenant shall not use, or permit said Premises or any
_part thereof to be used, for any purpose or purposes other than
_the purposes for which the said Premises are leased; and no use
_shall be made or permitted to be made of the Premises, nor acts
_done, which will increase the existing rate of insurance upon the
_Project, or cause a cancellation of any insurance policy covering
_the Project, or any part thereof (and Landlord represents and
_warrants that Tenant's use of the Premises permitted in
_paragraph 3(a) above shall not cause any such termination), nor
_shall Tenant sell, or permit to be kept, used or sold in or about
_the Premises any article which may be prohibited by Landlord's
_insurance policies. Tenant shall not commit, or suffer to be
_committed, any waste upon the Premises or any public or private
_nuisance, or other act or thing which may disturb the quiet
_enjoyment of any other tenant at the Project, nor without
_limiting the generality of the foregoing, shall Tenant allow the
_Premises to be used for any improper, immoral, unlawful or
_objectionable purpose, nor shall Tenant use any apparatus,
_machinery or device in or about the Premises which shall make any
_noise or set up any vibration which impairs the use of the
_Project by other tenants at the Project.
_
_ (c) Tenant shall not use the Premises or permit anything to
_be done in or about the Premises which will in any material way
_conflict with any applicable law, statute, ordinance or
_government rule or regulation now in force or which may hereafter
_be enacted or promulgated, unless the continuation of such use is
_permitted thereunder. Tenant shall, at it sole cost and expense,
_promptly and substantially comply with all laws, statutes,
_ordinances and governmental rules, regulations or requirements
_now in force or which may hereafter be in force, and with the
_requirements of any board of fire underwriters or other similar
_body now or hereafter constituted relating to or affecting the
_conditions, use or occupancy of the Premises, but Tenant shall
_not be required to alter the physical improvements in the
_Premises or make structural changes to the Project, which
_alterations and changes shall remain the responsibility of the
_Landlord and shall be made at Landlord's sole cost and expense.
_
_ (d) Tenant will not at any time, without obtaining
_Landlord's prior written consent, conduct or permit any fire,
_bankruptcy or auction sale at the Premises; or park, operate,
_load or unload any truck or other delivery vehicle any place
_other than the loading area designated for such use; or use the
_plumbing facilities for any purpose other than that for which
_they were constructed, or dispose of any foreign substance
_therein other than in conformity with applicable laws and
_permits; or install any amplifiers, loudspeakers, phonographs,
_microphones, or similar devices for any purpose, or use any
_advertising medium, which may be heard or seen outside of the
_building; permit any rubbish or garbage to accumulate on the
_Premises in other than rubbish removal areas; or install,
_maintain, alter or operate any sign or display visible to public
_view inside or outside the Project, except as provided in the
_section entitled "SIGNAGE" contained herein; or store materials,
_supplies, equipment or other materials outside the Project or
_outside of the Premises.
_
_ (e) Tenant will not, at any time, deface or injure any
_portion of the Premises; or burn anything in or about the
_Premises except in connection with the permitted use of the
_Premises hereunder; or keep or display any merchandise or other
_object on, or otherwise obstruct any sidewalks, stairways,
_walkways, streets, parks or parkways; or use or permit the use of
_any portion of the Premises as living quarters, sleeping rooms or
_for similar uses.
_
_4. RENT
_
_ Tenant shall pay to Landlord, without offset, deduction,
_notice, or demand, rent ("Rent") for the Premises as follows:
_
_ (a) BASE RENT. Tenant shall pay to Landlord as rent
_during the Primary Lease Term the amounts and the rates as
_follows:
_
_ Rental for the Primary Lease Term shall be $2,248,000
_ ("Base Rent") payable in advance upon execution of this
_ Lease by Landlord.
_
_Rent shall be payable in advance, on or before the first day of
_each and every calendar month during the term hereof. Base Rent
_shall be paid to Landlord in lawful money of the United States of
_America at the address of Landlord set forth in Section 1 hereof,
_or such place as Landlord may from time to time designate in
_writing. Notwithstanding anything herein to the contrary, in the
_event the term of this Lease ends on a day other than the last
_day of a calendar month, then upon the first day of the last
_calendar month of the term hereof, Tenant shall pay to Landlord,
_as rental for the period from said first day of the last calendar
_month to and including the last day of the term hereof, that
_proportion of the monthly rental which the number of days between
_said first day of said calendar month and the last day of the
_term of said Lease bears to the actual number of days in said
_month.
_
_ (b) ADDITIONAL RENT. Tenant covenants and agrees to
_pay an Additional Rent amount equal to Tenant's proportionate
_share ("Tenant's Proportionate Share") of the amount of "Direct
_Operating Expense" and "Real Estate Taxes" (as said terms are
_hereinafter defined) incurred for the year 1995 and each year
_thereafter during the Term of this Lease, but in no event shall
_such terms include unpaid expenses or taxes for years prior to
_1995. Additional Rent shall be paid to the management company
_which is a party to the Management Agreement ("Management
_Company") to be held separate from Landlord's funds for the
_purposes set forth herein.
_
_ (i) DIRECT OPERATING EXPENSE: All direct costs of
_operation and maintenance of the Project determined by standard
_accounting practices according to GAAP which shall include the
_following costs by way of illustration, but shall not be limited
_to: fees paid to the Management Company pursuant to the
_Management Agreement, as hereinafter defined, payroll charges
_and/or taxes and workmen's compensation but only for personnel
_employed by the Management Company to work solely with respect to
_the Project or a pro rata share of such items if the personnel
_are employed to work on buildings other than the Project,
_insurance, electricity, lamps, florescent tubes, ballasts, steam,
_fuel, utility taxes, water (including sewer charges and/or
_rental), casualty and liability insurance, repairs and cleaning
_fees, security system and burglar alarm costs for the existing
_system and alarm, service contracts with independent contractors,
_telephone, stationery, and equipment necessary for the
_maintenance and operation of the Project. "Direct Operating
_Expenses" shall not include depreciation on the Project or
_equipment therein, loan payments, real estate brokers
_commissions, capital expenditures or tenant finish expenses for
_other Tenants. Concurrently herewith, Landlord has entered into
_the Management Agreement with Xxxx, The Real Estate Services
_Company, dated August 31, 1995, a copy of which is attached
_hereto as EXHIBIT C (the "Management Agreement").
_
_ Landlord will not take any action, except actions
_required by law, which will materially increase the amount of
_Direct Operating Expenses at the Project over the amount of such
_expenses for the calendar year 1994.
_
_ (ii) REAL ESTATE TAXES shall mean and include all
_general and special taxes and assessments levied upon or assessed
_against the Project. If at any time during the term of this
_Lease, the method of taxation of real estate prevailing at the
_time of execution hereof shall be or has been altered so as to
_cause the whole or any part of the taxes now or hereafter levied,
_assessed or imposed on real estate to be levied, assessed or
_imposed upon Landlord wholly or partially as a capital levy or
_measured by the rents received therefrom, then such new or
_altered taxes attributable to the Premises shall be deemed to be
_included within the term "Real Estate Taxes" for the purposes of
_this paragraph, except that such shall not be deemed to include
_any enhancement of said tax attributable to other income or other
_ownerships of Landlord. Tenant shall in no event be responsible
_to reimburse Landlord for any general income tax liabilities
_incurred by Landlord nor any franchise, excise, sales or excess
_profits tax levied upon or assessed against Landlord.
_
_ Tenant shall have the right, by itself or together with
_other tenants of the Project, and at its expense, to contest the
_validity of and seek an abatement of the Real Estate Taxes in the
_name of the Landlord, and the Landlord agrees to cooperate with
_Tenant in any such contest and in connection therewith shall make
_available to Tenant such information and shall execute such
_authorizations or instruments as Tenant may reasonably request.
_The proceeds of any abatement award shall be applied first to
_reimburse the parties for the costs and expenses, including
_attorney's fees, of obtaining such abatement; second, to
_reimburse Tenant and other tenants in the Project for any
_payments made to the Landlord which were attributable to the
_increased taxes; and, third, to the Landlord.
_
_ (iii) The Tenant shall pay the amount of Direct
_Operating Expenses and Real Estate Taxes multiplied by a
_fraction, the numerator of which is the Tenant's approximate
_rentable square footage and denominator of which is the square
_footage contained in the Project, which contains approximately
_168,000 rentable square feet. The tenant's rentable square
_footage is agreed to be 128,000 square feet, which constitutes
_76.20% of the Project, except if all tenants in the Project agree
_otherwise with the Management Company which agreement shall not
_be binding upon Landlord but shall be effective between and among
_the tenants at the Project.
_
_ Landlord shall give to Tenant on or before the
_first day of January of each year during the Term a statement of
_the estimated Additional Rent payable by Tenant hereunder, but
_failure by Landlord to give such statement by said date shall not
_constitute a waiver by Landlord of its right to collect
_Additional Rent. The amount so estimated shall be divided into
_twelve (12) equal installments, and Tenant shall pay the Landlord
_an amount equal to 1/12th of such estimate on or before the first
_day of each calendar month of each such year. Upon receipt by
_Landlord of the actual statements for Direct Operating Expenses
_and Real Estate Taxes for the year, Landlord shall refund any
_excess of the estimated monthly payments of Additional Rental
_paid hereunder or Tenant shall pay Tenant's Proportionate Share
_of the amount by which the actual statements exceed the estimated
_monthly payments. Tenant upon prior written notice to Landlord
_shall be entitled to inspect Landlord's books and records for the
_Project (which Landlord agrees to maintain for a period of not
_less than five (5) years after the end of the applicable calendar
_year) as contemplated herein. Such right of inspection shall be
_limited to two (2) semi-annual inspections per year and Tenant
_shall not be entitled to withhold or delay the payment of
_Additional Rent until Tenant inspects or completes its inspection
_of Landlord's books and records.
_
_ (iv) Even if the Term has expired and Tenant has
_vacated the Premises when the final determination is made of
_Tenant's share of Direct Operating Expenses and/or Real Estate
_Taxes for the year in which this Lease terminates, Tenant shall
_immediately pay any such amounts due to Landlord.
_
_ (v) In the event that the Commencement Date of
_this Lease shall be a day other than the first day of the year or
_if the term of this Lease shall expire or be terminated on a day
_other than the last day of the year, then the Additional Rent due
_hereunder for the then current year shall be reasonably estimated
_by Landlord and shall be prorated and payable by Tenant on a
_monthly basis as set forth in subparagraph (iii) of this
_paragraph 4.
_
_ (c) LATE CHARGE. Tenant agrees that in the event any
_payment or installment of Additional Rent hereunder is not paid
_on or before the tenth day of each month, Tenant shall pay to
_Landlord a rental delinquency charge of One Hundred Dollars
_($100.00), which sum shall be due and payable upon such default.
_Any rent or sums due from Tenant which are more than one (1)
_month delinquent shall bear interest at the rate of 12% per annum
_from the due date.
_
_5. PREPARATION AND ACCEPTANCE OF PREMISES
_
_ (a) Landlord agrees that Tenant may cause the Premises to
_be modified in accordance with the plans, specifications and
_agreement approved by both parties and attached hereto as
_EXHIBIT C and made a part of this Lease. The work required to
_complete the Premises to the Tenant's specifications shall be
_completed at the cost and expense of Tenant.
_
_ Landlord represents that the Premises are suitable for
_purposes for which they are intended. Neither Landlord nor
_Landlord's agents have made any other representations, warranties
_or promises with respect to the physical condition of the
_Project, the land upon which it is erected, or the Premises, or
_any matter or thing affecting or related to the Premises except
_as herein expressly set forth in this Lease.
_
_ (b) The "Commencement Date" of this Lease is September 1,
_1995. The Tenant, by taking possession of the Premises, shall be
_deemed to have agreed that the Premises are then in a
_satisfactory order, repair and condition, except as set forth on
_a list prepared by Landlord and Tenant prior to occupancy and
_Tenant shall provide Landlord, upon request, a written
_acknowledgement of acceptance.
_
_6. TERM
_
_ This Lease shall have a term of two years ("Primary Lease
_Term"), commencing on the Commencement Date. If the Commencement
_Date is not the first day of the month, Rent for the month in
_which the Commencement Date occurs shall be prorated based on the
_number of days during such month that the term is in effect. The
_first full monthly installment of rent shall be due on the first
_day of the next month and after the expiration of the number of
_years of the Primary Lease Term, the term shall be extended on
_the last day of the same month in which the Commencement Date of
_the Primary Lease Term occurred, it being the intent of the
_parties that the Primary Lease Term expire on the last day of a
_month. If, after the expiration of this Lease, Tenant shall
_remain in possession of the Premises the possession shall be
_pursuant to the Holdover Term as provided in Section 7 below. The
_Primary Lease Term and the Holdover Term are collectively
_referred to as the Combined Term.
_
_7. HOLDOVER TERM
_
_ Provided that (i) Tenant is not in default hereunder at the
_end of the Primary Lease Term beyond any grace period applicable
_thereto or (ii) neither Landlord nor Tenant has given to the
_other a notice at least twelve (12) months prior to the end of
_the Primary Lease Term in the case of the Landlord's notice or
_thirteen (13) months prior to the end of the Primary Lease Term
_in the case of the Tenant's notice terminating this Lease as of
_the end of the Primary Lease Term, Tenant may continue in
_possession of the Premises and this Lease shall be extended for
_an additional term of three (3) years (the "Holdover Term"). The
_terms and conditions of this Lease will govern the Holdover Term
_except that the Base Rent shall be $720,000.00 per annum payable
_in monthly installments of $60,000.00 per month.
_
_ This Lease may be terminated during the Holdover Term but
_not the Primary Lease Term by either Tenant or Landlord by
_election in writing to terminate, which election may be made
_during the Primary Lease Term or the Holdover Term. The
_termination date of this Lease shall be thirteen (13) months
_following the date of a notice of election to terminate from
_Tenant and twelve (12) months following the date of a notice of
_election to terminate from Landlord.
_
_8. SECURITY DEPOSIT
_
_ The prepaid rent paid hereunder is not a security deposit.
_If Tenant defaults with respect to any provisions of this Lease,
_including but not limited to the provisions relating to the
_payment of Rent, Landlord may apply any part of the prepaid rent
_to the payment of any sum in default, accrued interest, late
_payment fees, or for the payment of or to compensate Landlord for
_any other loss or damage which Landlord may suffer by reason of
_Tenant's default. Landlord shall not be required to keep the
_prepaid rent separate from its general funds, and Tenant shall
_not be entitled to a return of prepaid rent in any event or
_interest on the prepaid rent.
_
_8.A. PUT
_
_ In the event that a tenant at the Project gives to the
_Landlord a notice of termination under the paragraph entitled
_"Holdover Term" contained in such tenant's lease, Landlord shall
_notify the Tenant of the fact of the notice of termination and
_the anticipated date of vacation of the Project by the vacating
_tenant. Tenant shall have thirty (30) days after the date of the
_notice from the Landlord to agree to rent the premises of the
_vacating tenant (the "Additional Premises") on the same terms and
_conditions as rented to the vacating tenant. In the event that
_the Tenant elects to occupy the Additional Premises of the
_vacating tenant, the Tenant will accept all and not less than all
_of the Additional Premises. The Additional Premises shall be
_added to the Premises hereunder and the rent and terms and
_conditions of this Lease shall control except for amendments to
_add the Rent for the Additional Premises and Additional Premises
_to the Premises hereunder. Nothing contained herein shall affect
_the Tenant's or the Landlord's rights to terminate this Lease
_including the Additional Premises under the paragraph entitled
_"Holdover Term" below.
_
_9. ENVIRONMENTAL MATTERS
_
_ (a) ENVIRONMENTAL COMPLIANCE. Tenant and its agents and
_employees shall use the Premises and conduct any operations
_thereon in compliance with all applicable federal, state and
_local environmental health and safety statutes, regulations,
_ordinances and any permits, approvals or judicial or
_administrative orders issued thereunder ("Environmental Laws").
_
_ (b) ENVIRONMENTAL HAZARDS. Tenant covenants that:
_
_ (i) No Hazardous Substances other than those required
_in connection with the Tenant's business which will be handled
_and disposed of in accordance with all Environmental Laws shall
_be generated, treated, stored or disposed of, or otherwise
_deposited in or located on the Premises or the Project by Tenant
_or anyone for whom Tenant is legally responsible, including
_without limitation, the surface and subsurface waters of the
_Premises;
_
_ (ii) No activity shall be undertaken on the Premises or
_the Project by Tenant or anyone for whom Tenant is legally
_responsible, which would cause:
_
_ a. the Project or the Premises to become a
_hazardous waste treatment, storage or disposal facility within
_the meaning of, or otherwise cause the Premises to be in
_violation of the Resource Conservation and Recovery Act of 1976
_("RCRA"), 42 U.S.C. Section 6901 et seq., or any similar state
_law or local ordinance;
_
_ b. a release or threatened release from any
_source on the Project or the Premises of Hazardous Substances
_from the Premises within the meaning of, or otherwise cause the
_Premises to be in violation of, the Comprehensive Environmental
_Response Compensation and Liability Act, as amended ("CERCLA"),
_42 U.S.C. Section 9601 et seq. or any similar law or local
_ordinance or any other environmental law; or
_
_ c. the discharge of pollutants or effluents into
_any water source or system, or the discharge into the air of any
_emissions, without the appropriate permit under the Federal Water
_Pollution Control Act ("FWPCA"), 33 U.S.C. Section 1251 et seq.
_or the Clean Air Act ("CAA"), 42 U.S.C. Section 7401 et seq., or
_any similar state law or local ordinance;
_
_ (iii) Under no circumstances will Tenant act as or be
_deemed to be the owner or operator of the underground storage
_tank located on the Premises containing diesel fuel used to power
_the emergency generator. Tenant will not be responsible for
_care, maintenance, filling, testing, or any other activity
_associated with the tank. Pursuant to the terms of the indemnity
_specified in this Lease, Landlord assumes all responsibilities of
_ownership and operation of the tank and all liabilities arising
_therefrom, except for Tenant's negligence.
_
_ (iv) The provisions of this Section shall not prohibit
_the use, storage, and disposal by Tenant of reasonable and
_necessary quantities of office equipment, supplies and other
_substances normally utilized by businesses engaged in the uses
_permitted hereunder, provided such use, storage, and disposal
_shall comply with all Environmental Laws.
_
_ Further, Landlord agrees that it will incorporate into any
_lease of space within the Project, a provision requiring any
_tenant to perform obligations substantially similar to those
_contained in this paragraph 9.
_
_ For purposes of this Lease, "Hazardous Substances" shall
_mean any and all hazardous or toxic substances, hazardous
_constituents, contaminants, wastes, pollutants or petroleum
_(including without limitation crude oil or any fraction thereof),
_including without limitation hazardous or toxic substances,
_pollutants and/or contaminants as such terms are defined in
_Environmental Laws including any modification or amendments of
_Environmental Laws as may occur during the Combined Term.
_Notwithstanding the foregoing to the contrary, Tenant shall not
_be responsible for the removal of any Hazardous Substances on or
_within the Premises or the Project which are addressed or listed
_in the attached Phase I and Phase II report attached hereto as
_Schedule I, including Hazardous Substances which are identified
_in the Phase I or Phase II report as probable to migrate to the
_Premises from an identified source (the "Pre-existing
_Condition").
_
_10. SERVICES
_
_ (a) Landlord agrees to furnish to the Premises at all times
_during the Combined Term, water and electricity suitable for the
_intended use of the Premises, heat and air conditioning necessary
_for the intended use of the Premises, usual janitorial and
_maintenance service and elevator service and all other services
_specified in the Management Agreement. Landlord shall also
_maintain and keep lighted the common stairs, entries and toilet
_rooms in the Project.
_
_ (b) Landlord shall not be liable for failure or
_interruption of utility services systems or services so long as
_Landlord uses reasonable diligence to provide or restore such
_services. Landlord may discontinue services due to accident,
_repairs, strikes, acts of God, or any other event beyond the
_reasonable control of Landlord; provided, however, that Landlord
_shall diligently pursue the restoration of such services. In
_such event, Landlord shall not be liable for such failure or
_discontinuance, nor shall such failure or discontinuance be
_construed as a constructive eviction of Tenant unless such
_failure shall prevent Tenant from doing business for a period of
_ten (10) calendar days, then such failure shall be an abatement
_of Rent. Landlord's obligation to furnish systems for the
_delivery of electricity and gas is further conditioned upon the
_availability of adequate sources from the utility company
_servicing the Project.
_
_ (c) If heat-generating machines or equipment, including
_telephone equipment, are brought into the Premises after the
_Commencement Date, which are in addition to the machines or
_equipment that have been approved by Landlord and which affect
_the temperature otherwise maintained by the air conditioning
_system, Landlord reserves the right to install supplementary air
_conditioning units in the Premises and the cost thereof,
_including the reasonable cost of installation, and the cost of
_operation and maintenance thereof, shall be paid by Tenant to
_Landlord upon demand by Landlord. Landlord has reviewed the
_equipment to be installed by Tenant in the Premises on the
_commencement date of the Lease, which approved equipment is more
_particularly described on EXHIBIT D (the "Approved Equipment")
_and agreed that such equipment will not require supplementary air
_conditioning units. Tenant will pay the costs for venting
_noxious fumes, if any, from the Premises.
_
_ (d) If Tenant shall require water or electric current in
_excess of that furnished or supplied for use of the Premises as
_intended as of the Commencement Date of this Lease, Tenant shall
_first procure the written consent of the Landlord, to the use
_thereof and Landlord, in the event Landlord consents to the
_excessive water or electric current usage, may cause a water
_meter or electric current meter to be installed in the Premises,
_so as to measure the amount of water and electric current
_consumed for any such other use. The cost of any such meters and
_of installation, maintenance and repair thereof, shall be paid
_for by Tenant, and Tenant agrees to pay to Landlord promptly upon
_demand therefore by Landlord for all such water and electric
_current consumed, as shown by said meters, at the rates charged
_for such services by the local public authority, or the local
_public utility, as the case may be, furnishing the same, plus any
_additional expense incurred keeping account of the water and
_electric current so consumed.
_
_11. TENANT REPAIRS AND ALTERATIONS
_
_ (a) Except for the improvements and alterations
_contemplated by EXHIBIT D, Tenant shall not make any alterations,
_additions or improvements to the Premises, or change any plumbing
_or wiring exceeding the cost of $50,000 in any one calendar year
_or any structural changes, without the prior written consent of
_Landlord. Plans and specifications for such work shall be
_submitted to and approved in writing by Landlord prior to
_commencement of any such work. No fixtures shall be removed from
_the Premises. Landlord shall have the right to approve Tenant's
_contractors as well as the general manner and method in which
_such work is to be performed. Prior to commencement of any work,
_Tenant shall provide Landlord with insurance certificates
_evidencing that all contractors and subcontractors have workmen's
_compensation insurance, and builder's risk insurance in amounts
_and with coverages satisfactory to Landlord. Any such new
_alterations, additions or improvements, including wall covering,
_paneling and built-in cabinet work, but excepting movable
_furniture and trade fixtures, shall at once become a part of the
_realty and belong to Landlord and shall be surrendered with the
_Premises. Upon the expiration of the term hereof, Tenant shall,
_upon written demand by Landlord, at Tenant's sole cost and
_expense, remove any alterations, additions or improvements made
_by Tenant, designated by Landlord to be removed at the time of
_giving of its consent; and Tenant shall, at its sole cost and
_expense, repair any damage to the Premises caused by such
_removal, except that Tenant shall have no obligation to make any
_repairs with respect to the removal of the assets purchased by
_Tenant from Landlord as of the date of execution of this Lease.
_Notwithstanding the preceding sentence, Tenant, upon expiration
_of the Lease, shall have no obligation to remove the improvements
_and alterations contemplated by EXHIBIT D, except that Tenant, at
_Landlord's election by notice to Tenant given at least ninety
_(90) days prior to Lease expiration, shall re-install (a) the
_drop ceiling to a height of ten (10) feet in the
_warehouse/storage area on the second level (such restoration to
_consist of the ceiling grid and ceiling tiles, lights, fire
_sprinklers, and HVAC diffusers and (b) the vinyl tile on the
_floor of the warehouse/storage area. At least twenty (20) days
_prior to the commencement of any work on the Premises for which
_Landlord's consent is required hereunder, Tenant shall notify
_Landlord of the names and addresses of the persons supplying
_labor and materials so that Landlord may give notice that it
_shall not be subject for any lien for Tenant's work, in
_accordance with Colorado's mechanics' lien statutes. Landlord
_shall have the right to keep posted on the Premises notice to
_such persons in accordance with such statute.
_
_ (b) Tenant shall pay or cause to be paid all costs for work
_done by or on behalf of Tenant or caused to be done by or on
_behalf of Tenant on the Premises of a character which will or may
_result in liens against Landlord's interest in the Premises or
_the Project, or any part thereof and Tenant will keep the same
_free and clear of all mechanics' liens and other liens on account
_of work done for or on behalf of Tenant or persons claiming under
_Tenant. Tenant hereby agrees to indemnify, defend and save
_Landlord harmless of and from all liability, loss, damages, costs
_or expenses, including attorneys' fees, incurred in connection
_with any claims of any nature whatsoever for work performed for,
_or materials or supplies furnished to Tenant, including lien
_claims of laborers, materialmen or others. Should any such liens
_be filed or recorded against the Premises or the Project with
_respect to work done for or materials supplied to or on behalf of
_Tenant or should any action affecting the title thereto be
_commenced, Tenant shall cause such liens to be released of record
_within twenty (20) days after notice thereof. If Tenant desires
_to contest any such claim of lien, Tenant shall nonetheless cause
_such lien to be released of record by discharge, bonding or the
_posting of adequate security with a court of competent
_jurisdiction as may be provided by Colorado's mechanics' lien
_statutes. If Tenant shall be delinquent in paying any charge for
_which such a mechanics' lien or suit to foreclose such a lien has
_been recorded or filed and shall not have caused the lien to be
_released as aforesaid, Landlord may (but without being required
_to do so) pay such lien or claim and costs associated therewith,
_and the amount so paid, together with interest thereon at the
_Interest Rate and reasonable attorneys' fees incurred in
_connection therewith, shall be immediately due from Tenant to
_Landlord as Additional Rent.
_
_12. PERSONAL PROPERTY TAXES
_
_ During the term hereof, Tenant shall pay prior to
_delinquency all personal property taxes assessed against and
_levied upon fixtures, furnishings, equipment and all other
_personal property of Tenant contained on the demised Premises,
_and Tenant shall cause said fixtures, furnishings, equipment and
_other personal property to be assessed and billed separately from
_the real property of Landlord. In the event any or all of the
_Tenant's fixtures, furnishings, equipment and other personal
_property shall be assessed and taxed with the Landlord's real
_property, the Tenant shall pay to Landlord its share of such
_taxes within ten (10) days after delivery to Tenant by Landlord
_of a statement, in writing accompanied by reasonable proof of the
_allocation to personal property taxes set forth in such
_statement, setting forth the amount of such taxes applicable to
_the Tenant's property.
_
_13. INDEMNITY
_
_ Tenant shall indemnify and hold harmless Landlord against
_and from any and all claims arising from Tenant's use of the
_Premises or any claim arising from any breach or default on
_Tenant's part under the terms of this Lease, or from any act,
_omission, or negligence of Tenant, or any officer, agent,
_employee, guest or invitee of Tenant, and from all costs,
_attorneys' fees, and liabilities incurred in or about the defense
_of any such claim or any action or proceeding brought thereon.
_Tenant assumes all risk of damage to property or injury to
_persons in, upon or about the Premises, from any cause other than
_Landlord's negligence or the negligence of any person or entity
_for whom Landlord is legally responsible. Tenant shall give
_prompt notice to Landlord in case of casualty or accidents in the
_Premises.
_
_ Landlord shall indemnify, hold harmless, and defend (with
_counsel reasonably acceptable to Tenant) Tenant from and against
_any liabilities, claims, demands, obligations, responsibilities,
_losses, damages, punitive damages, consequential damages, treble
_damages, charges, costs and expenses (including without
_limitation, attorneys', experts' and consultants' fees and costs
_of investigation and feasibility studies), fines, penalties, and
_monetary sanctions or interest which are incurred at any time
_relating to the Landlord's use or ownership of the Premises that
_(i) is the result of the existence of Landlord's operations on
_the Premises; (ii) is the result of the existence Hazardous
_Substances upon, about, or beneath the Premises prior to the
_Commencement Date which are Pre-Existing Conditions as defined
_above; or (iii) is the result of the existence of a violation of
_Environmental Laws pertaining to the Premises that existed or
_arose out of operations prior to the Closing Date (collectively
_"Pre-Existing Liabilities"), that may be incurred by, imposed
_upon, or asserted or awarded against Tenant, except for Pre-
_Existing Liabilities attributable to the gross negligence or
_willful misconduct of Tenant.
_
_14. INSURANCE
_
_ Tenant shall procure and maintain at its own cost at all
_times during the term of this Lease and any extensions hereof,
_fire, hazard and extended coverage insurance on Tenant's property
_and the contents of the Premises in an amount not less than full
_replacement value, comprehensive general liability insurance,
_including coverage for bodily injury, property damage, personal
_injury (employee and contractual liability, exclusions deleted),
_products and completed operations, contractual liability, owner's
_protective liability and broad form property damage with the
_following limits of liability: One Million Dollars
_($1,000,000.00) each occurrence combined single limit for bodily
_injury, property damage and personal injury; One Million Dollars
_($1,000,000.00) aggregate for bodily injury and property damage
_for products and completed operations. All such insurance shall
_be procured from a responsible insurance company authorized to do
_business in Colorado and rated no lower by Best than A-, and
_shall be otherwise satisfactory to Landlord. All such policies
_shall name Landlord and Landlord's managing agent as an
_additional insured only with respect to Tenant's negligence, and
_shall provide that the same may not be canceled or altered except
_upon thirty (30) days prior written notice to Landlord. All
_insurance maintained by Tenant shall be primary to any insurance
_provided by Landlord. If Tenant obtains any general liability
_insurance policy on a claims-made basis, Tenant shall provide
_continuous liability coverage for claims arising during the
_entire term of this Lease, regardless of when such claims are
_made, either by obtaining an endorsement providing for an
_unlimited extended reporting period in the event such policy is
_canceled or not renewed for any reason whatsoever or by obtaining
_new coverage with a retroactive date the same as or earlier than
_the expiration date of the canceled or expired policy. Tenant
_shall provide certificate(s) of such insurance to Landlord upon
_commencement of the Lease term and at least thirty (30) days
_prior to any annual renewal date thereof and upon request from
_time to time and such certificate(s) shall disclose that such
_insurance names Landlord and Landlord's managing agent as an
_additional insured, in addition to the other requirements set
_forth herein. The limits of such insurance shall not, under any
_circumstances, limit the liability of Tenant hereunder.
_
_ Landlord shall maintain during the Combined Term of this
_Lease liability insurance and all-risk fire, hazard and extended
_coverage insurance on the Project in the amount of the
_replacement value from insurance companies conforming to the
_standards set forth in this paragraph 14. Landlord shall provide
_certificate(s) of the insurance which Landlord is obligated to
_carry hereunder to the Tenant upon the execution of this Lease,
_and at least thirty (30) days prior to any annual renewal date
_thereof, and upon request from time to time by Tenant, and such
_certificate(s) shall disclose that such insurance complies with
_the requirements set forth herein. The limits of such insurance
_shall not, under any circumstances, limit the liability of
_Landlord hereunder.
_
_15. SUBROGATION
_
_ As long as their respective insurers so permit, Landlord and
_Tenant hereby mutually waive their respective rights of recovery
_against each other for any loss or damage to property insured by
_fire, extended coverage, or any other property insurance policies
_existing for the benefit of the respective parties. The
_foregoing waiver shall be in force only if both parties'
_insurance policies contain a clause providing that such a waiver
_shall not invalidate the insurance and such a policy can be
_obtained without additional premiums.
_
_16. LANDLORD REPAIRS
_
_ Landlord shall maintain all portions of the Project in good
_order, condition and repair, including without limitation the
_roof, foundation, and floor slab thereof, and of any structural
_portion of the Project which affects the Premises. There shall
_be no abatement of Rent and no liability of Landlord by reason of
_any injury to, or interference with, Tenant's business arising
_from the making of any repairs, alterations or improvements
_except as set forth in paragraphs 21 and 22 below.
_
_17. COMMON AREAS
_
_ All Common Areas shall be at all times under Landlord's
_exclusive control but subject to the right of Tenant to use the
_same at any time during the Term. Landlord shall keep common
_areas in clean and orderly condition. The term "Common Areas"
_means all the areas of the Project which are not intended for
_renting and, instead, designed for the common use and benefit of
_the Landlord and all of the tenants, their employees, agents,
_customers, and invitees. The Common Areas include, but, are not
_limited to, public restrooms, landscaped and vacant areas,
_parking areas (other than the exclusive areas thereof),
_driveways, walks, and curbs, and facilities appurtenant to each,
_as such areas may exist from time to time.
_
_18. SIGNAGE
_
_ Tenant may erect a sign on the door to the Premises and the
_entrance to the Project, provided that such sign shall meet all
_applicable municipal sign codes and the plans of which shall have
_been, previous to installation, submitted to Landlord for written
_approval which approval shall not be unreasonably withheld or
_delayed. All costs incurred in connection with any signage and
_the installation thereof shall be paid by Tenant.
_
_19. LIMITED LIABILITY
_
_ Landlord shall not be liable for any loss or damage
_resulting from: (a) fire, explosion, falling plaster, steam,
_(gas, electricity, water or rain); (b) the pipes, appliances or
_plumbing systems in the Project; (c) the roof, street,
_subsurface; (d) any variation or interruption of utility services
_so long as Landlord shall promptly use its best efforts to
_restore same; (e) theft or other criminal acts of third parties;
_or (f) any other cause whatsoever, unless due to the negligence
_or willful misconduct of Landlord or any person or entity for
_whom Landlord is legally responsible. Notwithstanding the
_foregoing, Landlord shall remain liable for the breach of
_contractual liabilities contained herein.
_
_20. ASSIGNMENT AND SUBLETTING
_
_ (a) Tenant shall not assign this Lease or sublet all or any
_part of the Premises without the prior written consent of
_Landlord, which consent shall not be unreasonably withheld or
_delayed. Landlord's consent to any requested assignment or
_subletting shall be subject to the following conditions:
_
_ (i) Such consent and resulting subletting or assignment
_shall not relieve Tenant of its primary obligations hereunder,
_including the obligation for payment of all Rent due hereunder;
_
_ (ii) Landlord, at its option and from time to time, may
_collect the rent from the subtenant or assignee, and apply the
_net amount collected to the rent herein reserved, but no such
_collection shall be deemed an acceptance by Landlord of the
_subtenant or assignee as the tenant hereof, or a release of
_Tenant from further performance of covenants on the part of
_Tenant herein contained;
_
_ (iii) Any such subtenant or assignee shall be a company
_or other entity of good repute, engaged in a business or
_profession compatible with and in keeping with the standards of
_the Project and financially capable of performing its obligations
_with respect to the Premises;
_
_ (b) In the event of any assignment of this Lease or
_subletting of all or any part of the Premises by Tenant without
_Landlord's consent when Landlord's consent is required hereunder,
_Landlord in addition to any rights contained herein, shall have
_the right to collect and receive the excess of rent due to Tenant
_from such sublessee or assignee over the Rent charged to and due
_from Tenant hereunder;
_
_ (c) All subleases or assignments shall be in writing and a
_copy thereof provided to Landlord within ten (10) days prior to
_its effective date. All subleases shall further contain an
_express provision that in the event of any default by Tenant
_under this lease and upon notice thereof to the subtenant from
_Landlord, all rentals payable by the subtenant shall be paid
_directly to Landlord for the Tenant's account until subsequent
_notice from Landlord that such default has been cured.
_Notwithstanding the foregoing, receipt by Landlord of rent
_directly from the subtenant shall not be considered a waiver of
_the default on the part of Tenant, nor an acceptance of such
_subtenant.
_
_ (d) Any attempted assignment or subletting without
_Landlord's prior written consent, when Landlord's consent is
_required hereunder, shall be wholly void and shall constitute a
_breach of this Lease. Acceptance of Rent by Landlord from anyone
_other than Tenant shall not be construed as a release of Tenant
_from any obligation or liability under this Lease. The consent
_of Landlord to an assignment or underletting shall not be
_construed to relieve Tenant from obtaining the written consent of
_Landlord to any further assignment or underletting.
_
_ (e) Notwithstanding anything in this Lease to the contrary:
_
_ i) Tenant shall have the right to assign this Lease
_or to sublet all or any portion of the Premises, whether
_expressly or by operation of law (including without limitation by
_merger, consolidation, reorganization or the like) without the
_requirement of Landlord's consent, as follows:
_
_ a) To any corporation or entity which is a
_ parent, subsidiary or affiliate of Tenant;
_
_ b) To any corporation or entity resulting from a
_ merger or consolidation, or the formation of a
_ joint venture or partnership; or
_
_ c) By a transfer of stock, whether or not a
_ controlling interest, in Tenant;
_
_ d) or to M/A-COM.
_
_ ii) In no event shall any officer, director or
_shareholder of Tenant at any time be liable for any of Tenant's
_obligations under this Lease except to the extent such officer,
_director or shareholder shall be an assignee of this Lease or
_shall have executed a separate instrument of guaranty of this
_Lease.
_
_21. DAMAGE BY CASUALTY
_
_ (a) Subject to Subsections (b), (c) and (d) of this
_paragraph, in the event the Premises are damaged by fire or other
_casualty, Landlord shall repair such damage. This Lease shall
_remain in full force and effect, except that Tenant shall be
_entitled to a proportionate abatement of Base Rent and Additional
_Rent based upon the extent to which the Premises are not usable.
_ (b) If the Premises are totally damaged, or if the Project
_is so damaged that Landlord shall decide to demolish it, then
_Landlord or Tenant may elect to terminate the Lease by written
_notice to the other given within forty-five (45) days following
_such fire or other casualty.
_
_ (c) In case of any damage mentioned in this Section 21
_Tenant may cancel this Lease by written notice to Landlord if
_Landlord has not substantially completed the making of the
_required repairs within forty-five (45) days from the date of
_damage, which period shall be extended by the number of days lost
_in the event of labor strikes, acts of God, or any other similar
_causes beyond the control of Landlord; provided, however, that
_such notice be given to Landlord prior to substantial completion
_of the required repairs.
_
_ (d) Landlord shall not be required to make any repairs or
_replacements of any leasehold improvements or fixtures, installed
_by or the personal property of Tenant. Landlord's obligation to
_make any repairs or replacement to or of the Project or the
_Premises shall be limited by the insurance proceeds received and
_Landlord shall not be required to make such repairs or
_replacement the total cost of which exceeds the actual insurance
_proceeds received.
_
_22. EMINENT DOMAIN AND CONDEMNATION
_
_ (a) TOTAL CONDEMNATION. If the whole of the Premises shall
_be taken by condemnation or eminent domain, then the term hereof
_shall cease as of the day of the vesting of title or as of the
_day possession shall be so taken, whichever is earlier.
_
_ (b) PARTIAL CONDEMNATION. If only a portion of the Project
_but none of the Premises is taken by condemnation or eminent
_domain, this Lease shall continue in full force and effect as
_written and Landlord shall restore the Project to the extent
_practicable. If a portion of the Premises is taken, Landlord or
_Tenant shall be entitled to terminate this Lease, effective on
_the day of vesting of title or the day possession is taken,
_whichever is earlier, upon giving written notice to the other
_within ninety (90) days from the taking.
_
_ (c) DAMAGES. In the event of any taking, Landlord shall be
_entitled to any and all awards and/or settlements which may be
_given, and Tenant shall have no claim for the value of any
_unexpired term of this Lease. Tenant shall have the right to
_claim from the condemning authority a separate award for damage
_to Tenant's business and moving expense.
_
_23. ENTRY BY LANDLORD
_
_ Landlord and its agents shall have the right to enter the
_Premises at all reasonable times during normal business hours
_(except in the case of emergency) for the purpose of examining or
_inspecting the same, to supply janitorial services and any other
_service to be provided by Landlord hereunder, to show the same to
_prospective purchasers or Tenants of the building, and make such
_alterations, repairs, improvements or additions to the Premises
_or to the Project as Landlord may deem necessary or desirable
_which do not materially interfere with the Tenant's business. If
_during the last month of the term hereof Tenant shall have
_removed all of its property therefrom, Landlord may immediately
_enter and alter, renovate, and redecorate the Premises without
_elimination or abatement of rent or incurring liability to Tenant
_for any compensation. Landlord, during the entire term of this
_Lease, shall have the right, upon ninety (90) days prior written
_notice to Tenant, to change the name, number or designation of
_the Project without liability to Tenant.
_
_24. DEFAULT BY TENANT
_
_ (a) EVENT OF DEFAULT DEFINED. The following events (herein
_referred to as an "Event of Default") shall constitute a default
_by Tenant hereunder (with respect to the Events of Default listed
_in subsections (ii) through (iii) below, Landlord shall give
_Tenant a written notice of default and Tenant shall have thirty
_(30) days to cure such default):
_
_ (i) Tenant shall default in the due and punctual
_payment of Rent, or any amounts payable hereunder, and such
_default shall continue for ten (10) days after written notice to
_Tenant of the default, unless otherwise specifically provided
_herein.
_
_ (ii) Tenant shall vacate or abandon the Premises.
_
_ (iii) If this Lease shall be assigned or sublet in
_violation of paragraph 20.
_
_ (iv) This Lease or the Premises, or any part thereof,
_shall be taken upon execution or by any other process of law
_directed against Tenant, or shall be taken upon or subject to any
_attachment at the instance of any creditor or claimant against
_Tenant, and any such taking or attachment shall not be discharged
_or disposed of within ninety (90) days after the levy thereof.
_
_ (v) Tenant shall file a petition in bankruptcy or
_insolvency or for reorganization or arrangement under the
_bankruptcy laws of the United States, or under any insolvency act
_of any state, or shall voluntarily take advantage of any such law
_or act by answer or otherwise, or shall be dissolved or shall
_make an assignment for the benefit of creditors.
_
_ (vi) Involuntary proceedings under any such bankruptcy
_law or insolvency act, or for the dissolution of Tenant shall be
_instituted against Tenant, or a receiver or trustee shall be
_appointed for all or substantially all of the property of Tenant,
_and such proceedings shall not be dismissed or such receivership
_or trusteeship vacated within ninety (90) days after such
_institution or appointment.
_
_ (vii) Tenant shall fail to perform any of the other
_agreements, terms, covenants or conditions herein on Tenant's
_part to be performed, and such nonperformance shall continue for
_a period of thirty (30) days after notice thereof by Landlord to
_Tenant, or if such performance cannot be reasonably had within
_such thirty (30) day period, Tenant shall not, in good faith have
_commenced such performance within such thirty (30) day period and
_shall not diligently proceed therewith to completion;
_
_ (b) REMEDIES. In the event of any such Event of Default,
_Landlord may at any time thereafter, in its sole discretion, with
_or without further notice or demand and without limiting Landlord
_in the exercise of a right or remedy which Landlord may have by
_reason of such default or breach, elect to pursue one or more of
_the following remedies:
_
_ (i) Re-enter and take possession of the Premises or any
_part thereof and repossess the same as Landlords' former estate
_without prejudice to any remedies for arrears of rent or
_preceding breach of covenants or conditions. Should Landlord
_elect to re-enter the Premises as provided in this (i) or should
_Landlord take possession pursuant to legal proceedings or
_pursuant to any notice provided for by law, Landlord may, from
_time to time, without terminating this Lease, re-let the Premises
_or any part hereof in Landlord's or Tenant's name, but for the
_account of Tenant, for such term or terms (which may be greater
_or less than the period which would otherwise have constituted
_the balance of the term of this Lease) and on such conditions and
_upon such other terms (which may include concessions of free rent
_and alteration and repair of the Premises) as Landlord, in its
_discretion, may determine, and Landlord may collect and receive
_the rents therefore. No such reentry or taking possession of the
_Premises by Landlord shall be construed as an election on
_Landlord's part to terminate this Lease unless a written notice
_of such intention be given to Tenant. No notice from Landlord
_hereunder or under a forcible entry and detainer statute or
_similar law shall constitute an election by Landlord to terminate
_this Lease unless such notice specifically so states. Landlord
_reserves the right following any such re-entry and/or reletting,
_to exercise its right to terminate this Lease by giving Tenant
_such written notice in which event, this Lease will terminate as
_specified in said notice.
_
_ (ii) In the event that Landlord does not elect to
_terminate this Lease as permitted in subparagraph (1) hereof, but
_on the contrary, elects to take possession as provided in
_subparagraph (1), Tenant shall pay to Landlord: (1) the Rent and
_other sums as herein provided, which would be payable hereunder
_if such repossession had not occurred, less (b) the net proceeds,
_if any, of any reletting of the Premises after deducting all of
_Landlord's reasonable expenses in connection with such reletting,
_including without limitation all repossession costs, brokerage
_commissions, legal expenses, attorneys' fees, expenses of
_employees, alteration and repair costs and expenses of
_preparation for such reletting.
_
_ (iii) In the event this Lease is terminated, subject to
_Landlord's duty to mitigate damages, Landlord shall be entitled
_to recover forthwith against Tenant as damages for loss of the
_bargain and not as a penalty, an aggregate sum which, at the time
_of such termination of this Lease, represents the excess, if any,
_of the aggregate of the Rent and all other sums payable by Tenant
_hereunder that would have accrued for the balance of the term
_over the aggregate rental value of the Premises (such rental
_value to be computed on the basis of a lessee paying not only
_Rent to Landlord for the use and occupation of the Premises, but
_also such other charges as are required to be paid by Tenant
_under the terms of this Lease) for the balance of such term, both
_discounted to present worth at the rate of eight percent (8%) per
_annum. Alternatively, at Landlord's option, Tenant shall remain
_liable to Landlord for damages in an amount equal to the Rent
_(including Base Rent and Additional Rent) and other sums arising
_under the Lease from the balance of the term had the Lease not
_been terminated, less the net proceeds, if any, from any
_subsequent reletting, after deducting all expenses associated
_therewith and as enumerated above. Landlord shall be entitled to
_receipt of such amounts from Tenant monthly on the days on which
_such sums would have otherwise been payable.
_
_25. SUBORDINATION AND ATTORNMENT
_
_ This Lease is subordinate to any mortgage or deed of trust
_now or hereafter placed on the Project and to any renewal,
_modification, consolidation, replacement or extension of such
_mortgage or deed of trust and the addition of any other mortgage
_or deed of trust granted after the date of execution of this
_Lease, provided that, and only in the event that, the holder of
_such mortgage grants to Tenant the right to continued quiet
_enjoyment in the event of a foreclosure of the mortgage. Within
_five (5) days after written request by Landlord, Tenant shall
_execute any documents which may be desirable to conform the
_subordination of this Lease. Landlord shall obtain subordination
_and non-disturbance agreements from lenders when requested to do
_so. Tenant agrees that in the event of a sale, transfer, or
_assignment of the Landlord's interest in the Project or any part
_thereof, including the Premises, to attorn to and to recognize
_such sale, transfer or assignment and such purchaser, transferee,
_assignee or mortgagee as Landlord under the Lease. The successor
_in interest of the Landlord under this Lease shall be subject to
_Tenant's rights under this Lease and Tenant's rights hereunder
_shall continue undisturbed while no Event of Default has
_occurred. Each party agrees to execute a separate agreement
_confirming the provisions of this paragraph upon written request
_but the failure to do so shall not affect the provisions of this
_paragraph. In the event of any sale or transfer of the Project
_by Landlord, Landlord shall be relieved of all liability
_hereunder ONLY with respect to matters arising or accruing after
_the date of such sale or transfer in connection with the
_performance or observance, or the failure or refusal to perform
_or observe, any obligation of the Landlord under, pursuant to, or
_in connection with this Lease required to be performed at any
_time after the date of such sale or transfer.
_
_26. ESTOPPEL CERTIFICATE
_
_ Landlord and Tenant shall, at any time and from time to time
_upon not less than ten (10) days prior written notice from the
_other, execute, acknowledge and deliver to the other a statement,
_in writing, certifying that this Lease is unmodified and in full
_force and effect (or, if modified, stating the nature of such
_modification and certifying that this Lease, as so modified, is
_in full force and effect) and the dates to which rental and other
_charges are paid in advance, if any, and acknowledging that there
_are not, to the certifying party's knowledge, any incurred
_defaults on the part of the other party hereunder, or specifying
_such defaults if any are claimed. It is expressly understood and
_agreed that any such statements may be relied upon by prospective
_purchaser or encumbrancer of all or any portion of the real
_property of which the Premises are a part. Landlord's or
_Tenant's failure to deliver such statement within such time shall
_be conclusive upon such party that this Lease is in full force
_and effect, without modification, except as may be represented by
_the other party, that there are no incurred defaults in the other
_party's performance and that no more rental has been paid in
_advance except as provided in this Lease.
_
_27. ABANDONMENT
_
_ If Tenant shall abandon, vacate or surrender said Premises,
_or be dispossessed by process of law, or otherwise, any personal
_property belonging to Tenant and left on the Premises shall be
_deemed to be abandoned, at the option of Landlord, thirty (30)
_days after written notice to Tenant. All such abandoned property
_may be appropriated, sold, stored, destroyed or otherwise
_disposed of by Landlord as permitted by law.
_
_28. BROKERS
_
_ Each party hereby agrees to indemnity and hold the other
_harmless of and from any and all loss, costs, damages or expenses
_(including, without limitation, all attorney's fees and
_disbursements) by reason of any claim of or liability to any
_broker or person claiming through the indemnitor and arising out
_of or in connection with the negotiation, execution and delivery
_of this Lease. Additionally, indemnitor acknowledges and agrees
_that indemnitee shall have no obligation for payment of any
_brokerage fee or similar compensation to any person with whom
_indemnitor has dealt or may in the future deal with respect to
_leasing of any additional or expansion space in the Project or
_renewals or extensions of this Lease.
_
_29. NOTICE
_
_ All notices shall be in writing, delivered personally or
_mailed, postage prepaid, certified or registered mail, return
_receipt requested, addressed as set forth below, or to such other
_place as either party may designate by notice:
_
_To Landlord at: Cray Computer Corporation
_ 0000 Xxxxxxxx Xxxx
_ Xxxxxxxx Xxxxxxx, XX
_ Attention:
_
_With Copies to: Holland & Xxxx
_ X.X. Xxx 0000
_ Xxxxxx, XX 00000
_ Attn: Xxxxx Xxxxxx
_
_to Tenant at: Quantum Corporation
_ 000 Xxxxx Xxxxxx
_ Xxxxxxxxxx, XX 00000
_ Attn: Xxxxxx X. Xxxx
_
_30. GENERAL PROVISIONS
_
_ (a) The waiver by Landlord of any term, covenant or
_condition herein contained shall not be deemed to be a waiver of
_any subsequent breach. The acceptance of Rent shall not be
_deemed to be a waiver of any default by Tenant.
_
_ (b) The headings to the sections of this Lease shall have
_no effect upon the construction or interpretation of any part
_hereof.
_
_ (c) Time is of the essence.
_
_ (d) The covenants and conditions herein contained bind the
_heirs, successors, executors, administrators, and assigns-of the
_parties hereto.
_
_ (e) Neither Landlord nor Tenant shall record this Lease,
_but both parties shall execute, at the request of either party a
_short form memorandum hereof which may be recorded at the
_election of either party.
_
_ (f) Upon Tenant paying the Rent reserved hereunder and
_observing and performing all of the covenants, conditions and
_provisions on Tenant's part to be observed and performed
_hereunder, Tenant shall have quiet possession of the Premises for
_the entire term hereof, subject to all the provisions of this
_Lease.
_
_ (g) Whenever Landlord grants or withholds its consent or
_exercises its discretion hereunder, Landlord agrees to exercise
_it in a reasonable manner and without unreasonable delay.
_
_ (h) Defined terms as used herein shall have the meanings
_defined in this Lease or in that certain Transaction Agreement
_dated July 21, 1995 by and between Landlord and Tenant
_("Transaction Agreement").
_
_ (i) If Tenant is a corporation, each individual executing
_this Lease on behalf of said corporation represents and warrants
_that he is duly authorized to execute and deliver this Lease on
_behalf of said corporation, in accordance with the bylaws and
_resolutions of said corporation, and that this Lease is binding
_upon said corporation.
_
_ (j) No remedy or election hereunder shall be deemed
_exclusive but shall, whenever possible, be cumulative with all
_other remedies at law or in equity.
_
_ (k) This Lease shall be governed by the laws of the State
_of Colorado.
_
_ (l) In the event of any action or proceeding brought by
_either party against the other under this Lease, the prevailing
_party shall be entitled to recover court costs and attorneys'
_fees.
_
_ (m) This Lease contains all of the agreements of the
_parties hereto with respect to any matter covered or mentioned in
_this Lease, and no prior agreements or understanding pertaining
_to any such matters shall be effective for any purpose. No
_provision of this Lease may be amended or added to except by an
_agreement in writing signed by the parties hereto or their
_respective successors in interest.
_
_ (n) This Lease and the obligations of the Landlord or
_Tenant hereunder shall not be affected or impaired because the
_Landlord or Tenant is unable to fulfill any of its obligations
_hereunder or is delayed in doing so, if such inability or delay
_is caused by reason of strike, labor troubles, acts of God, or
_any other cause beyond the reasonable control of the Landlord or
_Tenant provided however that Tenant shall not be relieved or
_excused from the payment of installments of Rent hereunder by
_such event or shall such installments be delayed.
_
_ (o) Any provision of this Lease which shall prove to be
_invalid, void, or illegal shall in no way effect, impair, or
_invalidate any other provision hereof and such other provision
_shall remain in full force and effect.
_
_ (p) The submission or delivery of this document for
_examination and review does not constitute an option, an offer to
_lease space in the Project or an agreement to lease. This
_document shall have no binding effect on the parties unless and
_until executed by both Landlord and Tenant.
_
_ (q) Landlord reserves the absolute right to effect such
_other tenancies in the Project as Landlord, in the exercise of
_its sole business judgment, determines to best promote the
_interest of the Project. Tenant does not rely on the fact, nor
_does Landlord represent, that any specific tenant or number of
_tenants shall, during the term of this Lease, occupy any space in
_the Project. This Lease and the Transaction Agreement is and
_shall be considered to be the only agreement between the parties
_hereto and their representatives and agents. All negotiations
_and oral agreements acceptable to both parties have been merged
_into and are included herein, the Transaction Agreement, and all
_documents, instruments and agreements given in connection
_therewith. There are no other representations or warranties
_between the parties other than as contained in the Transaction
_Agreement and all reliance with respect to representations is
_solely upon the representations and agreements contained in this
_Lease and the Transaction Agreement.
_
_ (r) Notwithstanding anything contained in this Lease to the
_contrary, Landlord shall not lease or use any portion of the
_Project for uses involving high-impact equipment (i.e. which
_creates detectable vibrations within the Premises) or which
_involves chemical processes generating toxic or noxious fumes
_which may adversely affect the "clean rooms" located in the M/A-
_Com Premises.
_
_ (s) M/A-COM shall have a right of general access to and
_within the Premises in connection with the control of specific
_items, systems or operations which affect the operation, use, or
_occupancy of the M/A-COM Premises, and/or any of the equipment or
_improvements contained therein. Without implied limitation, the
_foregoing shall include the exclusive right of M/A-COM to have
_access to and control of that portion of the Delta D.D.C.
_Programmable Controller which controls the HVAC affecting the
_"clean rooms" in the Premises.
_
_ (t) M/A-COM shall have a limited right of access in favor
_of its officers, directors, employees, agents and invitees,
_through the main entrance of the Project located in the Premises,
_and through so much of the Premises as is necessary for access to
_the M/A-Com Premises, such right to be utilized only in
_connection with visitors, customers, V.I.P.s and other unusual
_circumstances, such access expressly to exclude day to day use by
_Tenant's employees.
_
_ (u) Landlord shall deliver the Premises to Tenant together
_with the following items which Tenant shall be entitled to use
_during the Combined term:
_
_ i) For an additional sum of $10,208.33 per month:
_
_ Mail room and fixtures; conference room furniture
_ and white boards; shipping/receiving dock material
_ handling equipment, including pallet jacks,
_ forklift, shipping scale and racking; 125 cubicle
_ office set ups and 27 enclosed office set ups;
_ personnel lockers; and 8 copying machines.
_
_ ii) For no additional consideration: cafeteria
_ kitchen; seating areas and related equipment
_ (including return of kitchen equipment currently
_ located offsite); fire protection and security
_ systems (except computer room Halon system);
_ Liebert power conditioners; UPS systems; and
_ Xxxxxxx XX units as necessary to support light
_ manufacturing process.
_
_ (v) From time to time, upon reasonable prior oral notice to
_Tenant, and without interfering with the conduct of Tenant's
_business therein, M/A-COM shall have the right to use the loading
_dock located in the Premises, solely for purposes reasonably
_requiring a loading dock larger than that located in the M/A-Com
_Premises.
_
_ (w) In the event that Landlord shall be in default of any
_of its obligations under this Lease during the Combined Term,
_including without implied limitation payment to lienholders and
_mortgagees and Landlord shall fail to cure any such default
_within 30 days after written notice from tenant and then except
_in a case of emergency or imminent damage to Tenant's property or
_business in which event Tenant may proceed to cure immediately,
_Tenant may, but shall be under no obligation to, cure such
_default for and on behalf of Landlord. Tenant may not offset
_against any amounts due Landlord hereunder the amounts paid by
_Tenant in connection with any such cure; however, Tenant shall
_have all of its other rights and remedies in connection thereto
_available hereunder at law or in equity, including the right to
_record and enforce a first priority lien against the Project,
_which Landlord hereby grants, for the amounts paid by Tenant in
_connection with any such cure, together with interest and
_collection costs, pursuant to the Order Under 11 U.S.C. S 363 and
_Federal Rule of Bankruptcy Procedure 6004(c) Authorizing the Sale
_of Certain Assets and the Leases of Certain Property to M/A-COM,
_Inc. ("M/A-COM") and Quantum Corporation ("Quantum") Free and
_Clear of Liens and Encumbrances.
_
_ (x) With respect to the rights reserved to M/A-COM in
_subsections (s), (t), and (v), M/A-COM shall have the right of
_specific performance in the event of any failure on the part of
_Tenant to comply.
_
_
_ IN WITNESS WHEREOF, the parties hereto have executed this
_Lease as of the date first above written.
_
_
_ LANDLORD:
_
_ CRAY COMPUTER CORPORATION, debtor in
_ possession under Bankruptcy Court filing
_ 95-12697-CEM
_
_
_ By: Xxxxx X. Xxxxxxx
_ Its: President
_
_
_
_ TENANT:
_
_ QUANTUM CORPORATION
_
_
_ By: Xxxx Xxxxxx
_ Its: General Counsel and
_ Assistant Secretary
_
