Attached files
Exhibit 10.37
FIRST AMENDMENT TO LEASE AGREEMENT
FIRST AMENDMENT TO LEASE AGREEMENT (this “Amendment”), dated as of August 1, 2010, between CS/FEDERAL DRIVE C LLC, a Delaware limited liability company having an address c/o NorthStar Realty Finance Corp., 399 Park Avenue, New York, New York 10022 (herein called “Landlord”), and QUANTUM CORPORATION, a Delaware corporation having an address at 1650 Technology Drive, Suite 800, San Jose, CA 95110 (herein called “Tenant”).
W I T N E S S E T H:
WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement, dated February 6, 2006, pursuant to which Landlord originally leased to Tenant approximately 122,041 rentable square feet of space in the building commonly known as “Building C” and located at 10285 Federal Drive, Colorado Springs, Colorado (the “Existing Lease”);
WHEREAS, (i) the term of the Existing Lease with respect to Space 2 expired on November 30, 2009, and (ii) the term of the Existing Lease with respect to Space 1 is scheduled to expire on February 28, 2011; and
WHEREAS, Landlord and Tenant, subject to and upon the terms and conditions set forth herein, desire to amend the Existing Lease to, among other things, extend the Lease Expiration Date with respect to Space 1 to February 28, 2016.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, the parties hereto hereby agree to amend the Existing Lease as follows (the Existing Lease, as amended by this Amendment, is herein referred to as the “Lease”):
1. Definitions. All capitalized terms contained in this Amendment and not defined herein shall, for the purposes of the Lease, have the same meanings ascribed to them in the Existing Lease.
2. Extension of Lease Expiration Date. (a) The initial term of the Lease with respect to Space 1 is hereby extended to February 28, 2016, which extension shall be on all of the terms, covenants and conditions of the Existing Lease (as amended by this Amendment).
(b) To give effect to such extension, the Existing Lease is hereby amended as follows:
(1) The definition of “Lease Expiration Date” in the Basic Lease Information is hereby deleted and replaced with the following:
“Lease Expiration Date: As to Space 1, February 28, 2016, subject to the Renewal Terms, and as to Space 2, November 30, 2009.”
(2) The first sentence of Section 4(a) of the Existing Lease is hereby deleted and replaced with the following:
“The primary term of this Lease (the “Primary Term”) as to Space 1 shall be for a period of approximately ten (10) years and as to Space 2 shall be for a period of approximately three (3) years and ten (10) months, in each case, beginning on the Commencement Date and ending on the applicable Lease Expiration Date.”
(c) The parties acknowledge and agree that the foregoing extension is in lieu of the first Renewal Term (and thus Tenant has only two, five-year extension rights remaining under Section 4(b) of the Existing Lease). Accordingly, to give effect to the foregoing, the Existing Lease is hereby amended as follows:
(1) The definition of “Renewal Terms” in the Basic Lease Information is hereby deleted and replaced with the following:
“Renewal Terms: Solely as to Space 1, two (2) consecutive periods of five (5) years each.”
(2) The first sentence of Section 4(b) of the Existing Lease is hereby deleted and replaced with the following:
Exhibit 10.37
“Unless the Term of this Lease shall have expired or been terminated pursuant to any provision hereof, and so long as no Event of Default exists at the time of exercise or on the date such Renewal Term commences, Tenant shall have the right to extend the Term solely with respect to Space 1 for two (2) consecutive extension periods of five (5) years each (each, a "Renewal Term," and, collectively, the "Renewal Terms"), upon the terms and conditions set forth in this Section 4(b).”
3. Amended Fixed Rent. Notwithstanding anything in the Existing Lease to the contrary (but subject to the immediately following sentence), the Fixed Rent payable by Tenant with respect to Space 1 on account of the period from August 1, 2010 through and including February 28, 2016 shall be at the rate of $567,246.90 per annum ($47,270.58 per month). Notwithstanding the preceding sentence, until the Mortgagee Consent (as defined below) is obtained, Tenant shall continue to pay Fixed Rent with respect to Space 1 at the rate set forth in the Existing Lease (with the understanding that upon the granting of the Mortgagee Consent, Tenant shall be afforded a rent credit for any Fixed Rent with respect to Space 1 paid by Tenant on account of the period from and after August 1, 2010 that is in excess of the amount of Fixed Rent provided for in the preceding sentence).
4. Broker. Each party represents that it has not dealt with any real estate broker or finder with respect to this Amendment. Tenant agrees to indemnify and hold Landlord harmless from and against any and all loss, liability, damage, cost and expense (including, but not limited to, court costs and reasonable attorneys' fees) which Landlord may incur or sustain in connection with any claim or action by any real estate broker or finder that may be asserted against Landlord as a result of any conversations, correspondence or other dealings between Tenant and such broker or finder. Landlord agrees to indemnify and hold Tenant harmless from and against any and all loss, liability, damage, cost and expense (including, but not limited to, court costs and reasonable attorneys' fees) which Tenant may incur or sustain in connection with any claim or action by any real estate broker or finder that may be asserted against Tenant as a result of any conversations, correspondence or other dealings between Landlord and such broker or finder.
5. Ratification; Representations. Except as modified by this Amendment, the Existing Lease and all covenants, agreements, terms and conditions thereof shall remain in full force and effect and are hereby in all respects ratified and confirmed. Tenant represents and warrants to Landlord that, as of the date hereof, (a) the Existing Lease is in full force and effect and has not been modified except pursuant to this Amendment; and (b) there exist no valid abatements, causes of action, counterclaims, disputes, defenses, offsets, credits, deductions, or claims against the enforcement of any of the terms and conditions of the Lease against Tenant. If any conflict or inconsistency exists or arises between the terms of this Amendment and the terms of the Existing Lease, the terms of this Amendment shall prevail.
6. Mortgagee Consent. Tenant understands that, pursuant to the terms of the existing mortgage on the Building, the holder of such mortgage is required to consent to this Amendment. Accordingly, each party, by written notice to the other, shall have the right (in its sole and absolute discretion) to terminate this Amendment if such consent (the “Mortgagee Consent”) is not given within 60 days after the date hereof, but only if such termination notice is given after such 60th day but before the date that is 90 days after the date hereof. Tenant shall reasonably cooperate with Landlord in connection with Landlord’s efforts to obtain such consent. In the event of such termination, this Amendment shall be null and void ab initio, and the Existing Lease shall continue in full force and effect without modification, as if this Amendment had never been executed.
7. Miscellaneous. The covenants, agreements, terms and conditions contained in this Amendment shall bind and inure to the benefit of the parties hereto and their respective legal successors and permitted assigns. This Amendment (i) contains the entire agreement between the parties with respect to the subject matter hereof and may not be changed orally but only by a writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought; (ii) may be executed in duplicate counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument; (iii) shall not be binding upon Landlord unless and until Landlord shall have delivered a fully executed counterpart of this Amendment to Tenant; and (iv) shall in all respects be governed by and construed in accordance with the laws of the State of Colorado. Delivery of an executed counterpart of this Amendment by facsimile or other electronic transmission (including Portable Document Format (PDF)) shall be as effective as delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above written.
Exhibit 10.37
LANDLORD:
CS/FEDERAL DRIVE AB LLC
By: /s/ DAN RAFFE
Name: Dan Raffe
Title: Executive Vice President
TENANT:
QUANTUM CORPORATION
By: /s/ LINDA M. BREARD
Name: Linda M. Breard
Title: SVP