**EXHIBIT10.37.1**

**FOURTH AMENDMENT AND RENEWAL OF NET LEASE AGREEMENT**

 

This FourthAmendment and Renewal to Net Lease Agreement (this “Amendment”) is made as ofOctober 17, 2002 by and between Willows Redmond, L.L.C., a Washingtonlimited liability company (“Landlord”) and Apex Inc. dba Avocent-Redmond, aWashington corporation, formerly known as Apex PC Solutions, Inc.(“Tenant”).  Tenant and Opus Northwest,L.L.C. entered into that certain Net Lease Agreement dated February24, 1998 as amended by that certain First Amendment to Net Lease Agreementdated October 12, 1998 and that certain Second Amendment to Net LeaseAgreement dated February 26, 1999 and that certain Third Amendment to NetLease Agreement dated March 23, 1999 (collectively, the “OriginalLease”) demising Building D in Willows Commerce Park Phase III in the Cityof Redmond, County of King, State of Washington.  Landlord is the current owner of the demised premises andsuccessor in interest to Opus Northwest, L.L.C.  Capitalized terms not defined herein shall have the meaning giventhem in the Original Lease.

 

Landlord andTenant agree as follows:

 

1.             Reduction in Demised Premises.  The first sentence of the GRANT in theOriginal Lease is deleted and the following two sentences are substituted:

 

Landlord, inconsideration of the rents to be paid and the covenants to be observed andperformed by Tenant, hereby leases to Tenant, and Tenant hereby leases fromLandlord, each upon and subject to the terms and conditions set forth herein,the space in Building D (the “Building”) shown and designated on the SitePlan attached as Exhibit A (the “Site Plan”) and containingapproximately 81,961 square feet of rentable floor area consisting ofapproximately 29,801 square feet of office space (including approximately15,511 square feet in the mezzanine), and 52,160 square feet of warehouse spaceapproximately as shown in the Floor Plan attached as Exhibit A-1(the “Premises,” sometimes referred to herein as the “Initial Premises”).  “Premises” also includes approximately 7,087square feet of additional space on the mezzanine and approximately 1,200 squarefeet of additional office space on the main floor that Tenant plans to buildout (or such other configuration as shall be approved by Landlord under Section8.3 of the Original Lease) (the “Engineering Build-Out”) as shown in Exhibit A-1,all of which space shall not be included in rentable floor area for purposes ofcalculating Tenant’s Share.

 

2.             Lease Renewal.  Notwithstanding Sections 1.1 and 1.2 ofthe Original Lease, Landlord and Tenant agree that the Initial Term is herebyextended to March 31, 2009.  ThisAmendment shall be deemed effective from and after October 1, 2002, andthe period from October 1, 2002, through March 31, 2009 is sometimes referredto herein as the “Extended Initial Term”).

 

3.             Option to Renew.  Section 1.2 of the Original Lease isdeleted and the following language is substituted:

 

----

 

1.2           **Option to Renew**.  Tenant shall have the right, subject to all provisions of thisSection 1.2, to extend the Initial Term for one period of 3 years(“Renewal Term”), provided that: (a) this Lease is in full force and effect; (b) Tenant is notin default under this Lease, subject to any notice required and any applicablegrace or cure period, at the time of exercise of the right of renewal or at thetime set for commencement of the Renewal Term and has not been in default,beyond the expiration of any cure periods, more than 3 times during the 3 yearsbefore exercise of the right to renew; (c) Tenant exercises its right tothe Renewal Term by giving Landlord written notice of its election at least 180days before the first day of the Renewal Term; and (d) the Renewal Termshall be upon the same terms, covenants and conditions as provided in this Lease,except that monthly Fixed Rent shall be the Fixed Rent for the Renewal Term asset forth in Section 3.1.1.

 

4.             Construction of Improvements.  Tenant agrees that all of Landlord’sobligations under Section 2 of the Original Lease have been fullyperformed by Landlord, that Tenant has accepted the Premises and all workrequired to be performed by Landlord and all prior landlords under the OriginalLease, and that Landlord shall have no further obligations or liability underSection 2.  Accordingly, Section 2 ofthe Original Lease is hereby deleted.

 

5.             Fixed Rent.  Section 3.1 of the Original Lease is amendedby deleting the rent specified for the Initial Term and the Renewal Terms andsubstituting the following:

 
| **Extended Initial  Term:**                                   |   | **Fixed Monthly Rental Rate** |                          | **Monthly  Fixed Rent** |   | **Renewal  Term:** |   |
|---------------------------------------------------------------|--------|-------------------------------|-------------------------------|-------------------------|--------|--------------------|--------|
|                                                          |   |                          |                          |                    |   |               |   |
| Months 1 – 12**(Oct  ’02 – Sept ’03)**    |   | $                             | 0.87/SF/Mo., Net of Expenses  |                    | $      | 71,306             |   | See Section 3.1.1 |   |
|                                                          |   |                          |                          |                    |   |               |   |
| Months 13 – 24**(Oct  ’03 – Sept ’04)**   |   | $                             | 0.83/SF/Mo.,  Net of Expenses |                    | $      | 68,028             |   |   |   |
|                                                          |   |                          |                          |                    |   |               |   |
| Months 25 – 36**(Oct  ’04**–**Sept ’05)** |   | $                             | 0.80/SF/Mo.,  Net of Expenses |                    | $      | 65,569             |   |   |   |
|                                                          |   |                          |                          |                    |   |               |   |
| Months 37 – 48**(Oct  ’05**–**Sept ’06)** |   | $                             | 0.76/SF/Mo., Net of  Expenses |                    | $      | 62,290             |   |   |   |
|                                                          |   |                          |                          |                    |   |               |   |
| Months 49 – 60**(Oct  ’06 – Sept ’07)**   |   | $                             | 0.73/SF/Mo.,  Net of Expenses |                    | $      | 59,832             |   |   |   |
|                                                          |   |                          |                          |                    |   |               |   |
| Months 61 – 78**(Oct  ’07 – Mar ’09)**    |   | $                             | 0.68/SF/Mo.,  Net of Expenses |                    | $      | 55,733             |   |   |   |

 

2

----

 

6.             Renewal Term Fixed Rent.  The first sentence of subsection 3.1.1of the Original Lease is deleted and the following language is substituted:

** **

**3.1.1  RenewalTerm Fixed Rent. **Themonthly Fixed Rent during the Renewal Term shall be 95% of the market rate fora 3 year term for comparable space leased on comparable terms in the Redmond,Washington area (“Market Rent”).

 

7.             Tenant’s Share.  In the first line of the definition of“Tenant’s Share” in Section 5.1, the words “one hundred percent (100%)”are deleted and the following words are substituted: “seventy percent (70%).”

 

8.             Parking.  The 240 parking stalls referred to inSection 5.5 of the Original Lease is changed to 185 spaces.

 

9.             Tenant Improvements.  Other than Landlord’s continuing obligationsunder the Original Lease, Landlord shall have no obligation to make anyalterations or improvements to the Building as consideration for thisAmendment.  Any alterations orimprovements desired by Tenant shall be made by Tenant pursuant toSection 8.3 of the Original Lease; provided, however, Landlordhereby agrees under Section 8.3 of the Original Lease that it will not requireTenant to remove the Engineering Build-Out under Section 18.15 of the OriginalLease.

 

10.           Leasing Commissions.  In connection with this Amendment, Tenanthas retained The Broderick Group (“Tenant’s Broker”), as broker.  Tenant shall defend and indemnify Landlordagainst any and all claims of brokers, finders or any other third partyclaiming any right to commission or compensation by or through acts of Tenantin connection with this Amendment, including Tenant’s Broker.

 

11.           Lease Participation.  On execution hereof, Landlord shall commencemarketing the approximately 34,680 square feet at the South end ofBuilding D, identified in Exhibit A-1 as the “Lease ParticipationArea.”.  If Landlord enters into a leasewith a new tenant for that space, and base rent under such lease commencesprior to April 1, 2004, then Tenant shall be entitled to receivefifty percent (50%) of the base rent revenue under such lease, after Landlordfirst recovers all leasing expenses incurred by Landlord in connection withsuch new lease, including but not limited to rent abatement, building operatingexpenses and property taxes incurred by Landlord in connection with such spacewhile vacant, broker commissions, tenant improvement expenses and allowances,and other rent concessions.  The totalamount to which Tenant is entitled under this Section 11 shall be,at Landlord’s election (i) paid to Tenant or (ii) credited againstTenant’s payments of Fixed Rent under the Original Lease as herein amended inequal monthly installments, without interest, over a period of sixty (60)months commencing thirty (30) business days after Landlord’s receipt of monthlyfixed rent.

 

3

----

 

12.           No Other Changes.  Except as modified herein, the OriginalLease is unmodified and in full force and effect.

 

13.           Counterparts.  This Amendment may be executed and deliveredin counterparts, each of which shall be deemed as an original and all of whichshall constitute one and the same amendment.

 

Executed induplicate original as of the day and year first above written.

 
|   | LANDLORD:                                      | WILLOWS REDMOND,  L.L.C., a Washington  limited liability company |
|--------|------------------------------------------------|-------------------------------------------------------------------|
|   |                                           |
|   | By MIG Corporation, a  Washington corporation, |
|   | Its Manager                                    |
|   |                                           |                                                              |   |
|   |                                           | By:                                                               | /s/ Joseph D. Weinstein |
|   |                                           |                                                              | Joseph D. Weinstein |
|   |                                           | Its                                                               | Assistant Secretary |
|   |                                           |                                                              |   |   |
|   |                                           |                                                              |   |   |
|   |                                           |                                                              |   |
|   | TENANT:                                        | APEX INC., a Washington  corporation                              |
|   |                                           |                                                              |   |
|   |                                           |                                                              |   |
|   |                                           |                                                              |   |
|   |                                           | By:                                                               | /s/ Samuel F. Saracino |
|   |                                           |                                                              | Samuel F. Saracino |
|   |                                           | Its                                                               | Vice President and Secretary |
|        |                                                |                                                                   |  |  |  |  |

 

 
| STATE OF  WASHINGTON | ) |   |
|----------------------|---|--------|
|                 | ) | ss.    |
| COUNTY OF KING       | ) |   |

 

Onthis 28thday of October, 2002, before me, a Notary Public in and for the State ofWashington, personally appeared Joseph D. Weinstein, personally known to me (orproved to me on the basis of satisfactory evidence) to be the person who signedthe instrument; on oath stated that he was authorized to execute thisinstrument as the Assistant Secretary of MIG Corporation, the corporation thatexecuted the instrument; acknowledged the said instrument to be the free andvoluntary act and deed of said corporation for the uses and purposes thereinmentioned; and on oath stated that he was duly elected, qualified, and actingas said officer of the corporation; that said corporation is the manager ofWillows Redmond, L.L.C., a Washington limited liability company; that saidcorporation was authorized to execute the said instrument on behalf of saidcompany; and that said instrument was the free and voluntary act and deed ofsaid company for the uses and purposes therein mentioned.

 

4

----

 

INWITNESS WHEREOF, I have hereunto set my hand and official seal the day and yearfirst above written.

 

 
|   | /s/ David W. Thorne                   |
|--------|---------------------------------------|
|   | NOTARY PUBLIC in and for the State of |
|   | Washington, residing at               | Bainbridge Island |
|   | My appointment expires                | 8/27/03 |
|   | Print Name                            | David W. Thorne |
|        |                                       |  |  |

 

 
| STATE OF  WASHINGTON | ) |   |
|----------------------|---|--------|
|                 | ) | ss.    |
| COUNTY OF KING       | ) |   |

 

Onthis 17thday of October, 2002, before me, a Notary Public in and for the State ofWashington, personally appeared Samuel F. Saracino personally known to me (orproved to me on the basis of satisfactory evidence) to be the person whoexecuted this instrument, on oath stated that he/she was authorized to executethe instrument, and acknowledged it as the Vice President and Secretary of ApexInc. to be the free and voluntary act and deed of said corporation for the usesand purposes mentioned in the instrument.

 

INWITNESS WHEREOF, I have hereunto set my hand and official seal the day and yearfirst above written.

 
|   | /s/ Mark D.  Hatlen                    |
|--------|----------------------------------------|
|   | NOTARY PUBLIC in  and for the State of |
|   | Washington,  residing at               | Woodinville, WA |
|   | My appointment  expires                | 4/29/06 |
|   | Print Name                             | Mark D. Hatlen |
|        |                                        |  |  |

 

5

----

 

**EXHIBIT A**

**SITE PLAN**

 

----

 

**EXHIBIT A-1**

**FLOOR PLAN**

 

----