exv10w35



 







Exhibit 10.35


ASSIGNMENT AND ASSUMPTION OF LEASE




THIS ASSIGNMENT AND ASSUMPTION OF LEASE (referred to subsequently as this “Agreement”) is made on
May 27, 2004, by LSI Logic Corporation, as successor in interest to International Business
Machines Corporation (“Assignor”), and Engenio Information Technologies, Inc. (“Assignee”).



LakeCentre Plaza Ltd., LLLP, as Landlord (“Landlord”), and Assignor, as tenant, entered into a
lease dated November 17, 1999, as assigned by Assignment and Assumption Agreement dated August 29,
2002, with regard to the premises known 5400 Airport Blvd., Suite 100 and 200, Boulder, Colorado
80301 (the “Premises”). That lease and assignment are attached hereto as Exhibit A and incorporated
herein by this reference and are collectively referred to in this Agreement as the “Lease.”
Assignor wishes to assign the Lease to Assignee, and Assignee wishes to accept such assignment and
assume the obligations of tenant under the Lease, upon and subject to the terms and conditions set
forth in this Agreement. Accordingly, Assignor and Assignee agree as follows:




     1. Assignment and Delivery of Possession. Effective May 31, 2004 (the “Effective
Date”), Assignor hereby assigns, transfers and conveys to Assignee all of Assignor’s right, title
and interest in and to the Lease, including, but not limited to, all of Assignor’s right, title and
interest in and to: (a) the security deposit paid by Assignor under the Lease, and (b) the rent
prepaid under the Lease. Assignor will deliver possession of the Premises to Assignee on the
Effective Date, in the same condition in which the Premises exist on the date of Assignee’s
signature on this Agreement.



     2. Assumption and Acceptance of Premise. Assignee hereby accepts the foregoing
assignment and assumes and agrees to pay all rent and other charges and perform and observe all
covenants, conditions, obligations and agreements of the tenant under the Lease to be paid,
performed or observed on or after the Effective Date of this Agreement Assignee hereby accepts the
Premises in the condition existing on the date of Assignee’s signature on this Agreement.



     3. Assignor’s Representations and Warranties. Assignor represents and warrants to
Assignee that as of the date hereof and as of the Effective Date: (a) the Lease is in full force
and effect, and unmodified, (b) Assignor’s interest in the Lease is free and clear of any liens,
encumbrances, or adverse interests of third parties, (c) Assignor has full and lawful authority to
assign its interest in the Lease, (d) there exists no default under the Lease by Assignor nor any
circumstances which, with the passage of time or the giving of notice, or both, would be a default
under the Lease, (e) to the best of Assignor’s knowledge, there exists no default under the Lease
by Landlord nor any circumstances which, with the passage of time or the giving of notice, or both,
would be a default under the Lease, (f) no part of the security deposit under the Lease has been
used by Landlord, and (g) Assignor is not aware of any defects in the Premises not previously
disclosed to Assignee in writing.



     4. Indemnification. Assignee shall not be responsible, to the Landlord, to Assignor,
or to any other party, for the discharge or performance of any duties or obligations to be
performed by the tenant under the Lease prior to the Effective Date of this Agreement, and Assignor
agrees to and shall indemnify and hold Assignee harmless from and against any and all actions,
claims, demands, losses, liabilities, damages and expenses (including reasonable attorneys’ fees):
(a) arising out of or relating to any breach or failure to perform any duties or obligations under
the Lease to be performed by the tenant thereunder prior to the Effective Date of this Agreement,
or (b) resulting from a breach of any representation, warranty, covenant or agreement made by
Assignor in this Agreement. Assignee agrees to and shall indemnify and hold Assignor harmless from
and against any and all actions, claims, demands, losses, liabilities, damages and expenses
(including reasonable attorneys’ fees), or (c) arising out of or relating to any breach or failure
to perform any duties or obligations under the Lease to be performed by the tenant thereunder from
and after the Effective Date of this Agreement, or (d) resulting from a breach of any covenant or
agreement made by Assignee in this Agreement.



     5. Modification of Lease. Assignor agrees that Assignee and Landlord may amend the
Lease in any way after the Effective Date of this Agreement, without notice to or consent of
Assignor, and without in any manner releasing or relieving Assignor from liability under the Lease
as is exists on the Effective Date of this Agreement, and Assignor shall remain liable under all
the terms, covenants,




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conditions, obligations and agreements of the Lease as they exist on the Effective Date of this
Agreement.




     6. Miscellaneous. This Agreement may be modified only by a written instrument signed
by both Assignor and Assignee. This Agreement shall be binding upon Assignor and Assignee and their
respective heirs, personal representatives, successors and assigns. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the State of Colorado. In
the event of any dispute or litigation arising out of or relating to this Agreement, the prevailing
party shall be awarded and paid its expenses, including reasonable attorneys’ fees, from the
non-prevailing party.



     Assignor and Assignee have executed this Agreement on the day and year first written above.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	ASSIGNOR:	 	 	 	 	 	ASSIGNEE:	 	 
	LSI Logic Corporation	 	 	 	 	 	Engenio Information Technologies, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ David G. Pursel
	 	 	 	 	 	By:
	 	/s/ David E Sanders	 	 
	

	 	 
	 	 	 	 	 	 	 	 	 	 
	Its: VP, General Counsel & Corp Sec	 	 	.	 	 	Its: V.P. General Counsel	 	 
	Date: May 27, 2004	 	 	 	 	 	Date 5-27-04	 	 






	 	 	 	 	 	 	 
	 	 	LSI Logic Legal Department	 	 
	 
	 	 	 	 	 	 
	 	 	Date 05-27-2004

Approved as to form	 	 
	 
	 	 	 	 	 	 
	

	 	By:
	 	Andrew S. Hughes	 	 
	

	 	 	 	 	 	 






CONSENT TO ASSIGNMENT




     The undersigned (Landlord identified above) hereby consents to the foregoing Assignment and
Assumption of Lease, on the express conditions, agreed to by Assignor and Assignee by their
signatures above, that: (i) Assignor (tenant under the Lease) will continue to remain primarily
liable (jointly and severally with Assignee) for the payment of all rent and other sums and the
performance and observance of all covenants, conditions, obligations and agreements required of
tenant under the Lease, in accordance with the terms of the Lease; (ii) if any default under the
Lease occurs, Landlord will have the right to collect the rent and other sums due under the Lease
directly from either Assignor or Assignee or both without waiving any of Landlord’s rights against
the other party; and (iii) no further assignment of the Lease, and no subletting of all or any
portion of the Premises, will be made without the prior written consent of Landlord.



LANDLORD: LakeCentre Plaza Ltd., LLLP




	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 
	 	 	 	 	 
	Its:
	 	 	 	 	 	 
	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	

	 	 	 	 	 	 







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conditions, obligations and agreements of the Lease as they exist on the Effective Date of
this Agreement.




     6. Miscellaneous. This Agreement may be modified only by a written instrument signed
by both Assignor and Assignee. This Agreement shall be binding upon Assignor and Assignee and
their respective heirs, personal representatives, successors and assigns. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the State of Colorado. In
the event of any dispute or litigation arising out of or relating to this Agreement, the
prevailing party shall be awarded and paid its expenses, including reasonable attorneys’ fees,
from the non-prevailing party.



     Assignor and Assignee have executed this Agreement on the day and year first written above.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	ASSIGNOR:	 	 	 	 	 	ASSIGNEE:	 	 
	LSI Logic Corporation	 	 	 	 	 	Engenio Information Technologies, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/
David G. Pursel
	 	 	 	 	 	By:
	 	/s/
David E Sanders	 	 
	

	 	 
	 	 	 	 	 	 	 	 	 	 
	Its: VP, General Counsel & Corp Sec	 	 	.	 	 	Its: V.P. General Counsel	 	 
	Date: May 27, 2004	 	 	 	 	 	Date 5-27-04	 	 






	 	 	 	 	 	 	 
	 	 	LSI Logic Legal Department	 	 
	 
	 	 	 	 	 	 
	 	 	Date 05-27-2004

Approved as to form	 	 
	 
	 	 	 	 	 	 
	

	 	By:
	 	Andrew S. Hughes	 	 
	

	 	 	 	 	 	 






CONSENT TO ASSIGNMENT




     The undersigned (Landlord identified above) hereby consents to the foregoing Assignment and
Assumption of Lease, on the express conditions, agreed to by Assignor and Assignee by their
signatures above, that: (i) Assignor (tenant under the Lease) will continue to remain primarily
liable (jointly and severally with Assignee) for the payment of all rent and other sums and the
performance and observance of all covenants, conditions, obligations and agreements required of
tenant under the Lease, in accordance with the terms of the Lease; (ii) if any default under the
Lease occurs, Landlord will have the right to collect the rent and other sums due under the Lease
directly from either Assignor or Assignee or both without waiving any of Landlord’s rights against
the other party; and (iii) no further assignment of the Lease, and no subletting of all or any
portion of the Premises, will be made without the prior written consent of Landlord.



LANDLORD: LakeCentre Plaza Ltd., LLLP




	 	 	 	 	 	 	 
	By:	 	[ILLEGIBLE]	 	 
	 	 	 	 	 
	Its:

	 	PARTNER	 	 	 	 
	Date:

	 	5/28/04	 	 	 	 







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EXHIBIT “A”














 








EXHIBIT D




ASSIGNMENT AND ASSUMPTION AGREEMENT




     THIS AGREEMENT made the 29th day of August, 2002, by and between INTERNATIONAL
BUSINESS MACHINES CORPORATION, a New York corporation, with an office at New Orchard Road, Armonk,
New York 10504 (hereinafter “IBM”) and LSI Logic Corporation, a Delaware corporation, having an
office at 1621 Barber Lane, Milpitas, California 95035, (hereinafter “Assignee”).



WITNESSETH:




     WHEREAS, by a certain lease dated as of November 17,1999 as amended and supplemented
(hereinafter collectively called the “Lease”) IBM leases from Lake Centre Plaza, Ltd., LLLP,
(“Lessor”) certain premises described in the Lease in the office building located at 5400 Airport
Blvd., Suite 100, Boulder, Colorado 80301, and



     WHEREAS, IBM desires to assign the Lease to Assignee and Assignee is willing to assume the
obligations imposed upon IBM under the Lease, subject to and conditioned upon agreements
hereinafter set forth.



     NOW THEREFORE, in consideration of $1.00 paid by each of the parties hereto to the other, the
receipt of which is hereby acknowledged, and for other good and valuable consideration, the parties
hereto agree as follows:



     1. IBM hereby assigns to Assignee, effective on the date of the Closing as defined in the
Asset Purchase Agreement between LSI Logic Corporation and IBM (“APA”), which shall have been
executed concurrent with or immediately prior to the execution hereof (hereinafter the “Effective
Date”), all of IBM’s rights and interests in and to the Lease, a true and complete copy of which is
attached hereto, together with the leasehold estate thereof and all rights and interests of IBM in
and to the premises created thereby (the “Premises”) in its “as is” condition, subject to
Paragraphs 3(e) and 6 hereof.



     2. IBM, for itself and its legal representatives, successors and assigns, covenants and
represents to Assignee and agrees as follows:



          (a) IBM has full right, authority and power to assign its rights and interests in and under
the Lease, subject to Paragraph 6;



          (b) No other assignment of the Lease has been made by IBM, and the rights and interests of IBM
in and under the Lease are now and will, on the Effective Date, be free and clear of any liens and
encumbrances made by IBM;



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          (c) IBM is not on the date hereof, and will not on the Effective Date, be in default
under any of the terms of the Lease, having performed all of the obligations imposed upon IBM as
lessee under the Lease and, as of the date hereof, the Lease is in full force and effect and
enforceable in accordance with its terms, and



          (d) IBM has no knowledge of any default in the performance and observance of obligations
contained in the Lease to be kept, observed and performed by Lessor, or any condition which with
the giving of notice or passage of time, or both, would constitute a default under the Lease.



     3. Assignee, for itself and its legal representatives, successors and assigns, covenants and
represents to IBM and agrees as follows:



          (a) On and after the Effective Date, Assignee shall assume and hereby agrees promptly and
faithfully to keep, fulfill, observe, perform and discharge each and every covenant, duty, debt and
obligation on IBM’s part to be performed that may accrue and become performable, due or owing from
and after the Effective Date under the terms of the Lease;



          (b) The Lease has not been and will not be further amended in any respect without the
consent of Lessor, Assignee and IBM;



          (c) All rental payments required by the terms of the Lease, which become due and payable on
and after the Effective Date, shall be made by Assignee in accordance with the terms of the Lease
and sent directly to Lessor, unless otherwise directed in writing by Lessor;



          (d) On the Effective Date, Assignee shall accept delivery of the Premises in its then “as is”
condition, broom clean;



          (e) Notwithstanding any provision in this Agreement to the contrary, Exhibit “F” (in its
entirety), entitled “Option to Extend,” shall not be assigned to Assignee;



          (f) Neither Lessor’s consent nor any term or provision of the Assignment and Assumption
Agreement shall be construed as constituting a consent by Lessor to any further assignments of the
Lease or subletting of all or any portions of the Premises covered thereby without first obtaining
the prior written consent of Lessor;



          (g) Neither Lessor’s consent nor any term or provision of the Assignment and Assumption
Agreement shall be construed as constituting a release or discharge by Lessor of IBM from an
obligation or liability as Tenant under the Lease; and



          (h) Neither Lessor’s consent nor any term or provision of the Assignment and Assumption
Agreement shall be construed as constituting an amendment or modification of the Lease or waiver of
any its terms or provisions, or of any existing or future defaults thereunder, except as set forth
in Subparagraph 3(e) above.



     4. (a) Without limiting the generality of Paragraph 3(a), if Assignee defaults in the
performance of any of the covenants made by Assignee in this Agreement (including, without



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limitation, the payment of rent under the Lease) and such default shall continue for a grace
period of five (5) business days after receipt of notice thereof by IBM to Assignee, then in such
event IBM may cure the default. Any sums reasonably required to be paid by IBM with respect to
obligations, debts, duties and liabilities assumed under this Agreement but not performed by
Assignee hereunder, and all sums expended by IBM to cure a default by Assignee under the Lease or
this Agreement, are sums which are immediately due and owing to IBM from Assignee. Assignee shall
promptly pay such sums to IBM upon written demand.




          (b) As security for the performance of its obligations under this Agreement, Assignee hereby
assigns to IBM all of Assignee’s rights and interests in and to all subleases of the Premises, or
part thereof, covered by the Lease which may in the future be made by Assignee. In the event of
default by Assignee hereunder IBM, after giving seven (7) days notice to any such sublessee, shall
be entitled to receive all rents, additional rents and profits payable under said subleases, but
until such notice is given, Assignee shall be entitled to exercise all of its rights and interests
in and to these subleases, including the receipt of such rents and profits. Assignee covenants that
it will give written notice of this collateral assignment of subleases and rentals due thereunder
to each sublessee at the time it makes any sublease. Upon execution of each sublease, Assignee
shall deliver to IBM an executed agreement of assignment in accordance with the terms of this
paragraph, together with a duplicate original of the sublease.



          (c) In no event shall Assignee remain in the Premises beyond the expiration date or earlier
termination of the Lease term. If Assignee fails to surrender the Premises on or before such date
as required by the terms of the Lease, Assignee shall be liable to IBM and reimburse IBM promptly
on demand for all direct costs, expenses and fees, and all indirect, special and consequential
damages incurred and suffered by IBM by reason of such holdover by Assignee.



          (d) This Paragraph 4 shall survive the expiration date or earlier termination of the Lease.



     5. Any notice to be given pursuant to this Agreement shall be in writing and shall be served
by hand or private express mail carrier, or by United States certified or registered mail.



          (a) Notices to Assignee shall be mailed simultaneously to LSI Logic Corporation, 1621 Barber
Lane, M/S D-106, Milpitas, California 95035-7458, Attention: General Counsel and LSI Logic
Corporation, 1621 Barber Lane, M/S D-129, Milpitas, California 95035-7458, Attention: Corporate
Real Estate, unless otherwise directed in writing by Assignee.



          (b) Notices to IBM shall be mailed simultaneously to IBM’s Program Manager at IBM Real Estate
Services, 1501 LBJ Freeway, Suite 465, Dallas, Texas 75234, and to IBM Counsel, Real Estate
Services, at IBM, New Orchard Road, Armonk, New York 10504, unless otherwise directed in writing by
IBM.



     6. Notwithstanding any provision in this Agreement to the contrary, Assignee understands that
IBM is required by Article 10 of the Lease to obtain the consent of Lessor to this assignment of
the Lease. If for any reason Lessor fails or refuses to give such consent in writing on or before
September 12,2002, either party may elect to terminate this Agreement by notice of such



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election to the other party, in which event neither IBM nor Assignee shall have any claim against the other hereunder. Assignee shall have no liability for any obligations of IBM that accrued prior to the Effective Date.




     7.
This Agreement shall be binding on Assignee and its heirs, distributees and executors,
and IBM, and their respective legal representatives, successors and permitted assigns.



     8.
This Agreement shall not be changed except by written instrument signed by IBM
and Assignee.



     IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized representatives of IBM and Assignee as of the date first above written.



	 	 	 	 	 
	WITNESS:

	 	INTERNATIONAL BUSINESS MACHINES

CORPORATION
	


	 	 	 	 

	

	 	By:

	 	
	 
	 	 
	

	 	Title:
	 	 
	

	 	 	 	 
	 
	 	 	 	 
	WITNESS:

	 	LSI LOGIC CORPORATION	 	 
	 
	 	 	 	 
	/s/ Andrew S. Hughes

	 	By:  /s/ Tom Georgens
	 	 
	

	 	 	 	 
	

	 	Title:  
Tom Georgens
	 	 
	 
	WITNESS:

	 	CONSENTED TO BY:	 	 
	

	 	LAKE CENTRE PLAZA, LTD., LLLP	 	 
	


	 	(Landlord)	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 
	 	 	 	 
	

	 	Title:	 	 






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LEASE AGREEMENT

OFFICE AND INDUSTRIAL SPACE



This Lease Agreement is made and entered into
as of 17 day of November, 1999, by and between LakeCentre Plaza, Ltd., LLLP (“Landlord”), whose address
is 4875 Pearl East Cr, #300. Boulder, CO 80301, and Mytex
Corporation (Tenant”),
whose address is 5400 Airport Blvd., Suite 100, Boulder,
Colorado 80301.



In consideration of the covenants, terms, conditions, agreements and payments
as herein Set forth, the Landlord and Tenant hereby enter into the following
Lease:



1. Definition. Whenever the following words or phrases are used in this Lease, said words or
phrases shall have the following meaning:




     A. “Area”
shall mean the parcel of land depicted on Exhibit “A” attached
hereto and commonly known and referred to as High Point Boulder, Colorado. The
Area includes the Leased Premises and one or more buildings. The Area may
include Common Areas.



     B. “Building”,
shall mean a building located in the Area.



     C. “Common
Areas” shall mean all entrances, exits, driveways, curbs,
walkways, hallways,parking areas, landscaped areas, restrooms,
loading and service areas, and like areas or facilities which are located in the Area and which
are designated by the Landlord as area or facilities available for the nonexclusive use in common
by persons designated by the Landlord.



     D. “Leased
Premises” shall mean the premises
herein leased to the Tenant by the Landlord.



     E.
“Rentable Area” shall mean;



      
    (1) For
a Single Tenant Floor. With respect to a single tenant floor, Rentable Area will mean
the sum of (i) the floor area (measured in square feet from the outermost surface of all
walls and the midpoint of any common walls) excluding standard openings in
the floor slab used, for example, for Building stairs, elevator and other
shafts and vertical ducts (collectively, the “Excluded Spaces”) ,
(ii) an allocation of the floor area of the Common Areas and Services Areas on
such floor, and (iii) an allocation of the floor area of Common Areas
located in or serving the Building.



          (2) 
For a Multiple Tenant Floor. With respect to a multiple tenant floor, Rentable Area
will mean the sum of (i) the floor area (in square feet) less
any Excluded Spaces
located within the Rentable Area, and (ii) an allocation of the floor area of the common
Areas and Services Areas on such floor, and (iii) an allocation of the floor area of
Common Areas located in or serving the Building.



     
     (3) Columns
and Non-Standard Openings. No deductions will be made in either
Paragraph 1.E.(1) or
Paragraph 1.E.(2) for (i) columns and projections necessary to the structural support of the
Building or (ii) for openings in the floor slab which were made at the request of Tenant or to
accommodate items installed at the request of Tenant.



    
      (4) Tenant’s Rentable Area may change from time to time as the total rentable area in the
Building is increased or decreased.



     F. “Tenant’s
Prorata Share” as to the Building in which the Leased Premises are
located shall mean an amount (expressed as a percentage) equal to the rentable
area included in the Leased Premises divided by the total rentable area included in
said Building. The Tenant’s Prorata Share as to Common Areas shall mean an amount
(expressed as a percentage) equal to the rentable area included in
the Leased
Premises divided by the total rentable area included in all Buildings located in
the Area. The Tenant’s Prorata Share for Common Areas may change from time to
time as the rentable area in all Buildings located in the Area is increased or decreased.
The Tenant’s Prorata Share is approximately 52.94% (43,725sf/82,589sf).


2. Leased Premises.
The Landlord hereby leases into the 
Tenant, and the Tenant hereby leases from the Landlord, the following
described premises:





	   	Space 100 and 200 in Building 5400

consisting of approximately 43,725
square feet of rentable area,
 all
as depicted on Exhibit “B”
attached hereto.




3.  Base Term,
The term of this Lease shall commence at 12:00 noon on
April 15, 2000, and, unless
sooner terminated as herein provided for, shall end at 12:00 noon on
May 1, 2007 (“Lease Term”).
Except as specifically provided to the contrary herein, the Leased Premises shall, upon the
termination of this Lease, by virtue of the expiration of the Lease
Term or otherwise,
be returned to the Landlord by
the Tenant in as good or better condition than when entered upon by
the Tenant, ordinary wear and tear
excepted.



4. Rent. Tenant shall
pay the following rent for the Leased Premises:




      A. Base
Monthly Rent. Tenant shall pay to Landlord, without notice and
without setoff, at the address of Landlord as herein set
forth, the following Base Monthly Rent (“Base Monthly
Rent”), said Base Monthly
Rent to be paid in advance on the first day of each month during the term hereof. In the
event that this Lease commences on a date other than the first day of
a month,
the Base Monthly Rent for the first month of the Lease Term shall be
prorated for said partial month. Below is a schedule of Base Monthly Rental
payments as agreed upon:



During Lease Term




	 	 	 	 	 
	For Period	 	To Period	 	A Base Monthly
	Starting	 	Ending	 	Rent of
	 
	 	 	 	 
	April 15, 2000
	 	May 1, 2000	 	$24,595.00
	May 1, 2000
	 	May 1, 2001	 	$49,191.00
	May 1, 2001
	 	May 1, 2007	 	$49,19l.00 plus any cost of living
adjustment Per paragraph 4C below.






     B. Lease
Term Adjustment. If, for any reason, other than delays caused by the
Tenant, the Leased Premises are not ready for Tenant’s.



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occupancy on April 15,2000, the Tenant’s rental obligation and other monetary expenses (i.e.
taxes, utilities, etc.) shall be abated in direct proportion to the number of days of delay. It is
hereby agreed that the premises shall be deemed ready for occupancy on the day the Landlord
receives a T.C.O. or C.O. from the appropriate authority, or on the day the Landlord gives Tenant
the keys to the Leased Premises if a building permit has not been applied for and/or is not
required by the appropriate authority.




     C. Cost
of Living Adjustment. The Base Monthly Rental specified in paragraph 4A above
shall be recalculated for each Lease year as defined hereinafter following the first Lease Year of
this Lease Agreement. The recalculated Base Monthly rental shall be hereinafter referred to as the
“Adjusted Monthly Rental”. The Adjusted Monthly rental for each Lease year after the First Lease
Year shall be the greater of: (i) the amount of the previous year’s Adjusted Monthly Rental, (or
the Base Monthly Rental if calculating the Adjusted Monthly Rental for the second Lease Year), or
(ii) an amount calculated by the rent adjustment formula set forth below. In applying the rent
adjustment formula, the following definitions shall apply:


     (1) “Lease year” shall mean a period of twelve (12) consecutive full calendar months with the
first Lease Year commencing on the date of the commencement of the term of this Lease and each
succeeding Lease Year commencing upon the anniversary date of the first Lease Year; however if this
Lease does not commence on the first day of a month, then, the first Lease Year and each succeeding
Lease Year shall commence on the first day of the first month following each anniversary date of
this Lease;



     (2) “Bureau” shall mean the Bureau of Labor Statistics of the United States Department of the
Labor or any successor agency that shall issue the Price Index referred to in this Lease
Agreement.



     (3) “Price Index” shall mean the “Consumer Price Index-All Urban Consumers-All Items (CPI-U)
U.S. City Average (1982-84=100)” issued from time to time by the Bureau. In the event the Price Index
shall hereafter be converted to a different standard reference base or otherwise revised,
the determination of the increase in the Price Index shall be made
with the use of such conversion factor, formula or table as may be
published by Prentice-Hall, Inc. of failing such publication, by another nationally recognized publisher of
similar statistical information. In the event the Price Index shall cease to be published, then,
for the purposes of this paragraph 4C there shall be substituted for the Price Index such other
index as the Landlord and the Tenant shall agree upon, and if they are unable to agree within sixty
(60) days after the Price Index ceases to be published, such matter shall be determined by
arbitration in accordance with the Rules of the American Arbitration Association.



     (4) “Base Price Index” shall mean the Price Index released to the public during the second
calendar month preceding the commencement of this Lease Agreement.



     (5) “Revised Price Index” shall mean the Price Index released to the public during the second
calendar month preceding the Lease Year for which the Base Annual
Rental is to be adjusted:



     (6) “Basic
Monthly Rental” shall mean the Basic Monthly Rental set forth in subparagraph 4A
above. The rent adjustment formula used to calculate the Adjusted Monthly Rental is as
follows:



	 	 	 	 	 
	Adjusted Monthly

	 	=
	 	 Revised Price Index X Base Monthly Rental
	

	 	 	 	 
	Rental

	 	 	 	Base Price Index





Not withstanding the above formula, the Adjusted Monthly Rental shall not be less than 103% or
greater than 106% of the previous year’s Adjusted Monthly Rental, or the Basic Monthly Rental if
such adjustment is for the Second Lease Year. The Adjusted monthly Rental as herein above provided
shall continue to be payable monthly as required in paragraph 4A above without necessity of any
further notice by the Landlord to the Tenant.




     D. Total
Net Lease. The Tenant understands and agrees that this Lease is a total net
lease (a “net, net, net lease”), whereby the Tenant has the obligation to reimburse the Landlord
for a share of all costs and expenses (taxes, assessments, other charges, insurance, trash removal,
Common Area operation and maintenance and like costs and expenses), incurred by the Landlord as a
result of the Landlord’s ownership and operation of the Area.



     (E) Use
of Premises. Tenant shall use the Leased Premises only for business offices,
research and development and for no other purpose whatsoever except with the written consent of
Landlord. Tenant shall not allow any accumulation of trash or debris on the Leased Premises or
within any portion of the Area. All receiving an delivery of goods and merchandise and all removal
of garbage and refuse shall be made only by way of the rear and/or other service door provided
therefore. In the event the Leased Premises shall have no such door, then these matters shall be
handled in a manner satisfactory to Landlord. No storage of any material outside of the Leased
Premises shall be allowed unless first approved by Landlord in writing, and then in only such
areas as are designated by Landlord. Tenant shall not commit or suffer any waste on the Leased
premises nor shall Tenant permit any nuisance to be maintained on the Leased
Premises or permit any disorderly conduct or other activity having a
tendency to annoy or disturb any occupants of any part of the Area
and/or any adjoining property.



     7.
Laws and Regulations — Tenant Responsibility. The Tenant shall, at its sole cost and
expense,comply with all laws and regulations of any Govermental
entity, board, commission or agency
having jurisdiction over the Leased Premises. Tenant agrees not to install any electrical equipment
that overloads any electrical paneling, circuitry or wiring and further agrees to comply with the
requirements of the insurance underwriter or any governmental
authorities having jurisdiction thereof.



     8. Landlord’s
Rules and Regulations. Landlord reserves the right to adopt and
promulgate rules and
regulations applicable to the leased premises and from time to time
or supplement amend or supplement said rules or
regulations, Notice of such rules and regulations amendments and
supplements thereto shall be given to Tenant, and Tenant agrees to comply with the observe
such rules and regulations and amendments and




Page 2 of 16









 








supplements thereto provided
that the same apply uniformly to all Tenants of the Landlord in the
Area


     9.
Parking. If the Landlord
provides off street parking for the common use of Tenants, employees and customers of the Area,
the Tenant shall park all vehicles of whatever type used by Tenant and/or Tenant’s employees
only in such areas thereof as are designated by Landlord for this purpose, and Tenant accepts
the responsibility of seeing that Tenant’s employees park only in the areas so designated.
Tenant shall, upon the request of the Landlord, provide to the Landlord license numbers of the
Tenant’s vehicles and the vehicles of Tenant’s employees. During the duration of this
lease, Landlord shall not decrease the 200 parking spaces allocated to the Area.


     10. Control of Common
Areas - Exclusive control of the Landlord. All Common Areas shall at all times be subject to the
exclusive control and management of Landlord, notwithstanding that Tenant and/or Tenant’s
employees and/or customers may have a nonexclusive right to the use thereof. Landlord shall have
the right from time to time to establish, modify and enforce rules and regulations with respect
to the use of said facilities and Common Areas.


     11. Taxes.


         
 
A. Real Property Taxes and Assessments. The Tenant shall pay to the Landlord on the first
day of each month, as additional rent, the Tenant’s Prorata Share of all real estate taxes
and special assessments levied and assessed against the Building in which the Leased Premises are
located and the Common Areas. If the first and last years of the Lease Term are not calendar
years, the obligations of the Tenant hereunder shall be prorated for the number of days during
the calendar year that this Lease is in effect. The monthly payments for such taxes and
assessments shall be $5,283.00 until the Landlord receives the first tax statement for the
referred to properties. Thereafter, the monthly payments shall be based upon 1/12th of the prior
year’s taxes and assessments. Once each year the Landlord shall determine the actual
Tenant’s Prorata Share of taxes and assessments for the prior year and if the Tenant has
paid less than the Tenant’s Prorata Share for the prior year the Tenant shall pay the
deficiency to the Landlord with the next payment of Base Monthly Rent, or, if the Tenant has
paid in excess of the Tenant’s Prorata Share for the prior year the Landlord shall forthwith
refund said excess to the Tenant.


         
                   B. Personal Property Taxes. Tenant shall be responsible for, and shall pay promptly when
due, any and all taxes and/or assessments levied and/or assessed against any furniture, fixtures,
equipment and items of a similar nature installed and/or located in or about the Leased Premises
by Tenant.


         
            C. Rent Tax. If a special tax, charge or assessment is imposed or levied upon the rents
paid or payable hereunder or upon the right of the Landlord to receive rents hereunder (other
than to the extent that such rents are included as a part of the Landlord’s income for the
purpose of an income tax), the Tenant shall reimburse the Landlord for the amount of such tax
within fifteen (15) days after demand therefore is made upon the Tenant by the Landlord.


         
            D. Other Taxes, Fees and Charges. Tenant shall pay to Landlord, on the first day of each
month, as additional rent, Tenant’s Pro Rata Share of any ’Other
Charges’ (as hereinafter defined)
levied, assessed, charged or imposed against the Area, as a whole. Unless paid directly by Tenant
to the authority levying, assessing, charging or imposing same, Tenant shall also pay to Landlord, on the
first day of the month following payment of same by Landlord, the entire costs of any such
’Other Charges’ levied, assessed, charged or imposed against the Leased Premises, Tenant’s use
of same, or Tenant’s conduct of business thereon. For purposes of this provision, ’Other Charges’
shall mean and refer to any and all taxes, assessments, impositions, user fees, impact fees,
utility fees, transportation fees, infrastructure fees, system fees, license fees, and any other
charge or assessment imposed by any governmental authority or applicable subdivision on the Area,
the Leased Premises or the ownership or use of the Area or Leased Premises, or the business
conducted thereon, whether or not formally denominated as a tax, assessment, charge or other
nominal description, whether now in effect or hereafter enacted or Imposed (excluding, however,
Landlord’s Income taxes).


         
            E. Should Landlord protest and win a reduction in the real estate taxes for the Building
and Areas, Tenant shall be obligated to pay its Prorata Share of the cost of such protest,
if the protest is handled by a party other than the Landlord.


       12.
Insurance.


          
A. Landlord’s Insurance. Landlord shall obtain and maintain such fire and casualty insurance on
the core and shell of the Building in which the Leased Premises are located and the Common Areas,
as well as such loss of rents, business interruption, liability or any other insurance, as it
deems appropriate, with such companies and on such terms and conditions as Landlord deems
acceptable. Such insurance shall not be required to cover any of Tenant’s inventory, furniture,
furnishings, fixtures, equipment or tenant improvements (whether or not installed on the Leased
Premises by or for Tenant and whether or not included within the tenant finish provided by
Landlord), and Landlord shall not be obligated to repair any damage thereto or replace any
 of same, and Tenant shall have no interest in any proceeds of Landlord’s insurance.


          
B. Tenant’s Insurance. Tenant shall, at its sole cost and expense,
obtain and maintain throughout the term of this Lease, on full replacement cost basis,
“all risk” insurance covering all of Tenant’s Inventory, furniture, furnishings,
fixtures,
equipment and all tenant improvements or tenant finish (whether or not installed by Landlord)
and betterments located on or within the Leased Premises. In addition, Tenant shall obtain and
maintain, at its sole cost and expense, comprehensive, general public liability insurance
providing coverage from and against any comprehensive injury and property damage. Such liability
coverage shall be written on an "occurrence" basis, with limits of not less than $1,000,000.00
combined single limit coverage.


       All policies of insurance
required to be carried by Tenant hereunder shall be written by an insurance company licensed to
do business in the State of Colorado, and shall name Landlord as an additional named insured
and/or less payee, as Landlord may direct. Each such policy shall provide that same shall not be
changed or modified without at least thirty (30) days’ prior written notice to Landlord and any
mortgages of Landlord. Certificates evidencing the extent and
effectiveness of all Tenant’s
insurance shall be delivered to Landlord. The limits of such insurance shall not, under any
circumstances, limit the liability of Tenant under this Lease.


       In the event that Tenant
fails to maintain any of the insurance required of it pursuant to this provision, Landlord shall
have the right (but not the obligation) at Landlord’s election, to pay Tenant’s premiums or to
arrange substitute insurance with an insurance company of Landlord’s choosing, in which event any
premiums advanced by Landlord shall constitute additional rent payable under this Lease and shall
be payable by Tenant to Landlord immediately upon demand for same. Landlord shall also have the
right, but no the obligation, whether or not Tenant maintains coverage to carry any such insurance
as Landlord may elect in order to provide coverage in the event Tenant fails to properly maintain
such insurance.


Page 3 of 16








 





     The right of Landlord here
under shall be in addition to, and not in lieu of, of any other rights or remedies available to
Landlord under this Lease of provided by law or in equity. Without limiting the foregoing, in the
event that coverage of any risk for which Tenant is responsible pursuant to this Section 12 is
ultimately provided by coverage maintained by Landlord, whether due to Tenant’s failure to
provided or maintain such insurance or otherwise, Tenant shall promptly reimburse Landlord for an
amount equal to any deductible incurred, immediately upon demand for same.



          D. Tenant’s
Share of Landlord Insurance Tenant shall pay the Landlord as additional rent Tenant’s
Prorata Share of the insurance secured by the Landlord pursuant to  “12A” above. Payment
shall be made on the first day of each month as additional rent. The monthly payments for such
insurance shall be $225,00 until changed by Landlord as a result of an Increase or decrease in the cost of
such insurance.



          E Mutual
Subrogation Waiver Landlord and Tenant hereby grant to each other, on behalf of any insurer
providing fire and extended coverage to either of them covering the Leased Premises, Buildings
or other improvements thereon or contents thereof, a waiver of any right of subrogation any such
insurer of one party may acquire against the other or as against the Landlord or Tenant  by
virtue of payments of any loss under such insurance . Such a waiver shall be effective so long
as the Landlord and Tenant are empowered to grant such waiver under the terms of their respective
insurance policy or policies and such waiver shall stand mutually terminated as of the date either
Landlord or Tenant gives notice to the other that the power to grant such waiver has been so
terminated.



     13. Utilities



          A. Tenant shall be
solely responsible for and promptly pay all charges (as part of the amount paid per Paragraph 16
below) for heat, water, gas, electric, sewer service and any other utility service used or
consumed on the Leased Premises. In no event shall Landlord be liable for any interruption or
failure in the supply of any such utility to the Leased Premises.



          In the
event the utility company supplying water and or sewer to the Leased Premises determines that
an additional service fee, impact fee, and/or assessment, of any other type of payment or penalty
is necessary due to Tenant’s use and occupancy of the Building, nature of operation and/or
consumption of utilities, said expense shall be born solely by the Tenant. Said expense shall
be paid promptly and any repairs requested by the utility company shall be performed by Tenant
immediately and without any delay.




          B. Landlord
Controls Selection. Landlord has advised Tenant that presently Public Service Company of Colorado
(“Utility Service Provider”) is the utility company selected by Landlord to provide electricity
and gas service for the Building. Notwithstanding the foregoing, if permitted by Law, Landlord
shall have the right at any time  and from time to time during the Lease Term to either contract
for service from a different company or companies providing electricity and/or gas service (each
such company shall hereinafter be referred to as an (“Alternative Service Provider”) or continue
to contract for service from the Utility Service Provider.


          C. Tenants
Shall Give Landlord Access. Tenant shall cooperate with Landlord, Utility Service Provider and
any Alternative Service Provider at all times and, as reasonably necessary, shall allow Landlord.
Utility Service Provider, and any Alternative Service Provider reasonable access to the Building’s
electric lines, feeders, risers, wiring, gas lines, and any other machinery within the Premises.



          D. Landlord
Not Responsible for Interruption of Service.  Landlord shall in no way be  liable or responsible
for any loss, damage, or expense that Tenant may sustain or incur by reason of any change,
failure, interference, disruption or defect in the supply or character of the electrical and/or
gas energy furnished to the Premises, or if the quantity or character of the electric and/or gas
energy supplied by the Utility Service Provider or any Alternate Service Provider is no longer
available or suitable for Tenant’s requirements, and no such change, failure, defect,
 unavailability, or unsuitability shall constitute an actual or constructive eviction,
In whole or in part or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under the Lease.


     14. Maintenance Obligation of Landlord.
Except as herein otherwise specifically provided for, Landlord shall keep and maintain the roof
and exterior of the Building of which the Leased Premises are a part, and any equipment, which
Landlord owned that provides services to the Building, in good repair and condition. Tenant shall
repair and pay for any damage to roof, foundation and external wails caused by Tenant’s action,
negligence or fault.


     15. Maintenance Obligation of the
Tenants Subject only to the maintenance obligations of the Landlord as herein provided for,
the Tenant shall, during the entire Lease Term, including all extensions thereof, at the Tenant’s
sole cost and expense, keep and maintain the Leased Premises in good condition and repair,
including specifically the following:



          A. Electrical System. Tenant agrees to maintain in good working order and to make all required repairs and replacements
to the electrical systems for the Leased Premises. Tenant upon signing this Lease acknowledges
that Tenant has inspected the existing electrical systems and all such systems are in good repair
and working order.



          B. Plumbing System Tenant agrees to maintain in good working order and to make all required repairs or replacements
to the plumbing systems for the Leased Premises. Tenant upon signing this Lease acknowledges that
Tenant has inspected the existing plumbing systems and all such systems are in good repair and
working order.


          C. Inspection and Service.  Upon termination of Lease Agreement, Tenant
agrees, before vacating premises, to employ at Tenant’s sole cost and expense, a licensed
contractor to inspect service and write a written report on the systems referred to in
“A” and “B” of this Paragraph. Landlord shall have the right to order such an inspection if
Tenant fails to provide evidence of such inspection, and to follow the recommendations of such
reports to charge the expense there of the Tenant.


          D. Tenant’s Responsibility for Building and Area Repairs.
Tenant shall be responsible for any repairs required for any part of the Building or Area of
which the Leased Premises are a part if such repairs are necessitated by the actions or inactions
of Tenant.



          E. Cutting Roof.
Tenant must obtain in writing the Landlord’s approval prior to making any roof penetrations.
Failure by


Page 4 of 16





 









 






Tenant to obtain written permission to penetrate a roof
shall relieve Landlord of any roof repair obligations as set forth in
Paragraph “14” hereof.
Tenant further agrees to repair, at its sole cost and expense, all roof penetrations made by the
Tenant and to use, if so requested by Landlord, a licensed contractor selected by the Landlord to
 make such penetrations and repairs.


         
   F. Glass and Doors. The repair and replacement of all glass and doors on the Leased
Premises shall be the responsibility of the Tenant. Any such replacements or repairs shall be
promptly completed at the expense of the Tenant.


         
   G. Liability for Overload. Tenant shall be responsible
for the repair or replacement of
any damage to the Leased Premises the Building or the Area which
result from the Tenant’s movement of heavy articles therein or thereon. Tenant shall not
overload the floors of any part of the Leased Premises.


         
   H. Liability for Overuse and Overload of Operating
Systems. Tenant shall be responsible for the repair,
upgrade, modification, and/or replacement of any operating systems
servicing the Leased Premises
and/or all or a part of the Building which is necessitated by
Tenant’s change or increase in use
of or non-disclosed use of all or a part of the Leased Premises. Operating systems include, but
are not limited to, electrical systems; plumbing systems (both water and natural gas); healing,
ventilating, and air conditioning systems; telecommunications systems; computer and network
systems; lighting systems, fire sprinkler systems; security systems; and building control systems,
if any.


         
 I.        Failure of Tenant to Maintain Premises. Should Tenant
neglect to keep and maintain the Leased
Premises as required herein, the Landlord shall have the right, but not the obligation, to have
the work done and as reasonable costs plus a ten percent (10%)
overhead charge therefore shall be
charged to Tenant as additional rental and shall become payable by Tenant with the payment of
the rental next due.


     16. Common Area
Maintenance. Tenant shall be responsible for Tenant’s Prorata share of the total costs incurred
for the operation, maintenance and repair of the Common Areas, including but not limited to, the
costs and expenses incurred for the operation, maintenance and repair of parking areas
(including restriping, and repeving); removal of snow; all utilities including water, gas and
electric for the building; janitorial for common areas and tenant occupied space; normal HVAC
maintenance and elevator maintenance (if applicable); trash removal; security to protect and
secure the Area; common entrances, exits, and lobbies of the Building; all common utilities,
including water to maintain landscaping; replanting in order to maintain a smart appearance of
landscape areas; supplies; depreciation on the machinery and equipment used in such operation,
maintenance and repair; the cost of personnel to implement such services; the cost of maintaining
in good working condition the HVAC systems (s) for the Leased premises; the cost of maintaining
in good working condition the elevator(s) for the Leased Premises, if applicable; and costs of
cover Landlord’s management fees paid for the property. These costs shall be estimated on an
annual basis by the Landlord and shall be adjusted upwards or downwards depending on the actual
costs for the preceding twelve months. Tenant shall pay monthly, commencing with the first month
of the Lease Team, as additional rent due under the terms hereof, a
sum equal to Tenant’s Prorata
Share of the estimated costs for said twelve(12) month period, divided by 12. The estimated
initial monthly costs are $7,835.00. Once each year the Landlord shall determine the actual costs
of the foregoing expenses for the prior year and if the actual costs are greater than the
estimated costs, the Tenant shall pay its Tenant’s Prorata Share of the difference between the
estimated costs and the actual costs to the Landlord with the next payment of Base Monthly Rent, or, if
the actual costs are less than the estimated costs, the Landlord shall forthwith refund the amount
 of the Tenant's excess payment to the Tenant.


     17.
Inspection of and Right of Entry to Leased Premises — Regular, Emergency, Reletting.
Landlord and/or Landlord’s agents and
employees, shall have the right to enter the Leased Premises at all times during regular business
hours and, at all times during emergencies, to examine the Leased
Premises, to make such repairs,
alterations, improvements or additions as Landlord deems necessary, and Landlord shall be allowed
to take all materials into and upon said Leased Premises that may be required therefore without
the same constituting an eviction of Tenant in whole or in part, and the rent reserved shall in
no way abate while such repairs, alterations, improvements or additions are being made, by
reason of loss or interruption of business of Tenant or otherwise. During the six months prior to
the expiration of the term of this Lease or any renewal thereof, Landlord may exhibit the Leased
Premises to prospective tenants and/or purchasers and may place upon the Leased Premises the usual
 notices indicating that the Leased Premises are for lease and/or sale.


     18.       Alternation-Changes and
Additions-Responsibility. Unless the Landlord’s approval is first secured in writing, the Tenant
shall not install or erect inside partitions, add to existing electric power service, add
telephone outlets, add light fixtures install additional heating and/or air conditioning or
 make any other changes or alternations to the interior or exterior of the Leased Premises. Any
such changes or alterations shall be made at the sole cost and expense of the Tenant. At the end
of this Lease, all such fixtures, equipment, additions, changes and/or alterations except trade
fixtures installed by Tenant) shall be and remain the property of Landlord; provided, however,
Landlord shall have the option to require Tenant to remove any or all such fixtures, equipment,
additions and/or alterations, other than those tenant improvements provided by Landlord or
improvements approved by Landlord, and restore the Leased Premises to the condition existing
immediately prior to such change and/or installation, normal wear and tear excepted, all at
Tenant’s cost and expense. All such work shall be done in good and workmanlike manner and
shall
consist of new materials unless agreed to otherwise by Landlord. Any and all repairs,
changes and/or modifications thereto shall be the responsibility of, and at the cost of, Tenant.
Landlord may require adequate security from Tenant assuming no
mechanics’ liens on account of work
done on the Leased Premises by Tenant and may post the Leased Premises, or take such other action
as is then permitted by law, to protect the Landlord and the Leased
Premises against mechanics’
liens. Landlord may also require adequate security to assure Landlord that the Leased Premises
will be restored to their original condition upon termination of this lease.


     19.       Sign Approval. Except
for signs which are located inside of the Leased Premises and which are not attached to any part
of the Leased Premises, the Landlord must approve in writing any sign to be placed in or on the
interior or  exterior of the Leased Premises, regardless of size or value. Specifically, signs attached
to windows of the Leased Premises must be so approved by the Landlord. As a condition to the
granting of such approval, Landlord shall have the right to require
Tenant to furnish a bond or other security acceptable to Landlord
sufficient to insure completion of and payment for any such sign work
to be so performed. Tenant shall, during the
entire Lease Term, maintain Tenant’s signs in good condition and
repair at Tenant’s sole cost
and expense. Tenant shall, remove all signs at the termination of
this lease, at Tenant’s sole risk and expense and shall in a workmanlike manner property repair any damage and close any
holes
caused by the installation and/or removal of Tenant’s signs. Tenant shall give Landlord prior
notice of such removal so that a representative of Landlord shall have the opportunity of being
present when the signage is removed, or shall pre-approve the manner and materials used to repair
damage and close the holes caused by removal.



     20. Right of Landlord to
Make Changes and Additions. Landlord reserves the right at any time to make alternations or
additions to the Building or Area of which the Leased Premises are a part. Landlord also reserves
the right to construct other building and/or improvements in the Area and to make alterations or
additions thereto, all as Landlord shall determine. Easements for light and air are not included
in the leasing of the Leased Premises to Tenant. Landlord further reserves the exclusive right to
the roof of the Building of which the Leased Premises are a part.























Page 5 of 16




 









 








Landlord also reserves the right at any time to
relocate, vary and adjust the size of any of the improvements or Common Areas located in the
Area provided, however, that all such changes shall be in compliance with the requirements of
governmental authorities having jurisdiction over the Area. Any such changes and additions
shall not unreasonably interfere with Tenants ability to conduct business.




     21.
Damage or
Destruction of Leased Premises. In the event the Leased Premises and/or the Building of
which the Leased Premises are a part shall be totally destroyed by fire or other casualty or so
badly damaged that, in the opinion of Landlord, it is not feasible to repair or rebuild same,
Landlord shall have the right to terminate
this Lease upon written notice to Tenant. If the Leased Premises are partially damaged by fire
or other casualty, except if caused by Tenant’s negligence, and said Leased Premises are not
rendered untenable thereby, as determined by Landlords an appropriate reduction of the rent shall
be allowed for the unoccupied portion of the Leased Premises until repair thereof shall be
substantially completed. If the Landlord elects to exercise the right herein vested in it to
terminate this Lease as a result of damage to or destruction of the Leased Premises or the
Building In which the Leased Premises are located , said election shall be made by giving notice
thereof to the Tenant within thirty (30) days after the date of said damage or destruction.



     22. Governmental
Acquisition of Property. The parries agree that Landlord shall have complete freedom of
negotiation and settlement of all matters pertaining to the acquisition of the Leased Premises,
the Building, the Area, or any part thereof, by any governmental body or other  person or entity
via the  excercise of
the power of the eminent domain, it being understood and agreed that any financial settlement
made or compensation paid respecting said land or improvements to be so taken, whether resulting
from negotiation and agreement or legal proceedings, shall be the taking, Landlord shall have the
right to terminate this Lease on the date possession in delivered to the condemning person or
authority. Such taking of the property shall not be a breach of this Lease by Landlord not give
rise to any claims  in Tenant for damages or compensation from Landlord. Nothing herein contained
shall be construed as depriving the Tenant of the right to retain as its sole property any
compensation paid for any tangible personal property owned by the Tenant which is taken in any
such condemnation proceeding.



     23.
Assignment or
Subletting. Tenant may not assign this Lease, or sublet the Leased Premises or any part
thereof, without the written consent of Landlord, with consent shall not be unreasonably withheld.
No such assignment  or subletting if approved by the Landlord shall relieve Tenant of any of its
obligations hereunder, and,
the performance or nonperformance of any of the covenants herein contained by subtenants shall
be considered as the performance or the nonperformance by the Tenant.



     24.
Warranty of Title. Subject to the provisions of the following three(3) paragraphs
hereof, Landlord covenants it has good right to lease the Leased Premises in the manner
described herein and that Tenant shall peaceably and
quietly have, hold, occupy and enjoy the Leased Premises during the term of the Lease.



     25.
Access. Landlord shall provide Tenant nonexclusive access to the Leased Premises through
and across land and/or other improvements owned by Landlord. Landlord shall have the right,
during the term of this Leases, to designate, and to change, such nonexclusive access.



     26.
Subordination. Tenant agrees that this Lease shall be subordinate to any mortgages,
trust  deeds or ground leases that may now exist or which may hereafter be placed upon said
Leased Premises and to any and all advances to be made thereunder, and to the interest thereon,
and all renewals, replacements and extensions thereof. Tenant shall execute and deliver whatever
instruments may be required
for the above purposes, and failing to do so within ten(10) days after demand in writing, does
hereby make, constitute and irrevocably appoint Landlord as its attorney-in-fact  and in its
name, place and stand so to do. Tenant shall in the event of the sale or assignment of Landlord’s
interest in the Area or in the Building of which the Leased Premises form a part, or in the
event of any proceedings brought for the foreclosure of or in the event of exercise of the power
of sale under any mortgage made by Landlord covering the Leased Premises, attorn to the purchaser
and recognize such purchaser as Landlord under this Lease.



     27.
Easements. The Landlord shall have the right to grant any easement on,
over, under and above the Area for such purposes as Landlord  determines, provided that such easements
do not materially interfere with Tenant’s occupancy and use of the Leased Premises.


     28.
Indemnification and Wolver. Except in the case of a breach or default
in the performance of any obligation under this Lease, each party shall indemnify, defend and
hold harmless the other party and nothing in this Lease shall be construed as imposing any
liability on them for any loss, costs, expense (including    reasonable attorney’s fees), or
any claims, suits, actions or damages arising from
the ownership, use, control or occupancy of any portion of the Project including the Building.
Common Areas and Premises unless such loss, cost, expense, claim, suit or action is a result
of or caused by the negligent acts or omissions of such other party or it’s agents, servants,
employees, contractors, or invitees.



Tenant shall not indemnity Landlord for acts or
failure to observe or comply with any of the rules by any other Tenant or occupant or the
Building or  Project that adversely affect Tenant’s use and
occupancy in which Landlord   has been put on notice of such adverse impact to Tenant.




     29.
Acts or Omission or Others. The Landlord , or it’s employees or agents, or any of them,
shall not be responsible or liable to the Tenant or to the Tenant’s guests, invitees, employees,
agents or any other person or entity, for any loss or damage that may be caused by the acts or
omissions of other Tenants , their guests or invitees, occupying any other part of the Area or by
persons who are trespassers
on or in the area, as for any loss or damage caused or resulting from the bursting stoppage,
backing up or leaking of water, gas, electricity or sewers or caused in any other manner
whatsoever, unless such loss or damage is caused by or results from the negligent acts or the
Landlord, it’s agents or contractors.



     30.
Interest on Past Due Obligations. Any amount due to Landlord not paid when
due shall bear interest at two (2%) percent per month from due date until paid. Payment
of such interest shall not excuse or cure any default by Tenant under this Lease.



     31.
Holding Over-Double Last Month’s Rent. If Tenant shall remain in possession of the
Leased Premises after the termination of this Lease, whether by expiration of the Lease Term or
otherwise, without a written agreement as to such possession, then Tenant shall be deemed a
month-to-month Tenant. The rent rate during such holdover tenancy shall be equivalent to double
the monthly rent paid for the last
full month of tenancy under this Lease, excluding any free rent concessions which may have been
made for the last full moth of the Lease. No holding over by Tenant shall operate to renew or
extend this Lease without the written consent of Landlord to such renewal or extension having
been first obtained. Tenant shall indemnify Landlord against loss or liability resulting from the
delay by Tenant in surrendering possession of the Leased Premises including , without limitation,
any claims made with regard to any succeeding occupancy  bounded by such holdover period.


     32.
Modification or Extensions. No modification or extension of this Lease shall be binding
upon the parties hereto unless in writing and unless signed by the parties hereto.



     33.
Notice Procedure. All notices, demands and
requests which may be or are required to be give by either party to the other shall be


Page 6 of 16




 









 








in writing and such that are to be given to Tenant shall
be deemed to have been properly given if served on Tenant or an employee or Tenant or sent to
Tenant by United States registered or certified mail, return receipt requested, properly sealed,
stamped and addressed to Tenant at see page one or at such other place as Tenant may from
time to time designate in a written notice to Landlord; and, such as are to be given to Landlord shall be deemed to have been
properly given if personally served on Landlord or if sent to Landlord, United Stated registered
of certified mail, return receipt requested, property sealed, stamped and addressed to Landlord
at 4875 Pearl East Cr. #300, Boulder, CO 80301 or at such other place as Landlord may form
time to time designate in  a written notice to Tenant. Any notice given by mailing shall be
effective as of the date of mailing.


     34.
Memorandum of
Lease-Notice to Mortgage. The Landlord and Tenant agree not to place this Lease of record,
but upon request of either party to execute and acknowledge so the same may be recorded a short
form lease indicating the names and respective addresses of the Landlord and Tenant, the Leased
Premises, the Lease Term, the dates
of the commencement and termination of the Lease Term and options or renewal, if any, but
omitting rent and other terms of this Lease. Tenant agrees to an assignment by Landlord of
rents and of the Landlord’s interest in this Lease to a mortgagee, if the same be made
by Landlord. Tenant further agrees if requested to do so by the Landlord that it will give to
said mortgagee a copy of any request for performance by Landlord or notice of default by
Landlord; and in the event Landlord fails to cure such default the Tenant will give said
mortgagee a sixty (60) day period in which to cure the same. Said period shall begin with the
last day on which Landlord could cure such default before Tenant has the right to exercise any
remedy by reason of such default. All notices to the mortgagee shall be sent by United States
registered or certified mail, postage prepaid, return receipt requested.



     35.
Controlling Law.
The Lease, and all terms hereunder shall be construed consistent with the laws of the State of
Colorado. Any dispute resulting in litigation hereunder shall be resolved in
court proceedings instituted in Boulder County and in no other jurisdiction.


     36. Landlord Not a
Partner With the Tenant. Nothing contained in this Lease shall be deemed, held or construed
as creating Landlord as a partner, agent associate of or in joint venture with Tenant in the
conduct of Tenant’s business, it being expressly understood and agreed that the relationship
between the parties hereto is and shall at all times remain that of Landlord and Tenant.



     37.
Partial Invalidity. If any term, covenant or condition of this Lease or the application
thereof to any person or circumstance shall to any extent, be invalid or unenforceable, the
remainder of this Lease or the application of such term, covenant or condition to persons and
circumstances
other than those to which it has been held
invalid or unenforceable, shall not be affected thereby, and each term, covenant and
condition of this Lease shall be valid and shall be enforced to the fullest extent permitted by
law.



     38.
Default-Remedies of Landlord.



          (A).
The occurrence of any of the following events shall constitute a default by Tenant under this Lease:


             
  (1)
Failure to make due and punctual payment of rent or any other changes, assessments or amounts
due or payable or required to be paid under this Lease; or


               
(2)     Neglect or failure by Tenant to perform or observe, or any other breach of,
any other term, covenant or condition of this Lease; or


         
      (3)         Adjudication of Tenant as bankrupt or insolvent, or filing by or against Tenant of any
petition in bankruptcy or for reorganization or for the adoption of any arrangement under the
Bankruptcy Code; application is made for the appointment of receiver or conservator for Tenant’s
business or property; or assignment by Tenant is made of its property for the benefit of its
creditors; or Tenant’s interest
in this Lease or any substantial amount of Tenant’s other real or personal property is levied or
executed upon by process or law; or


         
      (4)         Petition or other proceeding is made by or against Tenant for
its dissolution or liquidation; or voluntary dissolution or liquidation of Tenant; or


      
         (5)       Abandonment of the Leased Premised, or any part thereof, by Tenant for a period of time
in excess of thirty(30) consecutive days.


        
  B. If Tenant shall default in the payment or rent or in the keeping of any of the
terms, covenants or conditions of this Lease to be kept and/or performed by Tenant or shall
otherwise commit any event of default as defined above, Landlord may upon the expiration of any
applicable cure, immediately, or
at any time thereafter, recent the Leased Premises, remove all persons and property therefore,
without being liable to indictment, prosecution for damage therefore, or for forcible entry and
detainer and repossess and enjoy the Leased Premises, together with all additions thereto or
alterations and improvements thereof. Landlord may, at its option, at any time and from time to
time thereafter, reflect the Leased Premises or any part thereof for the account of Tenant or
otherwise, and receive and collect the rents therefore and apply the same first to the payment of
such expenses as Landlord may have incurred in recovering possession and for putting the same in
good order and condition for rerental, and expense, commissions and charges paid by Landlord in
reletting the Leased Premises. Any such reletting may be for the remainder of the term of this
Lease or for a longer or shorter period. In lieu of reletting such Leased Premises, Landlord may
occupy, the same or cause the same to be occupied by others. Whether or not the Leased Premises
or any part thereof be relief, Tenant shall pay the Landlord the rent and all other charges
required to be paid by Tenant up to the time of the expiration of this Lease or such recovered
possession, as the case may be and thereafter, Tenant, if required by Landlord, shall pay to
Landlord until the end of the term of this Lease, the equivalent of the amount of all rent
reserved herein and all other charges required to be paid by Tenant less the net amount received
by Landlord for such reletting, If any, unless waived by written notice from Landlord to Tenant.
No action by Landlord to obtain possession of the Leased Premises and/or to recover any amount
due to Landlord hereunder shall be taken a waiver of Landlord’s right to required full and
complete performance by Tenant of all terms hereof, including payment of all amounts due
hereunder or as an election on the part of Landlord to terminate this Lease Agreement. If the
Leased Premises shall be reoccupied by Landlords than from and after the date of repossession,
Tenant shall be discharged of any obligations to Landlord under the provisions hereof for the
payment of rent. If the Leased Premises are reoccupied by the Landlord pursuant hereto, and
regardless of whether the Leased Premises shall be relief or possessed by Landlord, all fortunes,
additions, furnitures, and the like then on the Leased Premises may be retained by Landlord. In
the event Tenant is in default under the terms hereof and, by the
sole determination of Landlord,
has abandoned the Leased Premises, Landlord, shall have right to remove all the Tenant’s property
from the Leased Premises and dispose of said property in such a manner as determined best by
Landlord, at the sole cost and expense of Tenant and without liability of Landlord for the
actions so taken and without liability on the part of Landlord for any action 50 taken.



         
 C. In the event an assignment of Tenant’s business or property shall be made for the
benefit of creditors, or, if the Tenant’s leasehold interest under the terms of this Lease
Agreement shall be levied upon by execution or seized by virtue of any writ of any court of law,
or, if application be made for the appointment of a receiver for the business or property or
Tenant, or, if a petition in bankruptcy
shall be filed by or against Tenant, than and in any such case, at Landlord’s option, with or
without notice, Landlord may terminate this Lease and immediately retake


Page 7 of 16





 










 







Possession of the Leased Premises without the same working any forfeiture of the
obligations of Tenant hereunder.



         
 D. Tenant hereby grants to the Landlord a security interest in and to any and all of
Tenant’s property located in, on or adjacent to the Leased
Premises as security for Tenant’s full
and complete performance of the terms and conditions of this Lease, which security interest is
enforceable by Landlord as provided by the laws of the State of Colorado.






         
 E. In addition to all rights and remedies granted to Landlord by the terms hereof,
Landlord shall have available any and all rights and remedies available at law or in equity,
or under the statutes of the State of Colorado. No remedy herein or otherwise conferred upon or
reserved to Landlord shall be considered
exclusive of any other remedy but shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by statute. Further,
all powers and remedies given by this Lease to Landlord may be exercised, from time to time, and
as often as occasion may arise or as may be deemed expedient. No delay or omission of Landlord to
exercise any right or power arising from any default shall impair any such right or power or
shall be considered to be a waiver of any such default or acquiescence thereof. The acceptance of
rent by Landlord shall not be deemed to be a waiver of any breach of any of the covenants herein
contained or of any of the rights of Landlord to any remedies herein given.





         
 F. If Tenant shall, for any reason, vacate the Leased Premises before the current
expiration date, landlord shall have the right to accelerate rental
payments and any and all future rent payments due during the course
of the Lease Term shall become immediately payable in full to the Landlord.




     39. Legal
Proceedings-Responsibilities. In the event of proceeding at law or in equity by either party
hereto, the defaulting party shall pay all costs and expenses, including all reasonable
attorney’s fees incurred by the non-defaulting party in pursuing such remedy,
if such non-defaulting party is awarded substantially the relief requested.



     40. Administrative
Charges. In the event any check, bank draft or negotiable instrument given for any money payment
hereunder shall be dishonored at any time and from time to time, for any reason whatsoever not
attributable to Landlord, Landlord shall be entitled, in addition to any other remedy that may be
available, (1) to make an administrative charge of
$100.00 or three times the face value of the check, bank draft or negotiable instrument,
whichever is smaller, and (2) at Landlord’s sole option, to require Tenant to make all future
rental payments in cash or cashiers check.



     41.
Hazardous Materials and Environmental Considerations.



         
 A. Tenant covenants and agrees that Tenant and its agents, employees, contractors
and invitees shall comply with all Hazardous Materials Laws (as hereinafter defined). Without
limiting the foregoings, Tenant covenants and agrees that it will not use, generate, store or
dispose of, nor permit the use, generation, storage or disposal of
Hazardous Materials (as hereinafter defined) on, under or about the Leased Premises, nor will
it transport or permit the transportation of Hazardous Materials to or from the Leased Premises,
except in full compliance with any applicable Hazardous Materials Laws. Any Hazardous Materials
located on the Leased Premises shall be handled in an appropriately controlled environment which
shall include the use of such equipment (at Tenant’s expense) as is necessary to meet or exceed
standards imposed by any Hazardous Materials Laws and in such a way as not to interfere with any
other tenant’s use of its premises. Upon breach of any covenant contained herein, Tenant shall,
at Tenant’s sole expense, cure such breach by taking all action prescribed by any applicable
Hazardous Materials Laws or by any governmental authority with jurisdiction over such matters.




       
   B. Tenant shall inform Landlord at any time of (i)
any Hazardous Materials it intends to use, generate, handle, store or dispose of, on or
about or transport from, the Leased Premises and (ii) of Tenant’s discovery of any event or
condition which constitutes a violation of any applicable Hazardous Materials
Laws. Tenant shall provide to Landlord copies of all communications to or from any
governmental authority or any other party relating to Hazardous Materials affecting the
Leased Premises.



       
   C. Tenant shall indemnify and hold Landlord harmless from any
and all claims, judgments, damages, penalties, fines, costs, liabilities, expenses or losses
(including without limitation, diminution on value of the Leased Premises, damages for loss
or restriction on use of all or part of the Leased Premises, sums paid in settlement of claims,
investigation of site conditions, or any cleanup, removal or restoration work required by
any federal, state or local governmental agency, attorney’s fees, consultant fees, and expert
fees) which arise as a result of or in connection with any breach of the foregoing covenants or
any other violation of any Hazardous Materials laws by Tenant. The indemnification contained
herein shall also accrue to the benefit of the employees, agents, officers, directors and/or
partners of Landlord.




        
  D. Upon termination of this Lease and/or vacation of the Leased Premises,
Tenant shall properly remove all Hazardous Materials and shall then provide to Landlord an
environmental audit report, prepared by a professional consultant satisfactory to Landlord and at
Tenant’s sole expense, certifying that the Leased
Premises have not been subjected to environmental harm caused by
Tenant’s use and occupancy of
the Leased Premises. Landlord shall grant to Tenant and its agents or contractors such access
to the Leased Premises as is necessary to accomplish such removal and prepare such report.




      
    E. “Hazardous Materials” shall mean (a) any chemical,
material, substance or pollutant which poses a hazard to the Leased Premises or to persons
on or about the Leased Premises or would cause a violation of or is regulated by any Hazardous
Materials Laws, and (b) any chemical, material or substance defined as or
included in the definitions of hazardous substances’, “hazardous
wastes”, “extremely hazardous
waste”, “restricted hazardous waste”, “toxic
substances”, “regulated substance”, or words of
similar import under any applicable federal, state or local law or under the regulations adopted
or publications promulgated pursuant thereto, including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601,
et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. Sec. 1801 et seq.;
the Resource Conservation and Recovery Act as amended, 42 U.S.C. Sec. 6901, et seq.; the Solid
Waste Disposal Act. 42 U.S.C. Sec. 6991 et seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Sec. 1251, et seq.; and Sections 25-15-101, U.S. et seq., 25-16-101, et seq.,
25-7-101, et seq., and 25-8-101, et seq., of the Colorado Revised
Statues. “Hazardous Materials
Laws” shall mean any federal state or local laws, ordinances, rules, regulation, or policies
(including, but not limited to, those laws specified above) relating to the environment, health
and safety or the use, handling, transportation, production, disposal, discharge or storage of
Hazardous Materials, or to industrial hygiene or the environmental conditions on, under or about
 the Leased Premises. Said term shall be deemed to include all such laws as are now in effect or
as hereafter amended and all other such laws as may hereafter be enacted or adopted during the
term of this Lease.




       
   F.    All obligations of Tenant hereunder shall survive and continue
after the expiration of this Lease or its earlier termination for any reason.



       
   G. Tenant further covenants and agrees that
it shall not install any storage tank (whether above or below the ground) on the



Page 8 of 16




 









 







Leased Premises without
obtaining the prior written consent of the Landlord, which consent may be
conditioned upon further requirements imposed by Landlord with
respect to, among other thing,
Compliance by Tenant with any applicable laws, rules, regulations or
ordinances and safety
measures or financial responsibility requirements.




          H. Should any local governmental entity having jurisdiction over the Leased Premises require
any type of environment audit or report prior to or during the occupancy of the Leased Premises by
the Tenant, such cost of the audit or report shall be the sole
responsibility of the Tenant.




     42.
Entire Agreement. It is expressly understood and agree by and between the parties
hereto that this Lease sets forth all the promises, agreements, conditions, or understandings
between Landlord and /or its agents and Tenant relative to the Leased Premises and that there are
no promises, agreements, conditions, or understandings either oral or
written, between them other than
that are herein set forth.




     44.
Esloppel Certificates. Within no more than 5 days after
receipt of written request, the Tenant shall furnish to the owner a
certificate, duly acknowledged, certifying, to the extent
true:




A. That this
Lease is in full force and effect.




B. That the
Tenant knows of no default hereunder on the part of the owner, or if
it has reason to believe that such a default exists, the nature thereof in reasonable
detail.




C. The amount of the rent being paid and the last date to which rent has been
paid.




D. That this
Lease has not been modified, or it has been modified, the terms and
dates of such
modifications.




E. That the term of this Lease has commenced.




F. The
commencement and expiration dates.




G. Whether all work to be performed by the owner has been completed.




H. Whether the renewal term option has been exercised if applicable.




I. Whether there exist any claims or deductions from, or defenses to, the
payment of rent.




J. Such other
matters as may be reasonably requested by owner.


If the Tenant fails to execute and deliver to the owner a completed certificate as required under
this section, the Tenant hereby appoints the owner as its Attorney-in-Fact to execute and deliver
such certificate for and on behalf of the Tenant.




     45.
Financial Statements. As requested by the Landlord, as requested by lender for
review, Tenant shall provide copies of its most recent financial statements and shall also provide
Landlord with up to three (3) prior years of financial statements, if so requested.



     46.
Brokers. Tenant represents and warrants that it has dealt only
with The W.W. Reynolds Companies, Inc. (the “Broker”) in the negotiation of this Lease. Landlord
shall make payment of the commission according to the terms of a separate agreement with the
Broker. Tenant hereby agrees to
indemnify and hold Landlord harmless of an 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 other broker or person claiming through Tenant and arising out of this Lease.
Additionally, Tenant acknowledges and agrees that Landlord shall have no obligation for payment of
any brokerage fee or similar compensation to any person with whom Tenant dealt or may deal with in
the future with respect to leasing of any additional or expansion space in the Building or any
renewals or extensions of this Lease unless specifically provided for by separate written agreement
with Landlord. In the event any claim shall be made against Landlord by any other broker who shall
claim to have negotiated this Lease on behalf of Tenant or to have introduced Tenant to the
Building or to Landlord, Tenant hereby indemnifies Landlord, and Tenant shall be liable for the
payment of all reasonable attorney’s fees, costs, and expenses incurred by Landlord in defending
against the same, and in the event such broker shall be successful in any such action,
Tenant shall, upon demand, make payment to such broker.



     47. Lease Exhibits Attached. This Lease includes the following Lease Exhibits which
are incorporated herein and made a part of this Lease Agreement



     Exhibit”
A” - Site Plan Depicting Area



     Exhibit
“B” - Interior Space Plan



     Exhibit
“C” - Landlord and Tenant’s Construction Obligations



     Exhibit
“D” - Deleted



     Exhibit
“E” - Additional Term and Conditions



     Exhibit
“F” - Option to extend



     48.
Miscellaneous. All marginal notations and paragraph headings
are for purposes of reference and
shall not affect the true meaning and intent of the terms hereof. Throughout this Lease, wherever
the words “Landlord” and “Tenant” are used they shall include and imply to the singular, plural,
persons both male and female, companies, partnership and corporations, and in reading said Lease,
the necessary grammatical changes required to make the provision hereof mean and apply as aforesaid
shall be made in the same manner as though originally included in said Lease.



IN WITNESS WHERE OF, the parties have executed this Lease as of the date hereof.




LANDLORD LakeCenter Plaza, Ltd, LLLP 




	 	 	 
	By:

	 	/s/ William W. Reynolds
	

	 	

	

	 	William W. Reynolds, partner


	TENANT:

	 	Mylex Corporation
	

	 	

	By:

	 	[ILLEGIBLE]
	

	 	







Page 9 of 16





 










 






Exhibit “A”

Site Plan Depicting Area









Page 10 of 16





 









 








Exhibit “B”

Interior Space Plan














Page 11 of 16





 









 








Exhibit “C”

Landlord and Tenant’s Construction Obligations



1. Landlord shall complete the Leased Premises per Exhibit “B” and per the attached set of
“Standard Lease Space specification”. Said standard landlord tenant finish improvements will be
strictly adhered to by Landlord.



2. Landlord shall provide
Tenant with $25.00 per square foot Tenant Finish Allowance toward the
completion of such Tenant improvements.



3. All other improvements to
the Leased Premises shall be at the sole cost and expense of the
Tenant, including but not limited to all costs in excess of the $25.00 per square foot Tenant
Finish Allowance as described above.



4. Prior to the start of
Tenant Finish, Landlord shall provide Tenant a budget outlining the cost of
the Tenant Finish Construction.




Page 12 of 16




 









 








STANDARD LEASE SPACE SPECIFICATONS

OFFICE/INDUSTRIAL BUILDINGS


The following are standard
specifications for the Leased Premises herein defined.




GENERAL



A. The leased space
design/layout will conform to the Architectural drawings.



B. All work performed to complete the Leased Premises will be in accordance with all applicable
codes and regulations.



C. Demising, corridor and partition
 walls separating offices from warehouse space to be 3-5/8”
metal studs at 24” o.c. with 5/8” gypsum wallboard on each
side. Partitions to extend from
floor to underside of structure above. Partitions to have acoustical seatant at joints and
sound attenuation batting between studs from floor to structure
above. partitions to receive
typical partition finish.



D. 1) Building interior space may be divided into fire containment areas. It is the
responsibility of the Tenant to conform to all applicable regulations
and fire codes,
including, but not limited to, maintaining egness requirements during
the term of
occupancy.




     2)
Fire containment walls to be 3-5/8” metal studs at 24“ o.c. with 5/8” gypsum
wallboard on each side. Walls to extend from floor to underside of structure above.
Doors in fire containment walls to be twenty minute fire rated, solid core oak weneer
with closer and metal jambs.


E. Tenant will be responsible
for identifying any equipment or areas requiring
additional or special ventilation, lighting or electrical service prior to space
planning.




OFFICE AREAS




A. INTERIOR PARTITIONS.





1. 3-5/8” metal studs at 24” o.c. from floor to underside of ceiling with 5/8” gypsum
wallboard on each side.





2. All concrete block walls in office area to be furred and
shealhed as interior partitions above unless otherwise noted
on Architectural drawings.



B. PARTITION FINISH





All interior partitions, not
prefinished, will receive paint. Paint to be
Landlord’s standard two finish coats over one primer coal. Color to be selected
by Tenant from among choices pre-selected by Landlord.



C. CEILING





To be suspended acoustical 2x4 ceiling tile. Tile and metal grid to be while.



D. FLOOR COVERING





1. Carpet to be
Landlord’s standard (Cambridge-Oxford 28 oz. nylon textured
loop. Installation to be glue down. Color to be selected by Tenant from among
choices pre-selected by Landlord. Base at carpet to be 2-1/2” high solid oak
funish to match doors.




2. Resilient flooring to be Landlord’s standard.


12“x12“X1/8”. Color to be selected by Tanant from among choices pre-selected by
Landlord. Base at resident flooring to be Roppe 2-1/2” rubber cove.



E. INTERIOR DOORS





All interior doors to be solid core
flush panel oak veneer with 3 coats natural
color lacquer finish. Frames to be Timely Metal Frames. Door
sizes to be 3"-0” x 7”-0”
1-3/4” unless otherwise noted on architectural drawings.



F. DOOR HARDWARE





To be sergent 6 line Orbital series, 260 brushed chrome or equal. All entry
doors to have keyed cylinder lock sets. All office, conference, and storage room
doors to have passage lock set. Restrooms to have privacy lock. All doors to have
1-1/2 pair 4” hinges and 1 lves concave wall stop 407 -1/2, or equal stainless
steel finish.



G. LIGHTING





To be
2’x4’ 4 lamp, recessed, fluorescent with 4’ x 4’ parabolic lens light fixtures.



H. ELECTRICAL/PHONE





outlet locations as shown or
 Architictural drawings. All outlets, outlet covers, switches
and switch plate covers to be white.



I. COMPUTER/TELEPHONE OUTLETS





Outlets to
consist of empty junction box with 1/2’ conduit stubbed above
ceiling.



J. TELEPHONE/COMPUTER LINES AND CABLING





Wiring and installation to be provided by Tenant 3/4” plywood phone board to
be provided and installed by Landlord for telephone installation.



RESTROOMS INSIDE THE
TENANT’S SPACE




A.  CONSTRUCTION AND FINISHES





To be as per
office area specifications except as follows:




1) Partitions
and ceiling to receive 5/8” water resistant gypsum wallboard.




2) Walls to
have 2 coats of epoxy paint from floor to 4’-0” above floor. Remaining wall
surface and ceiling to have 2 finish coasts of semi-gloss acrylic over one primer coat. Color
to be white.




3) Ceiling
structure to be metal stud joists bearing on partition wall. Ceiling structure to
support unit water heater for restroom. Ceiling height to be maximum allowable.


4) Counter tops to have plastic
laminate finish with color to be selected by Tenant from among
choices pre-selected by Landlord.



B. PLUMBING FIXTURES




Page 13 of 16




 









 









1) Toilet — Armitage Shanks, White, model # 109 or equal.




2) Lavatory
— Armitage Shanks model #308, white, 19” self rimming china lavatory with
Price Pfisler #H43-121 faucet or equal.




3) Lavatory
— American Standard wall hung Royalyn Vitreous China 3 hole #1024.131
(20” x 18”) with Delta handle faucet #2520 or equal.




4) Urinal — Kohler model #402, white with Zom flush valve or equal.



C. ACCESSORIES





1) Mirror — Full HGT and with mirror with metal edge trim as shown on
Architectural Drawings.




2) Mirror
— Bobrick stainless steel channel frame mirror #B-165-1830
(18” x 30”) or
equal.




3) Paper
Towel Dispenser/Disposal — Bobrick B-369 recessed, stainless
steel satin finish or equal.




4) Toilet
Tissue Dispenser — Bobrick B-388 recessed, stainless steel stain
finish or equal.




5) Utility
Hook — Bobrick #B-670 polished stainless steel or equal mounted interior
side of toilet and shower stall doors (if applicable) 66” above finished floor.




6) Grab Bars
— Bobrick #b-490, stainless steel satin finish or equal.



D. LIGHTING





One surface mounted 2 tube fluorescent fixture with acrylic lens in drywall light valance over
lavatory. Ceiling fixture, if called for in Architectural drawings,
to be 2 tube fluorescent with
acrylic wrap lens.



E. ELECTRICAL






One GFI electric outlet adjacent to lavatory. One exhaust fan in any toilet room.



MECHANICAL/ELECTRICAL




A. HEATING AND COOLING





The interior
premises are heated or cooled by one or more roof-mounted
mechanical units. The sizing of the mechanical units are designed to provide one
(1) ton of cooling for every three hundred and eighty-three (383) square feet of
floor area; provided that the internal load does not exceed three (3) watts per
square foot. Individual thermostat control shall be centrally controlled allowing
for automatic setback capabilities with external dial-in monitoring provided for
the interior premises, with control areas not to exceed two thousand (2,000) square
feet in size. Based upon the above, the system shall maintain a minimum temperature
of 65 degrees Fahrenheit and a maximum temperature of 75 degrees fahrenheit in
the separate rooms within the Leased Premises, so long as the minimum exterior
temperature shall not be below zero degrees fahrenheit and the maximum exterior
temperature shall not be in excess of 100 degrees fahrenheit.



B. ELECTRICAL





Standard electrical service provided to the building to be 120/206 volt, three phase, four wire. No
additional service to be provided for Tenant equipment unless otherwise noted. One (1) light
switch per office provided. Circuitry design is normally laid out to allocate 6 to 8 duplex
outlets per 20 amp circuit.



C. ELECTRICAL OUTLETS





Restrooms to have one duplex electrical outlet. See Architectural
drawings for outlet locations in other areas.



D. LIGHTING





Finished rooms, other than restrooms and storage areas will be lighted with
2’x4’ recessed, 4 lamp, fluorescent fixtures. All fixtures to be provided
initially with lamps. Lights and switch locations will be as shown on
Architectural drawings.



SUPPLEMENTAL ITEMS






See Architectural drawings for additional notes and locations if the items
below are included in the tenant finish.



A. COFFEE BAR





	 	1)  	Base and upper cabinets to be Merrilat
brand with style to be chosen by Landlord.
	 
	 	2)  	Countertop and splash to be
plastic laminate finish with color to be selected by Tenant from
among choices pre-selected by Landlord.
	 
	 	3)  	Kitchen sink, Dayton Kingsford
#K-11515 single compartment sink with Delta #2171 faucet or equal.





B. SHOWER STALL





     Universal
Rundle #6852, 36” unit fiberglass shower stall with glass shower
door or equal. When shower stalls are provided substitute a 30 gallon hot water
heater for the standard 6 gallon hot water heater.



C. PARTIAL HEIGHT PARTITIONS





     Partial
 height partitions to be 3-5/8” metal studs with 5/8“gypsum wallboard on
each side and 1x oak cap. Finish to match full height partitions and oak base.
See Architectural drawings for detail. Vertical posts will be provided as necessary
for stability.



D. REAR 10’ X 10’ OPENINGS





     Any of the following shall be included as part of the tenant finish:




	 	1)  	Changing out an overhead door
to glass
	 
	 	2)  	Changing out glass to an
overhead door
	 
	 	3)  	As part of initial tenant
finish on a new building filling an opening with either glass or an
overhead door.





Page 14 of 16





 









 








Exhibit “E”

Additional Terms and Conditions



1. Landlord shall agrees to terminate Mylex Corporation’s existing lease’s and any addendums
thereto in the Pearl East Business Park, at the time of occupancy in the new Premises.



2. Tenant shall be given the
right to cancel this Lease Agreement after five (5) years of occupancy
with twelve (12) months written notification in addition to payment of any remaining unamotized
tenant improvements. This right to early termination will be applicable only after Tenant has been
occupying the lease premises for four (4) full years (48 months) of this lease term. After the
first four (4) years of occupancy, the Tenant may give written notification to terminate the lease
after an additional twelve (12) months of occupancy from the date the written request to terminate
the Lease has been received by the Landlord and Landlord has received the above described payment
of any remaining unamortized tenant improvements. Said right to terminate the Lease shall be valid
only during the initial base lease term. Any termination rights granted beyond the initial base
lease term must be mutually agreed upon by both Tenant and Landlord and must be in writing.
Following is an amortization schedule reflecting required payment in the event of early
termination.




	 	 	 	 	 	 	 	 
	 	Principal

	 	 	$	1,093.125	 	 
	 	Years

	 	 	 	7	 	 
	 	Annual rate

	 	 	 	12.0000	%	 
	 







	 	 	 	 	 	 	 	 
	 	Months

	 	 	 	84	 	 
	 	Monthly rate

	 	 	 	1.0000	%	 
	 	Total Paid

	 	 	$	1,620,918.06	 	 
	 	Total Interest

	 	 	$	527,793.06	 	 
	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	MONTH	 	 	PAYMENT	 	 	 	INTEREST	 	 	 	PRINCIPAL	 	 	 	EXTRA PAID	 	 	 	BALANCE	 	 
	 	60
	 	 	$	19,296.64	 	 	 	$	4,249.73	 	 	 	$	15,046.91	 	 	 	 	 	 	 	 	$	409,926.07	 	 
	 	61
	 	 	$	19,296.64	 	 	 	$	4,099.26	 	 	 	$	15,197.38	 	 	 	 	 	 	 	 	$	394,728.69	 	 
	 	62
	 	 	$	19,296.64	 	 	 	$	3,947.29	 	 	 	$	15,349.36	 	 	 	 	 	 	 	 	$	379,379.33	 	 
	 	63
	 	 	$	19,296.64	 	 	 	$	3,793.79	 	 	 	$	15,502.85	 	 	 	 	 	 	 	 	$	363,876.48	 	 
	 	64
	 	 	$	19,296.64	 	 	 	$	3,638.76	 	 	 	$	15,657.88	 	 	 	 	 	 	 	 	$	348,218.60	 	 
	 	65
	 	 	$	19,296.64	 	 	 	$	3,482.19	 	 	 	$	15,814.46	 	 	 	 	 	 	 	 	$	332,404.15	 	 
	 	66
	 	 	$	19,296.64	 	 	 	$	3,324.04	 	 	 	$	15,972.60	 	 	 	 	 	 	 	 	$	316,431.54	 	 
	 	67
	 	 	$	19,296.64	 	 	 	$	3,164.32	 	 	 	$	16,132.33	 	 	 	 	 	 	 	 	$	300,299.22	 	 
	 	68
	 	 	$	19,296.64	 	 	 	$ 	3,002.99	 	 	 	$ 	16,293.65	 	 	 	 	 	 	 	 	$	284,005.56	 	 
	 	69
	 	 	$	19,296.64	 	 	 	$	2,840.06	 	 	 	$	16,456.59	 	 	 	 	 	 	 	 	$	267,548.98	 	 
	 	70
	 	 	$	19,296.64	 	 	 	$	2,675.49	 	 	 	$	16,621.15	 	 	 	 	 	 	 	 	$	250,927.82	 	 
	 	71
	 	 	$	19,296.64	 	 	 	$	2,509.28	 	 	 	$	16,787.37	 	 	 	 	 	 	 	 	$	234,140.46	 	 
	 	72
	 	 	$	19,296.64	 	 	 	$	2,341.40	 	 	 	$	16,955.24	 	 	 	 	 	 	 	 	$	217,185.22	 	 
	 	73
	 	 	$	19,296.64	 	 	 	$	2,171.85	 	 	 	$	17,124.79	 	 	 	 	 	 	 	 	$	200,060.43	 	 
	 	74
	 	 	$	19,296.64	 	 	 	$	2,000.60	 	 	 	$	17,296.04	 	 	 	 	 	 	 	 	$	182,764.39	 	 
	 	75
	 	 	$	19,296.64	 	 	 	$	1,827.64	 	 	 	$	17,469.00	 	 	 	 	 	 	 	 	$	165,295.39	 	 
	 	76
	 	 	$	19,296.64	 	 	 	$	1,852.95	 	 	 	$	17,643.69	 	 	 	 	 	 	 	 	$	147,651.70	 	 
	 	77
	 	 	$	19,296.64	 	 	 	$	1,476.52	 	 	 	$	17,820.13	 	 	 	 	 	 	 	 	$	129,831.57	 	 
	 	78
	 	 	$	19,296.64	 	 	 	$	1,298.32	 	 	 	$	17,996.33	 	 	 	 	 	 	 	 	$	111,833.24	 	 
	 	79
	 	 	$	19,296.64	 	 	 	$	1,118.33	 	 	 	$	18,178.31	 	 	 	 	 	 	 	 	$	93,654.93	 	 
	 	80
	 	 	$	19,296.64	 	 	 	$	936.55	 	 	 	$	18,360.09	 	 	 	 	 	 	 	 	$	75,294.84	 	 
	 	81
	 	 	$	19,296.64	 	 	 	$	752.95	 	 	 	$	18,543.70	 	 	 	 	 	 	 	 	$	56,751.14	 	 
	 	82
	 	 	$	19,296.64	 	 	 	$	567.51	 	 	 	$	18,729.13	 	 	 	 	 	 	 	 	$	38,022.01	 	 
	 	83
	 	 	$	19,296.64	 	 	 	$	380.22	 	 	 	$	18,916.42	 	 	 	 	 	 	 	 	$	19,105.59	 	 
	 	84
	 	 	$	19,296.64	 	 	 	$	191.06	 	 	 	$	19,105.59	 	 	 	 	 	 	 	 	$	0.00	 	 
	 





Page 15 of 16





 









 








Exhibit “F”

Option To Extend



1. Option to Extend. The Tenant shall have the option to extend this Lease Agreement
from 12:00 noon on May 1, 2007, to 12:00 noon on May 1,
2014, In the event the Tenant desires to exercise said option, Tenant
shall give written notice of such exercise to Landlord not before June 1, 2006, nor later than June
30, 2006.



See below for Option Term
Rent. In the event of such exercise, this Lease Agreement shall be
automatically extended for the additional term. Notwithstanding the foregoing, this option shall be
void and of no force or effect if the Tenant is in default hereunder either as of the date of the
Tenant’s exercise of said option or as of the date of the commencement of the option or additional
term.



2. Rent. Tenant shall pay the following rent for the Leased Premises:




During Option Term




	 	 	 	 	 	 	 	 	 
	For Period	 	To Period	 	 	A Base Monthly	 
	Starting	 	Ending	 	 	Rent of	 
	May 1, 2007
	 	May 1, 2014	 	See below*












	* Landlord and Tenant will attempt to agree upon a Fair Market Rental Value of the Leased
Premises ( expressed on a dollar per square foot basis ) as
determined by comparison to parcels of
similar size located in shopping center in or near the City of Boulder, Colorado, having comparable
development, use and density capability and such other characteristics as may be deemed relevant by
a subject appraiser whose selection is outlined herein.




Landlord shall select an independent MAI real estate appraiser with at least ten (10) years’
experience in appraising commercial real property in the City of Boulder, Colorado
 ( a “Qualified Appraiser”).
 The Qualified Appraiser selected by the Landlord shall be referred
to as the “Landlords Appraiser”. Within thirty (30) days of being selected by the Landlord, the Landlord’s the appraiser
shall determine the Fair Market Rental Value of the leased Premises in accordance with the
appraisal standards set forth above and shall immediately give the Landlord and the Tenant written
notification of his determination.



If the Tenant AGREES with the
Landlord’s Appraiser’s determination by multiplying the Fair Market
Rental Value, than the Base Monthly Rent shall be determined by multiplying the Fair Market Rental
Value by 43,725 and the new Base Monthly Rental shall become effective beginning with the first
month of the Option Term. If the Tenant does not agree with the Landlord’s Appraiser’s
determination of Fair Market Rental Value, the Tenant shall have the right to select its own
Qualified Appraiser, its own Qualified Appraiser to determine the
Fair Market Rental Value. If the Tenant does elect to appoint a
Qualified Appraiser, (the Tenant’s Appraiser”), the Tenant shall select the Tenant’s Appraiser
within thirty (30) business days after receiving the Landlord’s Appraiser’s Determination of Fair
Market Rental Value. The Tenant’s Appraiser shall make his own determination if the Fair Market
Rental Value in accordance with the provisions set forth above, within thirty (30) business days of
being selected by the Tenant and shall immediately give the Landlord
and the Tenant written notice of his
determination.



If the Fair Market Rental
Value as determined by the Landlord’s Appraiser and the
Tenant’s Appraiser, respectively, differ by an amount which is equal to or less then five percent (5%) of the Fair
Market Rental Value determined by the Landlord’s Appraiser, then the arithmetic mean of the two
Fair Market Rental Values shall constitute the Fair Market Rental Value used to calculate the new
Base Monthly Rental which will be in effect for the option Term. If the Fair Market Rental Value
determined by the Landlord’s Appraiser and the Tenant’s Appraiser’s determination of the Fair
Market Rental Value differ by more than five percent (5%), the Landlord’s Appraiser and the
Tenant’s Appraiser shall agree upon and select a third Qualified appraiser who shall be independent
of and have no prior or existing affiliation or relationship with either the Landlord or the Tenant
(the “Independent Appraiser”). Within ten (10) business days of being appointed, the independent
Appraiser shall, after exercising his best professional judgement, choose either the Landlord’s
Appraiser’s or the Tenant’s Appraiser’s determination
of the
Fair Market Rental Value which the judgment, best
represents the Fair Market Rental Value at that
point in time. Upon making such a selection, the independent Appraiser shall immediately give the
Landlord or the Tenant written notice of this selection of the Fair Market Rental Value. The Fair
Market Rental Value selected by the independent Appraiser shall be used to calculate the new Base
Monthly Rental which will be in effect during the Extension Option, and such selection by the
independent appraiser shall be binding and conclusive upon the Landlord and the Tenant.



All Appraisal fees required hereunder shall be shared equally by the Landlord and Tenant.




Page 16 of 16