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EXHIBIT 10.38
LEASE AGREEMENT
BETWEEN
EASTPARK TECHNOLOGY CENTER, LTD.,
AS LESSOR
AND
EXABYTE CORPORATION, AS LESSEE
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TABLE OF CONTENTS
<Table>
1. PREMISES AND TERM.......................................................1
2. BASE RENT, SECURITY DEPOSIT AND RENT ESCALATION.........................2
3. TAXES...................................................................3
4. LESSOR'S REPAIRS........................................................4
5. LESSEE'S MAINTENANCE AND REPAIR OBLIGATIONS.............................4
6. ALTERATIONS.............................................................5
7. SIGNS...................................................................5
8. UTILITIES...............................................................5
9. INSURANCE...............................................................5
10. FIRE AND CASUALTY DAMAGE................................................6
11. LIABILITY AND INDEMNIFICATION...........................................7
12. USE ....................................................................8
13. INSPECTION..............................................................8
14. ASSIGNMENT AND SUBLETTING...............................................9
15. CONDEMNATION...........................................................10
16. HOLDING OVER...........................................................10
17. QUIET ENJOYMENT........................................................10
18. EVENTS OF DEFAULT......................................................11
19. REMEDIES...............................................................12
20. MORTGAGES..............................................................14
21. MECHANIC'S LIENS.......................................................15
22. MISCELLANEOUS..........................................................15
23. NOTICES................................................................17
24. HAZARDOUS WASTE........................................................18
</Table>
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<Table>
25. LESSOR'S LIEN..........................................................18
EXHIBIT A - Legal Description of the Land
EXHIBIT B - Work Letter
EXHIBIT B-1 - Contract Documents
</Table>
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made effective on December 9, 1991,
by EASTPARK TECHNOLOGY CENTER, LTD., a Colorado limited partnership ("Lessor"),
and EXABYTE CORPORATION, a Delaware corporation ("Lessee").
RECITATIONS:
Lessor owns certain real property located at 1777 Exposition Drive,
Boulder, Boulder County, Colorado. A portion of such property lies under the
following existing or proposed improvements, which are collectively called
"Premises" in this Lease and are further described on Exhibit A attached to this
Lease:
o A current facility ("Current Facility") of
approximately 47,255 sq. ft. to be expanded by 1,043
sq. ft.; and
o A proposed addition ("Addition") to the Current
Facility, to be approximately 36,541 sq. ft.
The parties desire that the Current Facility be renovated and expanded and that
the Addition be constructed in accordance with the Work Letter attached to this
Lease as Exhibit B, and that the entire Premises be leased to Lessee.
After completion of the Premises and for purposes of the provisions of this
Lease, including but not limited to the calculation of Base Rent, the total
square footage shall be measured in accordance with the single-tenant standard
approved by the Building Owners and Managers Association International ("BOMA").
The parties anticipate the total size of the Premises to be approximately 84,839
sq. ft.
Therefore, in consideration of the mutual covenants set forth in this
Lease, and other good and valuable consideration, the parties agree as follows:
1. PREMISES AND TERM. Lessor hereby leases the Premises to Lessee,
including the existing Current Facility and the proposed Addition, together with
all rights, privileges, easements, appurtenances, and amenities belonging to or
in any way pertaining to the Premises, to have and to hold, subject to the
terms, covenants and conditions in this Lease.
A. The term of this Lease shall commence on the Commencement Date as
set forth in the Work Letter attached as Exhibit B to this Lease (the
"Commencement Date"). The term of this Lease shall end on the last day of the
month that is 120 months after the month of the Commencement Date.
B. Lessee acknowledges and agrees that (1) Lessee has inspected and
accepts the Current Facility and the plans for the proposed renovation of it
described in Exhibit B; (2) the Current Facility, with the plans for the
proposed renovation, is suitable for the purpose for which it is leased; (3) no
representations as to the
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renovation of the Current Facility, nor promises to alter, remodel or improve
the Premises have been made by Lessor except as set forth in Exhibit B.
2. BASE RENT, SECURITY DEPOSIT AND RENT ESCALATION.
A. Lessee agrees to pay to Lessor rent for the Premises, in advance,
without demand, deduction or set off, at the annual rate of Ten and 64/100
Dollars ($10.64) per square foot of the Premises, payable on a monthly basis
during the term of this Lease. One monthly installment of Base Rent shall be due
and payable on the Commencement Date and a like monthly installment shall be due
and payable on or before the first day of each calendar month succeeding the
Commencement Date, except that all payments due for any fractional calendar
month shall be prorated.
B. In addition, Lessee agrees to deposit with Lessor on the date hereof
a cash amount equal to one month's rent, which shall be held by Lessor, without
obligation for interest, as security for the performance of Lessee's obligation
under this Lease, it being expressly understood and agreed that this deposit is
not an advance rental deposit or a measure of Lessor's damages in case of
Lessee's default. Upon each occurrence of an event of default, Lessor may use
all or part of the deposit to pay past due rent or other payments due Lessor
under this Lease, and the cost of any other damage, injury, expense or liability
caused by such event of default without prejudice to any other remedy provided
herein or, provided by law. On demand, Lessee shall pay Lessor the amount that
will restore the security deposit to its original amount. The security deposit
shall be deemed the property of Lessor, but any remaining balance of such
deposit shall be returned by Lessor to Lessee when Lessee's obligations under
this Lease has been fulfilled.
C. On the first day of the month following each anniversary of the
Commencement Date of this Lease, Lessor may increase the Base Rent payable for
the subsequent twelve (12)-month period. The increase shall be measured by the
increase in the Consumer Price Index, as described below, but shall not exceed
five percent (5%) of the Base Rent owing for the immediately preceding year
("the 5% Cap"). The following definitions and methods shall be used to calculate
the increases in Base Rent under this Paragraph:
(1) "Consumer Price Index" shall mean the semiannual
indexes of the Consumer Price Index for all Urban
Consumers, Denver-Boulder, Colorado (All Items;
1982-84 equals 100) issued by the United States
Department of Labor, Bureau of Labor Statistics, or
any successor agency of the United States that issues
such indexes or any successor index.
(2) "Initial Consumer Price Index" shall mean the
Consumer Price Index published for the nearest
calendar period preceding the Commencement Date of
this Lease.
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(3) "Latest Consumer Price Index" shall mean the Consumer
Price Index published for the nearest calendar period
preceding the first day on which an increase under
this Lease is to be effective.
(4) "Previous Consumer Price Index" shall mean the
Consumer Price Index published for the nearest
calendar period preceding the first day on which the
previous increase under this Lease was effective.
(5) The first increase will be calculated by multiplying
the Base Rent by a fraction, with the numerator being
the Latest Consumer Price Index and the denominator
being the Initial Consumer Price Index.
(6) Each subsequent increase will be calculated by
multiplying the then current Base Rent by a fraction,
with the numerator being the Latest Consumer Price
Index and the denominator being the Previous Consumer
Price Index.
(7) To the extent that the calculation under
subparagraphs (5) and (6) above exceeds the 5% Cap,
such excess ("Excess") shall be preserved and carried
forward to subsequent years until utilized. All or
part of the Excess may be added to the amount
calculated under subparagraph (6) above for any
subsequent year, subject to the 5% Cap.
(8) If the Consumer Price Index is discontinued, Lessor
will designate an alternative comparable index to be
used in calculating the increase in the Base Rent
under this Lease.
(9) Lessee will not be entitled to a credit for any
decrease in the Consumer Price Index.
3. TAXES
A. Lessee agrees to pay, prior to delinquency, all taxes, assessments
(whether special or otherwise), and governmental charges of any kind and nature
(collectively called "Taxes") that accrue against the Premises. If at any time
during the term of this Lease there shall be levied, assessed or imposed on
Lessor a capital levy or other tax directly on the rents received therefrom or a
franchise tax, assessment, levy or charge measured by or based, in whole or in
part, upon such rents from the Premises, then all such taxes, assessments,
levies or charges, or the part so measured or based, shall be deemed to be
included within the term "Taxes" for the purposes hereof.
B. Lessee shall be liable for all taxes levied or assessed against any
personal property or fixtures placed in the Premises. If any such taxes are
levied or assessed against Lessor or Lessor's property and (i) Lessor pays the
same or (ii) the assessed value of Lessor's property is increased by inclusion
of such personal property and fixtures and Lessor pays the increased taxes, then
upon demand Lessee shall reimburse Lessor for such taxes.
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4. LESSOR'S REPAIRS.
A. Lessee understands and agrees that this Lease is a "net" lease, and
as such, Lessor's maintenance, repair and replacement obligations are limited to
those set forth in this Paragraph 4A. Lessor, at its own cost and expense, shall
maintain only the roof structure, foundation and the structural soundness of the
exterior walls of the Premises in good repair, reasonable wear and tear
excluded. The term "walls" as used herein shall not include windows, glass or
plate glass, doors, special store fronts or office entries. Lessee shall
immediately give Lessor written notice of defect or need for repairs, after
which Lessor shall have reasonable opportunity to repair same or cure such
defect.
B. If Lessee fails, within a reasonable time, to perform Lessee's
maintenance, repair and replacement obligations and any other items that are
otherwise its obligations under Paragraph 5B, then Lessor reserves the right to
perform such obligations and require reimbursement from Lessee upon demand.
5. LESSEE'S MAINTENANCE AND REPAIR OBLIGATIONS.
A. Lessee, at its own cost and expense, shall maintain all parts of the
Premises (except those for which Lessor is expressly responsible hereunder) in
good condition, reasonable wear and tear excepted, and promptly make all
necessary nonstructural repairs and replacements to the Premises. In addition,
Lessee is responsible for causing the parking areas, driveways, alleys and
grounds surrounding the Premises to be maintained in a good, neat, clean and
sanitary condition, which includes without limitation (1) promptly making all
necessary repairs and replacements thereto, (2) repaving of the parking areas
associated with the Premises, (3) maintenance and replacement of all grass,
shrubbery and other landscape treatments surrounding the Premises, (4)
maintenance and repainting of the exterior of the Premises, (5) sewage line
plumbing, and (6) any other maintenance items normally associated with the
foregoing.
B. Lessee agrees to pay its proportionate share of the cost of
operation, maintenance or landscaping of any property or facility that is
operated, maintained or landscaped by any property owner or community owner
association that is named in any restrictive covenants or deed restrictions to
which the Premises are subject.
C. Lessee, at its own cost and expense, shall cause to be performed, in
accordance with standards reasonably suitable to Lessor, regularly scheduled
preventive maintenance and services on all hot water, heating and air
conditioning systems and equipment within the Premises. Such maintenance and
services must include all service suggested by the equipment manufacturers in
their operations/maintenance manuals and must become effective within thirty
(30) days of the date Lessee takes possession of the Premises.
D. Lessee and its employees, customers and licensees shall have the
exclusive rights to use any parking areas that have been designated for such use
by
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Lessor in writing, subject to (1) all reasonable rules and regulations
promulgated by Lessor and (2) any rights of ingress and egress of other persons.
Lessor shall not be responsible for enforcing Lessee's parking rights against
any third parties. Lessee agrees not to use more spaces than so provided.
6. ALTERATIONS. Lessee shall not make any alterations, additions or
improvements to the Premises that exceed a cost of $15,000.00 for any single
project or system or that change the exterior or the structure of the Premises
without the prior written consent of Lessor, which consent shall not be
unreasonably withheld. Lessee, at its own cost and expense, may erect such
shelves, bins, machinery and trade fixtures as it desires, provided that (a)
such items do not alter the basic character of the Premises; (b) such items do
not overload or damage the Premises; (c) such items may be removed without
injury to the Premises; and (d) the construction, erection or installation
thereof complies with all applicable governmental laws, ordinances, regulations
and with Lessor's specifications and requirements. All shelves, bins, machinery
and trade fixtures installed by Lessee shall be removed on or before the earlier
to occur of the date of termination of this Lease or vacating the Premises, at
which time Lessee shall restore the Premises to their original condition. All
installations, removals and restoration shall be performed in a good and
workmanlike manner so as not to damage or alter the primary structure or
structural qualities of the Premises.
7. SIGNS. Any signage, decorations, advertising media, blinds, draperies,
window treatments, bars, and security installations Lessee desires for the
Premises shall be subject to Lessor's prior written approval, which approval
will not be unreasonably withheld, and shall be submitted to Lessor prior to the
Commencement Date. Lessee shall repair, paint, and/or replace the building facia
surface to which its signs are attached upon vacation of the Premises, or the
removal or alteration of its signage. Lessee shall not (i) make any changes to
the exterior of the Premises, (ii) install any exterior lights, decorations,
balloons, flags, pennants, banners or painting, or (iii) erect or install any
signs, windows or doors lettering, placards, decorations or advertising media of
an type that can be viewed from the exterior of the Premises without Lessor's
prior written consent, which shall not be unreasonably withheld. The parties
agree, however, that Lessor's consent shall not be required for minor signage
(such as, parking signs) that does not affect the general appearance of the
Premises.
8. UTILITIES. Lessee shall obtain and pay for all water, gas, heat, light,
power, telephone, sewer, sprinkler charges and other utilities and services used
at the Premises, together with any taxes, penalties, surcharges or the like
pertaining to the Lessee's use of the Premises, and any maintenance charged for
utilities. Lessor shall not be liable for any interruption or failure of utility
service on the Premises.
9. INSURANCE.
A. Lessee, at its own expense, shall maintain insurance covering the
Premises in an amount equal to the full "replacement cost" thereof, insuring
against the perils of fire, lightning, extended coverage, vandalism and
malicious mischief.
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B. Lessee, at its own expense, shall maintain during the term of this
Lease (1) a policy or policies of worker's compensation and comprehensive
general liability insurance, including personal injury and property damage in
the amount of One Million Dollars ($1,000,000.00) per occurrence for property
damage and One Million Dollars ($1,000,000.00) per occurrence for personal
injuries or deaths of persons occurring in or about the Premises, and (2) fire
and extended coverage insurance covering the replacement costs of (a) all
alterations, additions, partitions and improvements installed or placed on the
Premises and (b) all of Lessee's personal property contained within the
Premises. Said policies shall (i) name Lessor as an additional insured, (ii) be
issued by an insurance company which is acceptable to Lessor, and (iii) provide
that said insurance shall not be cancelled unless ten (10) days prior written
notice shall have been given to Lessor, and (iv) shall be delivered to Lessor by
Lessee upon commencement of the term of the Lease and upon each renewal of said
insurance.
C. Lessee will not permit the Premises to be used for any purpose or in
any manner that would (1) void the insurance thereon, (2) increase the insurance
risk, or (3) disallow any sprinkler credits.
10. FIRE AND CASUALTY DAMAGE.
A. If the Premises are damages or destroyed, Lessee immediately shall
give written notice to Lessor ("Notice of Damage"). If the Premises are totally
destroyed or so damaged by an adequately insured peril that, and in Lessor's
reasonable estimation, rebuilding or repairs, with appropriate financing, cannot
be completed within one hundred eighty (180) days after the date of the Notice
of Damage, then Lessor will so notify Lessee within forty-five (45) days after
Lessor's receipt of the Notice of Damage. This Lease shall then terminate and
the rent shall be abated during the unexpired portion of this Lease, effective
upon the date of the Notice of Damage.
B. If the Premises are damaged by any insured peril and, in Lessor's
estimation, rebuilding or repairs can be substantially completed within one
hundred eighty (180) days after the Notice of Damage, this Lease shall not
terminate, and Lessor shall restore the Premises to substantially its previous
condition, except that Lessor shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and such other
improvements required to be covered by Lessee's insurance pursuant to Paragraph
9B above. Effective upon the date of the Notice of Damage and ending upon
substantial completion, the rent shall be abated to the extent that the Premises
are unfit for occupancy. Lessor shall pursue the restoration with reasonable
diligence, but if such repairs and rebuilding have not been substantially
completed within one hundred eighty (180) days after the date of the Notice of
Damage, Lessee, as Lessee's exclusive remedy, may either:
(1) Terminate this Lease by delivering written notice of
termination to Lessor within thirty (30) days after
the end of such 180-day period; or
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(2) Receive a credit against future rent owing under this
Lease in an amount equal to one day's rent for each
day past such 180-day period that the repairs and
rebuilding are not substantially complete. For
purposes of the rent credit set forth in this
paragraph, the phrase "one day's rent" shall be based
upon the rental rate in effect prior to the casualty
damage.
C. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then Lessor shall have the right to terminate this Lease by delivering written
notice of termination to Lessee within forty-five (45) days after the Notice of
Damage, whereupon all rights and obligations hereunder shall cease and
terminate.
D. Anything in this Lease to the contrary notwithstanding, to the
extent of a recovery of loss proceeds under the policies of insurance described
in this Lease, Lessor and Lessee hereby waive and release each other of and from
any and all rights of recovery, claim, action or cause of action, against each
other, their agents, officers and employees, for any loss or damage that may
occur to the Premises, or personal property within the Premises arising from or
caused by fire or other casualty or hazard covered or required to be covered by
hazard insurance under this Lease. Upon execution of this Lease, Lessor and
Lessee shall notify their respective insurance companies of the mutual waivers
contained herein and, if available, shall cause each policy described in this
Lease to be so endorsed.
11. LIABILITY AND INDEMNIFICATION.
A. Lessee hereby indemnifies and agrees to hold harmless and to defend
Lessor and its affiliated companies and their respective agents, servants,
directors, officers, and employees (collectively called "Indemnitees") from and
against any and all liabilities, claims, suits, damages, costs (including court
costs, attorney's fees, and costs of investigation) and claims of liability, and
actions of any kind arising or alleged to arise by reason of Lessee's use of the
Premises or any injury (including death) to any person or damage to or loss of
any property whatsoever occurring in, on, or about the Premises or any part
thereof. The only circumstance under which Lessee's obligation to indemnify
Indemnitees does not apply is with respect to an occurrence resulting solely
from the gross negligence or willful misconduct of an Indemnitee. Lessee further
indemnifies and agrees to hold Indemnitees harmless from and to defend
Indemnitees against any and all claims arising from any breach or default in the
performance of any obligation on Lessee's part to be performed under the terms
of this Lease, or arising from any act or negligence of Lessee, or any of its
agents, contractors, employees, licensees or invitees. Indemnitees shall not be
liable to Lessee for any damage by or from any act or negligence of any visitor
to the Premises or any owner or occupant of adjoining or contiguous property. If
any action or proceeding shall be brought by or against any Indemnitee in
connection with any such liability or claim, Lessee, on notice from Lessor,
shall defend such action or proceeding, at Lessee's expense, by or through
attorneys reasonably satisfactory to Lessor. The provisions of this Paragraph
shall
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apply to all activities of Lessee with respect to the Premises whether occurring
before or after the Commencement Date and before or after the expiration or
termination of this Lease. Lessee's obligations under this Paragraph shall not
be limited to the limits of coverage of insurance maintained or required to be
maintained by Lessee under this Lease.
B. Indemnitees shall not be liable for any damage to property entrusted
to them, nor for the loss or damage to any property by theft or otherwise, by
any means whatsoever, nor for any injury (including death) to persons or damage
to or loss of property resulting from fire, act of God, public enemy, riot,
strike, insurrection, explosion, falling plaster, repairs, steam, gas,
electricity, water, or rain which may leak from any part of the Premises or from
the pipes, appliances or plumbing works therein or from the roof, street or
subsurface, or from any other place or resulting from dampness, or resulting
from the actions of Lessor or its agents, or any other cause whatsoever;
provided, however, that nothing contained herein shall be construed to relieve
Indemnitees from liability for any personal injury resulting solely from their
gross negligence or willful misconduct. All personal property upon the Premises
shall be at the risk of the Lessee only, and no Indemnitees shall be liable for
any damage thereto or theft thereof, whether or not due in whole or in part to
the negligence of any Indemnitee. Indemnitees shall not be liable for
interference with the light, view or other incorporeal hereditaments. Lessee
shall give prompt notice to Lessor in case of fire or accidents in the Premises,
or of material defects therein or in the fixtures or equipment.
12. USE. Lessee shall use the Premises primarily for the purpose of
production facilities for the manufacturing and servicing of computer products
and any office use. Lessee shall refrain from the sale of merchandise and
performance of services not usually incidental to such business. Lessee shall
not use the Premises for the receipt, storage or handling of any product,
material or merchandise that is explosive or highly inflammable. Lessee shall
comply with all governmental laws, ordinances and regulations applicable to the
use of the Premises, and promptly shall comply with all governmental orders and
directives for the correction, prevention and abatement of nuisances in or upon,
or connected with, the Premises, all at Lessee's sole expense. Lessee shall not
permit any objectionable or unpleasant odors, smoke, dust, gas or vibrations to
emanate from the Premises, nor take any other action that would constitute a
nuisance or would disturb, unreasonably interfere with, or endanger Lessor or
any other lessees of the Building. Lessee shall comply with all requirements of
any restrictive covenants, deed restrictions, community owner association, or
other subdivision matters to which the Premises are subject. Lessee acknowledges
that Lessor shall have the right at any time to impose reasonable rules and
regulations governing Lessee's use of the Premises.
13. INSPECTION. In the event of an emergency, Lessor or Lessor's agents and
representatives shall have the right to enter the Premises at any time and will
use reasonable efforts to notify Lessee orally beforehand. When there is no
emergency, Lessor or Lessor's agents and representatives shall have the right to
enter the Premises at any reasonable time during business hours, upon prior oral
or written notice to and
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approval of Lessee, to inspect the Premises and to make such repairs as may be
required or permitted pursuant to this Lease. During the period that is eight
(8) months prior to the end of the Lease term, upon oral or written notice to
Lessee, Lessor and Lessor's representatives may enter the Premises during
business hours for the purpose of showing the Premises. In addition, Lessor
shall have the right to erect a suitable sign on the Premises stating the
Premises are available. Lessee shall notify Lessor in writing in thirty (30)
days prior to vacating the Premises and shall arrange to meet with Lessor for a
joint inspection of the Premises prior to vacating. If Lessee fails to give such
notice or to arrange for such inspection, then Lessor's inspection of the
Premises shall be deemed correct for the purpose of determining Lessee's
responsibility for repairs and restoration of the Premises.
14. ASSIGNMENT AND SUBLETTING.
A. Lessee shall not have the right to sublet all or part of the
Premises or to assign, transfer or encumber this Lease, or any interest therein,
without the prior written consent of Lessor. Such consent shall not be
unreasonably withheld as to a proposed sublease of the Premises; provided,
however, that Lessor may consider many factors in determining whether or not to
consent, including but not limited to the type of business to be operated by the
proposed sublessee and such sublessee's creditworthiness and financial status.
Notwithstanding anything to the contrary set forth in this paragraph, Lessor
hereby consents to any assignment of this Lease to Lessee's successor in
interest by operation of law, other than pursuant to a reorganization under the
Bankruptcy Code. Any attempted assignment, subletting, transfer or encumbrance
by Lessee in violation of the terms and covenants of this Paragraph shall be
void. No assignment, subletting or other transfer, whether consented to by
Lessor or not, or permitted hereunder, shall relieve Lessee of its liability
under this Lease. If an event of default occurs while the Premises or any part
thereof are assigned or sublet, then Lessor, in addition to any other remedies
provided under this Lease or by law, may collect directly from such assignee,
sublessee or transferee all rents payable to the Lessee and apply such rent
against any sums due Lessor hereunder. No such collection shall be construed to
constitute a novation or a release of Lessee from the further performance of
Lessee's obligations under this Lease.
B. Upon the occurrence of an assignment or subletting, whether
consented to by Lessor or mandated by judicial intervention, Lessee hereby
assigns, transfers and conveys all rents or other sums received by Lessee under
any such assignment or sublease that are in excess of the rents and other sums
payable by Lessee under this Lease, and Lessee agrees to pay such amounts within
ten (10) days after receipt.
C. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Section 101, et. seq., (the
"Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Lessor, shall be and remain the exclusive property of Lessor and
shall not constitute property of Lessee or of the estate of Lessee within the
meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Lessor's property under the preceding sentence not paid or
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delivered to Lessor shall be held in trust for the benefit of Lessor and be
promptly paid or delivered to Lessor.
D. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed, without further act or deed,
to have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall upon demand execute and deliver
to Lessor an instrument confirming such assumption. The assignor in such
situation, however, shall not be released from any obligation under this Lease
except in a specific, written release signed by Lessor.
15. CONDEMNATION. If more than fifty percent (50%) of the Premises are
taken for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking prevents or materially interferes with the use of the
Premises for the purpose for which they were leased to Lessee, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective on the date of such taking. If less than fifty percent (50%) of
the Premises are taken for any public or quasi-public use under any governmental
law, ordinance or regulation, or by right of eminent domain, or by private
purchase in lieu thereof, this Lease shall not terminate, but the rent payable
hereunder during the unexpired portion of this Lease shall be reduced to such
extent as may be fair and reasonable under all of the circumstances. All
compensation awarded in connection with or as a result of any of the foregoing
proceedings shall be the property of Lessor, and Lessee hereby assigns any
interest in any such award to Lessor; provided, however, Lessor shall have no
interest in any award made to Lessee for loss of business or goodwill or for the
taking of Lessee's fixtures and improvements if a separate award for such items
is made to Lessee.
16. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Lessee immediately shall deliver, possession to Lessor with all
repairs and maintenance required herein to be performed by Lessee completed. If,
for any reason, Lessee retains possession of the Premises after the expiration
or termination of this Lease, unless the parties hereto otherwise agree in
writing, such possession shall be subject to termination by either Lessor or
Lessee at any time upon not less than ten (10) days advance written notice, and
all of the other terms and provisions of this Lease shall be applicable during
such period, except that Lessee shall pay Lessor from time to time, upon demand,
as rental for the period of such possession, an amount equal to 150% of the rent
in effect on the termination date, computed on a daily basis for each day of
such period. No holding over by Lessee, whether with or without consent of
Lessor shall operate to extend this Lease except as otherwise expressly
provided. The preceding provisions of this Paragraph 16 shall not be construed
as consent for Lessee to retain possession of the Premises in the absence of
written consent thereto by Lessor.
17. QUIET ENJOYMENT. Lessor represents that it has the authority to enter
into this Lease and that so long as Lessee pays all amounts due and performs all
other covenants and agreements; under this Lease, Lessee shall peaceably and
quietly have, hold and enjoy the Premises for the term hereof without hindrance
or molestation from
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Lessor, subject to the terms and provisions of this Lease. If this Lease is a
sublease, then Lessee agrees to take the Premises subject to the provisions of
the prior leases.
18. EVENTS OF DEFAULT. Each of the following events of default
(individually called "event of default") shall be deemed to be an event of
nonperformance by Lessee under this Lease:
A. Lessee shall fail to pay any installment of rent owing under this
Lease when due, or any other payment or reimbursement to Lessor required under
this Lease when due, and such failure shall continue for a period of ten (10)
days after written notice of such failure is given by Lessor to Lessee.
B. Lessee shall (i) become insolvent; (ii) admit in writing its
inability to pay its debts; (iii) make a general assignment for the benefit of
creditors; (iv) commence any case, proceeding or other action seeking to have an
order for relief entered on its behalf as a debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property; or (v) take any
action to authorize or in contemplation of any of the actions set forth above in
this Paragraph.
C. Any case, proceeding or other action against the Lessee shall be
commenced seeking (i) to have an order for relief entered against it as debtor
or to adjudicate it a bankrupt or insolvent; (ii) reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors;
(iii) appointment of a receiver, trustee, custodian or other similar official
for it for all or any substantial part of its property, and such case,
proceeding or other action (a) results in the entry of an order for relief
against it which it is not fully stayed within seven (7) business days after the
entry thereof or (b) shall remain undismissed for a period of forty-five (45)
days.
D. Lessee shall (i) vacate all or a substantial portion of the Premises
or (ii) fail to continuously operate its business at the Premises for the
permitted use set forth in this Lease, whether or not Lessee is in default of
the rental payments due under this Lease.
E. Lessee shall fail to discharge any lien claimed or filed against the
Premises in violation of Paragraph 21 hereof or provide indemnification
acceptable to Lessor regarding such lien within twenty (20) days after Lessee
learns of any such lien or claim.
F. Lessee shall fail to comply with any nonmonetary term, provision or
covenant of this Lease (other than those listed in this Paragraph 18) and such
failure continues for more than thirty (30) days after Lessor delivers written
notice of the failure to Lessee; or, if such failure cannot be corrected within
the 30-day period but
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Lessee does not commence to correct the failure within the 30-day period and
thereafter diligently prosecute the correction of same to completion.
19. REMEDIES.
A. Upon each occurrence of an event of default, Lessor shall have the
option to pursue any one or more of the following remedies without any notice or
demand;
(1) Terminate this Lease;
(2) Enter upon and take possession of the Premises without
terminating this Lease; and
(3) Alter all locks and other security devices at the Premises
with or without terminating this Lease, and pursue, at
Lessor's option, one or more remedies pursuant to this Lease,
Lessee hereby specifically waiving any state or federal law to
the contrary; and in any such event Lessee immediately shall
surrender the Premises to Lessor, and if Lessee fails so to
do, Lessor, without waiving any other remedy it may have, may
enter upon and take possession of the Premises and expel or
remove Lessee and any other person who may be occupying such
Premises or any part thereof without being liable for
prosecution or any claim of damages therefor.
B. If Lessor terminates this Lease pursuant to the remedies set forth
in this Paragraph 19, then at Lessor's option Lessee shall be liable for and
shall pay to Lessor the sum of all rental and other payments owing to Lessor
under this Lease and accrued to the date of such termination, plus, as
liquidated damages, an amount equal to (1) the present value of the total rental
and other payments owed hereunder for the remaining portion of the Lease term,
calculated as if such term expired on the date set forth in Paragraph 1, less
(2) the then present fair market rental value of the Premises for such period,
which Lessor and Lessee stipulate and agree to be seventy-five percent (75%) of
the rental amount set forth in Paragraph 2 above. Lessor agrees to accept such
amount as liquidated damages and not as a penalty. The parties agree that such
liquidated damages are reasonable and that Lessor's actual damages in the event
of Lessee's default would be uncertain and difficult to ascertain.
C. If Lessor repossesses the Premises without terminating the Lease,
Lessee, at Lessor's option, shall be liable for and shall pay Lessor on demand
all rental and other payments owed to Lessor hereunder, accrued to the date of
such repossession, plus all amounts required to be paid by Lessee to Lessor
until the date of expiration of the term set forth in Paragraph 1, diminished by
all amounts received by Lessor through reletting the Premises during such
remaining term (but only to the extent of the rent herein reserved). Actions to
collect amounts due by Lessee to Lessor under this subparagraph may be brought
from time to time, on one or more occasions, without the necessity of Lessor's
waiting until expiration of the Lease term.
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D. Upon an event of default, in addition to any sum provided to be paid
under this Lease, Lessee also shall be liable for and shall pay to Lessor (i)
any brokers' fees incurred by Lessor in connection with reletting the whole or
any part of the Premises; (ii) the costs of removing and storing Lessee's or any
other occupant's property; (iii) the costs of repairing, altering, remodeling or
otherwise putting the Premises into condition acceptable to a new lessee; and
(iv) all reasonable expenses incurred by Lessor in enforcing or defending
Lessor's rights and remedies. If either party institutes any action or
proceeding to enforce any provision of this Lease by reason of any alleged
breach of such provision, the prevailing party shall be entitled to receive from
the losing party all reasonable attorneys' fees and all court costs in
connection with such proceeding.
E. In the event Lessee fails to make any payment under this Lease when
due, to help defray the additional cost to Lessor for processing such late
payments, Lessee shall pay to Lessor on demand a late charge in an amount equal
to five percent (5%) of such installment; and the failure to pay such amount
within ten (10) days after demand therefor shall be an additional event of
default under this Lease. The provision for such late charge shall be in
addition to all of Lessor's rights and remedies hereunder or at law and shall
not be construed as liquidated damages or as limiting Lessor's remedies in any
manner.
F. Exercise by Lessor of any one or more remedies hereunder granted or
otherwise available at law or equity shall not be deemed to be an acceptance of
any surrender of the Premises by Lessee, whether by agreement or by operation of
law, it being understood that such surrender can be effected only by the written
agreement of Lessor and Lessee. Lessee and Lessor further agree that forbearance
by Lessor to enforce its rights for any default under this Lease at law or in
equity shall not be a waiver of Lessor's right to enforce one or more of its
rights in connection with any subsequent default.
G. In the event of repossession of the Premises for an event of
default, Lessor shall use reasonable efforts to relet the Premises and to
collect rental after reletting; provided, that Lessee shall not be entitled to
credit or reimbursement of any proceeds in excess of the rental owed hereunder.
Lessor may relet the whole or any portion of the Premises for any period, to any
Lessee and for any use and purpose.
H. If Lessor fails to perform any of its obligations hereunder within
thirty (30) days after written notice from Lessee specifying such failure,
Lessee's exclusive remedy shall be an action for damages. Unless and until
Lessor fails to so cure any default after such notice, Lessee shall not have any
remedy or cause of action by reason thereof. All obligations of Lessor hereunder
will be binding upon Lessor only during the period of its ownership of the
Premises and not thereafter. The term "Lessor" shall mean only the owner of the
Premises from time to time, and in the event of the transfer by such owner of
its interest in the Premises, such owner shall thereupon be released and
discharged from all covenants and obligations of Lessor thereafter accruing, but
such covenants and obligations shall be binding during the Lease term upon each
new owner for the duration of such owner's ownership. Notwithstanding any other
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provision of this Lease, Lessor shall not have any personal liability hereunder.
In the event of any breach or default by Lessor in any term or provision of this
Lease, and, as a consequence, if Lessee shall recover a money judgment against
Lessor, such judgment shall be satisfied only out of the proceeds received at a
judicial sale upon execution and levy against the right, title, and interest of
Lessor in the Premises, and in the rents or other income from the Premises
receivable by Lessor, and neither Lessor nor Lessor's owners, partners or
venturers shall have any personal, partnership, corporate or other liability
hereunder.
I. If Lessor repossesses the Premises pursuant to the authority granted
in this Lease, then Lessor shall have this right to (i) keep in place and use or
(ii) remove and store all of the furniture, fixtures and equipment at the
Premises, including that which is owned by or leased to Lessee at any time prior
to any foreclosure thereon by Lessor or repossession thereof by any other lessor
or lienholder. Lessor also shall have the right to relinquish possession of all
or any portion of such furniture, fixtures, equipment and other property to any
person ("Claimant") who presents to Lessor a copy of any instrument represented
by Claimant to have been executed by Lessee (or any predecessor of Lessee)
granting Claimant the right under various circumstances to take possession of
such furniture, fixtures, equipment or other property, without the necessity on
the part of Lessor to inquire into the authenticity or legality of said
instrument. The rights of Lessor set forth in this subparagraph shall be in
addition to any and all other rights that Lessor has or may hereafter have at
law or in equity; and Lessee stipulates and agrees that the rights granted
Lessor are commercially reasonable.
J. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Lessee to or on behalf of Lessor under this Lease, whether or not
expressly denominated as rent, shall constitute rent.
K. This is a contract under which applicable law excuses Lessor from
accepting performance from (or rendering performance to) any person or entity
other than Lessee.
20. MORTGAGES. Lessee accepts this Lease subject and subordinate to any
mortgages or deeds of trust now or at any time hereafter constituting a lien or
charge upon the Premises; provided, however, that if the mortgagee, trustee, or
holder of any such mortgage or deed of' trust elects to have Lessee's interest
in this Lease superior to any such instrument, then by notice to Lessee from
such mortgagee, trustee or holder, this Lease shall be deemed superior to such
lien, whether this Lease was executed before or after said mortgage or deed of
trust. Lessee agrees to attorn to any mortgagee, trustee under a deed of trust
or purchaser at a foreclosure sale or trustee's sale as Lessor under this Lease,
provided that such mortgagee, trustee, or purchaser affords Lessee the quiet
enjoyment of the Premises as set forth in Paragraph 17 of this Lease. Lessee, at
any time hereafter, within ten (10) days after demand, shall execute any
instruments, releases or other documents that may be required by any mortgagee
for the purposes of subjecting and subordinating this Lease to the lien of any
such mortgage. If Lessee fails to execute the same within such ten (10) day
period, Lessor is
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hereby authorized to execute the same as attorney-in-fact for Lessee, and Lessee
hereby appoints Lessor as its attorney-in-fact for such purpose.
21. MECHANIC'S LIENS. Lessee has no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind the interest of Lessor or Lessee in the Premises or to
charge the rentals payable hereunder for any claim in favor of any person
dealing with Lessee, including those who may furnish materials or perform labor
for any construction or repairs. Lessee covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
Premises and that it will save and hold Lessor harmless from any and all loss,
cost or expense based on or arising out of asserted claims or liens against the
leasehold estate or against the right, title and interest of the Lessor in the
Premises or under the terms of this Lease. Lessee agrees to give Lessor
immediate written notice of the placing of any lien or encumbrance against the
Premises.
22. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions inserted
in this Lease are for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretation of this Lease.
B. Any exhibits and schedules attached to this Lease are incorporated
into it for all purposes.
C. The terms, provisions, covenants and conditions contained in this
Lease shall run with the land and shall apply to, inure to the benefit of, and
be binding upon, the parties hereto and upon their respective heirs, executors,
personal representatives, legal representatives, successors and assigns, except
as otherwise herein expressly provided. Lessor shall have the right to transfer
and assign, in whole or in part, its rights and obligations in the Premises.
Each party agrees to furnish to the other, promptly upon demand, a corporate
resolution, proof of due authorization by partners, or other appropriate
documentation evidencing the due authorization of such party to enter into this
Lease.
D. Lessor shall not be held responsible for delays in the performance
of its obligations hereunder when caused by material shortages, acts of God or
labor disputes.
E. Lessee agrees, from time to time, within ten (10) days after request
of Lessor, to deliver to Lessor, or Lessor's designee, a Certificate of
Occupancy and an estoppel certificate stating that this Lease is in full force
and effect, the date to which rent has been paid, the unexpired term of this
Lease and such other factual matters pertaining to this Lease as may be
requested by Lessor. It is understood and agreed that Lessee's obligation to
furnish such estoppel certificates in a timely fashion is a material
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inducement for Lessor's execution of this Lease. If Lessee fails to execute the
same within such ten (10) day period, Lessor is hereby authorized to execute the
same as attorney-in-fact for Lessee, and Lessee hereby appoints Lessor as its
attorney-in-fact for such purpose.
F. This Lease constitutes the entire understanding and agreement of the
Lessor and Lessee with respect to the subject matter of this Lease and contains
all of the covenants and agreements, oral or written, that have been made by
Lessor or Lessee or anyone acting on their behalf regarding the Lease. Any prior
agreements, promises, negotiations, or representations regarding the Lease that
are not expressly set forth herein are of no force or effect. This Lease may not
be altered, changed or amended except by an instrument in writing signed by both
parties. The parties acknowledge that this Lease is made subject to all
mortgages or deeds of trust now or at any time hereafter constituting a lien
upon the Premises, and Lessee agrees to execute any amendments to this Lease
that may be reasonably requested by the holder of such liens.
G. All obligations of Lessee hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation, all payment obligations with respect to taxes and insurance and all
obligations concerning the condition and repair of the Premises. Upon the
expiration or earlier termination of the term hereof, and prior to Lessee's
vacating the Premises, Lessee shall pay to Lessor any amount reasonably
estimated by Lessor as necessary to put the Premises, including but not limited
to all heating and air conditioning systems and equipment, in good condition and
repair, reasonable wear and tear excluded. Lessee shall also, prior to vacating
the Premises, pay to Lessor the amount, as estimated by Lessor, of Lessee's
obligation hereunder for real estate taxes and insurance premiums for the year
in which the Lease expires or terminates. All such amounts shall be used and
held by Lessor for payment of such obligations of Lessee hereunder, with Lessee
being liable for any additional costs therefor upon demand by Lessor, or with
any excess to be returned to Lessee after all such obligations have been
determined and satisfied, as the case may be. Any security deposit held by
Lessor shall be credited against the amount due for Lessee under this Paragraph
22G.
H. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties that the
remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added, as a
part of this Lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
I. All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the effective date set forth at the
beginning of this Lease.
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J. Lessee represents and warrants that it has dealt with no broker,
agent or other person in connection with this transaction or that no broker,
agent or other person brought about this transaction, other than as may be
referenced in a separate written agreement executed by Lessee, and delivered to
Lessor, and Lessee agrees to indemnify and hold Lessor harmless from and against
any claims by any other broker, agent or other persons claiming a commission or
other form of compensation by virtue of having dealt with Lessee with regard to
this transaction.
K. If and when included within the term "Lessor," as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their execution of a notice, specifying
some individual at some specific address for the receipt of notices and payments
to Lessor. If and when included within the term "Lessee," as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Lessee. All parties
included within the terms "Lessor" and "Lessee," respectively, shall be bound by
notices given in accordance with the provisions of Paragraph 23 hereof to the
same effect as if each had received such notice.
23. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Lessor to Lessee or with reference to the sending, mailing or delivering of any
notice or the making of any payment by Lessee to Lessor shall be deemed to be
complied with when and if the following steps are taken:
A. All rent and other payments required to be made by Lessee to Lessor
hereunder shall be payable to Lessor at the address for Lessor set forth on the
signature page of this Lease or at such other address as Lessor may specify from
time to time by written notice delivered in accordance herewith. Lessee's
obligation to pay rent and any other amounts to Lessor under the terms of this
Lease shall not be deemed satisfied until such rent and other amounts have been
actually received by Lessor. In addition to base rental due hereunder, all sums
of money and all payments due Lessor hereunder shall be deemed to be additional
rental owed to Lessor.
B. All payments required to be made by Lessor to Lessee hereunder shall
be payable to Lessee at the address set forth on the signature page of this
Lease, or at such other address within the continental United States as Lessee
may specify from time to time by written notice delivered in accordance
herewith.
C. Any written notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered upon the earlier to occur of (1)
tender of delivery (in the case of a hand-delivered notice), or (2) deposit in
the United States Mail, postage prepaid, Certified or Registered Mail, addressed
to the parties at their respective addresses set out below, or at such other
address as they may have previously specified by written notice delivered in
accordance with this subparagraph.
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24. HAZARDOUS WASTE. The term "Hazardous Substances," as used in this
Lease, shall mean pollutants, contaminants, toxic or hazardous wastes, or any
other substances, the removal of which is required or the use of which is
restricted, prohibited or penalized by any "Environmental Law," which term shall
mean any federal, state or local law or ordinance relating to pollution or
protection of the environment. Lessor hereby warrants to Lessee that on the
effective date of this Lease as set forth on page 1, Lessor has no actual
current knowledge of the presence of any Hazardous Substances on the Premises
except as disclosed in a Phase I & II Environmental Site Assessment Update, ATEC
Project No. 41-17031, prepared by ATEC Environmental Consultants on May 21,
1991. Lessee acknowledges receipt of a copy of such site assessment.
Lessee hereby agrees that (i) no activity will be conducted on the
Premises that will produce any Hazardous Substance, except for such activities
that are part of the ordinary course of Lessee's business activities and that
are conducted in accordance with all Environment Laws and have been approved in
advance in writing by Lessor (the "Permitted Activities"); (ii) the Premises
will not be used in any manner for the storage of any Hazardous Substances
except for the temporary storage of such materials that are used in the ordinary
course of Lessee's business, are properly stored in a manner and location
meeting all Environmental Laws and approved in advance in writing by Lessor (the
"Permitted Materials"); (iii) no portion of the Premises will be used as a
landfill or a dump; (iv) no underground tanks of any type will be installed on
or under the Premises; (v) Lessee will not allow any surface or subsurface
conditions to exist or come into existence that constitute, or with any passage
of time may constitute a public or private nuisance; (vi) Lessee will not permit
any Hazardous Substances to be brought onto the Premises, except for the
Permitted Materials described above, and if so brought or found located thereon,
the same shall be immediately removed, with proper disposal, and all required
cleanup procedures shall be diligently undertaken pursuant to all Environmental
Laws. If at any time during or after the term of the Lease, the Premises are
found to be contaminated as a result of any action or inaction of Lessee, or if
Lessee breaches any agreement set forth in this Paragraph 24, Lessee shall
indemnify and hold Lessor harmless from all claims, demands, actions,
liabilities, costs, expenses, damages and obligations (including attorneys'
fees) of any nature arising from or as a result of the use of the Premises by
Lessee. The indemnifications set forth in this Paragraph 24 shall survive the
termination or expiration of this Lease.
25. LESSOR'S LIEN. In addition to any statutory lien for rent in Lessor's
favor, Lessor shall have and Lessee hereby grants to Lessor a continuing
security interest for all rentals and other sums of money become due hereunder
from Lessee, upon all goods, wares, equipment, fixtures, furniture, inventory,
and other personal property of Lessee now or hereafter situated at the Premises,
and such property shall not be removed therefrom without the consent of Lessor
until all arrearages in rent as well as any and all other sums of money then due
to Lessor shall first have been paid and discharged. In the event any of such
property is removed from the Premises in violation of the covenant in the
preceding sentence, Lessor's security interest shall continue in such property
and all proceeds and products regardless of location. Upon a default hereunder
by Lessee, in addition to all other rights and remedies, Lessor shall have all
rights and remedies under the Colorado Uniform Commercial Code, including
without limitation,
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the right to sell the property described in this Paragraph at public or private
sale upon five (5) days notice by Lessor. Lessee hereby agrees to execute such
other instruments necessary or desirable under applicable law to perfect the
security interest hereby created. Lessor and Lessee agree that this Lease and
security agreement serves as a financing statement and that a copy or other
reproduction of this portion of this Lease may be filed of record by Lessor and
have the same force and effect as the original. This security agreement and
financing statement also covers fixtures located at the Premises on a portion of
the Land described on Exhibit A, which is owned by Lessor. Notwithstanding
anything to the contrary in this Lease, Lessor agrees to subordinate any lien in
its favor under this paragraph to an security interest or lien now existing or
hereafter created in favor of any lender that has loaned or will loan money to
Lessee for the acquisition of assets used in the Premises or for working capital
for Lessee's operations in the Premises. Lessor agrees to execute documentation
reasonably accepted to its counsel to evidence the subordination of Lessor's
lien rights.
LESSOR: LESSEE:
EASTPARK TECHNOLOGY CENTER, EXABYTE CORPORATION
LTD., a Colorado limited partnership
By: ALBURG PROPERTIES LTD. By: /s/ FRANK M. LAHUE
LIABILITY CO. ----------------------
Its General Partner Frank M. LaHue
Senior Vice President -
Operations
By: /s/ JOHN S. ALBERS ADDRESS:
------------------------
John R. Albers
Its Executive Manager 1685 38th Street
Boulder, Colorado 80301
Attention: Frank M. LaHue
ADDRESS:
P.O. Box 655086
Dallas, TX 75265-5086
Attention: John R. Albers
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EXHIBIT 10.38
The Registrant hereby agrees to furnish supplementally a copy of the following
omitted Exhibits:
Exhibit A The Premises Improved Land
Exhibit B Work Letter
Exhibit C Contract Documents