LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this 8th day of 1992 by and between
Raycon Properties (a partnership of Consuelo M. Hauser and Ray L. Hauser),
hereinafter referred to as "Landlord" and Pixsys, Inc., a Colorado
corporation, hereinafter referred to as "Tenant."
WITNESSETH:
In consideration of the covenants, terms, conditions, agreements, and payments
as hereinafter set forth, the parties hereto covenant and agree as follows:
1. PROPERTY - LEASE PREMISES
Portion B* of Lot 1, Block 1, Flatirons Industrial Park east of the east row of
columns in the Technical Building located on said Lot 1, this portion commonly
known as 5680 Central Avenue, in the City of Boulder, County of Boulder, State
of Colorado, which shall hereinafter be referred to as the "leased premises,"
the leasing of which shall be covered by the terms of this Agreement and shall
be used and occupied by Tenant for any lawful purpose.
Exhibit I presents the room and area designations for concurrent tenants A, B
and C of this facility, and it presents area D available for common use by the
three tenants. The rooftop is accessible for all three tenants.
2. TERM
The term of this Lease shall be for a period of twelve* (12) months commencing
at 7:00 a.m. on December* 1, 1992, and unless terminated as herein provided for,
shall end at 7:00 p.m. on November 30,* 1993.
3. RENT
Tenant shall pay to Landlord, at the address of Landlord as herein set forth,
the following as rental for the leased premises:
a. The base rental for the twelve* months shall be $20,352* payable in
monthly installments (basis monthly rental of $1696* in advance on the first day
of each month.
b. The base rental to be paid by Tenant to Landlord will be adjusted on
each annual anniversary of the commencement date of the term of this lease for
the successive year, such adjustment to be in accord with the annual change of
the Denver Area Cost Of Living Index. As a matter of record, the DACOLI dated
Jan-June 1991 is noted to be 129,0 as reported by the Denver Chamber of
Commerce.
c. Tenant shall pay to Landlord at the inception of lease $1696* as
damage deposit to be held in escrow earning 6% simple interest. The interest
amount may be taken by the Tenant as a deduction of rent at each anniversary
payment.
4. TAXES - REAL PROPERTY - RESPONSIBILITY - ADJUSTMENT
Landlord will pay in the first instance all real property taxes which may be
levied or assessed by any lawful authority against the land and improvements in
the development.
5. TAXES - PROPERTY - RESPONSIBILITY
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Tenant shall be responsible and pay for 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.
6. UTILITIES
Tenant shall pay its share of utility services used or consumed on the leased
premises including, but not limited to heat, electricity, gas, and any and all
other utilities used by Tenant in connection with the leased premises; provided
however, that expenses for water and sewer shall be paid by the Landlord.
7. HOLDING OVER
If, after expiration of the term of this Lease, Tenant shall remain in
possession of the leased premises and continue to pay rent without a written
agreement as to such possession, then Tenant shall be deemed a month-to-month
Tenant and the rental rate during such holdover tenancy shall be equivalent to
the monthly rental rate due as if the Lease were still in effect.
8. MODIFICATIONS OR EXTENSIONS
No holding over by Tenant shall operate to renew or extend this Lease without
the written consent of Landlord given in conformity with requirements of any
provision of the laws of the State of Colorado which may relate to such renewal
or extension. No modification of this Lease shall be binding unless
endorsed heron or attached hereto and signed by the respective parties.
9. ALTERATIONS - CHANGES AND ADDITIONS - RESPONSIBILITY
Tenant may, during the term of this Lease, at Tenant's expense, erect inside
partitions, add to existing electric power service, add telephone outlets, add
light fixtures, install additional heating and/or air conditioning or make such
other changes or alternations as Tenant may desire. At the end of this Lease,
all such fixtures, equipment, additions 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 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 work done by Tenant shall conform to appropriate city, county
and state building codes and health standards and Tenant shall be responsible
for obtaining and paying for building permits.
10. APPROVAL OF CHANGES - SIGNS
Landlord must approve in writing any sign to be placed in or on the leased
premises, regardless of size or value, and any improvements, additions,
alterations and/or changes to the leased premises in excess of Two Thousand
Dollars ($2,000.00). 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 work to be so performed. Landlord shall also have the right to
require Tenant's contractor(s) to furnish adequate lien waivers on work
completed to both Tenant and Landlord. Landlord reserves right to post notice in
leased premises that Landlord is not responsible for payment of work performed.
11. CARE OF PREMISES - RESPONSIBILITY
During the term of this Lease, Tenant agrees to keep and maintain the interior
of the leased premises, including the plumbing, glass and electrical systems, in
good condition and repair at Tenant's cost and expense. Tenant further agrees at
the end of the term, to return the leased premises to Landlord in substantially
as good condition as when received, except for usual and ordinary wear and tear.
Landlord
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agrees to keep and maintain the exterior of the building in good repair
throughout the term of this Lease. Landlord agrees to make and pay for (a) all
repairs, structural or otherwise, to the exterior of the building located on the
premises of which the leased premises are a part, including, but not limited to,
the foundation, exterior walls, roof, other structural components for the
building, and (b) all rebuilding alteration or repair of the structural
improvements on the premises of which the leased premises are a part, which are
ordered or required by any law, ordinance, or regulation of any
governmental agency, unless due to use of the premises by Tenant.
12. USE OF PREMISES AND CARE OF GROUNDS
Landlord will maintain the grounds, and will be responsible for snow removal and
further, shall conform to all present and future laws and ordinances of any
governmental authority having jurisdiction over the leased premises. No outside
storage shall be allowed unless first approved by Landlord in writing and
then only in such areas as are designated as storage areas by Landlord. Tenant
shall not commit or suffer any waste or environmental pollution on the leased
premises. Tenant shall not permit any nuisance to be maintained on the leased
premises nor permit any disorderly conduct, noise or other activity having a
tendency to annoy or to disturb occupants of any part of the property of
which the leased premises are a part and/or any adjoining property. Tenant shall
be responsible for removal of trash and other debris and pay all costs incurred
for disposal of such trash and debris. Landlord shall be responsible for the
maintenance of all trees, shrubs, and other landscaping on the subject premises
and shall keep the exterior premises clean of trash and debris;
provided, however, that Tenant shall be responsible for and pay the costs
of services for removal and disposal of its trash and debris.
13. ENVIRONMENTAL RESPONSIBILITY
The parties acknowledge that certain federal, state and local laws, regulations
and guidelines are now in effect, and that additional laws, regulations and
guidelines may hereinafter be enacted, relating to or affecting the rented
premises, the entire building and the larger parcel of land of which the rented
premises are a part, concerning the impact on the environment of construction,
land use, the maintenance and operation of structures and the conduct of
business. Tenant will not cause, or permit to be caused, any act or practice, by
negligence, omission or otherwise, that would do anything or permit anything to
be done that would violate any of said laws, regulations or guidelines. Any
violation of this covenant shall be an event of default under this lease. If
tenant does cause or permit any such environmental violation, tenant shall be
responsible for remediation of any such damage. Tenant shall have no claim
against Landlord by reason of any changes Landlord or others may make in the
building or the premises in which the leased premises are located when such
changes are made under such laws, regulations and guidelines.
14. LIABILITY FOR OVERLOAD
Tenant shall be liable for the Cost of any damage to the leased premises or the
building or the sidewalks and pavements adjoining the same which results from
the movement of heavy articles. Tenant shall not overload the floors or any part
of the leased premises. All floors on the second level are recognized as being
designed and constructed to support loadings of 50 pounds/sq. ft.
15. GLASS AND DOOR RESPONSIBILITY
All glass and doors on the leased premises shall be the responsibility of the
Tenant except for glass and door breakage that is not caused by or preventable
by the Tenant. Any replacement or repair which is the responsibility of Tenant
shall be promptly completed at the expense of the Tenant.
16. USE OF PREMISES - INSURANCE
Tenant may use the leased premises for any lawful purposes, provided, however,
Tenant shall make no use of the leased premises which will void or make voidable
any insurance upon the leased premises.
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17. INSURANCE
Landlord agrees that it will keep the leased premises insured against loss of
damage by fire with standard extended coverage endorsements to the full value of
the improvements on the subject premises. Such insurance shall be issued by
financially responsible insurors duly authorized to do business in the state
of Colorado.
Tenant shall not carry any stock of goods or do anything in or about the leased
premises which will in any way tend to increase the insurance rates on said
premises. Tenant agrees to pay additional rent equal to any increase in fire
insurance premiums that may be charged during the term of this Lease on the
amount of insurance carried by landlord on said total premises where
such increases may result from the business carried on by Tenant on the leased
premises whether or not Landlord has consented to the same. Tenant shall not
install any electrical equipment that overloads the wiring panels, etc. in the
leased premises. Tenant shall make at his own expense whatever changes are
necessary to relieve any overload condition and to comply with the requirements
of the insurance underwriters or the governmental authorities
having jurisdiction. Tenant agrees to carry general liability insurance in the
minimum total amount or amounts of Two Hundred Fifty Thousand Dollars ($250,000)
for each occurrence of bodily injury and Fifty Thousand Dollars ($50,000)
property damage. Tenant shall supply to Landlord certificates of insurance
showing the liability insurance coverage and throughout the term hereof,
certificates of renewals of such policies. Said certificate shall provide that
the insuror shall have given Landlord ten (10) days written notice prior to
cancellation of said policy. In the event Tenant fails to secure such insurance
or to give evidence to Landlord of such insurance by depositing with Landlord
certificates as above provided, Landlord may purchase such insurance in Tenant's
name and charge Tenant the premiums therefor. Bills for the premiums therefor
shall be deemed and paid as additional rent. Landlord's local agent is Beeson
Taggart and Associates, Inc. representing CNA Insurance Companies.
18. FIRE REGULATIONS - TENANT RESPONSIBILITY
The Landlord assures that the Leased premises meet all fire regulations
effective as of the initial date of the lease. It shall be Tenant's sole and
exclusive responsibility to meet all fire regulations of any governmental unit
having jurisdiction over the leased premises as such regulations affect Tenant's
operations, at Tenant's sole expense.
19. REPLACEMENT OF BUILDING
Landlord shall keep the building of which the leased premises are a part insured
against loss or damage by fire. If the leased premises are damaged or destroyed
by fire at any time after the date of this Lease, or if, after such date, said
premises are damaged or destroyed through any cause not directly attributable to
the negligence of Tenant, Landlord shall proceed with due diligence to repair or
restore the same to the same condition as existed before such damage or
destruction, and as soon as possible thereafter will give possession to the
Tenant of the premises herein leased without diminution or change of location.
In the event the premises are rendered temporarily untenantable because of fire
or other casualty, base monthly rent shall be waived until the premises are
restored to tenantable condition. Except as to damages covered by Landlord's
insurance, it is further agreed that the replacement or repair of any portion of
the leased premises damaged in connection with any burglary or other forcible
entry into the premises or damage directly attributable to the negligence of
Tenant, other than damage caused by fire, shall be at the sole expense of
Tenant. Area D of Exhibit A is subject to this paragraph with Tenant
responsibility shared by the three Tenants of the Leased premises in proportion
to the monthly lease payments.
20. WAIVER OF SUBROGATION
The parties release each other, and their respective authorized representatives,
from any claims for damages to any person or to the premises are located, and
the fixtures, personal property, Tenant's improvements,
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and alterations of either Landlord or Tenant in or on the premises and the
building or other improvements in which the premises are located that are caused
by or result from risks insured against under any insurance policies carried by
the parties and in force at the time of such damage. Each party shall cause each
insurance policy obtained by it to provide that the insurance company waives all
rights of recovery by way of subrogation against either party in connection with
any damage covered by any policy. If such insurance cannot be obtained or the
party in whose favor a waiver of subrogation is desired refuses to pay any
additional premium charge, the other party is relieved of the obligation to
obtain a waiver of subrogation rights with respect to the particular insurance
involved.
21. INSPECTION BY LANDLORD
Landlord, or its authorized representative, and/or any lender or prospective
lender, shall have the right to enter the leased premises during the Lease term
at all reasonable times during usual business hours for purposes of inspection,
and/or the performance of any work therein.
22. DEFAULT - REMEDIES OF LANDLORD
If after 30 days' written notice of default, Tenant shall remain in default in
the payment of rent or in the keeping of any of the terms, covenants, or
conditions of this Lease to be kept and/or performed by Tenant, Landlord may
immediately, or at any time thereafter declare this Lease terminated and reenter
the leased premises, remove all persons and property therefrom, without being
liable to indictment, prosecution for damage therefor, 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, elect to treat this lease as still in effect and relet the leased
premises or any part thereof for the account of Tenant. The Landlord shall
receive and collect the rents therefor 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 and
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. Whether or not the leased premises or any part thereof
be relet, 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 of 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. If the leased premises shall be reoccupied by Landlord, then,
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.
In event of any default by Tenant, and regardless of whether the premises shall
be relet or possessed by Landlord, any fixtures, additions, furniture, and the
like then on the premises may be retained by Landlord.
23. DEFAULT AND ABANDONMENT - REMEDIES OF LANDLORD
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 Agreement shall be levied upon by execution or seized by virtue of any
writ of any
24. FINANCIAL FAILURE OF TENANT - REMEDIES BY LANDLORD
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 Agreement shall be levied upon by execution or seized by virtue of any
writ of any receiver for the business or property of Tenant, or, if a
petition in bankruptcy shall be filed by or against Tenant, then and in any such
event, at Landlord's option, with or without notice, Landlord may terminate this
Lease and immediately retake possession of the leased premises without the same
working any forfeiture of the obligation of Tenant hereunder.
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25. LEGAL PROCEEDINGS - RESPONSIBILITY
In the event of any proceeding at law or in equity wherein Landlord, without
being in default as to its covenants under the terms hereof, shall be made a
party to any litigation by reason of Tenant's interest in the leased premises,
or, in the event Landlord shall be required to commence any legal proceedings
relating to the leased premises and/or Tenant's occupancy thereof and/or
Tenant's relation thereto, Landlord shall be allowed and Tenant shall be liable
for and shall pay all costs and expenses incurred by Landlord, including a
reasonable attorney's fee.
26. HOLD HARMLESS OF TENANT
Tenant will indemnify and hold Landlord harmless from and against any and all
claims, losses, expenses, costs, judgments, and/or demands arising from the
conduct of Tenant in the leased premises and/or on account of any operation or
action by Tenant and/or from and against all claims arising from any breach
or default on the part of Tenant or any act of negligence of Tenant, its agents,
contractors, servants, employees, licensees, or invitees, or any accident,
injury or death of any person or damage to any property in or about the leased
premises.
27. ASSIGNMENT OR SUBLETTING
Tenant may not assign the Lease, or sublet the leased premises without the
written consent of Landlord, which consent may be granted or withheld in the
Landlord's absolute discretion; provided, however, no such assignment or
subletting shall relieve Tenant of any of its obligations hereunder.
28. WARRANTY OF TITLE
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 premises during the term of the lease.
29. ACCESS
Landlord shall provide Tenant non-exclusive access through and across land owned
by Landlord to the leased premises. Landlord shall have the rights to designate,
during the term of this Lease, non-exclusive roadways, sidewalks and other
common facilities of which the leased premises are a part. Tenants have shared
access to fourteen designated parking spaces on the south side of the leased
premises.
30. DEVELOPMENT OF PROPERTY - RIGHTS OF LANDLORDS
Landlord does reserve, during the term of this Lease, the right to go upon and
deal with the leased premises or part thereof for the purpose of implementing a
common development plan for the project of which the leased premises are a part,
and to install non-exclusive roadways and other street improvements for use
by vehicles, pedestrians, and for parking; to undertake such drainage programs
to handle underground and surface drainage water and make any other changes
and/or improvements as Landlord shall deem advisable in the exercise of its sole
discretion; provided, however, any such action by Landlord shall not
unreasonably interfere with the rights of Tenant hereunder.
31. GOVERNMENTAL ACQUISITION OF PROPERTY
The parties agree that Landlord shall have complete freedom of negotiation and
settlement of all matters pertaining to the acquisition of all or part of leased
premises. It being understood and agreed that any financial settlement
respecting land and/or building to be taken whether resulting from negotiation
and agreement or condemnation proceedings, shall be the exclusive property of
Landlord, there being no sharing whatsoever between Landlord and Tenant of any
sum received in settlement. The taking of land as noted herein, shall not be
considered as a breach of this Lease by Landlord, nor give rise to any claims in
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Tenant for damages or compensation from Landlord.
32. SUBORDINATION
The Tenant agrees that its Lease rights will be subordinate to those of any
lending institution making any loan upon the real property of which the leased
premises are a part. Tenant further agrees to sign reasonable documents
reflecting this subordination when and if requested by the Landlord.
33. INTEREST 0N PAST DUE OBLIGATIONS
Any amount due to Landlord not paid within five (5) days of due date shall bear
interest at one and one-half (1.5) percent per month from due date until paid.
Payment of such interest shall not excuse or cure any default by Tenant under
this lease.
34. LATE CHARGE
The Landlord may make a one-time collection service charge in the minimum amount
of $25.00 or 3% monthly, whichever is greater, of any rent installment,
percentage rental or other payment provided herein which is delinquent 10 days
or more.
35. NO WAIVER OF BREACH
No assent, expressed or implied, to any breach of any one or more of the
covenants or agreements herein shall be deemed or taken to be a waiver of any
succeeding or additional breach.
36. NOTICE PROCEDURE
All notices, demands, and requests which may or are required to be given by
either party to the other shall be in writing and such that are to be given to
Tenant shall be deemed to have been property given if served on Tenant or an
employee of Tenant or sent to Tenant by United States certified mail return
receipt requested, properly sealed, stamped and addressed to Tenant at 5680
Central Avenue, Boulder, Colorado, 80301, 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 States certified mail, return
receipt requested, properly sealed, stamped and addressed to Landlord at 5758
Rustic Knolls Drive, Boulder, Colorado, 80301, or at such other place
as Landlord may from time to time designate in a written notice to Tenant. Any
notice given by mail shall be effective as of the date of mailing as shown by
the receipt given therefor.
37. 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 arbitration (if chosen by mutual consent of Tenant and Landlord) or
court proceedings instituted in Colorado and in no other jurisdiction.
38. BINDING UPON SUCCESSORS
The covenants and agreements herein contained shall bind and inure to the
benefit of successors. This Lease shall be signed by the parties in duplicate,
each of which shall be a complete and effective original Lease.
39. MISCELLANEOUS
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All marginal notations and paragraph headings are for the 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, partnerships and corporations, and in reading said Lease the
necessary grammatical changes required to make the provisions hereof mean and
apply as aforesaid shall be made in the same manner as though originally
included in said Lease.
IN WITNESS WHEREOF, the Parties have executed this Lease as
of the date hereof.
LANDLORD:
RAYCON PROPERTIES, a partnership
By: /s/ CONSUELO M. HAUSER
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TENANT:
PIXSYS, INC.
By: /s/ MARTIN D. CHADER
----------------------
Its President
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