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EXHIBIT 10.24
LEASE AGREEMENT
OFFICE AND INDUSTRIAL SPACE
This Lease Agreement is made and entered into as of the 11th day of July,
1996, by and between GB Ventures ("Landlord"), whose address is ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Heska Corporation, a California
corporation ("Tenant"), whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ .
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. Definitions. 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 "Four Prospect" ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇. 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 areas 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. "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 number of square feet included in the Leased Premises divided by the total
number of leasable square feet included in said Building. The Tenant's Prorata
Share as to Common Areas shall mean an amount (expressed as a percentage )
equal to the number of square feet included in the Leased Premises divided by
the total number of leasable square feet included in all Buildings located in
the Area. The Tenant's Prorata Share for Common Areas may change from time to
time as the leasable square footage in all Buildings located in the Area is
increased or decreased.
2. Leased Premises. The Landlord hereby leases unto the Tenant, and the
Tenant hereby leases from the Landlord, the following described premises:
Space All in Building ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
consisting of 16,800 square feet.
3. Base Term. The term of this Lease shall commence at 12:00 noon on
February 1, 1997, and, unless sooner terminated as herein provided for, shall
end at 12:00 noon on October 1, 2004 ("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 the same [omitted
because stricken by parties] condition than
when entered upon by the Tenant, ordinary wear and tear, acts of God,
casualties, condemnation, Hazardous Materials (other than those stored, used or
disposed of by Tenant in or about the Leased Premises in violation of Hazardous
Materials Laws) and Alterations with respect to which Landlord has not reserved
the right to require removal excepted. For Option Period see Exhibit F.
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:
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During Lease Term
FOR PERIOD TO PERIOD A BASE MONTHLY
STARTING ENDING RENT OF
February 1, 1997 October 1, 2004 $ 12,600.00
B. Lease Term Adjustment. If, for any reason, other than delays
caused by the Tenant, the Leased Premises are not ready for Tenant's occupancy
on February 1, 1997, 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 date of Substantial Completion of the Tenant
Improvements for the Leased Premises. "Substantial Completion" is defined in
Exhibit B, attached hereto and incorporated by reference herein. [omitted
because stricken by parties]
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.
Notwithstanding the foregoing, in no event shall the increase in any Adjusted
Monthly Rental for any Lease Year be greater than six percent (6%) or less than
three percent (3%). 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 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 ▇▇▇▇▇▇▇▇-▇▇▇▇,
Inc. or 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
The Adjusted Monthly Rental as hereinabove 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.
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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, 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. Major capital improvements,
such as total replacement of the roof or parking lot are not considered to be
maintenance items as described in this Paragraph 6D.
5. Security Deposit. Landlord acknowledges receipt from the Tenant
of the sum of Twelve Thousand, Six Hundred & No/100 Dollars ($ 12,600.00 ) to
be retained by Landlord without responsibility for payment of interest thereon,
as security for performance of all the terms and conditions of this Lease
Agreement to be performed by Tenant, including payment of all rent due under
the terms hereof. Deductions may be made by Landlord from the amount so
retained for the reasonable cost of repairs to the Leased Premises (ordinary
wear and tear, acts of God, casualties, condemnation, Hazardous Materials
(other than those stored, used or disposed of by Tenant in or about the Leased
Premises in violation of Hazardous Materials Laws) and Alterations with respect
to which Landlord has not reserved the right to require removal excepted), for
any rent delinquent under the terms hereof and/or for any sum used in any
manner to cure any default of Tenant under the terms of this Lease. In the
event deductions are so made, the Tenant shall, within ten (10) days after
receipt of notice from the Landlord, redeposit with the Landlord such amounts
so expended so as to maintain the deposit in the amount as herein provided for,
and failure to so redeposit shall be deemed a failure to pay rent under the
terms hereof. Nothing herein contained shall limit the liability of Tenant as
to any damage to the Leased Premises, and Tenant shall be responsible for the
total amount of any damage and/or loss occasioned by actions of Tenant.
Landlord may deliver the funds deposited hereunder by Tenant to any purchaser
of Landlord's interest in the Leased Premises in the event such interest shall
be sold, and thereupon Landlord shall be discharged from any further liability
with respect to such deposit. Landlord shall return the Security Deposit or
balance thereof to Tenant within thirty (30) days after Tenant vacates the
Leased Premises.
6. Use of Premises. Tenant shall use the Leased Premises only for
Research, Development and Manufacture of Biopharmaceutical Products 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 and 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 reasonably 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 that annoys or disturbs 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
governmental entity, board, commission or agency relating to Tenant's
particular use of 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.
Notwithstanding anything to the contrary contained in this Lease, Tenant shall
not be required to construct or pay the cost of complying with any CC&R's,
insurance underwriters' requirements or rules, regulations, statutes,
ordinances, laws and building codes (including, without limitation, the
Americans With Disabilities Act of 1990) (collectively, "Laws") (i) requiring
construction of improvements in the Leased Premises which are properly
capitalized under generally accepted accounting principles, unless such
compliance is necessitated solely because of Tenant's particular use of the
Leased Premises; (ii) regarding the presence of Hazardous Materials unless the
same were stored or disposed of by Tenant, its agents, employees or contractors
on or in the Leased Premises; or (iii) requiring the correction of any
condition existing on the Leased Premises as of the Commencement Date.
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 amend or supplement said rules or regulations. Notice of
such rules and regulations and amendments and supplements thereto shall be
given to Tenant, and Tenant agrees to comply with and observe such rules and
regulations and amendments and supplements thereto provided that the same apply
uniformly to all Tenants of the Landlord in the Area and do not unreasonably
interfere with Tenant's rights under this Lease.
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
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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. Notwithstanding anything to the contrary contained in this
Lease, without charge, Tenant shall have the exclusive use of one hundred
percent (100%) of all parking spaces within the parking area for the building
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 $ 1,292.62 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. Notwithstanding anything to the contrary contained in this Lease,
Tenant shall not be required to pay any portion of any tax or assessment
expense (i) levied on Landlord's rental income, unless such tax or assessment
expense is imposed in lieu of real property taxes; (ii) in excess of the amount
which would be payable if such tax or assessment expense were paid in
installments over the longest possible term; (iii) imposed on land and
improvements other than the Area; or (iv) attributable to Landlord's net
income, inheritance, gift, transfer, franchise, estate or state taxes. Tenant
may in good faith contest any tax or assessment, provided that Tenant
indemnifies Landlord from any loss or liability in connection therewith.
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. Should Landlord protest and win a reduction in the real
estate taxes for the Building and Area, 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. Tenant also shall receive from Landlord a credit in
the amount of Tenant's Prorata Share of the reduction won by Landlord.
12. Insurance.
A. Landlord's Insurance. The Landlord shall procure and
maintain fire and casualty coverage for full replacement value of building to
include, but not be limited to, the Tenant Improvements constructed pursuant to
Exhibit B hereof, roofs and walls, loss of rents and liability insurance as it,
from time to time, deems proper and appropriate in reference to the Building in
which the Leased Premises are located and the Common Areas. Such insurance
shall not be required to cover any of the Tenant's property and the Tenant
shall have no interest in any of the proceeds of such insurance.
B. Tenant's Insurance. Tenant shall, at its sole cost and
expense, insure on a full replacement cost basis, Tenant's inventory, fixtures,
leasehold improvements (other than the Tenant Improvements constructed by
Landlord pursuant to Exhibit B) and betterments located on the Leased Premises
against loss resulting from fire or other casualty. Tenant shall procure, pay
for and maintain, comprehensive public liability insurance providing coverage
from and against any loss or damage occasioned by an accident or casualty on,
about or adjacent to the Leased Premises. Said liability policy shall be
written on an "occurrence basis" with limits of not less than $1,000,000
combined single limit
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coverage. Certificates for such insurance shall be delivered to Landlord and
shall provide that said insurance shall not be changed, modified, reduced or
cancelled without thirty (30) days prior written notice thereof being given to
Landlord.
C. Tenant's High Pressure Steam Boiler Insurance. If Tenant
makes use of any kind of steam or other high pressure boiler or other apparatus
which presents a risk of damage to the Leased Premises or to the Building or
other improvements of which the Leased Premises are a part or to the life or
limb of persons within such premises, Tenant shall secure and maintain
appropriate boiler insurance in an amount satisfactory to Landlord. The
Landlord shall be named insured in any such policy or policies. Certificates
for such insurance shall be delivered to Landlord and shall provide that said
insurance shall not be changed, modified, reduced or cancelled without thirty
(30) days prior written notice thereof being given to Landlord.
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 $58.94 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 personal injury, 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. Tenant shall be solely responsible for and promptly
pay all charges for heat, water, gas, electric, sewer service and any other
utility service used or consumed on the Leased Premises. Should Landlord elect
to supply all or any of the utility services to be used or consumed on the
Leased Premises, Tenant shall, within twenty (20) days after receipt of
presentation of the statement for such utility service, pay to Landlord, as
additional rent under the terms hereof, the amount of said statement if it
represents utility service furnished to the Leased Premises only or its
prorata share of said statement if it includes utility service to an area
greater than the Leased Premises. Said proration of utilities shall be
reviewed by Landlord and Tenant at the end of the first year of occupancy, at
which time Landlord shall determine if the present percentage of said total
utilities is equitable in relation to the use of total services by all the
Tenants and will be adjusted reasonably by Landlord, if necessary. The Tenant
shall forthwith upon taking occupancy of the Leased Premises make arrangements
with the Public Service Company, U.S. West or other appropriate utility company
to pay the utilities used on the Leased Premises and to have the same billed to
the Tenant at the address designated by the Tenant. Should there be a time
where the Landlord remains responsible for utilities supplied to the Leased
Premises, the Landlord shall ▇▇▇▇ the Tenant therefore and the Tenant shall
promptly reimburse the Landlord therefore. In no event shall Landlord be
liable for any interruption or failure in the supply of any such utility to the
Leased Premises, except to the extent caused by the negligence or willful
misconduct of Landlord, its agents, employees, contractors or invitees.
Notwithstanding anything to the contrary contained in this Lease, if the Leased
Premises should become not reasonably suitable for Tenant's use as a
consequence of fire, casualty, exercise of eminent domain, cessation of
utilities or other services required to be provided to the Leased Premises by
Landlord, interference with access to the Leased Premises, legal restrictions
or the presence of any Hazardous Material which does not result from the
Tenant's use, storage or disposal of such Hazardous Material in or about the
Leased Premises in violation of Hazardous Materials Laws, and in any of the
foregoing cases the interference with Tenant's use of the Leased Premises
persists for seven (7) consecutive calendar days, then Tenant shall be entitled
to an equitable abatement of rent to the extent of the interference with
Tenant's use of the Leased Premises occasioned thereby. If the interference
persists for more than thirty (30) consecutive calendar days, Tenant shall have
the right to terminate this Lease.
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, or 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 borne solely by the Tenant.
Said expense shall be paid promptly and any repairs requested by the utility
company shall be performed by Tenant promptly [omitted because stricken by
parties] and without any delay.
14. Maintenance Obligations of Landlord. Except as herein otherwise
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specifically provided for, and not including capital improvement, Landlord
shall keep and maintain the roof, roof membrane, and exterior of the Building
of which the Leased Premises are a part in good repair and condition. Tenant
shall repair and pay for any damage to roof, foundation and external walls
caused by Tenant's action, negligence or fault.
15. Maintenance Obligations of the Tenant. 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 Systems. 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 Systems. 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. Inspections 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
and to charge the expense thereof to 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 negligence or willful misconduct of Tenant.
E. Cutting Roof. Tenant must obtain in writing the
Landlord's approval prior to making any roof penetrations. Failure by 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
reasonably 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 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); heating, 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. Repair or Replacement of Capital Items. Notwithstanding
anything to the contrary contained in this lease, if any Operating System
required to be maintained by Tenant hereunder requires a repair or replacement
of a capital nature, as determined in accordance with generally accepted
accounting principles, Landlord shall pay for the capital repair or replacement
and Tenant shall reimburse to Landlord, as additional rent, the monthly
amortized cost of the item based on its useful life to the extent that the
useful life falls during the Term hereof, as extended.
I. [omitted because stricken by parties]
J. 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 any reasonable
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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.
K. Operating Systems. Notwithstanding anything to the
contrary contained in this Lease, as of the Commencement Date and at no cost to
Tenant, the Operating Systems serving the Leased Premises shall be in good
working order and repair. If during the first thirty (30) days of the Term,
any Operating System is not in the condition required by the foregoing
sentence, Tenant shall notify Landlord of the need for repair and Landlord
promptly shall complete the repair at no cost to Tenant.
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 repaving); removal of snow; utilities
for common lighting and signs; 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 system(s) for the Leased premises; the cost of maintaining in good
working condition the elevator(s) for the Leased Premises, if applicable; and
Ten percent ( 10 %) of all such operational, maintenance and repair costs
to cover Landlord's administrative and overhead costs. 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 Term, 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 $ 866.20. 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.
Notwithstanding anything to the contrary contained in this Lease, in no event
shall Tenant have any obligation to perform, to pay directly, or to reimburse
Landlord for, all or any portion of the following repairs, maintenance,
improvements, replacements, premiums, claims, losses, fees, commissions,
charges, disbursements, attorneys' fees, costs and expenses (collectively,
"Costs"): (i) Costs occasioned by the act, omission or violation of Law by
Landlord, any other occupant of the Area, or their respective agents, employees
or contractors, or Costs to correct any construction defect or other condition
in the Leased Premises or the Building not in compliance with law as of the
Commencement Date; (ii) Costs occasioned by fire, acts of God or other
casualties, or by the exercise of the power of eminent domain; (iii) Costs
which Tenant pays directly to a third person or for which Landlord has a right
of reimbursement from others (iv) Costs (A) arising from the disproportionate
use of any utility or service supplied by Landlord to any other occupant of the
Area; or (B) associated with utilities and services of a type not provided to
Tenant; (v) Costs related to Hazardous Materials, excepted to the extent the
Cost is caused by the storage, use or disposal of the Hazardous Material in
question by Tenant in violation of Hazardous Materials Laws; (vi) Costs
incurred in connection with negotiations or disputes with other occupant(s) of
the Area; (vii) depreciation, amortization or other expense reserves; (viii)
interest, charges and fees incurred on dept, payments on mortgages and rent
under ground leases; or (ix) wages, salaries, compensation and labor burden for
any employee not stationed in the Area on a full-time basis, or any fee, profit
or compensation retained by Landlord or its affiliates for management and
administration of the Area in excess of the management fee which would be
charged by a professional management service for operation of comparable
projects in the vicinity of the Area. In addition, notwithstanding anything to
the contrary contained in this Lease, within thirty (30) days after receipt by
Tenant of Landlord's statement of Common Area costs for any prior calendar year
during the Term, Tenant or its authorized representative shall have the right
to inspect the books of Landlord during the business hours of Landlord at
Landlord's office in the Area, or, at Landlord's option, such other location as
Landlord reasonably may specify, for the purpose of verifying the information
contained in the statement. Unless Tenant asserts specific error within thirty
(30) days after receipt of the statement, the statement shall be deemed correct
as between Landlord and Tenant, except as to individual components subsequently
determined to be in error by a future audit.
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 with reasonable prior notice 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
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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 ▇▇▇▇▇ 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. Notwithstanding anything to the contrary contained in this
Lease, any entry by Landlord and Landlord's agents shall not impair Tenant's
operations more than reasonably necessary, and Tenant shall have the right to
have an employee accompany Landlord and/or its agents at all times that
Landlord and/or its agents are present on the Leased Premises.
18. Alteration-Changes and Additions-Responsibility. Unless the
Landlord's approval is first secured in writing, such approval not to be
unreasonably withheld or delayed, 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 alterations to the interior or exterior of the Leased
Premises. Notwithstanding the foregoing, Tenant may make non-structural
alterations to the Leased Premises not in excess of Twenty-Five Thousand
Dollars ($25,000) per work of improvement without obtaining Landlord's prior
consent. 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, given in writing at the time that Tenant
requests Landlord's consent, or, if no consent is required, upon the expiration
or earlier termination of this Lease, 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, acts of God, casualties, condemnation,
Hazardous Materials (other than those stored, used or disposed of by Tenant in
or about the Leased premises in violation of Hazardous Materials Laws) and
Alterations with respect to which Landlord has not reserved the right to
require removal excepted, all at Tenant's cost and expense. All such work
shall be done in a 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 assuring 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.
Landlord's approval shall not be unreasonably withheld or delayed.
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
properly 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 reasonable alterations or additions to
the Building or Area of which the Leased Premises are a part. Landlord also
reserves the right to construct other buildings 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. 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. Landlord shall use reasonable
efforts in exercising the foregoing rights to minimize interference with
Tenant's possession of and right to use the Leased Premises. Nothing in this
Lease will require Tenant to indemnify, hold harmless or release Landlord for,
and Landlord shall indemnify, defend with
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counsel reasonably acceptable to Tenant, protect and hold harmless Tenant with
respect to, any claim, loss, expense, cost judgement and/or demand, or fees,
arising from the negligence or willful misconduct of Landlord, its agents,
employees or contractors, or a breach of the obligations of Landlord hereunder,
or a violation of Law by Landlord.
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 and Tenant, 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, [omitted because stricken by parties] and said Leased Premises are
not rendered untenantable thereby, as determined by Landlord and Tenant, an
appropriate reduction of the rent shall be allowed for the unoccupied portion
of the Leased Premises until Landlord's 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. Notwithstanding
anything to the contrary contained in this Lease:
(i) Landlord shall not have the right to terminate this Lease
if damage to or destruction of the Leased Premises results from a casualty
ordinarily covered by insurance required to be carried by Landlord under this
Lease.
(ii) In the event of damage to the Leased Premises which is
not required to be covered by insurance, and is not covered by insurance
actually carried, Landlord shall not have the right to terminate this Lease (A)
if the damage is relatively minor (e.g. repair or restoration would take fewer
than sixty (60) days or it would cost less than ten percent (10%) of the
replacement cost of the Leased Premises); or (B) if Tenant agrees to pay the
cost of repair in excess of ten percent (10%) of the then replacement cost of
the Leased Premises.
(iii) If the Leased Premises are damaged by any peril and
Landlord does not elect to terminate this Lease or its not entitled to
terminate this Lease pursuant to its terms, then as soon as reasonably
practicable, Landlord shall furnish Tenant with a written option of Landlord's
architect or construction consultant as to when the restoration work required
of Landlord may be completed. Tenant shall have the option to terminate this
Lease in the event any of the following occurs, which option may be exercised
by delivery to Landlord of a written notice of election to terminate within
thirty (30) days after Tenant receives from Landlord the estimate of the time
needed to complete such restoration: (A) the Leased Premises, with reasonable
diligence, cannot be fully repaired by Landlord within ninety (90) days after
the damage or destruction; or (B) if the Premises are damaged by any peril
within twelve (12) months of the last day of Term, and cannot be substantially
restored within sixty (60) days after the date of such damage.
(iv) If this Lease is not terminated by Landlord or Tenant as
provided herein, Landlord shall restore the Leased Premises and all Tenant
Improvements installed by Landlord to the condition in which they existed
immediately prior to the casualty.
22. 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 the Leased Premises, the Building, the
Area, or any part thereof, by any governmental body or other person or entity
via the exercise of the power of 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 exclusive property of Landlord, there being
no sharing whatsoever between Landlord and Tenant of any sum so paid. In the
event of any such taking, Landlord shall have the right to terminate this Lease
on the date possession is delivered to the condemning person or authority.
Such taking of the property shall not be a breach of this Lease by Landlord nor
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, or a separate award made by the condemning authority for relocation
costs, moving expenses or loss of goodwill..
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, such consent not to 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
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nonperformance by the Tenant. In the event of an acquisition, merger, or
reorganization, the assignment of the Lease shall not be unreasonably withheld
by Landlord. Notwithstanding anything to the contrary contained in this Lease,
Tenant, without Landlord's prior written consent, may sublet the Leased
Premises or assign this Lease to: (i) a subsidiary, affiliate, franchisee,
division or corporation controlling, controlled by or under common control with
Tenant; (ii) a successor corporation related to Tenant by merger,
consolidation, non-bankruptcy reorganization or government action; or (iii) a
purchaser of substantially all of Tenant's assets located at the Leased
Premises, with Landlord's right to reasonably approve the assignment. For
purposes of this Lease, a sale of Tenant's capital stock either privately or
through any public exchange shall not be deemed an assignment, subletting or
other transfer of this Lease or the Leased Premises requiring Landlord's
consent.
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 Lease, to
designate, and to change, such nonexclusive access, so long as Tenant's access
to the Leased Premises is not impaired thereby.
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) business days after demand in writing shall be deemed to be a breach
of this Lease [omitted because stricken by parties]. 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.
Notwithstanding anything to the contrary contained in this Lease, Tenant,
Landlord shall deliver to Tenant, within thirty (30) days after the date of
this Lease, a recognition agreement in standard form from the existing holder
of any deed of trust or similar instrument affecting the Leased Premises,
whereby such holder agrees to recognize the leasehold interest of Tenant
following a foreclosure of any such interest. Further, as a condition to
Tenant's obligation to subordinate its leasehold interest to a future ground
lease or instrument of security, Landlord shall obtain from any such ground
lessors or lenders a written recognition agreement in the holder's standard
form, whereby such holder agrees to recognize the leasehold interest of Tenant
following a foreclosure of any such interest.
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. Tenant's Hold Harmless and Indemnification Agreement. Except to
the extent caused by the negligence or willful misconduct of Landlord, its
agents, employees, contractors or invitees, Tenant shall indemnify and hold
Landlord harmless from and against any and all claims, losses, expenses, costs,
judgments, and/or demands, including court costs and reasonable attorney's
fees, suffered or incurred by the Landlord, arising from activities of Tenant
on the Leased Premises or in the Building or in the Area 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, it 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, the Building or the Area.
29. Acts or Omission of Others. The Landlord, or its 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, or 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 willful
misconduct of the Landlord, its agents, employees or contractors.
30. Interest on Past Due Obligations. Any amount due to Landlord not
paid when due shall bear interest at One and One Half (1 1/2%) percent per
month from
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due date until paid. Payment of such interest shall not excuse or cure any
default by Tenant under this Lease.
31. Holding Over- 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 one hundred fifty
percent (150%) [omitted because stricken by parties] 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 month 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 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 properly
given if served on Tenant or an employee of Tenant or sent by nationally
recognized overnight courier service or sent to Tenant by United States
registered or certified mail, return receipt requested, properly sealed,
stamped and addressed to Tenant at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ 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 sent by
nationally recognized overnight courier service or if sent to Landlord, United
States registered or certified mail, return receipt requested, properly sealed,
stamped and addressed to Landlord at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ or at such other place as Landlord may from 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 Mortgagee. The Landlord and Tenant
agree not to place this Lease of record, but upon the 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 for 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, so long
as Tenant is provided with the address of the mortgagee, 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 thirty (30) 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 Larimer 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. If Tenant shall fail to pay any sum due hereunder within
five (5) days after receipt of written notice from Landlord that such sum is
due, Tenant shall be in default under this Lease. If Tenant fails to keep any
of the other terms, covenants or conditions of this Lease, and has not cured
such breach within thirty (30) days after receipt of written notice from
Landlord (or, if the breach cannot be cured within thirty (30) days, Tenant
fails to commence the cure
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within the thirty (30) - day period or thereafter fails to diligently prosecute
the cure to completion), Tenant shall be in default under this Lease. In the
event of any such default, [omitted because stricken by parties] Landlord may
immediately, or at any time thereafter, reenter the Leased Premises, remove
all persons and property therefrom in compliance with applicable law, 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, relet 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 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 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 as a waiver of Landlord's right to require 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 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. If the Leased Premises are reoccupied by the Landlord pursuant hereto,
and regardless of whether the Leased Premises shall be relet or possessed by
Landlord, all fixtures, additions, furniture, and the like then on the Leased
Premises, excluding any equipment, fixtures, and furniture that Tenant may be
leasing from a third party, 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 the 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,
so long as the foregoing actions of Landlord are taken in compliance with
applicable Law.
B. 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 of Tenant, or, if a petition in bankruptcy shall be filed by or
against Tenant, and the foregoing are not resolved and/or dismissed within
sixty (60) days, then and in any such case, 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 obligations of Tenant hereunder.
C. [omitted because stricken by parties]
D. In addition to remedy granted to Landlord by the terms
hereof, Landlord shall have available any and all rights and remedies available
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.
E. If Tenant shall, for any reason, abandon [omitted because
stricken by parties] the Leased Premises before the current expiration date,
and such abandonment is accompanied by Tenant's failure to pay Monthly Base
Rent or additional rent hereunder,
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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) applicable to Tenant's business. Without
limiting the foregoing, 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 form the Leased Premises, except in full compliance
with any applicable Hazardous Materials Laws. If required by 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 standards imposed by any applicable 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 provide Landlord with a list of Hazardous
Materials that Tenant intends to use in the Leased Premises prior to the
Commencement Date and shall inform Landlord [omitted because stricken by
parties] of [omitted because stricken by parties] any Hazardous Materials it
intends to use, generate, handle, store or dispose of, on or about or transport
from, the Leased Premises Tenant also shall notify Landlord of [omitted because
stricken by parties] Tenant's discovery of any Hazardous Materials which
differ from those on the list. [omitted because stricken by parties] 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, reasonable attorney's fees,
consultant fees, and expert fees) which arise as a result of [omitted because
stricken by parties] 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 a copy of the closure report filed with the agency
with jurisdiction over closure of the Leased Premises. [omitted because
stricken by parties] 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 which [omitted because stricken
by parties] 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
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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
▇▇-▇▇-▇▇▇, et seq., 25-16- 101, et seq., 25-7-101, et seq., and 25-8-101, et
seq., of the Colorado Revised Statutes. "Hazardous Materials Laws" shall mean
any federal state or local laws, ordinances, rules, regulations, 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 in this Paragraph 4I 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 Leased
Premises without obtaining the prior written consent of the Landlord, which
consent may be conditioned upon further reasonable requirements imposed by
Landlord with respect to, among other things, compliance by Tenant with any
applicable laws, rules, regulations or ordinances and safety measures or
financial responsibility requirements applicable to the proposed storage tank.
H. Should any local governmental entity having jurisdiction
over the Leased Premises require an environmental audit or report if Tenant's
operations 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.
I. Notwithstanding anything to the contrary contained in this
Paragraph 41, Tenant shall not be responsible for any conditions which existed
prior to its tenancy, nor shall it be responsible if conditions which are
determined not to be caused by action or inaction of 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, and 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.
43. [omitted because stricken by parties]
44. Estoppel Certificates. Within no more than ten (10) business
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 if 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, Tenant's failure shall be deemed to be a
default hereunder. [omitted because stricken by parties]
45. Financial Statements. As reasonably requested by the Landlord,
and not more than once each calendar year, 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. Landlord shall
keep all such financial statements confidential.
46. Lease Exhibits Attached. This Lease includes the following Lease
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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" - Sign Code Obligations
Exhibit "E" - Additional Terms and Conditions
Exhibit "F" - Option to Renew
Exhibit "G" - Standard Specifications
47. 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, 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: GB VENTURES
-----------------------------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇
TENANT: HESKA CORPORATION, A CALIFORNIA CORPORATION
-------------------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President & General Counsel
-----------------------------------------------------------
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ENVIRONMENTAL INDEMNITY AGREEMENT
THIS INDEMNITY is given as of this 11th day of July, 1996, by Heska Corporation
([omitted because stricken by parties] " Tenant," whether one or more), to and
for the benefit of GB Ventures ("Landlord").
WHEREAS, GB VENTURES is Landlord under a proposed Lease Agreement
dated July 11, 1996, ("the Lease") in which Heska Corporation, a California
Corporation is the proposed tenant ("Tenant"), regarding the Leased Premises
commonly known as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Leased
Premises"); and
WHEREAS, Landlord is unwilling to enter into the Lease with Tenant
unless the Tenant agrees to the indemnities hereinafter provided.
NOW, THEREFORE, in consideration of the matters recited above and to
induce Landlord to enter into the Lease with Tenant, Tenant undertakes and
agrees as follows:
1. Tenant shall indemnify, defend and hold Landlord harmless from
and against any and all suits, actions, legal or administrative proceedings,
demands, claims, judgements, damages, penalties, fines, costs, liabilities,
expenses or losses which arise during or after the lease term as a result of or
in connection with the presence, use, storage, disposal, transportation by
Tenant, its agents, employees or contractors or discharge, by or on behalf of
Tenant, of any Hazardous Materials (as defined in the Lease) in violation of
Hazardous Materials Laws on, in or under [omitted because stricken by parties]
all or any portion of the Leased Premises or any surrounding areas, [omitted
because stricken by parties] or any breach by Tenant of the provisions
concerning Environmental Considerations as contained in paragraph 41 of the
Lease, or the failure of the Tenant to comply with any applicable Hazardous
Materials Laws (as defined in the Lease) with regard to the storage, use,
handling, including transportation, or disposal of any Hazardous Material by
Tenant, its agents, employees or contractors, or otherwise resulting from or
arising out of any action or non-action of Tenant or Tenant's operations on the
Leased Premises in violation of the terms of this Lease.
Without limiting the generality of the foregoing, it is expressly
agreed by [omitted because stricken by parties] Tenant that such indemnity
shall also include the following to the extent attributable to the storage,
use, handling or disposal, including transportation, of any Hazardous Material
by Tenant, its agents, employees or contractors: diminution in value of the
Leased Premises, damages for loss or restriction on use of rental or useable
space or any amenity of the Leased Premises, damages arising from any adverse
impact on marketing of space or delay in delivering possession to a subsequent
tenant or purchaser, restoration of the Leased Premises to a condition not
materially different from its original contour, appearance and condition; costs
incurred in connection with any investigation of site conditions or any
clean-up, remedial, removal or restoration work required by any federal, state
or local governmental agency, political subdivision, court order or lender of
the Landlord; costs of removal and lawful disposal off site of all Hazardous
Materials; all sums paid in settlement of claims, reasonable attorneys' fees,
consultant fees and expert fees.
The foregoing indemnities shall survive termination or expiration of
the Lease and shall also accrue to the benefit of the employees, agents,
officers, directors and/or partners of Landlord for a period of three (3)
years.
2. [omitted because stricken by parties] Tenant agrees to pay to
Landlord, from time to time, within twenty (20) days after receipt of demand
therefor, an amount equal to any and all expenses therefore incurred by
Landlord for which Landlord is entitled to indemnification. Any sums not so
paid shall thereafter bear interest at a rate of two percent (2%) per month
until paid in full.
3. The rights and remedies of Landlord under this indemnity shall be
in addition to any rights or remedies available to Landlord under the terms of
the Lease. The obligations of [omitted because stricken by parties] Tenant
hereunder shall not be affected or impaired by: (i) the assertion by Landlord
against Tenant of any rights or remedies reserved to Landlord pursuant to
provisions of the Lease; (ii) the commencement of summary or any other
proceedings against Tenant; (iii) failure of the Landlord to enforce any of its
rights against Tenant pursuant to the Lease or otherwise; (iv) the granting by
Landlord of any extensions of time to Tenant; (v) the assignment or transfer of
the Lease by Tenant; (vi) with release or discharge of Tenant from its
obligations under the Lease in any creditors', receivership, bankruptcy or
other proceedings or the commencement or pendency of any such proceedings; or
(vii) the impairment, limitation or modification of the liability of Tenant or
the estate of Tenant in bankruptcy, or of any remedy for the enforcement of
tenant's liability under the Lease, resulting from the operation of any present
or future bankruptcy code or other statute, or from the decision of any court.
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4. [omitted because stricken by parties]
5. All notices for or allowed hereunder shall be deemed given and
received with (a) personally delivered, or (b) at the time the same is
deposited in the United States mail, postage prepaid, first class mail, or
addressed to the applicable party at the address indicated below for such
party, or as to each party, at such other address as shall be designated by
such party in a written notice to the other party:
If to Tenant, to:
Heska Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
If to Landlord, to:
GB Ventures
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. In the event of default in its obligations hereunder, Tenant
agrees to reimburse Landlord for reasonable attorneys' fees and costs incurred
by Landlord in the enforcement of such obligations.
6. This Environmental Indemnity Agreement shall apply to the Lease
and any extension or renewal thereof, and any holdover term following the term
thereof, or any such extension or renewal.
7. This Environmental Indemnity Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
8. The covenants and agreements herein contained shall extend to and
be binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Environmental Indemnity Agreement on the day and year first above written.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President & General Counsel
----------------------------------------------------------
" Tenant" HESKA CORPORATION, A CALIFORNIA CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------------
"Landlord"
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EXHIBIT "A"
[MAP]
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EXHIBIT "B"
INTERIOR SPACE PLAN
Landlord shall construct the space as mutually agreed upon by Landlord and
Tenant. Notwithstanding anything to the contrary contained in this Exhibit B
or the Lease, "Substantial Completion" of the construction contemplated by the
foregoing sentence shall be the date by which all of the following have
occurred: (i) Landlord has substantially completed the "Tenant Improvements"
(as defined below) in accordance with this Exhibit B; (ii) there remains no
incomplete or defective item of Tenant Improvements that would adversely affect
Tenant's intended use of the Premises; (iii) Landlord has delivered legal
possession of the Premises and the Tenant Improvements to Tenant; (iv) Tenant
shall have the right to enter the Leased Premises prior to the completion of
the Tenant Finish for the purpose of installing telephone and network cabling
and leasehold improvements. Such right shall in no way interfere with
Landlord's ability to complete the Tenant Improvements as scheduled. Such
entry shall be coordinated with ▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇▇▇ Development, Inc. who
shall be doing the Tenant Finish work. (v) Landlord has obtained all
approvals and permits from the appropriate governmental authorities required
for the legal occupancy of the Leased Premises and the Tenant Improvements for
Tenant's intended use.
"Substantial Completion" shall not be meant to include any i)
installation of lab furniture, fixtures and equipment; ii) installation of any
office furniture, fixtures and equipment required by Tenant.
Landlord shall provide an allowance for, and shall construct, the
improvements ("Tenant Improvements") described in the plans and specifications
attached to this Lease as Exhibit B-1. The allowance for such construction
("Tenant Improvements Allowance") shall not exceed the sum of Three Hundred Two
Thousand Four Hundred Dollars ($302,400). Notwithstanding anything to the
contrary contained in this Exhibit, the cost of the Tenant Improvements "Tenant
Improvements Cost") subject to the Allowance shall not include (and Tenant
shall have no responsibility for) the following:
(i) Costs attributable to (A) building shell construction; (B)
improvements installed outside the demising walls of the Leased Premises unless
(1) necessitated by Tenant Improvements made inside the demising walls of the
Leased Premises; or (2) requested by Tenant or as shown in the approved working
drawings; and (C) Improvements installed "off- site" (such as streets, curbs,
gutters, traffic lights, lights for parking and street lighting);
(ii) Costs for improvements which are not shown on or described in
the approved working drawings unless otherwise approved by Tenant.
(iii) Costs incurred to remove Hazardous Materials from the Leased
Premises or the surrounding area unless the presence of such materials was
caused by Tenant or its agents, contractors, employees or invitees in violation
of Hazardous Materials Laws (as defined in the Lease);
(iv) Attorneys' fees incurred in connection with negotiation of
construction contracts, and attorneys' fees, experts' fees and other costs of
legal and arbitration proceedings to resolve construction disputes with third
parties;
(v) Loan fees, mortgage brokerage fees, interest and other costs of
financing construction costs;
(vi) Costs incurred as a consequence of delay (unless the delay is
caused by Tenant, its agents, contractors, employees or invitees) or
construction defects;
(vii) Costs recoverable by Landlord upon account of warranties and
insurance;
(viii) Restoration costs in excess of insurance proceeds as a
consequence of casualties unless the casualty is caused by Tenant, its agents,
contractors, employees or invitees; and
(ix) Penalties and late charges attributable to the failure to pay
construction costs in accordance with this Exhibit except to the extent such
penalties and late charges arise due to delays caused by Tenant, its agents,
contractors, employees or invitees.
The Tenant Improvements shall be constructed in accordance with such
attached plans and specifications and all applicable Law (as defined in
Paragraph 7 of the Lease), in a good and workmanlike manner, free of defects
and using new materials and equipment of good quality. Within thirty (30) days
after the Commencement Date, Tenant shall have the right to submit a written
"punch list" to Landlord, setting forth any defective item of construction, and
Landlord shall promptly cause such items to be corrected.
Notwithstanding anything to the contrary contained in the Lease,
Tenant's acceptance of the Demised Premises or submission of a "punch list"
shall not be deemed a waiver of Tenant's right to have defects in the Tenant
Improvements or the Premises repaired at no cost to Tenant. Tenant shall give
notice to Landlord whenever any such defect becomes reasonably apparent, and
Landlord shall repair such defect as soon as practicable. Landlord also hereby
assigns to Tenant all warranties with respect to the Premises, including
warranties which would reduce Tenant's maintenance obligations under this
Lease, and shall cooperate with Tenant to enforce all such warranties.
Also notwithstanding anything to the contrary contained in the Lease,
at the Commencement Date, the Leased Premises shall conform to all requirements
of covenants, conditions, restrictions and encumbrances ("CC&R's"), all
underwriters' requirements and Laws (as defined in Paragraph 7 of the Lease)
applicable thereto, including, without limitation, all Laws governing Hazardous
Materials.
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EXHIBIT "C"
LANDLORD AND TENANT'S CONSTRUCTION OBLIGATIONS
LANDLORD
Landlord shall complete the Leased Premises per Exhibit "B" and per the
attached set of "Standard Lease Space Specifications" for Office Buildings.
TENANT
Tenant shall be responsible for the cost of any change order which increases
the cost of the work in excess of the Tenant Improvements Allowance shown on
Exhibit "B" or which increases the cost of the Landlords Standard Lease Space
Specifications. If Tenant should make any changes which increase such cost it
shall pay to the Landlord such sum within 15 days of occupancy of the Leased
Premises. Landlord shall have the obligation to notify Tenant in writing of
any changes which will obligate the Tenant to any such additional costs.
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EXHIBIT "D"
[PLANS]
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EXHIBIT "E"
ADDITIONAL TERMS AND CONDITIONS
1. This Lease Agreement is contingent upon Landlord receiving a signed
and duly authorized and executed original of same on or before July
12, 1996. If a duly authorized and executed Lease Agreement is not
received by Landlord on or before said date, this Lease Agreement
shall be null and void and neither party shall be subject to any
further obligation or liability hereunder.
2. Tenant shall provide to Landlord all appropriate plans and
specifications, mutually approved by Tenant and Landlord, and in form
ready to submit to the City of Fort ▇▇▇▇▇▇▇ for issuance of building
permit, not later than November 1, 1996. Notwithstanding any other
term or condition of this Lease Agreement to the contrary, if Tenant
does not timely provide such plans and specifications, or if such
plans and specifications are not in form ready for submittal to the
City, [omitted because stricken by parties] and as a result of Tenant's
failure in either instance substantial completion of the improvements
on the Leased Premises and/or delivery of possession of the Leased
Premises is delayed beyond February 1, 1997, Tenant shall be deemed
responsible for such delay, and consequently, Tenant's obligation for
payment of base rent under this Lease shall in such event commence on
February 1, 1997, without regard to whether the improvements are
substantially completed or possession of the Leased Premises has been
delivered to Tenant. Notwithstanding the forgoing, Tenant's obligation
to commence payment of base rent on February 1, 1997 shall not become
effective until substantial completion of the improvements if
substantial completion has not occurred by such date due to a force
majeure delay or to a delay caused solely by Landlord.
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EXHIBIT "F"
OPTION TO EXTEND
Tenant shall have the option to extend the Lease Agreement from 12:00 noon on
10/1/2004 to 12:00 noon on 10/1/2007 ("Option Period One") and a second option
from 12:00 noon on 10/1/2007 to 12:00 noon on 10/1/2010 ("Option Period Two").
In the event the Tenant desires to exercise said option, Tenant shall give
written notice of such exercise to Landlord not later than 10/1/2003 for Option
Period One and 10/1/2006 for Option Period Two. See below for Option(s) Term
Rent. In the event of such exercise, the Lease Agreement, including all
amendments, 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, beyond applicable cure periods,
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.
Option Term Rent: Tenant shall pay the following rent for the Leased Premises:
Landlord and Tenant will attempt to agree upon a Fair Market Rental Value of
the Leased Premises satisfactory to both parties within thirty (30) days of
Tenant's exercise of its option. If no agreement can be reached by the parties
during that period, then the Base Monthly Rental for the Option Term shall be
determined by the Fair Market Rental Value of the Leased Premises as determined
by comparison to premises of similar size located 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 "Landlord's Appraiser". Within
thirty (30) days of being selected by the Landlord, the Landlord's 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 of the Fair
Market Rental Value, 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 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 the Fair Market Rental Value. The
Tenant's Appraiser shall make his own determination of the Fair Market Rental
Value in accordance with the provisions set forth above, within 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 than 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 in effect for the Option Term. If the Fair Market Rental
Value determined by the Landlord's Appraiser and the Tenant's Appraiser,
respectively, differ by an amount which is greater than 5% then, within ten
(10) business days after the Landlord's Appraiser and the Tenant's Appraiser's
determination of the Fair Market Rental Value, 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
Fair Market Rental Value which the Independent Appraiser believes, in his best
professional judgement, 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 and 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 the Tenant.
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EXHIBIT "G"
STANDARD LEASE SPACE SPECIFICATIONS
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 have acoustical
sealant 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 egress 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 veneer 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 sheathed as interior partitions above unless
otherwise noted on Architectural drawings.
B. PARTITIONS FINISH
All interior partitions, not pre-finished, will receive paint.
Paint to be Landlord's standard, two finish coats over one
primer coat. Color to be selected by Tenant from among
choices pre-selected by Landlord.
C. CEILING
To be suspended acoustical tile, 2'X4' omni fissured. Tile
and metal grid to be white.
D. FLOOR COVERING
1. Carpet to be Landlord's standard. 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, finish to match doors.
2. Resilient flooring to be Landlord's standard.
12"X12"X1/8". Color to be selected by Tenant from
among choices pre-selected by Landlord. Base at
resilient flooring to be ▇▇▇▇▇ 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. Door sizes to be 3'-0" X 7'-0" X 1-3/4" unless
otherwise noted on architectural drawings.
F. DOOR HARDWARE
To be ▇▇▇▇▇▇▇ 6 line Orbital series, 26D brushed chrome or
equal.
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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 Ives concave wall stop $407 1/2, or equal,
stainless steel finish.
G. LIGHTING
To be 2' X 4' 4 lamp, recessed, fluorescent light fixture with
acrylic lens.
H. ELECTRICAL/PHONE
Outlet locations as shown on Architectural 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
A. CONSTRUCTION AND FINISHES
To be 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 coats 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
1. Toilet - Armitage Shanks, white, model #109 or equal.
2. Lavatory - Armitage ▇▇▇▇▇▇ model #308, white, 19"
shelf rimming china lavatory with Price ▇▇▇▇▇▇▇
#H43-121 faucet or equal.
3. Lavatory - American Standard wall ▇▇▇▇ ▇▇▇▇▇▇▇
Vitreous China 3 hole #1024.121 (20" X 18") with
Delta handle faucet #2520 or equal.
4. Urinal - Kohler model #402, white with ▇▇▇▇ 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 satin 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.
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6. Grab Bars - Bobrick #B-490, stainless steel satin
finished 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
MECHANICAL/ELECTRICAL
A. HEATING AND COOLING
The interior premises are heated and 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) ▇▇▇▇▇ 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 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 the
120/208 volt, three phase, four wire. No additional service
to be provided for Tenant equipment unless otherwise noted.
One (1) light switch per office is 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 shown on Architectural drawings.
SUPPLEMENTAL ITEMS
A. COFFEE BAR
1. Base and upper cabinets to be Merrillat 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 ▇▇▇▇▇▇ #6852, 36" unit fiberglass shower stall with
glass shower door or equal. When shoer 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 of 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.
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